N6386

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 58 of 2013

BETWEEN

ESSO HIGHLANDS LIMITED
Plaintiff

AND

MAGISTRATE COSMOS BIDAR
Defendant

Waigani:   Gavara-Nanu, J 
   				     2013:	13th December			     
				     2014:	29th August

CRIMINAL LAW - Practice and Procedure - Search Warrant - Search Act, Chapter No. 341, s.6. -Issuing of a search warrant - Offence being committed or about to be committed - Tests to be satisfied before a search warrant can be issued - Discretion of the Court.
					     
Cases cited:		
SCR No.2 of 1980; Re s.14 (2) Summary Offences Act, 1977 [1981] PNGLR 50
The State v. James Bero Popo [1987] PNGLR 286
	
Counsel:
K. Imako, for the Plaintiff
I. Mugugia, for the Defendant
	
29th August, 2014

1.	GAVARA-NANU J: This is an application by the plaintiff made pursuant to Order 16 r 5 (1) of the National Court Rules, to review the decision of the defendant given on 12 February, 2013 to issue a search warrant for the police to conduct a search of the plaintiff's office situated at Manidubu Street, Konedobu, NCD.  The defendant was the presiding magistrate in the case. The plaintiff claims that the search warrant was issued in breach of s.6 (1) of the Search Act, Chapter No. 341.

2.	The plaintiff relies on a number of grounds for this application.  In summary, the plaintiff claims that the Information laid by a First Constable Dii Evara, upon which the search warrant was issued was defective. The plaintiff also claims that there was no evidence that the plaintiff had committed the offence or was about to commit the offence alleged in the Information; and that the matters stated in the Information were also incapable of constituting reasonable grounds for the defendant to issue the search warrant.

3.	The search warrant was issued after an application was made by First Constable Dii Evara.   

4.	The Information was laid following complaints made by one Daniel Kandiawi that the plaintiff fraudulently withheld compensation money that was supposed to have been paid to him as a landowner or as a leader of the Tope clan in the Komo region of the Southern Highlands Province. It is to be noted here that Daniel Kandiawi has not sworn an affidavit to support and substantiate his claims. 

5.	The plaintiff is the operator of the PNG LNG project in Komo.

6.	An affidavit sworn by one Elvina Ogil who is the Compliance and Transactions Officer with the plaintiff, shows that the plaintiff has paid all the compensation payments which were due to all the landowner clans identified in the clan demarcations, including Tope clan as required under s. 118 of the Oil and Gas Act, 1998. 

7.	Allegations of fraud and misappropriation were made against the plaintiff by Daniel Kandiawi after he missed out on compensation payments made by the plaintiff to Tope clan. This raises a serious question on Daniel Kandaiwi’s motive in making the complaint. The evidence of Elvina Ogil re-enforces this point.  

8.	The notice of motion, filed on 8 February, 2013, pursuant to which the application for a search warrant was made, sought a search warrant to be issued to authorize police to search the plaintiff's office for any documents relating to the payment of K250, 000.00 the plaintiff made to Tope clan and the clan’s lawyers' letters of agreement to receive the payment.

9.	In paragraph 4 of the supporting affidavit of First Constable Dii Evara filed on 8 February, 2013, for a search warrant to be issued, it is deposed that the plaintiff had the relevant documents relating to the K250, 000.00 payment the plaintiff made to Tope clan.  First Constable Dii Evara further deposes that these documents were forged and the money was misused or misappropriated by the plaintiff.

10.	The plaintiff argued that there was no basis for the defendant to issue the search warrant because there was no evidence at all before him of an offence being committed or was about to be committed in its office.  It was also submitted that the search warrant was issued in breach of s. 6 (1) of the Search Act, because the materials that were before the defendant could not establish reasonable grounds for a search warrant to be issued.
  
11.	The defendant deposes in his affidavit (pp 29 to 30 of the R/B) that he issued the search warrant after considering all the relevant materials before him, namely, the Information and the supporting affidavit of First Constable Dii Evara. He deposes that he was satisfied on reasonable grounds based on the materials before him that an offence was committed or was about to be committed or that the search was likely to afford or attain evidence of the offence being committed in the plaintiff's office.  

12.	Section. 6 (1) of the Search Act, reads: 
	
	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.
 
13.	The grounds upon which the search warrant was issued had to be constituted by matters deposed to in the affidavit of First Constable Dii Evara and the Information. The defendant considered that these materials established reasonable grounds for him to issue a search warrant.

14.	After thoroughly considering all the materials which the defendant considered, viz; the Information and the affidavit of the First Constable Dii Evara as well as the affidavit of the defendant, I have come to a firm conclusion that these materials could not establish reasonable grounds for the defendant to issue a search warrant.

15.	Firstly, in regard to the affidavit of First Constable Dii Evara, which was the only supporting affidavit before the defendant, it does not state the location of the offence allegedly committed, or was about to be committed. The affidavit also contains hearsay evidence. 

16.	Furthermore, First Constable Dii Evara was also not the proper person to depose to the facts stated in the Information relating to an offence allegedly being committed or about to be committed because he could not vouch to those facts. This renders the Information defective.

17.	It is settled law that the grounds upon which the search warrant was issued had to be reasonable and that the grounds were capable of proof on the balance of probabilities:  See, SCR No.2 of 1980; Re s.14 (2) of the Summary Offences Act, 1977 [1981] PNGLR 50. This case involved passing of a valueless cheque. The court considered "reasonable grounds" in the context of a defence raised, that the person who issued the cheque believed on "reasonable grounds" that the cheque would be paid in full on presentation. The court said the reasonableness of the grounds upon which a belief held by the person that issued the cheque that the cheque would be paid in full on presentation required proof on the balance of probabilities. For example, the person issuing the cheque had to adduce credible evidence which led him to believe that he had enough or more than enough money in his bank account before issuing the cheque.  Such evidence would have constituted reasonable grounds for him to believe that the cheque would be met on presentation. The grounds upon which the belief was entertained by the person issuing the cheque had to be capable of being proved on the balance of probabilities.

18.	In this case, there were no facts which could constitute reasonable grounds upon which the defendant could entertain a belief that an offence had been committed or was about to be committed in the plaintiff's office, which could warrant him to issue a search warrant. The Information did not specify what offence was committed or was about to be committed, and the person who laid the Information, namely First Constable Dii Evara could not vouch to the facts stated in the Information, because he had no peculiar or personal knowledge of the facts. 

19.	This conclusion follows logically, given that the complainant upon whose allegations the Information was laid has not sworn an affidavit. The claims of fraud and misappropriation against the plaintiff made by Daniel Kandiawi were for the reasons given, highly suspicious and lacked foundation. Those claims remained mere allegations and were incapable of constituting reasonable grounds for the defendant to entertain a belief that an offence had been committed or was about to be committed in the plaintiff’s office and to issue the search warrant.  

20.	For the foregoing reasons, the Information before the defendant also failed to meet the requirements of s.6 of the Search Act, and any search of the office of the plaintiff made pursuant to the search warrant would be arbitrary and therefore be in breach of s.44 of the Constitution: The State v. James Bero Popo [1987] PNGLR 286.

21.	Consequently, I make the following Orders:
	
	1.	The decision of the defendant given on 11th of February, 2013 to 		issue a search warrant authorizing the members of the Royal 			Papua New Guinea Constabulary to enter and search the plaintiff's 		office situated at Manidubu Street, Konedobu, National Capital 			District is quashed.

	2.	All members of the Royal Papua New Guinea Constabulary are 			permanently restrained from entering and searching the plaintiff's 		office situated at Manidubu Street, Konedobu, National Capital 			District.  

	3.	All members of the Royal Papua New Guinea Constabulary are 			permanently restrained from obstructing or interfering with the 			work and operations of the plaintiff, its servants and agents 			including its officers and employees in their office situated at 			Manidubu Street Konedobu, National Capital District.

22.	The plaintiff's costs of and incidental to this application be paid by the State, the employer of the defendant.
 _______________________________________________________________
Allens Linklaters Lawyers: Lawyers for plaintiff		
Solicitor General		 : Lawyers for defendants