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Chapter 10: Power to Enter and Search

 Table Of Contents 

[10.0] Introduction 

In Maleli Zalao v Attorney – General & the Commissioner of Police (Unrep. Civil Appeal Case No. 9 of 1996) the Court of Appeal stated at pages 1 – 2: 

'Section 9 of the Constitution provides that no person shall be subjected to search of his person or property unless a statute, dealing inter alia with breaches of the law as detecting criminal offences, makes specific provision for such a search.' 

The Criminal Procedure Code (Ch. 7) is one statute that provides the power to police officers to conduct searches and it is that statute which will be examined in this Chapter. There are a number of other statutes which also provide the power of police officers to conduct searches. The statutes which are also examined in this book are: 

[i] Dangerous Drugs Act (Ch. 98); 

[ii] Firearms & Ammunitions Act (Ch. 80); and 

[iii] Liquor Act (Ch. 144). 

When conducting a search police officers should explain to the person to be searched the reason for the search, unless the circumstances rendered the giving of the reasons unnecessary or impracticable, see Brazil v Chief Constable of Surrey [1983] 1 WLR 1155 & Lens v King [1988] WAR 76. 

Furthermore, the extent of any search must be reasonable, having regard to the circumstances that exist for the search at the time, see Frank Truman Export Ltd v Metropolitan Police Commissioner [1977] 1 QB 952 at pages 965 – 966; Crowley v Murphy (1981) 52 FLR 123 at pages 129, 137 and 154 & Baker v Campbell (1983) 49 ALR 385. 

Property obtained from an illegal search may be excluded by a court, see King (Herman) v R (1968) 52 CrAppR 353, per Lord Hodson at page 365; Jeffrey v Black [1977] 3 WLR 895; [1978] 1 AllER 555; [1978] QB 490; [1977] CrimLR 555; (1978) 66 CrAppR 81; Finnigan v Sandiford; Clowser v Chaplin (1981) 73 CrAppR 153 & McLorie v Oxford (1982) 75 CrAppR 137. 

[10.1] Constitution 

Section 9 of the Constitution states (in part): 

'(1) Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises. 

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision – 

[…] 

(d) for the purpose of authorizing the entry upon any premises in pursuance of an order of a court for the purpose of enforcing the judgment or order of a court in any proceedings; or

(a)                for the purpose of authorizing the entry upon any premises for the purpose of preventing or detecting criminal offences, 

and except so far as that provision or, as the case may be, anything done under the authority thereof is shown not to be reasonably justifiable in a democratic society.' (emphasis added) 

[10.2] Power To Enter Generally 

The occupier of any dwelling – house gives implied license to any member of the public, including police officers, coming on his/her lawful business to come through the gate to the yard, provided it is not locked, walk up the steps, and knock on the front door of the house. However, when that license is revoked by the licensee, ie., the occupier of the house, a reasonable time must be give to leave the yard, see Robson & Robson v Hallett [1967] 3 WLR 28; [1967] 2 QB 939; [1967] 2 AllER 407; (1967) 51 CrAppR 307 & Lambert v Roberts (1981) 72 CrAppR 223. 

In R v Thornley (1981) 72 CrAppR 302 Dunn LJ, delivering the judgment of the Court, held at page 306: 

'The officers were invited into the house by a co – occupier for the purpose of investigating her complaint. They were entitled to remain on the premises for a reasonable period of time in order to carry out that investigation to their satisfaction, notwithstanding that they had been told to get out by her husband.' 

Refer also to the 'Power To Enter To Arrest' which is examined on page 247. 

[10.3] Power To Search Generally 

Section 84(3) of the Penal Code (Ch. 26) states: 

'Any police officer who has reason to believe that a weapon is being concealed or carried on any person or vehicle in a restricted area or place may, without warrant or other written authority, search and detain any such person or vehicle and take possession of such weapon.' (emphasis added) 

Section 14 of the Criminal Procedure Code (Ch. 7) states: 

'(1) Whenever a person is arrested by a police officer or a private person, the police officer making the arrest or to whom the private person makes over the person arrested may search such person, and place in safe custody all articles other than necessary wearing apparel found upon him: 

Provided that whenever the person arrested can be legally admitted to bail and bail is furnished, such person shall not be searched unless there are reasonable grounds for believing that he has about his person any – 

(a)                stolen articles; or 

(b)               instruments of violence; or 

(c)                tools connected with the kind of offence which he is alleged to have committed; or 

(d)               other articles which may furnish evidence against him in regard to the offence which he is alleged to have committed. 

(2) The right to search an arrested person does not include the right to examine his private person. 

(3) Where any property has been taken from a person under this section, and the person is not charged before any court but is released on the ground that there is no sufficient reason to believe that he has committed any offence, any property so taken from him shall be restored to him.' (emphasis added) 

In Lindley v Rutter (1981) 72 CrAppR 1; [1981] QB 128 Donaldson LJ stated at pages 5 – 6 & 134 – 135 respectively: 

'It is the duty of the courts to be ever zealous to protect the personal freedom, privacy and dignity of all who live in these islands. Any claim to be entitled to take action which infringes these rights is to be examined with very great care. But such rights are not absolute. They have to be weighed against the rights and duties of police officers, acting on behalf of society as a whole. It is the duty of any constable who lawfully has a prisoner in his charge to take all reasonable measures to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, does not destroy or dispose of evidence and does not commit further crime such as, for example, malicious injury to property. This list is not exhaustive, but it is sufficient for present purposes. What measures are reasonable in the discharge of this duty will depend upon the likelihood that the particular prisoner will do any of these things unless prevented. That in turn will involve the constable in considering the known or apparent disposition and sobriety of the prisoner. What can never be justified is the adoption of any particular measures without regard to all the circumstances of the particular case.' 

See also: Brazil v Chief Constable of Surrey (1983) 77 CrAppR 237. 

Section 15 of the Criminal Procedure Code (Ch. 7) states: 

'(1) Any police officer who has reason to suspect that any article stolen or unlawfully obtained, or any article in respect of which a criminal offence or an offence against the customs laws has been, is being, or is about to be, committed, is being conveyed, whether on any person or in any vehicle, package or otherwise, or is concealed or carried on any person in a public place, or is concealed or contained in any vehicle or package in a public place, for the purpose of being conveyed, may, without warrant or other written authority, detain and search any such person, vehicle or package, and may take possession of and detain any such article which he may reasonably suspect to have been stolen or unlawfully obtained or in respect of which he may reasonably suspect that a criminal offence or an offence against the customs laws has been, is being, or is about to be committed, together with the package, if any, containing it, and may also detain the person conveying, concealing or carrying such article: 

Provided that this subsection shall not extend to the case of postal matter in transit by post except where such postal matter has been, or is suspected of having been, dishonestly appropriated during such transit. 

(2)               Any police officer of or about the rank of sergeant may, if he has reason to suspect that there is on board any vessel any property stolen or unlawfully obtained, enter without warrant, and with or without assistants, board such vessel, and may remain on board for such reasonable time as he may deem expedient, and may search with or without assistants any or every part of such vessel, and after demand and refusal of keys, may break open any receptacle, and upon discovery of any property which he may reasonably suspect to have been stolen or unlawfully obtained may take possession of and detain such property and may also detain the person whose possession the same is found. Such police officer may pursue and detain any person who is in the act of conveying any such property away from any such vessel, or after such person has landed with the property so conveyed away or found in his possession. 

(3)               Any person detained under this section shall be dealt with under the provisions of section 23 ['Detention of persons arrested with warrant'].' (emphasis added) [words in brackets added] 

Section 16 of the Criminal Procedure Code (Ch. 7) states: 

'Whenever it is necessary to cause a woman to be searched, the search shall be made by another woman with strict regard to decency.' (emphasis added) 

Section 17 of the Criminal Procedure Code (Ch. 7) states: 

'Notwithstanding the provisions of section 14 the officer or other person making any arrest may take from the person arrested any instruments of violence which he has about his person, and shall deliver all articles so taken to the court or officer before which or whom the officer or person making the arrest is required by law to produce the person arrested.' 

The law relating to 'Bail' is examined commencing on page 378. 

[10.4] Search Warrants 

[10.4.1] Authority To Issue 

Section 23 of the Police Act (Ch. 110) empowers police officers to apply for a 'search warrant' before a Magistrate. 

Section 11 of the Magistrates' Courts Act (Ch. 20) states (in part): 

'Subject to the provisions of this and of any other Act, every justice of the peace shall, subject to any exceptions which may be contained in his appointment, within the area in and for which he holds such office, have – 

(a)                all the powers, rights and duties of a Magistrate under this or any other Act to – 

(i)                 [...]; 

(ii) issue search warrants;' (emphasis added) 

Section 105 of the Criminal Procedure Code (Ch. 7) provides: 

[i] every 'search warrant' shall be under the hand of the Magistrate or Justice of the Peace who issued it; 

[ii] 'search warrants' are normally directed generally to all police officers; and 

[iii] every 'search warrant' shall remain in force until it is executed or until it is cancelled by the Court which issued it. 

If a 'search warrant' is lost or destroyed, a duplicate warrant may be issued, see R v Leish Justices, Ex parte Kara (1981) 72 CrAppR 327; (1981) CrimLR 628. 

[10.4.2] Information To Ground Search Warrant 

[A] Introduction 

Section 101 of the Criminal Procedure Code (Ch. 7) states: 

'Where it is proved on oath to a Magistrate or a justice of the peace that in fact or according to reasonable suspicion anything upon, by or in respect of which an offence has been committed or anything which is necessary to the conduct of an investigation into any offence in any building, ship, vehicle, box, receptacle or place, the Magistrate or justice of the peace may by warrant (called a search warrant) authorize a police officer or other person therein named to search the building, ship, vehicle, box, receptacle or place (which shall be named or described in the warrant) for any such thing and, if anything searched for be found, or any other thing there is reasonable cause to suspect to have been stolen or unlawfully obtained be found, to seize it and carry it before the court issuing the warrant or some other court to be dealt with according to law.' (emphasis added) 

The police officer making the application for the issuance of a 'search warrant' must prove on oath to the satisfaction of the issuing Magistrate or Justice of the Peace that based on a reasonable suspicion there is reasonable cause to suspect that as specified in 'Information To Ground Search Warrant' the property is at the location and that it will constitute evidence which is necessary in the investigation of an offence known to law. 

To establish reasonable suspicion it is not necessary to possess evidence that amounts to a prima facie case, see R v Smith [2001] 2 CrAppR 1. 

In Malayta (1996) 87 ACrimR 492 the Queensland Court of Appeal held per Dowsett J at page 505: 

'The validity of the warrant is also attacked because of the use of so – called hearsay evidence. This argument assumes the applicability of the rules of evidence to the process of issuing a warrant. The High Court, in a line of cases ending in Grollo v Palmer (1995) 184 CLR 348 at 359; 82 AcrimR 547 at 552 – 553, has held that although a judicial officer, in issuing a warrant, may be under a duty to proceed judicially, he is nonetheless exercising an executive, not a judicial power. The decision of the Judicial Committee of the Privy Council in Hussien v Kam [1970] AC 942 at 949 is authority for the proposition that where the formation of a reasonable suspicion is a condition precedent to the exercise of a power, such suspicion may be based upon a matter which would not be admissible evidence in establishing a prima facie case.' (emphasis added) 

The 'Information To Ground Search Warrant' must be sworn on oath before the issuing Magistrate or Justice of the Peace. 

Although an 'Information to Ground Search Warrant': 

[i] will often be prepared at an early stage of an investigation; 

[ii] may need to be completed in haste; and 

[iii] must be completed in English, 

it must comply with the requirements of the law if it is to be valid, see Maleli Zalao v Attorney – General & the Commissioner of Police (Unrep. Civil Appeal Case No. 9 of 1996; Court of Appeal). 

Therefore, it is important that careful preparation is conducted prior to applying for the issuance of a 'search warrant', see R v Reading JJ, Ex parte South West Meat Ltd [1992] CrimLR 672. 

In Maleli Zalao v Attorney – General & the Commissioner of Police (supra) the Court of Appeal stated at pages 1 – 7: 

'Section 9 of the Constitution provides that no person shall be subjected to search of his person or property unless a statute, dealing inter alia with breaches of the law as detecting criminal offences, makes specific provision for such a search. It was accepted by both sides that s. 101 of the Criminal Procedure Code was a statute so providing. S. 101 is constitutionally valid and where there has been compliance with its terms there will be no infringement of the constitution. 

[…] 

[…] There had been no return o[f] the warrant made as required by s. 101 but the police have retained possession of the documents seized. […] 

The Information is stated to be "on the oath" of Sgt. Taro and the document was held out by him to be a document under oath. That is sufficient at law. If there was any knowingly false statement therein the maker of the statement would be guilty of perjury. On occasions it may be necessary for the magistrate to be supplied with additional evidence on oath, either orally or in the form of an affidavit, before he was satisfied the warrant should issue, but otherwise the form of information used here would be sufficient. 

[…] 

It is not necessary that the statement of the offence suspected to have been committed be as precise as would be required in an indictment. But [t]here must be reasonable suspicion that an offence known to law has been committed. There is reference in broad terms in this information to "goods obtained by fraudulently means from Solomon Islands Government." That may well in some circumstances be an adequate description of the alleged offence. 

[…] 

There is nothing in the information to establish why Sgt. Taro had any suspicion in relation to [… vehicle] A3617 and nothing to indicate why there was some suspicion that the appellant may have been involved in obtaining goods fraudulently from the government. None of those assertions is in any way supported by the quoted statement. 

There was nothing before the magistrate which would have entitled him to conclude that there was reasonable cause to suspect that the appellant had committed an offence under Solomon Islands law. It is not for this court to speculate whether or not there might have been further material which the inforcement could have [been] placed before the magistrate. 

The respondents can get no comfort from that part of s. 101 which speaks of the "conduct of an investigation into any offence" because the information does not state the offence with sufficient particularity nor does it refer sufficiently to the detail of the investigation.' (emphasis added) [words in brackets added] 

In R v Smith (Joe) [2001] 2 CrAppR 1 [[2001] 1 WLR 1031] Otton LJ, delivering the judgment of the Court of Appeal, stated at page 5: 

'To establish a reasonable suspicion it is not necessary for a police officer to possess evidence which amounts to a prima facie case: see Dunbell v Roberts [1944] 1 AllER 326. 

In Hussien v Chong Fook Kam [1970] AC 942, PC, Lord Devlin in the Privy Council stated as follows at p. 948: 

"Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking, 'I suspect but I cannot prove'. Suspicion arises at or near the starting – point of an investigation of which the obtaining of prima facie proof is the end." 

In O'Hara v Chief Constable of Royal Ulster Constabulary [1997] AC 286, Lord Steyn at 293C stated: "… information from an informer or a tip-off from a member of the public may be enough." 

Thus there is only a limited amount that has to be proved in order to establish a reasonable suspicion. This is an objective test and not a subjective test. […] 

Lord Hope in O'Hara adopted with approval the dicta of Sir Frederick Lawton in Castorina v Chief Constable of Surrey (The Times, June 15, 1988): 

"suspicion by itself, however, will not justify an arrest. There must be a factual basis for it of a kind which a court would adjudge to be reasonable." 

Other authority shows that suspicion can take into account matters which could not be adduced at all, for example, hearsay evidence.' (emphasis added) 

[B] Full & Accurate Details 

The police officer making the application for the issuance of a 'search warrant' must provide full and accurate details of inquiries conducted and the 'information' received in the 'Information To Ground Search Warrant', see Maleli Zalao v Attorney – General & the Commissioner of Police (supra). 

There should be no rumours, assumptions or conclusions, just facts.

The 'information' must be capable of satisfying the issuing Magistrate or Justice of the Peace that there is the need to issue the 'search warrant'. In order to satisfy the issuing Magistrate or Justice of the Peace the following must be included: 

[i] details of the offence 'known to law' which has been committed; 

[ii] details of the property sought; 

[iii] why it is reasonably suspected that the property sought is necessary in the investigation of an offence known to law; 

[iv] the reasons why it is reasonably suspected that the property sought is at the location as specified; 

[v] the names of the occupiers at the location, if known; and 

[vi] the reasons why it is reasonably suspected that the persons identified are involved in the commission of the offence 'known to law'. 

It should not be forgotten that it is not the investigating officer's opinion that matters. What is crucial is the issuing Magistrate's or Justice of the Peace's satisfaction, based on facts verified on oath by a sworn 'Information To Ground Search Warrant', see El – Zarw v Nickola, Ex parte El – Zarw [1992] 1 QdR 145. 

Provided sufficient 'information' is outlined in the 'Information To Ground Search Warrant' to the satisfaction of the issuing Magistrate or Justice of the Peace the additional information on oath, either orally or in the form of an affidavit, will not necessarily be required, see Maleli Zalao v Attorney – General & the Commissioner of Police (supra). 

The issuing justice should be made aware of any property that may be subject to 'legal professional privilege', see R v Southhampton Crown Court, Ex parte J & P [1993] CrimLR 962. 

Refer also to the law relating to the 'Search Of Lawyer's Businesses' commencing on page 267. 

[C] Offence 

It is not necessary that the statement of the offence suspected to have been committed be as precise as would be required by a court in the course of a trial, see Maleli Zalao v Attorney – General & the Commissioner of Police (supra). 

However, the offence should be specified in conformity with a wording of a charge and with as much detail as is known at that stage of the investigation. 

Such details which should be included are: 

[i] the date of the alleged offence; 

[ii] the location of the alleged offence; and  

[iii] a brief description of the alleged offence. 

The alleged offence must be an offence 'known to law', as specified in a statute, such as the Penal Code (Ch. 26). Details such as 'obtained by fraudulent means from the Solomon Islands Government' are incorrect, see Maleli Zalao v Attorney – General & the Commissioner of Police (supra). 

Considering that in many cases the name of the suspect will not be known or capable of being determined before the issue of the warrant, it is not considered necessary to identify in the 'Information To Ground Search Warrant', the name of the person who has committed, or whom is suspected to have committed the offence/s, see Coward v Allen (1984) 52 ALR 320 at page 330; Trimboli v Onley (No. 2) (1981) 56 FLR 317 at page 320 & R v Tillett (1969) 14 FLR 101 at pages 112 – 114. 

[D] Property Sought 

There must be 'information' that will enable the issuing Magistrate or Justice of the Peace to conclude that there was a reasonable cause to suspect that the property as specified in the 'Information To Ground Search Warrant' needs to be taken possession of in order to conduct an investigation into the specified offence by outlining 'information' which shows how the property is related to the commission of the offence. 

The property sought must be accurately identified. 

All available details must be included. 

The 'search warrant' must identify sufficiently specifically what property is authorised to be searched for and seized, see Arno v Forsyth (1986) 65 ALR 125. 

[E] Suspect 

There must be 'information' that will enable the issuing Magistrate or Justice of the Peace to conclude that there was a reasonable cause to suspect that the person, if named, had either: 

[i] committed the offence/s as specified; or 

[ii] assisted in the unlawful carrying away of the property as specified, to the specified location. 

[F] Location 

There must be 'information' that will enable the issuing Magistrate or Justices of the Peace to conclude that there was a reasonable cause to suspect that the property sought is at the 'building', 'ship', 'vehicle', 'box', 'receptacle' or 'place', as specified. 

It should be noted that section 101 of the Criminal Procedure Code (Ch. 7) refers to 'buildings' and 'places'. However, the term 'place' is not defined in either the Criminal Procedure Code (Ch. 7) or the Interpretation & General Provisions Act (Ch. 85). The natural and ordinary meaning of that term in the context of the section 101 of the Criminal Procedure Code (Ch. 7) would include parks and other areas of land as distinct from buildings. 

The law relating to 'Statutory Interpretation' is examined commencing on page 30. 

There needs to be full and accurate details of the specified 'building', 'ship', 'vehicle', 'box', 'receptacle' or 'place' which must be specified in the 'search warrant', see section 101 of the Criminal Procedure Code (Ch. 7). 

This means that it is necessary to describe the location to which the 'search warrant' is issued with sufficient particularity to enable the occupier/s and/or owner objectively to determine that the 'search warrant' relates to their 'building', 'ship', 'vehicle', 'box', 'receptacle' or 'place'. 

In Coward & others v Allen & others (1984) 52 ALR 320 Northrop J stated at page 330: 

'Basically, there are four main reasons for this. 

The first is that the officer executing the warrant should be able to identify and locate the place to be searched by reading the description on the warrant. 

The second is to obviate a challenge founded on a claim that the area in fact searched exceeded the description of the "place" described in the warrant. 

Third, if no "place" at all were nominated then, […], the warrant would be a general warrant to search such places as the officer executing it deemed fit, and would, consequently, be condemned as an illegal general warrant. The information and warrant should also state, where possible, the name of the occupier of the place to be searched. 

Fourthly, failure to sufficiently describe the place to be searched may result in the police executing the warrant going to the wrong premises and leaving themselves open to an action for trespass and, perhaps, other actions.' (emphasis added) 

In R v Atkinson [1976] CrimLR 397 the case involved police obtaining a warrant to search flat 45 but at the time of executing the warrant the police realised that it was flat number 30 which they wished to search. The police decided to force entry into flat 30 without obtaining another search warrant. The Court held that the police acted unlawfully. 

If it sought to search more that one location for the same property then such locations should be specified. 

[G] Source Of Information 

The name of the person providing 'information' does not have to be disclosed. The law in relation to the 'Protection Of The Identity Of Informers' is examined commencing on page 130. 

[10.4.3] Execution 

Prior to the execution of a 'search warrant', there should be a 'briefing' to the police officers participating in the search, see R v Reading JJ, Ex parte South West Meat Ltd [1992] CrimLR 672. 

Such 'briefing' should discuss issues including: 

[i] the location of the premises; 

[ii] the name of the occupier/s and/or owner/s of the premises; 

[iii] how the premises is to be entered; 

[iv] what property is being searched for; 

[v] how that property relates to the offence/s in question; 

[vi] the roles of each police officer participating in the search; and 

[vii] any dangers which may arise in searching the premises in question. 

Section 102 of the Criminal Procedure Code (Ch. 7) states: 

'Every search warrant may be issued on any day (including Sunday) and may be executed on any day (including Sunday) between the hours of sunrise and sunset, but the Magistrate or justice of the peace may, by the warrant, in his discretion, authorize the police officer or other person to whom it is addressed to execute it at any hour.' (emphasis added) 

Section 103 of the Criminal Procedure Code (Ch. 7) states: 

'(1) Whenever any building or other place liable to search is closed, any person residing in or being in charge of such building or place shall, on demand of the police officer or other person executing the search warrant, and on production of the warrant, allow him free ingress thereto, and egress therefrom and afford all reasonable facilities for a search therein. 

(2) If ingress into or egress from such building or other place cannot be so obtained, the police officer or other person executing the search warrant may proceed in the manner prescribed by sections 11 ['Search of place entered by person sought to be arrested'] or 12 ['Power to break out of house or other place for purpose of liberation'].' 

(3) Where any person in or about such building or place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched. If such person is a woman the provisions of section 16 ['Mode Of Searching Women'] be observed.' [words in brackets added] 

Section 101 of the Criminal Procedure Code (Ch. 7) states (in part): 

'[I]f anything searched for be found, or any other thing there is reasonable cause to suspect to have been stolen or unlawfully obtained be found, to seize it and carry it before the court issuing the warrant or some other court to be dealt with according to law.' (emphasis added) 

Therefore, if during the course of a search property other than that specified on the 'search warrant' is found, there is authority to seize it, provided there is 'reasonable cause' to suspect that it has been stolen or unlawfully obtained. 

Section 105 of the Criminal Procedure Code (Ch. 7) provides: 

[i] every 'search warrant' shall remain in force until it is executed or until it is cancelled by the court which issued it; and 

[ii] a 'search warrant' may be executed at any place in Solomon Islands.

See also: Reynolds v Commissioner of Police for the Metropolis (1985) 80 CrAppR 125. 

The law relating to the 'Power To Arrest' is examined commencing on page 242. 

[10.4.4] Completion Of Search 

Section 101 of the Criminal Procedure Code (Ch. 7) states (in part): 

'[I]f anything searched for be found, or any other thing there is reasonable cause to suspect to have been stolen or unlawfully obtained be found, to seize it and carry it before the court issuing the warrant or some other court to be dealt with according to law.' (emphasis added) 

Section 104(1) of the Criminal Procedure Code (Ch. 7) states: 

'When any such thing is seized and brought before a court, it may be detained until the conclusion of the case or the investigation, reasonable care being taken for its preservation.' (emphasis added) 

In Maleli Zalao v Attorney – General & the Commissioner of Police (supra) the Court of Appeal stated at page 5:

'There had been no return o[f] the warrant made as required by s. 101 but the police have retained possession of the documents seized.' (emphasis added) 

Therefore, at the completion of the search: 

[i] the 'search warrant'; and 

[ii] the property seized, 

must be taken before the Magistrate or Justice of the Peace which issued the warrant or some other Magistrate or Justice of the Peace to be dealt with according to law. 

That Magistrate or Justice of the Peace may permit the police to retain the property in accordance with section 104.

 See also: R v Uxbridge JJ, Ex parte Sofaer (1987) 85 CrAppR 367; R v Lambeth Metropolitan Stipendiary Magistrate, Ex parte Mc Comb [1983] 2 WLR 259; [1983] QB 551; (1983) 76 CrAppR 248; [1983] CrimLR 266; R v Lushington, Ex parte Otto [1894] 1 QB 420 & R v Heston – Francois (1984) 78 CrAppR 209; [1984] 2 WLR 309; [1984] 1 AllER 795; [1984] QB 278; [1984] CrimLR 227. 

[10.4.5] Lawyer's Businesses 

Prior to applying to a Magistrate or Justice of the Peace for the issuance of a 'search warrant' to search the business premises of a lawyer, the policy of the RSIP is that advice must be sought from the office of the Director of Public Prosecutions. 

Police officers should be particularly careful if a 'search warrant' is being sought to be executed on the office of a lawyer. In that regard the issue of 'Legal Professional Privilege' is important and must be respected. The law in that regard is examined commencing on page 162. 

A police officer does not have to accept at face value that any material is subject to 'legal professional privilege', see R v Chesterfield JJ, Ex parte Bramley [2000] 2 WLR 409; [2000] QB 576; [2000] 1 AllER 411; [2000] 1 CrAppR 486; [2000] CrimLR 385.

In R v Chesterfield Justices; Ex parte Bramley (supra) Kennedy LJ, delivering the judgment of the Divisional Court, made the following comments on pages 495 – 496: 

'In order to decide how much of the available material falls within the scope of the warrant the searchers will have to look at documents, as was accepted by this court in R v Leeds Magistrates' Court; ex p. Dumbleton [1993] CrimLR 866, DC, where Leggatt LJ said at page 25E of the transcript (April 24, 1993): 

"I do not consider that in attempting to sift or sort the documents at the applicant's premises the police were acting beyond their powers. It was their duty to sort the documents that they were entitled to seize from the remainder, even if some of the other material turned out to consist of special procedure material or to be legally privileged." 

But if there is a lot of material, and it is not possible to sort reasonably quickly and easily the material that is relevant (ie., within the scope of the warrant) from that what is not, what is to be done? Can the constable who is executing the warrant do a preliminary sift at the premises where the documents are stored, and then take all, or a large part of the material away to sort it out property elsewhere? Common sense suggests that the answer to that question should be in the affirmative, with the owner of the material or his representative having a right to be present when the sorting takes place, and meanwhile the material being stored in sealed containers […].' (emphasis added) 

If during the course of searching a lawyer's business premises there is a dispute as to its seizure, the property should: 

[i] not be read in detail; 

[ii] placed into a sealed container; and 

[iii] immediately conveyed to the Magistrate or Justice of the Peace which issued the 'search warrant'. 

See also: Propend Finance Ltd v The Commissioner, Australian Federal Police (1995) 79 ACrimR 453. 

[10.4.6] Forms 

The forms to be used are prescribed in the Magistrates' Courts (Forms) Rules issued under section 76 of the Magistrates' Courts Act (Ch. 20) are: 

·                     'Information To Ground Search Warrant', a copy of which is on page 269; and 

·                     'Search Warrant', a copy of which is on page 270. 

(Form 14 – Magistrates' Court Act) 

INFORMATION TO GROUND SEARCH WARRANT

(Criminal Procedure Code S. 101) 

[GENERAL TITLE]

(Form 15 – Magistrates' Court Act)

SEARCH WARRANT

(Criminal Procedure Code S. 101) 

[GENERAL TITLE] 

To all Police Officers within Solomon Islands

Magistrate

This Warrant may be executed during the hours of darkness.

Magistrate

[10.4.7] Example 

'On Friday the 7th day of March 2001 an unknown offender decided to rob the King Solomon Hotel. 

On that day he decided to wear a blue shirt and brown trousers. 

He obtained a firearm from his home at Naha Kola Street, Naha, Honiara City. The offender's home is only house in the street with a burnt – out vehicle in the front yard. 

He then drove a grey Toyota Utility which is unregistered and has no registration plates to the King Solomon Hotel. 

He entered the hotel at about 9pm with the firearm loaded and a red plastic bag in his right hand. 

On approaching the receptionist he said, 'This is a robbery, give me the money, or I'll kill you'. He was then given $1000 in $50 notes and a small quantity of other notes. At the time there were no customers in the immediate vicinity of the reception area. 

He then left in the motor vehicle which was parked outside the premises of the Australian High Commission. 

However, whilst driving home he was followed by an employee of the King Solomon Hotel. 

The employee made a note of the location where the offender decamped from the motor vehicle and immediately advised the police officers at the front counter at the Central Police Station. 

Later that night that employee showed the police the location of the house and the vehicle was still in the yard. 

Example Only 

(Form 14 – Magistrates' Court Act)

INFORMATION TO GROUND SEARCH WARRANT

(Criminal Procedure Code S. 101) 

[GENERAL TITLE]