IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Informant

AND

PONI SMITH
of Tulaele.
Accused

Counsel: J Stowers for prosecution
TK Enari for accused

Judgment: 28 October 2003

JUDGMENT OF SAPOLU CJ

At a preliminary hearing held on 20 October 2003, the Court had to decide as a preliminary issue whether certain evidence of marijuana substances seized by the police during a search of the accused’s house pursuant to a search warrant were admissible. Immediately after the submissions by both counsel, I gave an oral ruling that the evidence was admissible for the prosecution in the trial of the accused on a charge of possession of narcotics brought under the Narcotics Act 1967. Counsel for the accused, who is the longest regular practising member of the bar, then asked for a written judgment for the guidance of the bar. This is that judgment.

My decision will be based mainly on the brief facts of this case. It will be unwise to embark here on a general discussion of legal principles. The law on search and seizure is rather complex and too extensive. The case law on the subject also demonstrates a diversity of judicial opinions in other jurisdictions, not canvassed in these proceedings, on certain aspects of the law on search and seizure. There are also principles on search and seizure which are not relevant to the facts in these proceedings. It is therefore prudent to proceed on a case by case basis.

FACTS

The relevant facts are very brief. Counsel for the accused, without objection from counsel for the prosecution, told the Court that what happened was that the police received a complaint of theft against the wife of the accused. The police then went with a search warrant to search the house of the suspect for monies alleged to have been stolen by her. I would have to assume that the search warrant was issued by the Court or the registrar under s83 of the Criminal Procedure Act 1972 as no copy of the search warrant was before me but that is the statutory provision upon which the police often rely for obtaining search warrants in theft cases.

During the search by the police of the house of the suspect which is also the accused’s house, they also searched the clothes box which is jointly owned by the accused and his wife. In that box the police found a number of marijuana substances which they seized and took with them. There is no mention whether the accused had been arrested by the police at the time the marijuana substances were seized. Subsequently, the accused was charged under the Narcotics Act 1967 with being in possession of narcotics, namely, two small plastic bags of dried marijuana leaves, two marijuana joints and 793 marijuana seeds. The accused pleaded not guilty to the charge. After I ruled that the evidence of the marijuana substances was admissible for the prosecution, the accused’s plea of not guilty was changed to guilty.

There are other matters I need to mention. When counsel for the accused was asked by the Court whether the accused was saying that the search warrant was illegal, counsel’s reply was no. When counsel was also asked whether the accused was saying that the search of his house by the police was unlawful, the reply was to the same effect. I take it therefore to be undisputed that the search warrant was not illegal and the search of the accused’s house was not unlawful.

Submission for the accused

Essentially, the submission by counsel for the accused was that as the search warrant was issued for the purpose of the complaint of theft against the accused’s wife, the evidence of the marijuana substances seized by the police during their search should be excluded as inadmissible because the seizure was outside the purpose for which the search warrant was issued. It would appear that what counsel for the accused was saying was that the seizure of the marijuana substances was not authorised by the search warrant and therefore the evidence with regard to those substances should be held inadmissible. There was, however, no mention as to whether or not the accused was under arrest by the police at the time of the seizure.

Counsel for the accused relied in his submission on the New Zealand case of McFarlane v Sharp [1972] NZLR 838 (CA). The relevant facts of that case may be stated as follows. In the course of a robbery investigation, the police came to suspect the appellant McFarlane. The police then obtained a search warrant from a Justice of the Peace to search the appellant’s home, place of business and his wife’s car in the hope and expectation of finding some of the apparatus used by the robbers in the course of the robbery. During the search, the police did not find any such apparatus, but they found certain documents which would support a charge of bookmaking against the appellant. They seized those documents and removed them into police custody even though the search warrant was not directed to the offence of bookmaking or the documents seized. At the time the documents were seized, the appellant had not been arrested by the police. It was only some two hours later that the appellant was arrested on the charge of bookmaking. He was to be prosecuted in the Magistrates Court but before the trial, counsel for the appellant had applied to the Supreme Court, inter alia, for a writ of prohibition to prohibit the Magistrates Court from hearing the prosecution against the appellant and for an order for the return of the documents to the appellant. The ground for this application was that the seizure by the police of the documents which formed the basis of the charge of bookmaking against the appellant was unlawful. White J in the Supreme Court held that the seizure by the police of the documents before the appellant was arrested was unlawful. However, His Honour was of opinion that that did not entitle the appellant to a writ of prohibition and the relief sought was therefore refused. His honour also declined to make an order for the return of the documents to the appellant. The appellant then appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal. In doing so, the Court of Appeal decided to affirm its longstanding decision in Barnett and Grant v Campbell (1902) 21 NZLR 484 where it was decided that the common law power to search and seize items of property exists as an incident to the arrest of a person and is founded on the right to search a person upon his arrest. As the documents seized were not covered by the search warrant, the police would have had to rely on the common law power of search and seizure. But as that common law power depended on the appellant being arrested by the police, the Court of Appeal held that the seizure was unlawful because at the time the police seized the documents, they had not arrested the appellant. So the Court of Appeal agreed with White J in the Supreme Court that the seizure was unlawful. But that was not the end of the matter. The Court of Appeal also agreed with White J in refusing to issue a writ of prohibition to prohibit the trial Magistrate from proceeding to hear the prosecution against the appellant on the charge of bookmaking. At p842 of its judgment, the Court of Appeal said:

"Neither were we moved by anything that Mr Gazley said to the view that a writ of prohibition should issue to the learned Magistrate prohibiting his proceeding with the charge of bookmaking. Any objection to the production in evidence to the material seized, when it or any of it is tendered to the Court in support of the prosecution, must remain a matter to be decided, first by the Magistrate, and then, if necessary, on appeal from him to the Supreme Court. We think that the admissibility of this material is not a matter on which the Court can at this stage give any ruling." (italics mine).

Thus McFarlane v Sharp does not support the submission by counsel for the accused for which it was cited. On the authority of that case, if a seizure is not authorised by a search warrant issued pursuant to a statutory provision, the police still have a common law power of search and seizure. That common law power exists as an incident to an arrest and is founded on the right to search a person upon his arrest. There was no mention at the preliminary hearing of this matter whether the accused had been arrested by the police or not at the time the marijuana substances found in the accused’s clothes box were seized. So I cannot say whether the seizure was lawful or not. Secondly, even if it is assumed that at the material time the accused had not been arrested so that the seizure of the marijuana substances would be unlawful, that does not mean that the evidence of the seizure would be ipso facto inadmissible. The Court still has to decide whether the evidence of the marijuana substances is admissible notwithstanding that the seizure was unlawful. That is clear from the passage cited from the Court of Appeal’s judgment in McFarlane v Sharp and other authorities on unlawfully obtained evidence which will be referred to later in this judgment.

I would also point out that the Court of Appeal at p844 of its judgment in McFarlane v Sharp recommended for legislative consideration the principle it had affirmed from its previous decision in Barnett and Grant v Campbell (1902) 21 NZLR 484 that the common law right to search and seize exists only as an incident upon arrest. In New Zealand now, s18(3) of the Misuse of Drugs Act 1975 has not made an arrest a prerequisite to the right of search and seizure under that Act. Thus s18(3) of that Act has excluded the application of the ruling in Barnett and Grant as affirmed in McFarlane v Sharp. It is not clear to me whether those two cases still generally represent the law in New Zealand and, if so, to what extent: see, however, R v Jefferies [1994] 1 NZLR 290, per Richardson J at p300.

The position in this case

There is no Samoan authority on the issue raised in the submission by counsel for the accused. Perhaps this is the reason for his request for a written judgment for the guidance of the bar. But as I have already said, my judgment will be based mainly on the facts of this case. That is the prudent course to take.

In the absence of Samoan authority, I will approach the issue in this preliminary hearing as a matter of principle. The police searched the house of the accused pursuant to a search warrant for alleged stolen monies because of a complaint of theft against his wife. In the course of that search, the police opened and found in the clothes box jointly owned by the accused and his wife a number of marijuana substances. The accused was subsequently charged with possession of those substances.

There was no suggestion that the search warrant was illegal. There was no suggestion that the conduct of the search by the police was unlawful or unreasonable. There was also no suggestion that the seizure by the police of the marijuana substances was unreasonable. What was submitted for the accused was that the seizure was outside the purpose of the search warrant which implies that it was not authorised by the search warrant. Based on the facts of this matter, I am of the opinion that if during the course of a lawful search authorised by a search warrant the police by chance come across a substance which can be the subject of a narcotic offence, then the police may lawfully seize that substance without first having to make an arrest. The owner or possessor of the substance may not be around to be arrested. In this case, the police were carrying out a lawful search of the accused’s house pursuant to a search warrant for items of property in connection with a complaint of theft against his wife. The discovery of marijuana substances inside the clothes box jointly owned by the accused and his wife seems to have been a chance discovery. It was fortuitous that the marijuana substances were inside the clothes box at the time the police were searching it for suspected stolen monies. Counsel for the prosecution submitted that if the police were required to return to obtain a separate warrant for the seizure of the marijuana substances, there was a very real risk that those substances would have disappeared by the time the police got such a warrant, and law enforcement considerations should be taken into account. There was also no suggestion that the search was anything other than bona fide. There was also no suggestion that the search or seizure was unreasonable or that any unfairness arises to the accused so as to justify excluding the evidence of the chance discovery as inadmissible. I ruled that that evidence was admissible. I am also mindful of the fact that in this matter we are concerned with narcotic substances, and that an arrest is not a prerequisite to the right of search and seizure under s18(3) of the Misuse of Drugs Act 1975 (NZ).

In the New Zealand case of R v Briggs [1995] 1 NZLR 196 (CA), the police obtained a search warrant to search the premises of the accused for certain suspected items of stolen property. During the execution of the search warrant, the police found instead packets of cattle drench which were not amongst the items of property in respect of which the search warrant had been issued. The police seized and removed those packets of cattle drench. The accused was later charged with receiving stolen goods in respect of the packets of cattle drench. The trial Court ruled that the evidence of the packets of cattle drench was admissible. The accused applied to the Court of Appeal for leave to appeal. One of the grounds of his application was that the search and subsequent seizure of the packets of cattle drench were illegal and were also unreasonable in terms of s21 of the New Zealand Bill of Rights Act 1990. In dismissing the application the Court said at p203:

"The evidence satisfies us that the police were not in breach of their duty. Even more importantly, it cannot be said that this was an unreasonable search, or that any unfairness arises, such as to justify the Court in excluding the evidence."

Unlawful or unreasonable search or seizure

In a number of areas of the law in which we are inexperienced, we have sought assistance and guidance from the jurisprudence of developed jurisdictions. Search and seizure is one such area where we are inexperienced as shown by the fact that both counsel in this case were not able to refer to any Samoan authority where the law on search and seizure has been discussed. We should therefore have regard to the jurisprudence of developed jurisdictions in this case. And if it is necessary and expedient so to do, it should be legitimate to have regard not only to the common law developments but also to the statutory and constitutional developments in other jurisdictions for the purpose of evolving and developing our own common law: see for instance L v L (1994) (C.A. 21/93; unreported judgment of the Court of Appeal delivered by Cooke P on 28 March 1994). This, of course, is by no means an easy task and it calls for self-reliance and commitment not only from the Courts but also from the bar.

Broadly speaking, the New Zealand law on search and seizure has developed on two basis. The common law which is concerned with unlawful search or seizure and statute, the Bill of Rights Act 1990, which is concerned with unreasonable search or seizure. Section 21 of the Bill of Rights Act 1990 provides that everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise. This is based on s8 of the Canadian Charter of Rights and Freedoms which provides simply that everyone has the right to be secure against unreasonable search or seizure. The Fourth Amendment to the United States Bill of Rights also provides a similar right of the people to be secure against unreasonable searches and seizures. In the evolution and development of our own common law by the Samoan Courts, it will not be inconsistent with the New Zealand Bill of rights Act 1990, the Canadian Charter of Rights and Freedoms, and the Fourth Amendment to the United States Bill of Rights, to recognise a similar right by every person to be secure against unreasonable search or seizure. There is certainly nothing in our Constitution or statutory law which is against such a right. I also very much doubt whether any reasonable Samoan would willingly agree to subject his or her person or property to an unreasonable search or his property to an unreasonable seizure.

The difference between a search and a seizure was succinctly put by Richardson J in R v Jefferies [1994] 1 NZLR 290 (CA) where His Honour states at p300:

"A search is an examination of a person or property and a seizure is a taking of what is discovered."

See also R v Grayson and Taylor [1997] 1 NZLR 399 at 406. As to the distinction between a search that is unlawful and a search that is unreasonable, Richardson J says at p304 of R v Jefferies:

"Reasonableness is a different and wider test than lawfulness. It is an elastic word. There is an element of flexibility in its application not inherent in notions of legality or regularity. The lawfulness or unlawfulness of the search will always be highly relevant but should not be determinative either way. A search may be legal but unreasonable. It may be illegal but reasonable". (italics mine)

In R v Grayson and Taylor [1997] 1 NZLR 399 (CA) it is there stated at p407:

"Illegality is not the touchstone of unreasonableness. In terms of s21 what is unlawful is not necessarily unreasonable."

An explanation of a search that is unlawful is given at p406 where the Court states:

"In broad terms a search is an examination of a person or property and seizure is a taking of that which is discovered. Entry and search of private property by officers of the state without permission of the owner or occupier is an actionable trespass unless authorised by the common law or under specific statutory provision. While not ordinarily a crime it is customary to refer to such trespassory intrusion as unlawful and illegal."

An example of a search that is unreasonable though lawful is provided in R v Pratt [1994] 3 NZLR 21 where the police in reliance on s18(3) of the misuse of Drugs Act 1975 (NZ) strip-searched the accused in a public place to the point where he was completely naked or nearly so. The keys which were seized by the police during that search were used to open a locker where cocaine was found. On the trial of the accused for those cocaine, the evidence of the cocaine was ruled to be inadmissible on the ground that even though the search of the accused and the seizure of the keys from him were made pursuant to the Misuse of Drugs Act 1975 (NZ), the search and seizure were unreasonable and thus contrary to s21 of the Bill of Rights Act 1990.

The question of whether a search or seizure is unreasonable or not is one of fact to be determined having regard to the circumstances of the case at hand. As stated in R v Grayson and Taylor [1997] 1 NZLR 399 at 407:

"A search is unreasonable if the circumstances giving rise to it made the search itself unreasonable or if a search which would otherwise be reasonable is carried out in an unreasonable manner. So too seizure. Whether a police search or seizure is unreasonable depends on both the subject-matter and the particular time, place and circumstance."

On the question of the admissibility of evidence obtained through an unlawful search and seizure, the Court in R v Coombs [1985] 1 NZLR 318 (CA) stated at p749:

"The principle ……….is that evidence obtained by illegal searches and the like is admissible subject only to a discretion, based on the jurisdiction to prevent an abuse of process, to rule it out in particular instances on the ground of unfairness to the accused."

That principle was restated in R v Jefferies [1994] 1 NZLR 290 by Richardson J at p304 in these words:

"If it [search or seizure] is unlawful it may be challenged under the common law in which case the admissibility of any evidence obtained in consequence of an illegal search falls to be determined on well-settled principles having regard to the interests of justice and of fairness to the accused (R v Coombs [1985] 1 NZLR 318)."

With regard to evidence obtained through an unreasonable search or seizure, such evidence would be excluded as inadmissible. But as I have in effect held that the seizure by the police in the present case of the marijuana substances found in the accused’s clothes box was not unreasonable, the issue of what should be done with evidence obtained through an unreasonable search or seizure does not arise in the present case.

Having given my written judgment for ruling that the evidence of the marijuana substances seized by the police was admissible for the prosecution as well as some guidance for the bar as requested by counsel for the accused, I wish to thank counsel for the prosecution for her citation of authorities which I have found helpful in preparing the last part of this judgment. That is consistent with self-reliance.

CHIEF JUSTICE

Solicitors:
Attorney General’s Office for prosecution
Kruse, Enari & Barlow Law firm for accused