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Popo, The State v [1987] PNGLR 286 (19 August 1987)

Papua New Guinea Law Reports - 1987

[1987] PNGLR 286 - The State v James Bero Popo 

[1987] PNGLR 286

N611

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

JAMES BERO POPO

Wabag

Amet J

19 August 1987

CRIMINAL LAW - Practice and procedure - Search warrants - When required - Not required where “immediate pursuit” - “Immediate pursuit” equivalent to “hot pursuit” - Search Act (Ch No 341), ss 5(5), 6(1).

CRIMINAL LAW - Evidence - Admissibility - Evidence unlawfully obtained - Evidence obtained without search warrant - Evidence obtained in breach of Search Act - Breach of Search Act also breach of guaranteed rights and freedoms - Discretionary powers to admit - Evidence rejected - Search Act (Ch No 341), ss 5(5), 6(1) - Constitution, ss 44, 49, 57.

CONSTITUTIONAL LAW - Guaranteed rights and freedoms - Protection and enforcement of - Court has inherent power to exercise at any time - Freedom from search and right to privacy - Evidence obtained in breach of Search Act - Evidence rejected - Constitution, s 57.

Section 6 of the Search Act (Ch No 341) provides that search warrants are to be obtained before searching premises. Section 5(5) provides:

“(5)    Where a policeman is in immediate pursuit of a person whom he believes on reasonable grounds to have committed an indictable offence, he may, or persons authorised by him may, search any building or place in which he believes on reasonable grounds that the person being pursued ...

(a)      is concealed; or

(b)      has, in the course of his pursuit, concealed or deposited anything.”

Held:

(1)      For the purposes of s 5(5) of the Search Act, the words “immediate pursuit” are to be taken as meaning immediate, physical pursuit, analogous to the notion of “hot pursuit”, where there is no opportunity or time to take any other course of action otherwise the opportunity for apprehension, seizure of property, prevention of concealment of property or prevention of escape will be lost.

(2)      If investigation, follow-up or pursuit of a suspect, however notorious, is not “immediate” then a search warrant is required under s 6(1).

(3)      Where a search is carried out without first obtaining a search warrant where such a search is not in “immediate pursuit”, the search is unlawful and any evidence obtained thereby is unlawfully obtained and may be rejected.

(4)      Non-compliance with the strict requirements of the provisions of the Search Act is in effect a breach of s 44 and s 49 of the Constitution, which guarantee respectively, the right to freedom from arbitrary search and entry and the right to privacy.

(5)      In considering whether such evidence ought to be rejected the Court may cxercise its common law discretionary powers to reject evidence unlawfully obtained and the wider powers under s 57 of the Constitution to enforce and protect any breach of fundamental rights and freedoms guaranteed under the Constitution.

(6)      The power under s 57 of the Constitution to protect and enforce guaranteed rights and freedoms may be exercised by the Court of its own volition even if not argued and at any time.

(7)      In circumstances where police searched a village and seized evidence without a search warrant as a result of a well organised police search/raid in respect of which they had some 33 hours in which to have obtained a search warrant, evidence of the search, seizure of weapons and subsequent scientific analysis should all be rejected.

Cases Cited

The following case is the only one cited in the judgment:

John Alex v Martin Golu [1983] PNGLR 117.

Trial

On the trial of an accused for wilful murder, the evidence showed that a police search/raid exercise had been carried out without the police having obtained any search warrants as required by the Search Act (Ch No 341). At the invitation of the trial judge the admissibility of the material obtained as a result of the search was argued and his Honour delivered the following judgment in relation thereto.

Counsel:

P Luben, for the State.

S Alonk, for the accused.

19 August 1987

AMET J: The accused is charged with the wilful murder of one Lossa Yange on the evening of 8 August 1985, at Lakolam Village along the Wabag to Lairgam Road, Enga Province. It is alleged that the accused and others set up a road block by cutting a tree across the road, and as the vehicle in which the deceased was, drove slowly over the cut tree, but not stopping, the accused opened fire with a Winchester shot-gun at the vehicle. The deceased was hit and died that same evening from wounds received.

The State’s case consisted substantially of a witness Moses Mas, a person from a nearby village to that of the accused, who allegedly had a conversation with the accused and others, in which the accused told him of the plan to set up a road block that evening to rob the truck in which the deceased travelled. There was also evidence of the police investigating officer of a raid/search upon the building in which the accused was in the early hours of 18 December 1985 and the scientific examination evidence of a police ballistic expert from Brisbane who examined various exhibits obtained by police at the scene of the road block and at the house of the accused’s brother where the police conducted the raid/search.

At the scene of the shooting police investigators discovered three discharged cartridges, which they took possession of. At the house of the accused’s brother where the accused was also sleeping, in the Nandi village near Lakolam where the shooting took place, were seized a Winchester 12 gauge shot-gun with four live rounds of ammunition in the magazine. The accused was also apprehended at the same time. The shot-gun plus the three discharged cartridge shells plus the four live cartridges were all sealed and dispatched to the Queensland Police Department Scientific Section in Brisbane for expert scientific examination. Mr Glenn William Kanowski of that section came up and gave evidence of the scientific examinations and tests conducted by him. First Constable Temi Josaiah of Wabag Police who was the investigating officer of this case also gave evidence of his investigations of the matter from 9 August 1985 to 17 and 18 December 1985 when the raid/search was made at Nandi village on the house of the accused’s brother and of the seizure of the shot-gun and cartridges which he arranged to be sent to Brisbane for scientific examination.

At the conclusion of evidence in the State’s case Mr Similie Alonk for the accused made a no case to answer submission on the first leg of the no case to answer principles, that is, that there is no evidence implicating the accused in the firing of the shot-gun and the killing of the deceased.

In the course of counsels’ addresses I had invited them to address the question of the legality or otherwise of the search and seizure of the shot-gun and the live cartridges, and the admissibility of any evidence relating thereto. Though defence counsel did raise questions in cross-examination in relation to this raid/search and whether or not a search warrant had been obtained, he did not object to the admissibility of the evidence of the search and seizure of the items I have mentioned, nor indeed the evidence of the subsequent scientific examination by Mr Kanowski. However, in the course of the examination of First Constable Josaiah, as it transpired that he was not aware of a search warrant being obtained, nor did he sight one at the time of the raid/search of the house the accused was in, the real possibility that none was obtained at the time was indicated to counsel and I alerted them of the need to satisfy me under the Search Act that the search and seizure were lawful. Defence counsel did call for the production of the search warrant if one was obtained; none could be produced and State counsel did concede that none was obtained.

Mr Luben for the State has relied, however, on s 5(5)(b) of the Search Act (Ch No 341) as permitting the police to have carried out the raid/search and to have seized the shot-gun and live cartridges, and relies on the phrase “immediate pursuit”, in that the accused was a suspect. Section 5(5)(b) comes under Pt III, Div 1 — Searches Without Warrant. There is only one section, s 5, under Div 1. Division 2 — Search Warrant, ss 6-8, deals with the circumstances where a search warrant is issued, to whom it is directed and the form of the warrant.

Mr Luben contends that in the circumstances it was not necessary for the police to have obtained a search warrant, as s 5(5)(b) permits the search.

Section 5(5)(b) is in these terms:

“(5)    Where a policeman is in immediate pursuit of a person whom he believes on reasonable grounds to have committed an indictable offence, he may, or persons authorized by him may, search any building or place in which he believes on reasonable grounds that the person being pursued— ...

(a)      is concealed; or

(b)      has, in the course of his pursuit, concealed or deposited anything.” (My emphasis.)

The meaning to be given this subsection of course depends upon the construction one places on the phrase “immediate pursuit”. To my mind this means immediate pursuit there and then physically, analogous to the notion of “hot pursuit” where there is no opportunity or time to take any other course of action otherwise the opportunity for apprehension, seizure of property, prevention of concealment of property or prevention of escape will be lost.

The prima facie factual circumstances in this case which I am prepared to accept for this purpose, are these.

The offence was reported on 9 August 1985, by witness Moses Mas, who knew the accused’s house as being near the Lai River Bridge in Nandi village. He reported to First Constable Josaiah, who was quite evasive in his evidence about whether in his investigations he inquired of Moses Mas or anyone else about where the accused’s house was. He suggested that Moses Mas did not tell him and also that he did not specifically enquire of anybody. He kept repeating that Nandi villagers kept saying the accused lived in Nandi village. However, be that as it may, First Constable Josaiah therefore did not know of the accused’s house in Nandi village, which I find quite difficult to understand in the circumstances, until the night of the raid/search. First Constable Josaiah said the police were informed on 16 December 1985, between the hours of 11.00 am and 3.00 pm. The police raid/search party left Wabag for Nandi at 12.00 midnight on 17 December 1985 and presumably the raid/search was carried out in the early hours of 18 December 1985. The 16 December 1985 was a Monday and so from whatever time the information was received on that day to the departure for the raid/search on midnight Tuesday, 17 December, the police had some 33 hours to obtain the necessary search warrant. They had a part of a working afternoon on Monday, 16 December and the whole of Tuesday, 17 December 1985. I grant that the accused might have been a suspect who was on the move in the whole of the preceding four months since 9 August 1985, but the police did not mobilise immediately on being informed on 16 December 1985. They were not in “immediate pursuit” of the accused that very afternoon of 16 December 1985. As I have said, in my view the notion of “immediate pursuit” analogous to “hot pursuit” is a situation where immediate physical action in pursuit is necessary, such that it is not reasonably practicable to obtain a search warrant without losing the advantage of surprise, or losing track of the suspect and allowing him to escape or allowing time for the suspect to conceal or deposit anything that may be material in evidence.

This was not the case in this case on the evidence. There did not appear to be any immediacy about the police mobilisation, 33 hours went by before they mobilised. Indeed upon a careful reading of the whole of s 5 of Div 1 of the Act, it will be noted that subss (1)-(4) deal with very immediate situations in the search of motor vehicles and crafts and I would conclude that the same condition should follow with subs (5) in relation to the search of any building or place, that is, it must be immediate in similar fashion.

The construction that I have placed on s 5(5) consistent with the whole of s 5 becomes markedly apparent when s 6 is studied and compared with s 5. Section 6 is in these terms:

“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 it 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 other than a Local 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.

(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.”

It deals with circumstances where search warrants are issued. Section 6(1), it will be noted includes all of the locations of building, craft, vehicle or place, as covered under s 5, where in the circumstances of par (a), (b), or (c) a court, other than a local court may issue a warrant to search the same. Section 6(2), it will be noted, is a special protective provision relating to the search of any thing or areas therein specified relating to a village. It relates to search of “any building or buildings in a village or in any part of a village or village garden” in the same circumstances as under subs (1)(a), (b) or (c), for which a search warrant may be issued.

It will also be noted that unlike s 6(1) where the information on oath is not specified to be necessarily by a commissioned officer of the police force, under s 6(2) it is. A further requirement of a search warrant issued under s 6(2) is that under s 6(3), 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.

These rather more stringent and special conditions for the issue of a search warrant for any search relating to a village are for sound practical reasons that the village community should not be unnecessarily disturbed and its peace violated without valid reasons, thus the especial requirement that the information on oath shall be by a commissioned officer of the police as distinct from s 6(1), and where practicable, to first seek co-operation of village leaders. The village is protected and placed at a higher plane than any other building or place under s 6(1).

What then follows from these. A legitimate “immediate pursuit” I have described under s 5(5) may permit a search to be carried out in a village building or place without a search warrant. But it must be “immediate” in fact and law, in the manner I have described. Conversely, if investigation, follow-up or pursuit of a suspect, however notorious is not “immediate” then a search warrant must be obtained under s 6(1). If such a search is proposed to be in a village then information for the application for the search warrant must be in accordance with s 6(2), that is by a commissioned officer of the police force, and further attempt must be made to comply with s 6(3) if practicable to do so.

What consequences follow then if a search is carried out in a village without first obtaining a search warrant where such a search is not in “immediate pursuit”. Such a search is first, unlawful, and consequently any evidence obtained thereby is unlawfully obtained, and liable to be rejected. I agree that it does not automatically follow that such evidence should be rejected. There still remains in the court a common law judicial discretion whether or not to reject it. This discretion is distinct from the power given under s 57 of the Constitution to make orders to enforce and to protect any breach of fundamental rights and freedoms guaranteed under the Constitution.

I refer to and adopt the distinction in these two discretionary powers as discussed by Kapi Dep CJ, in John Alex v Martin Golu [1983] PNGLR 117, the infamous “blue bag” case. His Honour held, and I agree that:

“(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.”

The Search Act (Ch No 341) is of course an Act permitted by s 44 and s 49 of the Constitution to regulate or restrict, the freedom from arbitrary search and entry conferred by s 44 and the right to privacy conferred by s 49, and in compliance with the Constitution, s 38.

I consider that non-compliance with the strict requirements of the provisions of the Search Act is in effect to breach the Constitution, s 44 or s 49, as the case may be.

The circumstances in John Alex v Martin Golu are slightly different, in that a s 57 Constitutional application was made for an order enforcing a s 44 right to freedom from arbitrary search and entry of the applicant’s premises, which had been entered and searched by police, whilst the applicant was asleep, without first obtaining a warrant under the Search Act, and the “blue bag” was seized. The bag was tendered in evidence in the District Court, and admitted by the learned Magistrate Martin Golu over defence objections. The s 57 application that an order be made enforcing the s 44 right by ordering that the “blue bag” be not admitted in evidence in the court below was granted. I agree with and adopt the paraphrasing of Kapi Dep CJ’s comments at 66 of D Chalmers, D Weisbrot and W Andrew, Criminal Law and Practice of Papua New Guinea (2nd ed, 1985) that:

“The police have no right to enter into a house and seize property. This is the very reason for the right under this section. They can only enter a house under the exceptions provided for under this section and the Search Act 1977. This cannot be seen to be unfair to the police in the investigation of crime because such investigations may proceed properly and effectively within the exceptions provided ....

A remedy for seizure of evidence in contravention of the rights guaranteed under this section may be granted under the general common law discretion to reject evidence obtained illegally, or under a separate and independent power conveyed by s 57 of the Constitution.”

Although s 57 of the Constitution was not argued I have addressed it as it is an inherent dispositive power vested in this Court to exercise, I consider, in my own discretion, if I consider the circumstances warrant my exercise of it to protect fundamental rights.

How do I apply these principles to the facts of this case. I make the following findings:

1.       I am satisfied that in the circumstances a search warrant should have been applied for and obtained pursuant to s 6(2) of the Search Act.

2.       I am not at all satisfied there was “immediate pursuit” under s 5(5).

3.       There was in fact no search warrant obtained.

4.       The Search Act therefore was not complied with, consequently s 44 and s 49 of the Constitution were also breached.

5.       The search was therefore unlawful.

6.       Evidence of the search, seizure and scientific examinations were all liable to be rejected.

7.       The court has both a common law and an extended and greater discretionary power under s 57 of the Constitution to reject such unlawfully obtained evidence.

8.       The court has an inherent power under s 57 of the Constitution to exercise its discretion of its own volition even if not argued, at any time.

9.       I consider that s 6(2) and (3) protections in relation to a village search are deliberately more onerous on an applicant and so the consequences of non-compliance are more severe.

CONCLUSION

In the final analysis in my common law discretion I would reject the evidence thus obtained in breach of the Search Act and s 44 and s 49 of the Constitution. I add that following the full discussion of the Court’s inherent discretion under s 57 of the Constitution I consider that there are stronger Constitutional and public policy considerations which in my view persuade disallowance of this evidence from further consideration.

(The Court then upheld the no case submission and discharged the accused.)

Accused discharged

Lawyer for the State: Public Prosecutor.

Lawyer for the accused: S Alonk.