N10560
PAPUA NEW GUINEA
 [IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NOS 37, 38, 39, 120, 121, 124, 125, 126, 127 & 128 OF 2022

THE STATE

V

BOSTON KASIMAN, EDNA OAI, ANNIE SMEREWAI, 
TABITHA MALKEN, GLORIA FRANCESCA SALIKA 
& GREGORY JAMES SHEPPARD

Waigani: Cannings J
2023: 3rd, 6th November

EVIDENCE – objection to admission of evidence obtained under search warrants – voir dire – Search Act – whether warrants validly issued – whether evidence obtained unlawfully – Constitution, s 44 (freedom from arbitrary search and entry), s 49 (right to privacy) – whether invalid warrants meant documents were obtained in breach of constitutional rights of accused – whether the court has discretion to allow admission into evidence of documents obtained under invalid search warrants – underlying law discretion – constitutional discretion. 

At the start of a criminal trial of six accused charged with misappropriation, the first five accused filed voir dire notices and the sixth accused filed an objection to proposed evidence, by which they each objected to the admission into evidence of documents obtained by the police under six search warrants, issued by the District Court. A voir dire hearing was conducted and evidence was led as to the circumstances in which each of the warrants was issued. The first five accused argued that each warrant was defective due to the absence of any information on oath by the member of the Police Force named in the warrant as providing such information, the information being provided by a member of the Police Force who was not a member of the police investigation team and had no knowledge of the matters required to prepare such information, the District Court being intimidated by police and used as a rubber stamp in a way that undermined the integrity of the investigation, which was biassed against the accused, and the making of corrupt payments by a third party with a vested interest in the matter to the members of the Police Force who arranged issuance of the search warrants. It was argued that the police deliberately breached the law and violated the rights of the accused under ss 44 (freedom from arbitrary search and entry) and 49 (right to privacy) of the Constitution due to their receipt of corrupt payments and that all documents obtained under the defective warrants ought to be excluded from evidence.  The sixth accused argued that none of the affidavits and informations lodged with the District Court when applying for the search warrants was commissioned on oath and this was in flagrant breach of the Search Act and in breach of internal police directives that such practices cease. This meant each warrant was unlawful and all documents obtained pursuant to them were illegally obtained. The conduct of the police was reckless and this was a bad case of breaches of ss 44 and 49 of the Constitution. It was argued that the court was bound to exercise its discretion under both the underlying law and the Constitution to exclude from the evidence all documents obtained under the unlawful warrants. 

Held:

(1)	Each search warrant was invalidly issued due to the absence of any information on oath by the member of the Police Force named in the warrant as providing such information and none of the affidavits and informations lodged with the District Court when applying for the search warrants being commissioned on oath.

(2)	The documents obtained pursuant to the warrants were unlawfully obtained. To the extent that the documents included personal bank records of the accused and other documents in respect of the private or family lives of the accused and their communications with other persons and their personal papers and effects, the evidence was obtained in breach of the right to privacy under s 49 of the Constitution of each of the accused.

(3)	Documents obtained unlawfully and in breach of an accused’s constitutional rights may nevertheless be admitted into evidence at the discretion of the Court, which discretion exists under both the underlying law (specifically the common law) and the Constitution (specifically s 57(3)). 

(4)	Here, the impropriety on the part of the police was extensive but there was no evidence of bad faith or bias or deliberately cutting corners to obtain an advantage that would otherwise not have been available; the illegality did not affect the cogency of the evidence; the documents would have been readily available if the requirements of the Search Act had been complied with; the offences charged were very serious; the Search Act did not require that every breach of the Act result in a decision to exclude documents from admission into evidence; there was no material unfairness to the accused; any prejudice to the accused is outweighed by the probative value of the documents. 

(5)	The court exercised its common law discretion by allowing the unlawfully obtained documents to be admitted into evidence and exercised its constitutional discretion by ordering that it was neither necessary nor appropriate for the purpose of protection and enforcement of the right to privacy of the accused for the documents to be excluded from evidence. 

(6)	The objections raised in the voir dire notices of the first five accused and the objection to proposed evidence of the sixth accused were refused.

Cases Cited

The following cases are cited in the judgment:

Alex v Golu [1983] PNGLR 117
Constitutional Reference No 1 of 1977 [1977] PNGLR 362
Lyanga v The State (2017) SC1635
The State v Evertius [1985] PNGLR 109
The State v Paraka (2022) N9568
The State v Popo [1987] PNGLR 286

Counsel

H Roalakona, T Aihi & L Ilave, for the State
E Sasingian, for the First to Fifth Accused
R J Webb SC & L Painap, for the Sixth Accused

6th November 2023
1.     CANNINGS J: The six accused are charged with two counts of misappropriation under s 383A of the Criminal Code. Count 1 on the indictment charges them with misappropriation of K52 million the property of the Independent State of Papua New Guinea, and alleges that it was dishonestly applied to the use of Young & Williams Lawyers. Count 2 on the indictment charges them with misappropriation of K216 million the property of the Independent State of Papua New Guinea, and alleges that it was dishonestly applied to the use of Ok Tedi Fly River Development Foundation Ltd.

2.     The first to fifth accused, Boston Kasiman, Edna Oai, Annie Smerewai, Tabitha Malken and Gloria Francesca Salika, are represented by Sasingian Lawyers. Their counsel is Mr Sasingian. The sixth accused, Gregory James Sheppard, is represented by Young & Williams Lawyers. His counsel is Mr Webb.

3.    The first five accused filed voir dire notices on 26, 27 and 28 October 2022. The sixth accused filed an objection to proposed evidence on 13 September 2023 (though his objection had been made orally previously.) The combined effect of those voir dire notices and that objection to proposed evidence is that the accused object to the admission into evidence of documents obtained by the police under six search warrants, issued by Waigani District Court, which the State intends to rely on at the trial:

•	SW 777/2020 issued on 11 December 2020 in respect of bank records held by Bank South Pacific;

•	SW 835/2020 issued on 28 December 2020 in respect of bank records held by ANZ Bank;

•	SW 5/2021 issued on 5 January 2021 in respect of bank records held by Bank South Pacific;

•	SW 166/2021 issued on 31 March 2021 in respect of email records held by ANZ Bank;

•	SW 333/2021 issued on 9 July 2021 in respect of text message records held by B Mobile;

•	SW 357/2021 issued on 21 July 2021 in respect of bank records held by Bank South Pacific.

4.    A voir dire hearing was conducted by Justice Berrigan in November 2022 to deal with the objections. Evidence was led as to the circumstances in which each of the warrants was issued. Her Honour, however, disqualified herself from the trial. 

5.   The trial has continued before me. This has been done with the consent of the parties and in accordance with guidelines for continuation before another judge of a trial part-heard before the original judge who was unable to continue, set by the Supreme Court in Lyanga v The State (2017) SC1635. A transcript of the trial up to the point of her Honour’s disqualification on 17 November 2022 has been made available to the court and to the parties. Submissions have been made before me based on the evidence before her Honour.

6.    The first five accused argue that each warrant is defective due to:

•	the absence of any information on oath by the member of the Police Force named in the warrant as providing such information;

•	the information being provided by a member of the Police Force who was not a member of the police investigation team and had no knowledge of the matters required to prepare such information;

•	the District Court being intimidated by police and used as a rubber stamp in a way that undermined the integrity of the investigation, which was biased against the accused; and 

•	the making of corrupt payments by a third party with a vested interest in the matter to the members of the Police Force who organised the issuance of the search warrants. 

7.     It is submitted by Mr Sasingian that the police deliberately breached the law and violated the rights of the accused under ss 44 (freedom from arbitrary search and entry) and 49 (right to privacy) of the Constitution due to their receipt of corrupt payments and that all documents obtained under the defective warrants ought to be excluded from evidence.  

8.     The sixth accused argues that none of the affidavits and informations lodged with the District Court when applying for the search warrants was commissioned on oath and this was in flagrant breach of the Search Act and the Oaths, Affirmations and Statutory Declarations Act in breach of internal police directives that such practices cease. This means that each warrant was unlawful and all documents obtained pursuant to them were illegally obtained. The conduct of the police was reckless and this was a bad case of breaches of ss 44 and 49 of the Constitution.

9.     It is submitted by Mr Webb that the court is bound to exercise its discretion under both the underlying law and the Constitution to exclude from evidence in the trial all documents obtained under the unlawful warrants. 

10.     Two issues arise:

1.	Were the search warrants issued unlawfully?

2.	Are documents obtained under the search warrants admissible?

1	WERE THE SEARCH WARRANTS ISSUED UNLAWFULLY?

11.     I uphold the submission of Mr Sasingian for the first five accused that each of the warrants is defective due to the absence of any information on oath by the member of the Police Force named in the warrant as providing such information. Five of the six warrants state that it has been issued based on the information on oath by Detective Sergeant (DS) Philip Yonge. One states that that it has been issued based on information on oath by Detective Senior Constable (DSC) Derick Tangua. 

12.     However, neither DS Yonge nor DSC Tangua provided an information on oath for any of the warrants. In each case the information was provided by Detective Chief Inspector (DCI) Robert Volo. DCI Volo, DS Yonge and DSC Tangua gave evidence and confirmed that these were the facts.

13.    I uphold Mr Sasingian’s submission that the absence of information on oath by the member of the Police Force named in the warrant as providing such information makes each warrant non-compliant with s 6(1) of the Search Act 1977. 

14.    However, I reject Mr Sasingian’s other submissions regarding alleged defects in the warrants. 

15.    The fact that the information was provided by DCI Volo, who is said to be not a member of the police investigation team involved in this case, is of no consequence. The evidence was that DCI Volo was briefed on the case by members such as DS Yonge and DSC Tangua, who were on the investigation team, and the documents to apply for the warrants were collated, including a supporting affidavit by DS Yonge or DSC Tangua,  and forwarded to him so that he could sign them and the application for warrants would go to the District Court in his name. The District Court insisted on applications for search warrants being made by a commissioned officer of the Police Force, so what happened in this case was implementation of a procedure required by the District Court. 

16.     The evidence does not support a finding that the District Court was intimidated by police at any stage, or that it was used as a rubber stamp by the police to obtain warrants. I cannot find on the evidence that the way that the warrants were obtained undermines the integrity of the investigation or supports a finding that the investigation was biased against the accused. 

17.     The allegedly corrupt payments referred to by Mr Sasingian are payments of K2,000.00 and K1,000.00 made by Pape Accountants (which was involved in the investigation team) to DS Yonge in December 2020 and January 2021. DS Yonge gave evidence and was cross-examined regarding these payments and his explanation was satisfactory in my view. 

18.    The payments were unusual and perhaps irregular but ought not to be regarded as corrupt. I am not satisfied that they caused any impropriety in issuance of the search warrants or impaired the integrity of the police investigation. 

19.     As to the objection of the sixth accused, it is apparent that each application for a search warrant consisted of:

a)	a notice of motion signed by DCI Volo as applicant;

b)	an affidavit in support signed by DCI Volo and a Commissioner for Oaths referring to information put forward by the investigating officer (DS Yonge or DSC Tangua);

c)	an affidavit in support by DS Yonge or DSC Tangua;

d)	the information signed by DCI Volo. 

20.     There is evidence that none of the affidavits or informations used in the applications were commissioned on oath as required by the Oaths, Affirmations and Statutory Declarations Act Chapter 317. Each jurat stated falsely that it was sworn and signed at the stated place and stated date. I uphold the submission of Mr Webb that there was no information on oath to support issuance of the warrants as required by the Search Act.

21.     There is evidence that DCI Volo knew the importance of swearing affidavits and informations on oath before a Commissioner for Oaths and what it entailed. There is evidence that DS Yonge knew those things too. He understood what was meant by the memo in October 2019 by CI Kuiap of the National Fraud and Corruption Directorate that “the practice of signing the affidavit outside and passing the affidavit to another person for the Commissioner for Oaths to sign should be ceased”. 

22.     There is evidence that DSC Tangua also breached the requirements of the Oaths, Affirmations and Statutory Declarations Act. I accept his evidence that he signed his affidavit in the presence of a Commissioner for Oaths. However, I find that what happened did not constitute swearing on oath as required by that Act.

23.     I therefore uphold the submissions of Mr Webb (in regard to five of the six warrants) and Mr Sasingian (in regard to all six warrants) that the warrants are defective in that:

•	there was no information on oath by the member of the Police Force named in the warrant as providing such information; and 

•	none of the affidavits and informations lodged with the District Court when applying for the warrants were commissioned on oath.

24.    Each of the search warrants is invalid. Each warrant was issued unlawfully. The documents obtained pursuant to each warrant were obtained unlawfully.

25.     To the extent that the documents included bank records of the accused and other documents in respect of the private or family lives of the accused and their communications with other persons and their personal papers and effects, the documents were obtained in breach of the right to privacy in s 49 of the Constitution (The State v Popo [1987] PNGLR 286).

2	ARE DOCUMENTS OBTAINED UNDER THE SEARCH WARRANTS ADMISSIBLE?

26.     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 in PNG over a long period, commencing with the Supreme Court decision in Constitutional Reference No 1 of 1977 [1977] PNGLR 362, and applied in numerous subsequent cases including Alex v Golu [1983] PNGLR 117, The State v Evertius [1985] PNGLR 109 and The State v Paraka (2022) N9568. 

27.    Matters to consider in the exercise of the common law discretion were helpfully summarised by Berrigan J in The State v Paraka (2022) N9568, and 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 are 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.

28.     Here, I consider that:

(a)	the impropriety on the part of the police was extensive and to some extent reckless but I consider there is no evidence of bad faith or bias or deliberately cutting corners to obtain an advantage that would otherwise not have been available; 

(b)	the illegality that occurred does not affect the cogency of the evidence; 

(c)	the documents obtained under the warrants would have been readily available if the requirements of the Search Act and the Oaths, Affirmations and Statutory Declarations Act had been complied with; 

(d)	the offences charged are very serious; 

(e)	the law that creates the safeguards against infringement of the rights of the accused – the Search Act – does not require that every breach of the Act result in a decision to exclude documents from admission into evidence; 

(f)	there is no material unfairness to the accused in admitting the documents into evidence; 

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

29.     I will therefore exercise the common law discretion of the Court to allow the unlawfully obtained documents to be admitted into evidence.

30.     As for the constitutional discretion I acknowledge the infringement of the right to privacy of each of the accused that has evidently occurred. However, I determine under s 57(3) of the Constitution that it is neither necessary nor appropriate for the purpose of protection and enforcement of the right to privacy of the accused, that the documents be excluded from evidence. 

31.     I conclude that the documents obtained under the unlawfully issued search warrants are admissible. 

ORDER

(1)	The objections to admission into evidence of documents obtained under the search warrants referred to in the voir dire notices filed by the first to fifth accused on 26, 27 and 28 October 2022 and the objection to proposed evidence filed by the sixth accused on 13 September 2023 are refused. 

(2)	Subject to the upholding of objections on grounds other than those raised in the voir dire notices filed by the first to fifth accused on 26, 27 and 28 October 2022 and the objection to proposed evidence filed by the sixth accused on 13 September 2023, the documents obtained under the search warrants referred to in those voir dire notices and that objection to proposed evidence, are admissible in evidence in the trial of the accused. 
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Sasingian Lawyers: Lawyers for the first to Fifth Accused
Young & Williams Lawyers: Lawyers for the Sixth Accused