Papua New Guinea
[In the Committal Jurisdictions of the District Court Held at Waigani]
Waigani District Court

S/W No. 145 OF 2021

BETWEEN:

LEONARD WAI
[Police Informant]

-v-

THE DIRECTOR GENERAL NATIONAL YOUTH DEVELOPMENT AUTHORITY
 [Defendant]

His Worship Paul P Nii  

Date: 05 May, 2021

Search Warrant: - Court order - authorize law enforcement officers- conduct search on office for evidence -crime-confiscate evidence-Section 6 of the Search Act-Issue of Warrants-

EVIDENCE: Criminal Process-investigations to ascertain evidence though search warrant.

PNG Cases cited:
William Sent v Cosmos Bidar(2017) SC 15772
Shem Emmanuel v Elizabeth Iga [2003] PNGLR 20
Lawerence Wood Limited –v-Inspector Leonard Wai (2020)

Overseas cases cited: 
Nil

References

Legislation
Search Act 
District Court Act
Constitution 

Counsel

Police Lawyer: Pare Kuiap					For the Informant
Mr Gibson Bon 							For the Defendant

RULING ON A MOTICE OF MOTION

06th May 2021

INTRODUCTION

NII, P Magistrate. This is my decision on a Notice of Motion filed by the Defendant on 28th April 2021, seeking to repossess documents property of the Defendant which was confiscated by police pursuant to a Search Warrant issued by the court on 15th March 2021.  

WARANT OF SEARCH

1.	Search was carried out by Police against the Defendant through an Order of the Court dated 15th March 2021

FACTS

2.	A criminal allegation was raised against the Defendant and subsequently Police informant went and sought a search warrant in this court and orders for search were issued on 15th March 2021. Police obtained the search warrant to attain any documents which may deliver any information believed on reasonable grounds linking to the allegation. On 9th April 2021, Police filed an Application for a warrant of arrest against Mr Joe Itaki and Winne Milam and on 12th April 2021 Mr Itaki was arrested by members of the Police at Port Moresby International Airport. On 15th April 2021, or immediately thereafter, the Search warrant of 15th March 2021, was executed by members of the Police force.

3.	On 28th April 2021, Defendant through Gibson Bon Lawyer has filed a Notice of Motion to have the seized items returned to the Defendant and now is my ruling on the application.

ISSUE

4.	Whether the Search Warrant issued on 15 March 2021 be set aside and all subject documents apprehended by Police be returned to the Defendant Organization?

THE LAW 

The Law of Search Warrant

5.	Section 6 of Search Act is the focal law that governs the conducts of search warrant in the following terms:  

	“6.	Issue of warrants.

	(1)	If a court, other than a 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)	any thing with respect to which any offence has been or is believed on reasonable grounds to have been committed; or
	(b)	any thing as to which there are reasonable grounds for believing it is likely to afford evidence of the commission of any such offence; or
	(c)	any thing as to which there are reasonable grounds for believing is intended to be used to commit any such offence,
it may issue a warrant to search that building, craft, vehicle or place.
	(2)	If a court other than a 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 any thing specified in Subsection (1)(a), (b) or (c), it may issue a warrant to search the building, buildings, village, part of the village or village garden.
	(3)	Where a warrant has been issued under Subsection (2) the person, policeman or policemen to whom the warrant is directed shall, where it is practicable to do so, before executing the warrant, endeavour to obtain the co-operation of those persons who, by custom, are regarded as the leaders of the village in respect of which the warrant has been issued.
	(4)	Subsection (1) or (2) does not justify the use of greater force than is reasonable in the circumstances.”

DEFENSE CASE

6.	Defendant through a Notice of Motion dated 29th April 2021 has sought the following terms of orders:

6.1.	Pursuant to Section 22 of the District Court Act , the entire documents received executing search warrant issued by this court on the 9th April 2021 is returned to the Department of National Youth Development Authority in its original form forthwith.

6.2.	Pursuant to Section 22 of the District Court Act, Police are directed to issue exhibits of what documents needed for the investigations to be complied by the National Youth Development Authority.

6.3.	Costs of the Application in the cause.

6.4.	Such further orders this court deems appropriate. 

7.	Mr Gibson Bon for the Defense made a Preliminary application to withdraw a previous Notice of Motion which he filed on 21 April 2021 and with leave of court Application was granted for the Notice of Motion to be withdrawn. Mr Bon for the Defendant then moved his Application through another Notice of Motion filed on  29th April 2021 supported by the Affidavit of Winnie Milam filed and sworn on the 28th April 2021. Mr Bon submits the Application to set aside the Warrant of Arrest was filed on the ground that it was too general. Mr Bon points out to the court the search warrant did not particularize the exact names of documents and files to be apprehended and hence all documents impounded be immediately released to the Defendant.

8.	Defendant’s Lawyer argued that that Defendant needed the files and documents seized for preparation and presentation of acquittals for the fiscal year 2019 and 2020 and for the operation of the National Youth Development Commission. Mr Bon submits Police did not provide any exhibits or list of documents to be searched and hence submitted that before these documents are gone away to the hands of Police they instantly want it back.

9.	Defense counsel also submits that the manner in which police executed the search warrant is criminal and illegal as they broke through the Defendant building and confiscated the files and Documents which Police believed documents subject of their search warrant. Based on the forgoing, counsel submits for the warrant of arrest to be set aside and documents seized be returned to the Defendant.

POLICE CASE

10.	Mr Pare Kuiap Lawyer for Police braced his response to the Defendant’s application through the Affidavit of Leonard Wai the Police informant filed and sworn on 3rd May 2021. Mr Kuiap fundamentally explicated the cause for why the search warrant was acquired against the Defendant. Lawyer for the Police submits that his client the Police was receiving a Complaint of Fraud for misappropriation of Money at the National Youth Development Authority office. Police submits that after the receipt of the said Complaint, they needed further inquiries at the Office of the Defendant and hereafter Police acquired the search warrant on 15th March 2021.

11.	Police Lawyer argued that on 9th April 2021, Police filed an application for a Warrant of Arrest for the arrest of Joe Itaki and Winnie Milam. On 12th April 2021, Mr Itaki was arrested by Police at Jackson International airport in 7 mile. Mr Kuiape further submits on the date of Mr Itaki’s arrest Police went to serve the search warrant on the Defendant but were told that a female who had the keys to the building went to Lae and hence the documents to be searched subject of the search warrant to be done upon her return but that did not eventuate as promised and it consequently enforced members of police to apply equitable force to enter the Defendant building and obtained documents subject of the search warrant.

12.	Mr Kuaip for police argued that Police will return the documents including files which are not named in the search warrant. Police Lawyer maintains that his client will go through all the files and return what was not relevant for the purpose of their search and subsequent investigations. Based on this Lawyer for Police submits that searching and obtaining of information for purposes of further investigations concerning allegations are their constitutional duty mandated by Laws to execute and hence he argued the search warrant was lawfully executed and hence the Orders sought in the Defendant’s Notice of Motion be dismissed. 

CONSIDERATION OF THE DEFENCE CASE

13.	Defendant’s arguments is based on the description of documents and files to be seized in the search warrant. Defendant says the Search Warrant is purely general and does not specifically contain names of documents to be collected for purposes of further investigations. Defense contests that the search warrant itself is unclear and hence documents obtained be returned to the Defendant.

14.	Defense argued for the Search Warrant to be set aside and all items seized be returned to the Defendant. Do I have the powers to set aside a search warrant? Before I answer this I should look at the District Court’s jurisdiction. Her worship Magistrate Magaru in Lawerence Wood Limited –v-Inspector Leonard Wai (2020) made an essential finding about District Courts power to decide on a search warrant. Her worship stated that “District Courts are creatures of statue. We can only act within our governing legislations. It is therefore incumbent on Magistrates to determine jurisdiction prior to hearing of the substantive applications” her worship’s position was further reaffirmed by his honor (as he then was) Kirriwom J in Shem Emmanuel v Elizabeth Iga [2003] PNGLR 20 clearly stated at page 2117 that: 

“The power of the District Court is limited to what the enabling Act expressly provides. Generally all courts of summary jurisdiction exercise their powers within the limitation imposed upon the court as creatures of Statute. They are not court of records. Their first source of power is the law under which the District Court is given the jurisdiction to deal with a matter, for example in this case the Adultery and Enticement Act. If a remedy sought under that Act is unavailable the next reference point is the District Court Act, which is the overall law that creates the Court and gives it power. If that Act is silent or makes no provision for the type of relief that a party seeks, there is no other source. That is why the District Court and all other subordinate courts are courts of limited jurisdiction to the matters specifically granted to them by statute”.

Given this circumstance it is apparent the District courts derive its authority from the Search Act to assume jurisdiction of matters of search warrant but this Law does not provide any avenues for search warrant to be set aside, the Law appears to be soundless. Do I still have powers under the District Court Act to set a Search Warrant Aside? Defendant has cited Section 22 of the District Court Act in support of his application to revoke the Warrant of Arrest. Although the Law is quite confusing and elusive where its application may be applied in both criminal and civil matters, some Magistrates may have their own opinion and understandings of the provision. I would treat Section 22 of the District Court Act as is applicable to both civil and Criminal proceedings. For the Purpose of Defendant’s application, the execution of search warrant is part of an ongoing criminal process in a criminal allegation and hence I will exercise my statutory powers not to disturb the process. The Supreme court case of William Sent v Cosmos Bidar (2017) SC 1582, says that Search warrant and warrant of arrest are part of the criminal case process and hence will let the process to continue.

CONSIDERATION OF POLICE CASE
15.	Police derives its authority under Section 197(2) of the Constitution. Their functions are reinforced by Law. This means when Police conduct searches for further enquiry or for purposes or arrest and prosecution, their actions are funded on Law and hence they are deemed to be carrying out a constitutional obligation. Nonetheless, when Police carry out their duties, they should do with professionalism and with compliance to the established rules and practices that are applicable in the discharge of police duties. I have judiciously looked at the search Warrant of 15th March 2021 and found out that the objective of the search warrant was to obtain:

13.1.	Copies of any payment vouches, copy of any cheque payment and the proposal submitted from the National Youth Development Authority to the National Planning and Monitoring Under Project titled “Regional Youth Incubation/Hubs”,

13.2	Correspondence made for the approval of the “Regional Youth Incubation/Hubs”,

13.3.	Any other copies of Correspondence made to Finance Department in regards to proposed submission made by NYDA for the payment of K8 Million kina.

16.	The purpose of the search warrant was to obtain documents only relating to the searched documents and files or any other documents which relates to the above documents. The court orders of 15th March 2021 were to obtain documents provided in the search warrant which I have labeled in paragraphs 13.1 – 13.3 above. Police when carrying out their duties should comply with the contents of the search warrant. However, if search warrant was executed outside of its intended purpose then it is illegal and an abuse of the planned purpose.

17.	The main purpose why police issued the search warrant was to obtain better particulars and evidence concerning an allegation of fraud that was raised against the National Youth Development Authority. Therefore, the Search Warrant was to obtain further particulars regarding an allegation of a payment of K8 million by the State to National Youth Development Authority for a “Regional Youth Incubation/Hubs”.

18.	When carrying out a search warrant by members of Police they should obtain documents only mentioned in the search warrant, strict compliance of the contents of search warrant is important as in far as Police duties under the Constitution is concern. Other documents or files that do not fall under the documents or files characterized in the Search warrant to be searched or seized should not be subject of any further investigations or seizures by Police. 

RULING

19.	I will not set aside the Search warrant of 15 March 2021. The warrant of Search is the beginning of a criminal process which Police have started and hence the process will not be disturbed. Nevertheless, in starting the process Police must not abuse their Powers by engaging in activities which are against their code of conducts, their actions must be guided by Law. Police must not collect documents which are not specified in the search warrant. They must collect documents which are only specified in the search warrant as items/documents to be searched and detained for reasons of further investigations.

CONCLUSION

20.	The Defendant’s application is decided in the following manner as how it appears in the orders. 

ORDERS

1.	The Application for the whole documents/files to be returned to the Defendant is refused.
 
2.	The Search Warrant issued on 15th March 2021 against the Defendant is enforceable ONLY to the items specified in the search warrant.
 
3.	Members of the Police force are ordered to return the Defendant’s documents or files which are not itemized and or specified as files and documents to be searched in the search warrant of 15th March 2021.

Gibson Bonn Lawyers					For the defendant
Pare Kuiap						For the Police