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State v Kaman [2024] PGNC 439; N11115 (13 December 2024)

N11115

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 166 OF 2024

STATE

V

BURE KAMAN

WAIGANI: WAWUN-KUVI J
21, 24 & 25 October, 13 December 2024

CRIMINAL LAW-TRIAL-CYBERCRIME CODE ACT-EVIDENCE-ADMISSIBILITY OF FACEBOOK RECORDS- Whether a search warrant was required to confiscate the accused electronic device and access the applications therein?

The State indicted the accused on four (4) counts of Defamatory Publication under s 21(2) of the Cybercrime Code Act 2016. The accused allegedly used a 'fake name' to operate two accounts on the social networking web platform Facebook. Using one of the accounts under the name Dap Bee Kay, he opened and administered a page known as Jiwaka Watchdog. Through this page, he published the defamatory comments of Konmil Krai, a member. Police officers took the accused into questioning. At the end of the questioning, under duress from the police officers, the accused handed his electronic device (mobile phone) to the arresting officer. The police did not obtain a warrant to confiscate and search the mobile phone. The accused did not consent to search of the mobile phone. A police special constable without a search warrant hacked the mobile phone and obtained the phone number connected to the Subscriber Identity Module (SIM). Using the phone number, the special constable hacked the Facebook application and remained online, accessing information. The account name was Dap Bee Kay. He passed the results to the arresting officer, who obtained a search warrant for Digicel PNG Limited. The search yielded evidence confirming the accused's registration with the phone number. The defence has objected to the admission of the Facebook comments, contending that there was no warrant authorizing the search of the accused mobile phone.

Held:

1. A search warrant is required for the search of mobile phones, electronic devices, and electronic systems: see s 32 of the Cybercrime Code Act. R v. Vu (2013) SCC 60, [2013] 3 S.C.R. 657 was adopted.
2. Searching the accused mobile phone without a warrant breached section 44 of the Constitution, s. 6 of the Search Act, and section 32 of the Cybercrime Code Act 2016.
3. The breach was serious and resulted in the deliberate violation of the accused's right to privacy and the right against self-incrimination.
4. When the arresting officer and the special constable obtained the electronic evidence without a warrant, they committed the offences of cyber hacking under Section 6 and unlawfully remained online under Section 11 of the Cybercrime Code Act.
5. The evidence's cogency was affected because there was no other lawful way for it to surface.
6. All evidence relating to SIM, phone numbers associated with the SIM, and Facebook messages are excluded from evidence.
   

Cases cited:

Papua New Guinean cases

Paul Paraka v. The State (2024) SC2648
State v Kasiman (2023) N10560

State v. Paraka [2022] PGNC 120; N9568

Alex v. Golu [1983] PNGLR 117

State v. Popo [1987] PNGLR 286

Overseas cases
R. v. Vu 2013 SCC 60, [2013] 3 S.C.R. 657

Legislation
Constitution
Criminal Code
Cybercrime Code Act 2026
Search Act

Counsel
S Kuku for the State
D Kayok for the accused

RULING ON ADMISSIBILITY

1. WAWUN-KUVI, J: Bure Kaman (accused) stands trial for four counts of defamatory publication under s 21(2) of the Cybercrime Code Act 2015 (Cybercrime Act).
   
2. The State alleges that the accused had two accounts on the social networking web platform Facebook. The accounts are Dap Bee Kay and Bupakul Maktaukhi. On 18 May 2021, he created the Facebook page Jiwaka Watchdog using the Dap Bee Kay account. As the creator he was the administrator responsible for approving comments. On that same day, he approved and shared a comment from Konmil Krai. He continued to approve and share additional comments from Konmil Krai on 29 May, 31 May, and 4 June 2021. It is alleged that these actions were intended to defame the complainant's reputation.
   
3. The prosecution applies to introduce into the trial, evidence of, it is alleged, the Facebook comments of Konmil Karai on the Jiwaka Watchdog page.
   
4. The defence has objected to the introduction of all Facebook comments. The objection is premised on the position that the police did not have a search warrant and did not have the permission of the accused to gain access and conduct a search of the accused mobile phone.
   
5. Consequently, all evidence related to these disputed Facebook messages was heard in a voire dire.

The Issue(s)

6. The question that arises is whether the Facebook posts were obtained pursuant to a lawfully search warrant? And if not whether they can still be admitted into evidence?

Evidence

The Prosecution

7. Detective Constable Peter Gaso and Special Constable Keneth Kolou provided evidence for the prosecution about how they obtained the mobile phone and retrieved the Facebook posts.
   
8. The prosecution did not qualify Special Constable Keneth Kolou as an expert witness. He did not have the required qualifications to be considered an expert witness. In any event, his evidence was focused on how he retrieved information from the mobile phone. He stated that a username and password are required to access a Facebook account. The username was either a phone number or email address. If the phone number is unknown, the prompt *100# dialled and an automated message send the phone number. After entering the username, the next step is to enter the password. If you don't know the password, click the "forgot password" option. The administrator of Facebook then sends a code to either the email or phone number connected to the account. The phone containing the phone number will receive the recovery code. After entering the recovery code, a password is set, and access is gained into the Facebook account. He followed these steps to access the Facebook account. He then viewed the activity in the account and took screenshots. He gave the screenshots to the arresting officer.
   
9. From his search he discovered that the account name for the Facebook application in the accused phone was Dap Bee Kay. The account Dap Bee Kay created the Facebook page Jiwaka Watchdog. Dap Bee Kay was the administrator. He noted that Konmil Krai posted comments about the complainant on Jiwaka Watch Dog. He retrieved the comments and passed them to the arresting officer. He says that he returned the mobile phone to the arresting officer.
   
10. He cannot comment on whether the mobile number or the account belongs to the accused. His only duty was to retrieve the comments. It is for the arresting officer to obtain a warrant and search with the relevant bodies to connect the accused to the phone number.
    
11. When it was put to him that he did not have a search warrant, he stated that he assumed that there must have been a search warrant otherwise the arresting officer would not have given him the mobile phone. The phone was unlocked when the arresting officer gave it to him.
    
12. Peter Gaso is the arresting officer. He says police officers brought the accused in for questioning. He questioned the accused regarding the allegations. When it got late, he told the accused to go home and return the following day. He did not obtain a search warrant but instead asked the accused to give his phone. The accused voluntarily gave him the phone and he gave the phone to Keneth Kolou. Kenneth Kolou obtained the materials from the phone and passed it to him. He did not obtain the permission of the accused to search his Facebook account, his emails and other applications on his phone. It was his position that the phone was part of the investigation, it was an exhibit, and he did not need a search warrant to obtain it from the accused or to search its contents. He stated that search warrants are only to do with companies like Digicel. He denies that the accused refused to give the phone and that he had told the accused to take it up with the court if aggrieved. He returned the phone to the accused.

The Defence

13. The accused gave evidence. He said he was having dinner with the Senior Provincial Magistrate for Madang, the late Ben Kome, at Vision City. As they were walking out, a group of policemen accosted him and demanded his mobile phone. He declined to hand over his phone and comply with their demands. Magistrate Ben Kome then gave the officers an undertaking that he would bring him to the police station. He then got into the vehicle with Magistrate Kome, who drove him to the 7-mile police station.
    
14. At the 7-mile, the police officers directed Magistrate Kome to wait outside. The policemen detained him until the arresting officer arrived. When the arresting officer arrived, he conducted an interrogation and demanded the mobile phone. He questioned whether the arresting officer possessed a search warrant, given that the mobile phone was his private property. The arresting officer told him to surrender the phone and said in Tok Pisin language words to the effect, “That is for you to go and tell the court.” When he continued to refuse, the police officers in the room harassed and intimidated him until he surrendered the phone. Because it was evening, he was told to go home and return the next day. Keneth Kolou was present in the room.
    
15. When he arrived the next day, he was further questioned then arrested and charged. He was escorted to Boroko Police Station, where he was processed and detained. The police never returned his mobile phone.

THE LAW

16. The Constitution safeguards the right to privacy and prohibits unreasonable search and seizure. Relevantly, section 44(1)(a)(i)(ii) states:
    

“44. FREEDOM FROM ARBITRARY SEARCH AND ENTRY.

(1) 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

17. The relevant statutory framework are the Search Act (Chapter 341) and the Cybercrime Code Act 2016.
    
18. Section 3 of the Search Act provides:
    

3. CIRCUMSTANCES WHERE PERSONS MAY BE SEARCHED.

(1) Where a policeman believes on reasonable grounds that a person has in his possession–

(a) anything that has been stolen or otherwise unlawfully obtained; or

(b) anything used or intended to be used in the commission of an indictable offence,

he may stop and search that person in accordance with Section 4 and, where applicable, exercise the power of seizure under Section 10(1).

(2) Subject to Section 4, where a policeman believes on reasonable grounds that it is necessary to do so, he may, at the time of arresting a person, search his person, the clothing he is wearing and any property under his immediate control–

(a) for the purpose of ascertaining whether he is concealing a firearm or other offensive weapon; or

(b) for the purpose of preventing the loss or destruction of evidence relating to the offence for which he was arrested, and, where applicable,

19. Other than the circumstances prescribed under s 3, any search of a place must be conducted through a search warrant obtained under section 6 of the Search Act. Specifically, [Emphasis mine]

6. 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 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.

20. With the advent of modern technology, the legislature enacted the Cybercrime Code Act. Part IV of the Act deals with the procedure for search, evidence and investigation.

PART IV. - PROCEDURE IN SEARCH, EVIDENCE, INVESTIGATION, ETC.

Division I. - Authorised Search and Seizure.

32. SEARCH.

(1) Where a member of the Police Force believes that there are reasonable grounds for suspecting that there is in a private place, a data or thing that may provide evidence of the commission of an offence, he may, under a warrant issued under Subsection (2), enter the private place and -

(a) search the private place; or

(b) seize any such data or thing.

(2) Where it appears to a Magistrate, by information on oath, that there are reasonable grounds for suspecting that there is, in a private place, a data or thing that may provide evidence of the commission of an offence, he may issue a warrant directing a member of the Police Force named in the warrant, or all members of the Police Force to search the private place and to seize any such data or thing and take it before a Magistrate to be dealt with according to law.

(3) A warrant under Subsection (2) must be executed by day unless, by the warrant, the Magistrate specifically authorises it to be executed by night.

(4) Any data or thing seized under Subsection (2) may be detained by a Magistrate, and when it is no longer required as evidence, it may be destroyed under an order of a Magistrate.

33. SEARCH POWERS.

(1) In addition to the powers under the Search Act (Chapter 341), where a member of the Police Force suspects, on reasonable grounds, that a thing may provide evidence of the commission of an offence, he may, in executing a warrant, exercise the following powers:

(a) operate the electronic system or device, or direct an occupant of the private place to operate the electronic system or device in order to determine whether it contains data or a thing that could be seized; or

(b) operate the electronic system or device, or direct an occupant of the private place to operate the electronic system or device to access data (including data stored on a separate storage device or data not held at the private place) or thing if the member of the Police Force believes, on reasonable grounds, that the data or thing might be data or thing that could be seized; or

(c) copy the data or thing that could be seized to a storage device and take the storage device from the place; or

(d) copy the data or thing that could be seized in documentary form and seize the produced documents; or

(e) move any electronic system or device, or thing, at the place subject of the search, to another place for examination in order to determine whether it contains data that could be seized if –

(i) it is significantly more practicable to do so having regard to the task it will take to copy the data and the availability of the technical expertise that will be required to do so; and

(ii) there are reasonable grounds to suspect that the electronic system or device, or thing contains data that could be seized; or

(f) do anything reasonably necessary to prevent loss, destruction or damage to anything connected with the offence; or

(g) use other members of the Police Force or other persons authorised under the warrant as reasonably necessary for the search.

Division 2. - Preservation of Evidence.

35. PRODUCTION ORDERS.

Where specified data or a printout is reasonably required for the purposes of an investigation or proceedings, the Court may, on application by a member of the Police Force or the Public Prosecutor, as the case may be, order -

(a) a person in control of an electronic system or device, or thing to produce specified data or a printout of such data; or
(b) an ICT Service Provider to produce information about persons who subscribe to or use its services.

36. EXPEDITED PRESERVATION.

(1) Where a member of the Police Force, has reasonable grounds to suspect that -

• (a) data stored in an electronic system or device, or thing is required for the purpose of an investigation or proceeding; and
• (b) there is a risk that the data, electronic system or device, or thing may be destroyed or rendered inaccessible,

he may, by written notice, require a person in control of the data, electronic system or device, or thing to ensure that the data specified in the notice be preserved for a period of up to 14 days.

(2) Subject to Subsection (3), the Magistrate may, upon application by the member of the Police Force, authorise an extension for a further 14 days from the expiry of the initial 14 days.
(3) An application under Subsection (2) shall be made at anytime within the initial 14 days.
(4) A person who fails to comply with a request under Subsection (1) is guilty of an offence.

• Penalty:
  • (a) In the case or a natural person, a fine not exceeding K10,000.00 or imprisonment for a term not exceeding 12 months, or both; and
  • (b) In the case of a body corporate, a fine not exceeding K100,000.00.

38. RESTRAINING ORDERS.

Where the Court, on application by a member of the Police Force or the Public Prosecutor, as the case may be, is satisfied that there are sufficient grounds to believe that an electronic system or device, data or thing reasonably required for the purposes of an investigation or proceeding, is likely to be removed, destroyed, deleted or otherwise tampered with or dealt with, it may make an order restraining or preventing such removal, destruction, deletion or tampering or dealing with such electronic system or device, data or thing.

Submissions

21. Neither counsel assisted with the law on admissibility and the specific requirements on search in the Search Act or the Cybercrime Code Act. The prosecution although directed did not address the issue of whether the information contained within the mobile device was lawfully obtained. The accused through his lawyer maintained that he did not voluntarily surrender his mobile phone and that he did not give permission for the search of his mobile phone and as such any evidence obtained therein is inadmissible.

Consideration

22. I must first address whether a search warrant is required to search a mobile phone, personal or office computer, or any other electronic device. This jurisdiction lacks case authority for searches of electronic devices, so I look to other common-law jurisdictions for assistance. In Canada, the Federal Supreme Court, in R v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, addressed an appeal regarding the admissibility of a computer and mobile phone search. There, the Supreme Court said:
    

“the Charter gives everyone the right to be free of unreasonable searches and seizures—seeks to strike an appropriate balance between the right to be free of state interference and the legitimate needs of law enforcement. This balance is generally achieved in two main ways. First, the police must obtain judicial authorisation for a search before they conduct it, usually in the form of a search warrant. Second, an authorised search must be conducted in a reasonable manner, ensuring that the search is no more intrusive than is reasonably necessary to achieve its objectives. The privacy interests implicated by computer searches are markedly different from those at stake in searches of receptacles such as cupboards and filing cabinets. It is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer. Computers potentially give police access to an almost unlimited universe of information that users cannot control, that they may not even be aware of, may have tried to erase, and which may not be, in any meaningful sense, located in the place of search. The numerous and striking differences between computers and traditional receptacles call for distinctive treatment under s. 8 of the Charter. The animating assumption of the traditional rule — that if the search of a place is justified, so is the search of receptacles found within it — simply cannot apply with respect to computer searches...

.. The purpose of a prior authorization process is to balance the private interest of the individual against the interest of the state in investigating criminal activity before the state intrusion occurs. Only a specific, prior authorization to search a computer found in the place of search ensures that the authorizing justice [court] has considered the full range of the distinctive privacy concerns raised by computer searches, and, having done so has search ensures that the authorizing justice [court] has considered the full range of the distinctive privacy concerns raised by computer searches and, having done so, has decided that this threshold has been reached in the circumstances of a particular proposed search.” [my insertion]

23. This statement reflects the legislative changes in this jurisdiction. The Cybercrime Code Act provides the processes and procedures that now distinguish between receptacles and electronic devices and systems. Police are required to obtain search warrants for electronic devices and systems to obtain data and information.
    
24. The steps to obtain the data and information under the Cybercrime Code Act are reflected in the statements in Vu, as follows:
    

“......if police intend to search any computers found within a place they want to search, they must first satisfy the authorising justice [court] that they have reasonable grounds to believe that any computers they discover will contain the things they are looking for. If police come across a computer in the course of a search and their warrant does not provide specific authorization to search computers, they may seize the computer and do what is necessary to ensure the integrity of the data. If they wish to search the data, however, they must obtain a separate warrant.” [my insertion]

25. Having determined that search warrants are required to conduct searches of mobile phones and other electronic devices, I turn to the issue of whether the accused willingly gave his phone to the arresting officer.
    
26. I do not accept that the accused surrendered his mobile phone willingly. Logically, if the accused gave his mobile phone to the arresting officer willingly, the arresting officer would have his phone number; it would have been unnecessary for Keneth Kolou to send the prompt *100# to obtain it. Additionally, the arresting officer's consensus that he did not have permission to search the applications, including Facebook lends credibility to the accused's claim that he did not surrender his phone voluntarily.
    
27. The next question is whether the arresting officer had lawful authority to confiscate the mobile phone. It is incontrovertible that when the arresting officer took the phone, the accused was not arrested. It follows that the arresting officer did not have cause under Section 3(2) of the Search Act to search and confiscated the mobile phone.
    
28. Given that the accused did not consent to the confiscation and the arresting officer did not have cause to search his person, I find that the confiscation of the accused's mobile phone was unlawful. Additionally, since there is consensus that the search of the mobile phone was done without a warrant, it follows that the evidence of the number associated with the SIM and the Facebook comments were obtained in breach of the Constitution, the Search Act, and the Cybercrime Code Act. The evidence was unlawfully obtained.
    
29. Next, I need to determine if I should exclude the evidence.
    
30. Papua New Guinea applies the common law and section 57 of the Constitution to determine the admissibility of evidence. The courts have accepted that there is discretion to exclude or admit evidence illegally or unlawfully obtained. In the recent case of Paul Paraka v. The State (2024) SC 2648, the Supreme Court, when upholding the ruling in State v. Paraka [2022] PGNC 120; N9568, stated:
    

“48. Documents obtained unlawfully and in breach of an accused’s constitutional rights may nevertheless be admitted into evidence at the discretion of the court. This discretion exists under both the underlying law, specifically the common law, and the Constitution, specifically s 57(3), which allows the court to make such orders and declarations as are necessary and appropriate for the purposes of protection and enforcement of constitutional rights and freedoms. These principles of evidence have been developed and applied in PNG over a long period, commencing with the Supreme Court decision in Constitutional Reference No 1 of 1977 [1977] PNGLR 362, which has been followed in numerous subsequent cases including Alex v Golu [1983] PNGLR 117, The State v Evertius and Kundi [1985] PNGLR 109 and The State v Kasiman (2023) N10560.html" target="_blank">N10560.

Matters to consider in the exercise of the common law discretion include:

a)the nature and extent of the impropriety;

b)whether the illegality affects the cogency of the evidence;

c)the ease with which the documents might have been obtained if the law had been complied with;

d)the seriousness of the offence with which the accused is charged;

e)the legislative intent of the law that provides safeguards against the infringement of the rights of the accused;

f)the degree of unfairness to the accused in admitting into evidence documents that have been unlawfully obtained;

g)whether any prejudice to the accused is outweighed by the probative value of the documents.

31. The cases of The State v Kasiman (2023) N10560, State v. Paraka (2022) N9568, Alex v. Golu [1983] PNGLR 117, and a R v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657 are distinct because the police had search warrants, and the challenges were based on technical issues with those warrants. Here there was no search warrant.
    
32. This case is similar to State v. Popo [1987] PNGLR 286, where there was no search warrant to obtain the evidence; however, unlike Popo, where there was evidence explaining what led police to the accused residence, here there was none provided.
    
33. It was important for the arresting officer to explain what evidence or information led him to suspect and eventually question the accused. The allegations in this case are unique. It is not alleged that the accused under his own name posted defamatory material but instead (1) the accused created an account under a ‘fake name’ (2) that the account under the ‘fake name’ created a page (3) that another person posted the defamatory material on the page, and (4) that the accused as the administrator was responsible for publishing the defamatory material.
    
34. Keneth Kolou stated that from his finding he could not conclude that the phone number belonged to the accused and that the person Dap Bee Kay was the accused. He instructed the arresting officer to secure a search warrant from Digicel to identify the owner of the phone number.
    
35. Given the circumstances, it is plainly clear that police lacked any evidence against the accused and conducted a search of his mobile phone to obtain it. Konmil Krai's post on the Jiwaka Watchdog Facebook page was the only available evidence. To identify the operators of the accounts and the administrator of the page and to connect the accused, police were required to adhere to the investigative processes outlined in the Cybercrime Code Act, which included securing a search warrant.
    
36. The foregoing matters demonstrate that police blatantly and deliberately ignored the accused's right to privacy and his right against self-incrimination.
    
37. The cogency of the evidence has also been affected. The accounts are alleged to be fake. No other legal or lawful means could have revealed this evidence. As stated, the only way to find out the real identities of persons using fake names would be to follow their activities online, find a connection to a real person, and then obtain search warrants. Instead, the arresting officer and the special constable hacked the account and stayed online without judicial authorisation.
    
38. Other factors that call into question the integrity of the evidence include changing the password without authorisation and the missing exhibits.
    
39. Changing the accused's password to access the Facebook application resulted in him being locked out. It is akin to breaking into someone else's home, changing the locks, and forcing them to remain outside until enough evidence is gathered.
    
40. The only connection to the accounts was said to be through the mobile device and the SIM card. The arresting officer has not produced the items which are now missing. I do not believe the arresting officer gave back the mobile phone containing the SIM because he is required by law to keep records of exhibits, and he did not produce any documents to support his statement that the mobile phone was returned.
    
41. In Paraka, the Court observed the High Court case of Ridgeway v The Queen (1995) 184 CLR 19, at 38, per Mason CJ, Deane, and Dawson JJ, the Court (emphasis mine):
    

“The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence – the public interest in maintaining the integrity of the courts and in ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement – will vary according to other factors of which the most important will ordinarily be the nature, the seriousness and the effect of the illegal or improper conduct engaged in by the law enforcement officers and whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings. When assessing the effect of illegal or improper conduct, the relevance and importance of any unfairness either to a particular accused or to suspected or accused persons generally will likewise depend upon the particular circumstances. However, any unfairness to the accused is usually minor.”

42. While the unfairness to the accused cannot be dismissed, it is imperative to recognize the critical public policy considerations at play. Courts must not be seen to be sanctioning illegal police conduct in evidence gathering, especially in cases where no other evidence exists. The actions of Constable Peter Gaso and Special Constable Keneth Kolou are serious. This is not a case of oversight or ignorance of the law. Constable Peter Gaso was evasive and defensive in his answers. It was apparent that he knew that he needed a warrant to search the accused mobile device. Given his 25 years of experience as a police detective and his attachment to the special police cybercrime unit, his explanation that it was normal procedure is illogical. He has charged the accused with cyber defamation under section 21(2) of the Cybercrime Code Act. While under the same Act, specifically ss 6 and 11, provides for the indictable offences of cyber hacking or unauthorized entry, and unlawfully remaining. According to the facts, both he and Keneth Kolou committed these offences when they accessed the phone and remained online to gather evidence.
    
43. Finally, given the nature of the charges, the complainant is not left without recourse as remedies for civil defamation are available. Here, public policy considerations favour the protection of an individual’s rights from arbitrary search and against self incrimination.
    
44. Given the foregoing matters I must exercise my discretion to exclude the evidence of the phone number and the Facebook posts.
    
45. The evidence from Digicel is inextricably linked to the illegal search of the mobile device, which necessitates consideration of whether it should also be excluded from evidence.
    
46. Like State v. Popo, forensic evidence was excluded because it emanated from the unlawful search. Here, the evidence from Digicel emanated from the unlawful and illegal search by Special Constable Keneth Kolou at the behest of Detective Gaso. There would not have been any search at Digicel but for the unlawful and illegal actions of the police officers. It follows that the evidence of the mobile phone records with Digicel is also inadmissible. The metaphor “fruit of the poisonous tree’ aptly describes the nature of the evidence.
    
47. The objection must succeed.
    

Orders

48. In the result I make the following orders:
    
    1. The objection to admit the Facebook records is upheld and all records are excluded from evidence.
    2. All evidence pertaining to sim records and mobile phone records obtained from Digicel PNG Ltd are also excluded from evidence.
       

Lawyer for the State: Public Prosecutor
Lawyer for the accused: Public Solicitor