N9014

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 284 OF 2020

BETWEEN:
NAPOLEON WAGAMBIE
Applicant

AND:
HER WORSHIP NANCY LIPAI, PRESIDING MAGISTRATE,
LAE DISTRICT COURT
First Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Lae: Dowa J
2021: 15th & 21st July
JUDICIAL REVIEW – review of decision made by the district Court to issue a search warrant– breach of section 6 of Search Act, plaintiff seeks orders in certiorari to bring into court and quash decision of first respondent in issuing the search warrant - 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 - whether plaintiff is entitled to judicial review and the reliefs sought in the notice of motion
Cases Cited

SCR No. 2 of 1980; Re s14 (2) of the Summary Offences Act, 1977 [1981] PNGLR 50
Esso Highlands Ltd v Bidar (2014) N6386
Goi v Bank of South Pacific Limited (2020) N8271
Kekedo v Burns Philip (PNG) Ltd [1988-1989] PNGLR 122

Counsel

T. Berem, for the Applicant
B. Tomake, for the First & Second Respondents

RULING
21st July, 2021

1.	DOWA J:	This is a ruling on an application for Judicial Review.  Leave for review was granted on 18th February 2021.

2.  	The decision for review sought in the Notice of Motion is set out below:

(1)		Pursuant to Order 16 Rule 5 of the National Court Rules, a 	Declaratory Order that the decision of the First Respondent made on 	15th May 2020 to grant the Search Warrant to Informant/Applicant 	Inspector Peter Yambun in proceeding entitled as SW No. 103 of 	2020 is unlawful, ultra vires, and void ab initio.

(2)		Pursuant to Order 16 Rule 5 of the National Court Rules, a Writ of 	Certiorari be issued into this Court and the decision of the First 	Respondent made on 15th May 2020 to grant the Search Warrant to the Informant/Applicant Inspector Peter Yambun be quashed 	forthwith.

(3)		An Order that all the information, image print outs and texts obtained 	from Digicel (PNG) Limited by Inspector Peter Yambun or other 	responsible Police Officers as a consequence of the Search Warrant 	of 15th May 2020 be annulled or declared inadmissible as evidence in any court of competent jurisdiction forthwith.

(4)		Costs of and incidental to this proceeding.

DOCUMENTS RELIED UPON BY THE APPLICANT

3.   	The Applicant relies upon the following documents.

a.	Notice of Motion filed on 3/3/2021 (doc 10);
b.	Statement pursuant to Order 16 Rule 3 (2) of the National Court Rules (NCR), in support of an Application for Judicial Review, filed on 8/9/2020 (doc 3).
c.	Affidavit in Support of Napoleon Wagambie, sworn on 28/8/2020 and filed on 8/9/2020 (doc 5).
d.	Affidavit Verifying Facts of Napoleon Wagambie, sworn on 28/8/2020 and filed on 8/9/2020 (doc 4).

DOCUMENTS RELIED UPON BY THE RESPONDENTS

4.	The Respondents rely on the following Affidavits:

a.	Affidavit of Peter Yambun sworn on 15/3/2021 and filed on 31/5/2021 (doc 17).
b.	Affidavit of Emma Waliu Wagambie sworn on 15/3/2021 and filed on 31/5/2021 (doc 16).

FACTS

5.	The Applicant is a Police Officer now based in Port Moresby, National Capital District.
			
6.	On 15th May 2020, the First Respondent granted an Order for a Search Warrant to one Inspector Peter Yambun of Lae Police Station, under proceedings SW No. 103 of 2020.
	
7.    	The Search Warrant was then served on Digicel PNG Limited, service provider of Digicel Mobile phone networks.  As a result, the Applicant’s data traffic on his mobile phone communications with other users were printed out and produced to Inspector Peter Yambun and the Applicant’s wife namely, Emma Waliu Wagambie.  Emma Wagambie is also a police officer based in Lae.
 
8.   	The Applicant’s wife, Emma Wagambie, then used the Applicant’s printouts of his mobile phone communications with other mobile users to file various adultery proceedings against the Applicant in proceedings FC 	No. 48/2020, FC No. 74/ 2020, IPO No. 75/2020, FC No. 136 of 2020 and FC No. 136 of 2020.

9.	The Applicant alleges, because of these publications, his Constitutional right to full protection of the law and privacy was breached arising out of the abuse of the court process by Inspector Peter Yambun, the Applicant’s wife, and the learned Magistrate.

ISSUE

10.    	The main issue for consideration is whether the decision of the District Court Magistrate made on 15th May 2020 to issue a search warrant to the police to search and direct production of data traffic and transaction details of the Plaintiff’s communication with other mobile phone users kept by the Digicel network as service provider was made in compliance with section 6 of the Search Act.

          LAW ON JUDICIAL REVIEW

11.	The relevant rule is Order 16 Rule 1(1) of the National Court Rules, which provides:

“(1) An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order.”

12.	The law on application for Judicial Review is settled.  In Kekedo v Burns Philip (PNG) Ltd [1988-1989] PNGLR 122, the Supreme Court stated that:

	“The circumstances under which judicial review may be available are 	where the decision-making authority exceeds its powers, commits an error of law, commits a 	breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers”.

GROUNDS

13.	The Plaintiff relies on the following grounds:

a)	Failing to consider relevant considerations.
b)	Errors of Law
c)	Denial of Natural Justice
d)	Ultra vires
e)	Wednesbury’s principle of Unreasonableness

           SUBMISSIONS OF COUNSEL

14.  	Mr.  Berem of counsel for the Plaintiff submits that, the First Defendant failed to consider relevant considerations when she issued the Search Warrant.  The Informant Peter Yambun was not a proper person to depose the factual matters in the supporting affidavit. He had no personal knowledge of the allegation of adultery. The evidence of Peter Yambun did not contain any particulars of offence committed by the Applicant.  

Mr. Berem submits that Order for Search Warrant breached section 6 of the Search Act.  The decision of the learned Magistrate also breached sections 44 (Freedom from Arbitrary Search and Entry) and 49 (Right to Privacy) of the Constitution.  Mr. Berem summits further that the 	allegations of adultery were civil in nature and did not require a search warrant. The Defendant acted ultra vires her powers and in all the circumstances, the decision was unreasonable.

15.	Mr. Tomake, counsel for the Respondents, made no submissions on the issue, except to point out to the Court to take note of the affidavits filed by Emma Waliu Wagambie and Peter Yambun.

CONSIDERATION OF THE ISSUES

a)	Failing to consider relevant considerations.

16.	I agree with the submissions of counsel for Plaintiff that the First Respondent failed to consider relevant considerations when she issued the search warrant.  The Police officer who swore the affidavit, did not have personal knowledge of the factual matters he deposed.  The evidence was secondary, and it did not come from his own investigation of an offence.  It did not contain any specific particulars of the offence alleged to have been committed or was about to be committed by the Applicant.  The learned Magistrate therefore could not have a reasonable belief that an offence was committed or was about to be committed.

b)	Errors of law

17.	The relevant provisions of law alleged to have been breached are section 6 of the Search Act, and sections 44 and 49 of the Constitution.  I set out the relevant sections below:
    
        “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 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 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 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.”

            “44. Freedom from arbitrary search and entry.
 
No person shall be subjected to the search of his person or property or to entry of his premises, except to the extent that the exercise of that right is regulated or restricted by a law—

(a) that makes reasonable provision for a search or entry—

	(i) under an order made by a court; or

(ii) under a warrant for a search issued by a court or judicial officer on reasonable grounds, supported by oath or affirmation, particularly describing the purpose of the search; or

(iii) that authorizes a public officer or government agent of Papua New Guinea or an officer of a body corporate established by law for a public purpose to enter, where necessary, on the premises of a person in order to inspect those premises or anything in or on them in relation to any rate or tax or in order to carry out work connected with any property that is lawfully in or on those premises and belongs to the Government or any such body corporate; or

(iv) that authorizes the inspection of goods, premises, vehicles, ships or aircraft to ensure compliance with lawful requirements as to the entry of 	persons or importation of goods into Papua New Guinea or departure of 	persons or exportation of goods from Papua New Guinea or as to standards of safe construction, public safety, public health, permitted use 	or similar matters, or to secure compliance with the terms of a licence to engage in manufacture or trade; or

(v) for the purpose of inspecting or taking copies of documents relating to—
	
	(A) the conduct of a business, trade, profession or industry in accordance with a law regulating the conduct of that business, trade, profession or industry; or
	(B) the affairs of a company in accordance with a law relating to 	companies; or

(vi) for the purpose of inspecting goods or inspecting or taking copies of documents, in connexion with the collection, or the enforcement of payment of taxes or under a law prohibiting or restricting the importation of goods into Papua New Guinea or the exportation of goods from Papua New 	Guinea; or

(b) that complies with Section 38 (general qualifications on qualified rights).”

 “49. Right to privacy.
 
Every person has the right to reasonable privacy in respect of his private and family life, his communications with other persons and his personal papers and effects, except to the extent that the exercise of that right is regulated or restricted by a law that complies with Section 38 (general qualifications on qualified rights).
Special Rights of Citizens.”

18.	It is settled law that the grounds upon which a Search Warrant is issued must be reasonable and capable of proof.  See:  SCR No. 2 of 1980, Re s14 (2) of the Summary Offences Act, 1977 [1981] PNGLR 50, Esso Highlands Ltd v Bidar (2014) N6386, and Goi v Bank of South Pacific Limited (2020) N8271.

19.	In Esso Highlands Ltd v Bidar, Gavara-Nanu J said this at paragraphs 17 – 18 of his judgment:

	“17.  It is settled law that the grounds upon which the search warrant was issued has 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 omitted 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.”

20.	In Goi v Bank of South Pacific Ltd, David J said at paragraph 72 of his judgment:

“A search warrant authorises the person to whom it is directed to search the place described in the search warrant to be searched and seize anything found in that place which relates to the offence or the matter of the information on which the warrant is founded or to any other offence: see Search Act, Chapter 341, Sections 8, 9, 10 and 11.”

21.	Section 6 of the Search Act requires that before a Search Warrant is issued, a Magistrate must be satisfied on sworn information that there are reasonable grounds for suspecting that there is in any building, craft vehicle or place anything with respect to which any offence has been or is believed on reasonable grounds to have been committed or is likely to afford evidence of the commission of such an offence.  

22.	In the present case, the offence described in the information was adultery.  In my view, 	adultery is not a criminal offence per se.  The information or evidence sought to be searched and seized was not capable of proving any offence. The information and printouts obtained were not for furthering any police investigation for an offence. They were private in nature for instituting adultery proceedings by the Applicant’s wife. I find the mobile communications and transactions sought to be searched and produced were an intrusion into the Plaintiff’s private life.  It breached section 49 of the Constitution which provides for the right to privacy.  This is because the records of communication in the Plaintiff’s mobile phone were private communication recorded and kept by a Mobile Network Service provider.

23.	The search and seizure of the records of the Plaintiff’s communication and transactions from his service provider was also a breach of section 44 of the Constitution which provides for the freedom from arbitrary search and entry.  The First Defendant did not and could not have reasonable grounds to suspect that an offence has been or about to be committed.  The Plaintiff was unnecessarily subjected to the search and seizure of his mobile communication transaction kept by his mobile service provider. It was harsh, arbitrary, and oppressive in the circumstances.

24.     Further, the data traffic produced by the service provider appears to be in breach of sections 32 and 33 of the Cybercrime Code Act 2016.

c)	Other Grounds

25.	In the end, I find the First Defendant acted ultra vires her powers when she issued the search warrant. Her decision was unreasonable in the circumstances.

26.	The decision of the First Defendant was unfair and is tantamount to breach of natural justice especially when it was issued ex parte.

27.   For the forgoing reasons, I uphold the application for judicial review.

EMMA WALIU WAGAMBIE

28.	Emma Waliu Wagambie, the wife of the Applicant has filed an affidavit in these proceedings.  The material deposed to in her affidavit are matters of concern for her and her marriage to the Plaintiff and the children.  It is a matter the Applicant should take note of and take steps to address them. It will take both parties to resolve their differences. The Court will not address them in these proceedings. The Court is only concern with the process adopted in the issuance of the Search Warrant by the First Respondent.

	ORDER

29.      The Court orders that: 

(1)		The decision of the First Respondent made on 15th May 2020 to grant the 	Search Warrant to Informant Inspector Peter Yambun in 	proceeding entitled as SW No. 103 of 2020 is unlawful, ultra vires, and void ab initio.

(2)	 The decision of the First 	Respondent made on 15th May 2020 granting the Search Warrant to the Informant, Inspector Peter Yambun is quashed 	forthwith.

(3)		All the information, image print outs and texts obtained from Digicel 
 (PNG) Limited by Inspector Peter Yambun or other responsible Police  
	Officers because of the Search Warrant of 15th May 2020 is annulled and 	declared inadmissible as evidence in any court of competent jurisdiction 	forthwith.

(4)		The Respondents shall pay the cost of and incidental to this proceeding to be taxed, if not agreed.

(5)		Time of entry of these Orders is abridged to take place forthwith 	upon the Court signing the Orders.
________________________________________________________________
Berem Lawyers:	Lawyer for the Applicant
Solicitor General:	Lawyer for the First & Second Respondents