Public Prosecutor v Naylor [2007] VUSC 62; Criminal Case 02 of 2007 (13 June 2007)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

CRIMINAL CASE No.02 OF 2007

PUBLIC PROSECUTOR

-v-

NAYLOR
ANDREW TARTAR
KELL WALKER

Coram: Chief Justice Vincent Lunabek

Counsel: Mr Eric Molbaleh for the Public Prosecutor
Mr John Malcolm for the Defendants

JUDGMENT

This is an application by the above-named Defendants dated 12 June 2007 to set aside the Search Warrant dated 8 June 2007 issued by a Magistrate in Port-Vila on same date.

The application is advanced on two (2) main grounds:-

The first is that the Search Warrant was obtained improperly. It is said there was no complaint made and even if there was a complaint, it was not made by the owner of the ship or the owner of the properties alleged to be removed on the boat.

The prosecution provides a copy of a complaint of the Maritime Authority dated 16 May 2007. The prosecution provides also a copy of a letter addressed to Mr John Less Napuati by Mr Morrison Nigel acting as counsel of the owner of the vessel Retriever 1.

Mr John Malcolm provides also a copy of the Supreme Court civil claim challenging the ownership of the Retriever 1 and the alleged removed properties.

For the purpose of carrying out an investigation, the complaint is valid. The first ground is dismissed.

The second ground is that the Search Warrant is too wide and as such unreasonable. It is frivolous and vexatious.

Section 55 of the Criminal Procedure Code [CAP.136] is the relevant provision. It provides:

"55. Where it is proved on oath to a judicial officer that in fact or according to reasonable suspicion anything upon, by or in respect of which an offence has been committed or anything which is necessary for the conduct of an investigation into any offence is in any building, ship, aircraft, vehicle, box, receptacle or other place, the judicial officer may by the issue of a search warrant authorise a police officer or other person therein named to search the building, ship, aircraft, vehicle, box, receptacle or place named or described in the warrant for any such thing, and if anything searched for be found, to seize it and detain it for use in evidence."

The relevant limp of this section is:

"Where it is proved on oath to a judicial officer that according to reasonable suspicion anything which is necessary for the conduct of an investigation into any offence..." is in a ... ship... the judicial officer may by the issue of a search warrant authorize a police officer... to search the .... ship...".

This limp of section 55 is wide. It is the intention of Parliament to do so. What was sought in the Search Warrant are within the meaning of Section 55 of the Criminal Procedure Code. The search warrant is not too wide, or vexatious or frivolous. The second ground is dismissed.

The application is dismissed in its entirety.

DATED at Port-Vila this 13th day of June 2007

BY THE COURT

Vincent LUNABEK
Chief Justice