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Kepiou v Alu [1999] PGDC 10; DC56 (8 June 1999)

Unreported District Court Decisions

[1999] PNGDC 2 - MARK KEPIOU V WAL ALU

[1999] PNGDC 2

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NO 606 OF 1999

MARK KEPIOU (Informant)

v

WAL ALU (Defendant)

Madang

Bidar PM

27 May 1999

8 June 1999

SUMMARY OFFENCES—Liquor licensing—Trading without licences—Provincial Liquor Licensing (Miscellaneous) Act s20(1)

PRACTICE AND PROCEDURE—Search Warrants—When required—Not required where "immediate pursuit"—"immediate pursuit" equivalent to "hot pursuit"—Search Act (Ch341) s5(5), s6(1)

PRACTICE AND PROCEDURE—Search Warrants—For Buildings (not in village)—By whom information to be sworn—Evidence on information—Search Act (Ch341) s6

Cases referred to

The State v James Bero Popo [1987] PNGLR 286

John Alex v Martin Golu [1983] PNGLR 117

Legislation

Search Act (Ch341) s5(5), s6(1), s6(2)

Constitution s38, s44, s49

Provincial Liquor Licensing Act s20(1) or Provincial Liquor Licensing (Miscellaneous) Act s20(1)

Representation:

Counsel/Representative:

Informant: Constable M Ansini

Defendant: Appeared in person

Lawyers/Representative:

Informant: Constable M Ansini

Defendant: Appeared in person

8 June 1999

BIDAR PM:

N1>[1]      This was a trial of defendant charged with selling liquor to wit, SP brown beer without being licensed for that purpose, as prescribed under the Provincial Liquor Licensing Act, contrary to s20(1) of Provincial Liquor Licensing Act.

N1>[2]      The defendant Wal Alu is charged that he on 3 April 1999 sold liquor, to wit SP brown beer, without being licensed for that purpose, contrary to s20(1) of the Provincial Liquor Licensing Act.

THE ALLEGATIONS:

N1>[3]      The premises where the alleged illegal sale of liquor took place is owned by Mr John Buri, and is located at the back of Redscar Trading Madang Town.

N1>[4]      The Defendant being an employee, agent or servant of Mr Buri is alleged to have sold liquor to members of the public without being licensed to do so, and it was during a liquor restriction period.

THE EVIDENCE:

N1>[5]      The prosecution's case consists of evidence by Joseph Tori, a liquor licensing inspector with the Department of Madang Administration and Senior Sergeant Alfred Kumasi. Mr Joseph Tori was acting on public complaints that illegal sale of beer took place at John Buri's premises. From liquor licensing records, John Buri does not possess or was not issued a licence to trade in liquor.

N1>[6]      At 11.45 pm on 2 April 1999, which was the night of Good Friday, there was in force a total ban on the sale of liquor by bottle shops and clubs, except in hotels which serve their guests with meals. Mr Tori in the company of a policeman visited the premises in question. Whilst the policeman remained outside, out of sight, Mr Tori went in the premises with two K5.00 notes and asked to buy beer. He bought five bottles of SP brown beer. Since he had no manpower to conduct a search or raid, he left the premises.

N1>[7]      On 3 April at 12 noon, Mr Tori and a number of policemen went to John Buri's premises again. The defendant was outside the gate of the premises. They sought permission from him to check the house as it was suspected that he (the defendant) sold beer. The defendant agreed, and so Mr Tori and the policemen went into the house, searched it, and sized 22 cartons of SP beer. All cartons were opened and were placed in a deep freezer. At the time the owner of premises, Mr John Buri and his wife, were at the Gold Coast playing golf.

N1>[8]      Senior Sergeant Alfred Kumasi's evidence is substantially the same as that of Joe Tori. According to Sergeant Kumasi the beer they seized was taken to the Police Station. The defendant was also arrested at the same time and taken to the Station and charged.

N1>[9]      Defendant gave an unsworn statement and called Mr John Buri, the owner of the premises who testified on oath. Defendant denied he sold beer. He had only arrived from Mount Hagen about 2 am on 3 April 1999, on Mr Buri's invitation. Mr Buri had instructed him to look after his house while he and his wife went for a game of golf.

N1>[10]    Mr John Buri is a self-employed businessman who operates shops in town. Early Saturday morning, 3 April 1999, defendant arrived from Mount Hagen to pick up his wife who had been with Mr Buri for sometime. Prior to defendant's arrival, John Buri had bought 20 cartoons of SP beer and his in-law from Bougainville bought two cartons. The beer was to settle an incident where John Buri fought with certain security personnel from Securimax Security Company, which was to take place on Sunday, 4 April 1999. There was to be a peace making party and the beer was meant to be drunk at the party. The party did take place on Sunday less beer as it was seized by Police. Before he left to play golf on that Saturday morning, he placed 18 cartons of beer in the deep freeze so that by Sunday, the beer would be cold. He admits he does not possess a licence to trade in liquor and denies he ever traded in liquor.

N1>[11]    The crucial issue to be decided in my view, is the legality or otherwise, of the search and seizure of the beer and cash, and the admissibility of any evidence relating thereto. There is absolutely no evidence to suggest a search warrant was applied for and obtained prior to search and seizure of the property in question. The prosecution is duty bound to satisfy the Court that the search was lawful under the Search Act (Ch341).

N1>[12]    There is only one section (s5) under Part III Division 1 (Searches without warrant) of the Search Act.

N1>[13]    Under Division 2 (Search Warrant) s6-s8 deals with circumstances where a search warrant is issued, to whom it is directed and the form of the warrant. S5(5)(b) is in these terms:

N2>"(5)     Where a policeman is in immediate pursuit of a person whom he believes on reasonable grounds to have committed an indictable offence, he may or persons authorised by him, search any building or place in which he believes on reasonable grounds that the person being pursued

(a)      is concealed;

(b)      or has, in the course of his pursuit, concealed or deposited anything."

N1>[14]    The meaning is to be given to this subsection of course depends upon the construction one places on the phrase "immediate pursuit." In my view, this means immediate pursuit there and then physically, which is same as "hot pursuit," where there is no opportunity or time to take any other course of action, otherwise, the opportunity for apprehension, seizure of property, prevention of concealment of property or prevention of escape will be lost. See the State v James Bero Popo [1987] PNGLR 286 at 286.

N1>[15]    The facts I am prepared to accept are these: Number of public complaints were received at the Liquor Licensing Office that liquor was illegally sold at John Buri's residence. It is not clear when these complaints were received, but it seems sometime prior to the raid/search of the said premises. At the relevant time liquor restrictions were imposed as is normally the case, during Easter weekend. There was a total ban of sale of liquor at the bottle shops and clubs, except, hotels which serve guests with meals. Liquor inspector and a policeman went to the premises on Friday night, 2 April, which was a Good Friday and a public holiday.

N1>[16]    Wednesday, 1 April 1999, was a working day and a Search Warrant could have been applied for and obtained by police, when liquor inspector sought police assistance. This was not the case, in this case. There is clearly no evidence that police was in "immediate pursuit" of defendant so as to authorise them under s5(5)(a) or (b) of the Search Act, to search and seize property from a private premises.

N1>[17]    Section 6 of the Search Act is in these terms:

N2>"6.      Issue of Warrants.

(1)      If a Court, other than Local Court is satisfied by information on oath that there are reasonable grounds for suspecting that there is in any building, craft, vehicle or place—

(a)      Anything with respect to which any offence has been or is believed on reasonable grounds to have been committed; or

(b)      Anything as to which there are reasonable grounds for believing it is likely to afford evidence of commission of any such offence; or

(c)      Anything as to which there are reasonable grounds for believing it, it is intended to be used to commit any such offence.

(2)      If a Court, other than Local Court is satisfied by information on oath by a commissioned officer of the Police Force that there are reasonable grounds for suspecting that there is in any building or buildings in a village or in any part of a village or village garden anything specified under subsection (1)(a), (b) or (c), it

(3)      may issue a warrant to search the building, buildings, village, part of the village or village garden.

(4)      . . . "

N1>[18]    What consequences follow where there is no "immediate pursuit" or "hot pursuit," as in this case, thus, by law, a requirement of search warrant, such a search first of all, is unlawful, and consequently, any evidence obtained thereby is unlawfully obtained, and liable to be rejected. It does not automatically follow that such evidence should be rejected.

N1>[19]    There remains in Court the common law judicial discretion whether or not to reject it. This discretion is distinct from power given to National Court under s57 of the Constitution to make orders and enforce and to protect any breach of fundamental rights and freedoms guaranteed under the Constitution.

N1>[20]    See the State v James Bero Popo (supra). I also refer to the case of John Alex v Martin Golu [1983] PNGLR 117, which provides distinction in these two discretionary powers.

N1>[21]    The Search Act (Ch341) is of course an Act permitted by s44 and s49 of the Constitution, to regulate or restrict the freedom from arbitrary search and entry and in compliance with s38 of the Constitution.

N1>[22]    I apply the principles discussed to the facts of this case. I make the following findings:

N2>1.       I am satisfied in the circumstances a search warrant should have been applied for and obtained pursuant to s6(1) of the Search Act.

N2>2.       I am not satisfied at all, there was immediate pursuit under s5(5).

N2>3.       There was in fact no search warrant obtained.

N2>4.       Search Act was not complied with consequently breach of s44 and s49 of Constitution.

N2>5.       The search was therefore unlawful.

N2>6.       Evidence of search and seizure of property are all liable to be rejected.

N2>7.       Court has common law discretion to reject such evidence.

N1>[23]    In the final analysis, in the exercise of my common law discretion, I reject the evidence obtained in breach of the Search Act and s44 and s49 of the Constitution.

N1>[24]    I consider there are stronger constitutional and public policy considerations in my view, persuade disallowance of this evidence from this case.

N1>[25]    Based on the above findings, I therefore, find defendant not guilty and discharge him forthwith.