N700(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

ACTING PUBLIC PROSECUTOR

V

RICHARD SARONDUO AND OTHERS

Waigani
Woods J

24 November 1988
30 November 1988

CRIMINAL LAW - Practice and procedure - Search warrants - For building (not in village) - By whom information to be sworn - Evidence on information - Search Act (Ch No 341), s 6.1

Section 6 of the Search Act (Ch No 341) provides:

"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) anything with respect to which any offence has been or is believed on reasonable grounds to have been committed; or 

…

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."

Held

(1) Because s 6 of the Search Act makes distinct and specific provision for the requirements for obtaining a search warrant for a village or building in a village, the issue of a search warrant in respect of a building not in a village does not require the sworn information of a commissioned officer of the Police Force.

The State v James Bero Popo [1987] PNGLR 286, considered.

(2) The information on oath upon which the court may be satisfied need not be confined to affidavit evidence; supplementary oral evidence may be given.

Cases Cited

The State v James Bero Popo [1987] PNGLR 286.

Application for Judicial Review

This was an application, by way of judicial review, of the ruling of a District Court magistrate whereby he dismissed an information in support of a search warrant for a building.

Counsel

D G Russell, for the applicant.
C Karingu, for the second, third and fourth respondents/accused persons.
Cur adv vult

30 November 1988

WOODS J: The applicant in this matter is seeking the review of a ruling by a District Court magistrate whereby he dismissed the information laid against the second, third and fourth respondents.

The second, third and fourth respondents were charged with a drug offence and one the information of a police officer a search warrant had been issued and a search made of certain premises.

At the hearing in the District Court, before the police prosecutor had produced all his evidence, the respondents’ lawyer made a preliminary submission on the illegality of the search warrant under which certain exhibits had been obtained.

The grounds for the submission were that the search warrant did not comply with the Search Act (Ch No 341) in that it was not obtained on the information of a commissioned officer or above, there was no statutory declaration nor a sworn affidavit to support the information, and the search warrant was too general.

The magistrate ruled that, although s 6(1) of the Search Act makes no mention of a commissioned officer laying the information, s 6(2) is the subsection to be applied to the laying of an information for a search warrant under s 6(1). Therefore the information for a search warrant must be sworn by a commissioned officer, namely of the rank of inspector or above. The magistrate further ruled that the information laid must be supported by an affidavit.

Section 6 of the Search Act (Ch No 341) provides as follows:

"No 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) 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 the commission of any such offence; or

(c) anything as to which there are reasonable grounds for believing it 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."

Section 6 of the Search Act appears to allow for two separate situations for the issue of search warrants. Subsection (1) generally provides for the issuing of a warrant to search any building, craft, vehicle or place and the only requirement is that the court be satisfied by information on oath that there are reasonable grounds. There is no restriction in subs (1) that the information be laid by a commissioned officer. Subsection (2) is clearly laying down very careful requirements where a search warrant is sought for a village or a building in a village, and the reference in subs (3) to the police officer having to endeavour to obtain the co-operation of the village leaders in the subs (2) situation only emphasises that subs (1) and subs (2) are to be looked at as dealing with two different situations and thus the requirement for a commissioned officer in the subs (2) situation is separate from the subs (1) situation. The Parliament clearly wanted searches in a village situation to be carefully dealt with by senior police officers: see The State v James Bero Popo [1987] PNGLR 286.

I therefore find that the magistrate erred in ruling that the issue of a search warrant under s 6(1) of the Search Act required the sworn information of a commissioned officer.

With respect to whether the magistrate was satisfied by information on oath (the application to the magistrate was clearly done on oath), there is nothing requiring all the police evidence for the information to be embodied in affidavit form; perhaps the officer satisfied the magistrate who issued the search warrant by further oral information to support the basic sworn information. The magistrate here seems to have jumped to an assumption of what the police case was before he had actually heard the police evidence in the case. One cannot look behind the satisfaction of the magistrate who issued the search warrant without seeing the evidence in the case. all I have before me is the sworn information and the actual search warrant and the magistrate’s ruling.
I find the magistrate has clearly erred and I quash the decision of the magistrate given on 21 April 1988 and I order that the magistrate hear the said information according to law.

Decision quashed Matter remitted for rehearing

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Lawyer for the applicant: Public Prosecutor.
Lawyers for the respondents: Karingu Sitapai Kemaken & Associates.