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Soh Chiam Bee v Avali [2001] PGNC 74; N2148 (21 November 2001)

N2148
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

APPEAL NO. CIA 131 OF 2001

BETWEEN:

SOH CHIAM BEE

-Appellant-

AND:

GEORGE AVALI

-Respondent-

LAE: INJIA, J.
2001: NOVEMBER 21

CRIMINAL LAW – Practice and Procedure – Search Warrant – District Court – Jurisdiction to vary or revoke Search Warrant which are formally detective or issued "without reasonable grounds."
Held:

District Court has jurisdiction to vary or revoke Search Warrant issued in error or without reasonable grounds under S.3(1) of the Search Act (Ch. No. 341).

Cases cited:

Acting Public Prosecutor v Richard Saranduo [1988] PNGLR 17.
The State v. James Bero Popo [1987] PNGLR 286;
John Alex v. Martin Golu [1983] PNGLR 117;

Counsel:
J. Tinga for the appellant

M. Unido for the respondent

21 November 2001

INJIA, J.: The appellant is appealing against the decision of the District Court made on 18 May 2001 dismissing the appellant’s application to dismiss a Search Warrant issued by the same Court on 14 May 2001 to search the appellant’s business premises situated at Allotment 11 Section 19, East Taraka, Lae. The warrant authorised police to search the premises of Tiong Seng Constructions Yard at East Taraka, Lae, a container occupied by Miss Soh Chiam Bee, search for certain properties, believed, on reasonable grounds to be either the fruits of an offence of stealing, to provide evidence of the offence or required to commit an offence. The property items listed in the warrant were 2 x cash register, clothings, groceries, drapery, 1 x 4" TV, washing machine, tables and chairs, suspected to be stolen is in his possession.

The Court issued the Search Warrant based on the respondent’s sworn information laid before the Court and the respondent’s affidavit sworn on 14/5/01. The sworn information stated as follows:

"I Constable George Avali of police investigator of Serious crime squad, Lae Police Station, P O Box 313, Lae, Morobe Province hereby declared that Miss Soh Chiam Bee is believed to be in possession of the following stolen properties namely 2 x cash registers, clothings, groceries drapery, 1 x 14" TV, washing machine, table and chairs being the grounds for which a search warrant may be issued in respect of a container at Tiong Seng Constructions Yard at East Taraka and the dwelling house of Miss Soh Chiam Bee."

The respondent’s affidavit stated:

"I, Constable George Avali of police station duly sworn on oath and say as follows:

1. I’ve received information from some reliable sources that there is at Tiong Seng Construction yard, a container containing, 2 x cash register, clothings, groceries, drapery, 1 x 14" TV, Washing machine, tables and chairs, all stolen properties.
2. They were removed by Miss Soh Chiam Bee at Malaita Street on or about 4th May 2001, at Akatawa Limited without the consent of the company."
   

The facts contained in the sworn information, the respondent’s affidavit and the Search Warrant were intended to satisfy the requirements of S.6(1)(a)-(c) of the Search Act (Ch. No, 341) which provides:

(1) If a court, ..... is satisfied by information on oath that there are reasonable grounds for suspecting that there is in any building, ..... 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 is intended to be used to commit any such offence,
  

it may issue a warrant to search that building, ..... or place."

On 18/5/01, when the appellant moved her motion before the District Court, there was no evidence placed before the District Court from the respondent as to whether the Search Warrant was executed and if so, the details of that search and what properties, if any, were seized from the container. The only evidence of a search being conducted was the appellant’s affidavit sworn on 18/5/01. She stated that on 16/5/01, police conducted a search of the said premises. She said the police officers were unable to locate the stolen items, and then went on to remove other items contained in boxes which were in the container, belonging to herself. She stated she did not steal the goods referred to, that police were misinformed and consequently carried out an illegal search. However, she did not provide any detail of the precise items seized by police which were her own. Such evidence would have shed light on whether or not the items seized were authorized to be searched for and seized as per the list of items contained in the Search Warrant. The District Court dismissed the application saying it was pre-mature for the Court to be asked to dismiss the Search Warrant because police investigations were still continuing. In any event, the Magistrate said the District Court had no jurisdiction to dismiss its own Search Warrant whereas only the National Court has that jurisdiction.

The grounds of appeal are that the learned Magistrate:

(a) did not properly consider the case authorities as stated in the Appellant’s lawyer’s Affidavit, one Janethie Tinga and her submission before dismissing the Appellant’s application based on the lack of jurisdiction of the Court;
(b) did not properly exercise his discretion before refusing the application made by the Appellant to dismiss the Search Warrant of 14th May 2001;
(c) did not consider the Respondent’s Affidavit supporting the Motion against the Respondent’s Affidavit, but bluntly refused to entertain the Appellant’s Notice of Motion; and
(d) did not properly consider the provisions of section 6(1) of the Search Act Chapter 341, before dismissing the Appellant’s application.

Miss Tinga of counsel for the appellant was also the counsel representing the appellant in the District Court. The grounds of appeal reflect the submissions she made before the District Court. These submissions are repeated before me. She submits the District Court had jurisdiction to entertain the application and had it assumed the jurisdiction which it had, it would have dismissed the warrant because the Search Warrant was not based on sufficient and reasonable grounds to satisfy the Court as to any of the criteria in S.6(1) of the Search Act. In support, she cites a District Court decision of Grade 5 Magistrate Mr. Raphael Appa in The State v. Jeffrey Lewis dated 25/11/94, which discussed a number of National Court cases including John Alex v. Martin Golu [1983] PNGLR 117; The State v. James Bero Popo [1987] PNGLR 286; Acting Public Prosecutor v Richard Saranduo [1988] PNGLR 17. The issue in Jeffrey Lewis case was the admissibility of evidence in a trial in the form of unlicensed firearms and ammunitions seized on a Search Warrant which in the opinion of the Magistrate did not disclose "sufficient and reasonable grounds" as required by S.6(1) of the Search Act. His Worship ruled that the items were inadmissible. Miss Tinga submits that by analogy, Jeffrey Lewis’ case shows that the District Court has an inherent jurisdiction to entertain any challenge to the validity of a Search Warrant.

Mr. Unido submits assuming the District Court had jurisdiction to entertain the application, the Magistrate correctly refused to revoke the Search Warrant because investigations were still continuing. He submits the respondent’s affidavit satisfied the requirements of "reasonable grounds" under S.6(1), that a proper search was conducted and goods under a valid Search Warrant were seized. He submits, if the appellant has any remedy for abuse of the valid Search Warrant, it is in an action for damages against the policemen involved, instituted in the National Court or the District Court under S.17 of the Search Act.

In relation to the issue of jurisdiction, there is no provision in the Search Act either authorizing or prohibiting the District Court from revoking or quashing its own Search Warrant. There is also no provision empowering only the National Court to revoke or quash a Search Warrant issued by the District Court. In my view, it is within the inherent jurisdiction of the District Court issuing the Search Warrant, with or without application by an aggrieved person, to recall the Search Warrant at any time, with a view to re-examining its validity, either in terms of its form or substance and where warranted, vary or revoke it. It is trite law that a Court which has statutory power to issue a Warrant, a Search Warrant in this case, has the inherent power to vary or revoke it. It does not seem procedurally right that a Court which issued the Search Warrant, erroneous or otherwise, in connection with proceedings can fold its hands and say "Well, I cannot do anything about it. You go to the appellate Court to sort it out." Where the Search Warrant has already been executed, but the Warrant is later found to be formally defective or not founded on "reasonable grounds", it is within the jurisdiction of the District Court to revoke or quash it, and if the seized goods can be returned in their original form, then orders can be so made. But where the goods seized in the execution of the Warrant cannot be returned, or there are other alleged abuses committed by policemen in the execution of the Search Warrant, then it is a question of damages and the appropriate procedure is to institute an action for damages against the policemen concerned under S.17 of the Search Act. This section provides for an action for damages to be brought against the policemen involved, either in the National Court or the District Court. For these reasons, I find that the Magistrate erred in declining jurisdiction to entertain the application.

Also, I find that having committed this procedural error, the Magistrate did exercise his discretion in refusing to revoke the Search Warrant for a different reason which is not challenged in this appeal. The appellant challenges the decision on the basis that the Magistrate erred in not dealing with the basis of her application which was founded on the absence of "reasonable grounds". I accept this contention. I find that the Magistrate erred in law in not dealing with the appellant’s basis for challenging the validity of the Search Warrant. These two procedural blunders committed by the Magistrate are fundamental errors which vitiates his decision.

As an appellate Court, in view of the lack of evidence or sufficient evidence from both parties as to the nature and extent of the search carried out and the particulars of items seized by police, I am unable to determine the issue. The proper course open to me is to remit the matter back to the District Court to entertain the appellant’s application in accordance with this opinion.

The orders I make are:

1. The appeal is allowed.
2. The decision of the District Court made on 18/5/01 is quashed.
3. The matter is remitted to the District Court for re-hearing.
4. The respondent pay the appellant’s costs of the appeal.

________________________________________________________________________
Lawyer for the appellant : Pryke & Bray
Lawyer for the respondent : Police Legal Department