Alex v Golu [1983] PNGLR 117 (29 April 1983)

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CONSTITUTIONAL LAW - Breach of fundamental right or freedom - Remedy - Nature of - When available - Distinguished from discretionary power to reject evidence unlawfully obtained - Constitution, ss 44, 57.

CRIMINAL LAW - Evidence - Discretion to reject evidence unlawfully obtained - Distinguished from breach of fundamental right or freedom - Constitution, ss 44, 57.

JUDGMENTS AND ORDERS - Remedy for breach of fundamental right - When available - Constitution, s. 57.

Under s. 57 of the Constitution, the National Court has power to make orders to enforce and to protect any breach of fundamental rights and freedoms.

(1) The remedy under s. 57 is quite separate and independent of the common law discretionary power to reject evidence unlawfully or unfairly obtained.

Constitutional Reference No. 1 of 1977 [1977] P.N.G.L.R. 362 at 371, 373, 381, 383, adopted and applied.

(3) The power given under s. 57 is wide enough to extend to prohibiting evidence which may be obtained in breach of a fundamental right or freedom and extends further than the discretionary power to reject evidence.

(4) An order under s. 57 may be made at any time after breach of a fundamental right or freedom.

(5) In the particular circumstances, where property had been obtained in breach of s. 44 of the Constitution, an order should be made that it not be admitted in evidence and be returned to its rightful owner.

Perryman and Gabriel Tuka, In the matter of (Unreported (un-numbered) judgment dated 3 September 1982 by Bredmeyer J)

This was an application based on s. 57 of the Constitution and seeking an order prohibiting a magistrate from allowing into evidence, on the trial of the applicant, property which had been illegally obtained.

KAPI DCJ: This is an application by way of notice of motion seeking an order to prohibit the respondent magistrate from allowing into evidence, in the trial of the applicant, a “blue bag” and its contents. The application is based on s. 57 of the Constitution.

The applicant is charged that on 1 December 1982, he did knowingly have in his possession a dangerous drug, namely, cannabis, contrary to the Dangerous Drugs Act (Ch. No. 226). The trial commenced on 24 January, 1983, and continued on 25, 26, 28, 31 January, 1 and 2 February, 1983. It was a summary hearing before the National Capital District Court. During the course of the trial, a “blue bag” and its contents was proposed to be admitted in evidence through witness constable David Well. Counsel for the applicant objected to the admissibility of this evidence on the basis that the “blue bag” was obtained in contravention of the right of the applicant under s. 44 of the Constitution.

It has not been disputed before me that the objection before the magistrate and the ruling made by him was made in the exercise of the common law discretion. The magistrate in his reasons for decision found that the “blue bag” was obtained in breach of s. 44 of the Constitution. Thus, he was faced with the issue of whether he should admit the evidence which was obtained illegally. In the exercise of his discretion, he decided to admit the “blue bag” in evidence. The law relating to the exercise of the common law discretion which takes into account breach of fundamental rights is now set out in Constitutional Reference No. 1 of 1977 [1977] P.N.G.L.R. 362. The applicant has not appealed against the decision of the magistrate.

The application by the applicant now before me is taken out on a separate and independent basis under s. 57 of the Constitution.

(1) A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

(b) any other persons prescribed for the purpose by an Act of the Parliament; and

(c) any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question,

have an interest in the protection and enforcement of the rights and freedoms referred to in this Division, but this subsection does not limit the persons or classes of persons who have such an interest.

(3) A court that has jurisdiction under Subsection 1 may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).

(4) Any court, tribunal or authority may, on its own initiative or at the request of a person referred to in Subsection (1), adjourn, or otherwise delay a decision in, any proceedings before it in order to allow a question concerning the effect or application of this Division to be determined in accordance with Subsection 1.

(5) Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.

(6) The jurisdiction and powers of the courts under this section are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of this Constitution.”

It is clear from the terms of this section that the National Court has jurisdiction to make orders to:

(b) to protect any breach of fundamental rights and freedoms (see Constitutional Reference No. 1 of 1977 [1977] P.N.G.L.R. 362; see also In Re Heni Pauta and Kenneth Susuve [1982] P.N.G.L.R; In the Matter of Virgil Perryman and Gabriel Tuka (Unreported, unnumbered judgment, dated 3 September 1982, by Bredmeyer, J)

The issue in this case is whether this jurisdiction extends to making an order which has the effect of prohibiting the “blue bag” which has been obtained in contravention of s. 44 of the Constitution, being admitted in evidence.

Counsel for the applicant submitted that the power given to this Court under s. 57 of the Constitution is wide enough to cover the order applied for. Counsel for the State, however, submitted that the power given does not go as far as to encompass the order. He submitted that the orders that can be made under s. 57 are quite separate from the question of admissibility of evidence in the trial. The logical conclusion of this submission is that the only way open for the applicant now is to appeal against the decision of the magistrate on the common law discretion of admissibility of evidence which is obtained illegally.

The relationship of orders that can be made under s. 57 of the Constitution and the common law discretion on admissibility of evidence which is obtained illegally has not been directly decided in this jurisdiction. However, the Supreme Court made reference to this issue in relation to a breach of another fundamental right under s. 42 of the Constitution in Constitutional Reference No. 1 of 1977 (supra). At 371, Frost CJ said the following:

“In his second submission the Acting Public Solicitor relies on the Court’s discretion, as expounded by Barwick CJ in The Queen v. Ireland [1970] HCA 21; (1970) 126 C.L.R. 321, to exclude evidence unlawfully or unfairly obtained. Reliance is also placed on R. v. Stafford (1976) 13 S.A.S.R. 392, a decision of the Full Court of South Australia, in which it was held that where the police had made an unlawful arrest, they were not entitled to employ the occasion for the purpose of interrogating an accused person, and that in the exercise of the Court’s discretion the admissions made should have been excluded. But see R. v. Banner [1970] VicRp 31; [1970] V.R. 240. I consider that, whilst that discretion remains, the mandatory terms of s. 57(1) go further than merely to confer a discretion upon the judge to reject such evidence. This submission appears to have been made in the alternative if the question were answered No, rather than as supporting a constitutional implication of rejection of evidence.”

“But the National Court under Constitution s. 57(1), in the course of a trial of an offence, has power and, according to the circumstances of the case, may be bound to make an order or declaration that admissions obtained in breach of the Constitution s. 42(2) should be excluded from evidence in the trial.”

Prentice DCJ (as he then was) came to the similar conclusion that the common law discretion of rejecting evidence which is obtained illegally is a separate remedy from orders and declarations that can be made under s. 57 of the Constitution; see 380 and 381. Williams J would also appear to support the views expressed by the Chief Justice and the Deputy Chief Justice on 381 and 383. Kearney J and Pritchard J agreed with the judgments of both the Chief Justice and the Deputy Chief Justice. With respect I would adopt the principles expressed in the above case. I conclude that:

(a) The remedy under s. 57 is quite separate and independent of the common law discretion of rejection of evidence which is obtained illegally;

(b) the power given under s. 57 is discretionary and may be exercised in appropriate cases;

(c) the power given under s. 57 is wide enough to extend to prohibiting evidence which may be obtained in breach of a fundamental right or freedom;

(d) the power given under this provision extends further than the discretion to reject evidence on the trial;

On the facts of the present case, the applicant could have applied for an order immediately after the breach. He could have applied for an order that the police return any property seized in breach of s. 44 of the Constitution. Frost CJ described this order by way of analogy to relief by way of restitutio in integrum. See Constitutional Reference No. 1 of 1977 (supra). The police have no right to enter a house and seize property. This is the very reason for the right under s. 44 of the Constitution. They can only do this, i.e., enter a house, under the exceptions provided for under s. 44 of the Constitution and the Search Act 1977. In my view, this can not be seen to be unfair to the police in the investigation of crime because these matters can be obtained properly within the exceptions provided by the Constitution and the Search Act.

In setting out these principles I am not in any way exhaustively stating the only orders that can be made under s. 57. These are matters which can be developed from case to case.

In applying the principles stated above I need to bear in mind the facts in this case. The facts stated in the opinion of the learned magistrate are not disputed.

It is apparent from the evidence that this was a very bad case of breach of the right under s. 44 of the Constitution. It is sufficient to state that there is not the slightest evidence to suggest that reasonable grounds existed under the Search Act which would have enabled a court to issue a warrant of search. There is no suggestion in the evidence that a crime was being committed in the house at that time. Evidence seems to suggest that the applicant was asleep at the time the door was broken down. It would appear that in the circumstances of this case I would be more disposed to making the order asked for. Such an order in effect would restore the protection given by s. 44 of the Constitution. It is still open for the police to obtain such property in accordance with the law.

I therefore order that the “blue bag” be not admitted in evidence and the property which has been obtained in breach of s. 44 of the Constitution be returned to its rightful owner.

Before leaving the case I would like to make one observation. It is apparent that under the Constitution, courts other than the National Court and the Supreme Court have no power to make such orders under s. 57 of the Constitution. This means that in a trial in courts other than the National and the Supreme Courts where issues under s. 57 of the Constitution arise, such courts are unable to deliberate on these issues. In these circumstances, such a court has to adjourn its hearing and allow the defendant to make the appropriate application either to the National Court or the Supreme Court. Such a course may in many cases disrupt the trial and cause delays as in this case and, therefore, the Parliament should seriously consider the possibility of prescribing some of the lower courts for the purpose of making orders under s. 57 of the Constitution. In some provinces, it is difficult to have access to the National Court and the Supreme Court and it would be very difficult to dispose of trials when the defendant has to make an application to the National or the Supreme Court.

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Papua New Guinea Law Reports

Alex v Golu [1983] PNGLR 117 (29 April 1983)

Papua New Guinea Law Reports - 1983