Outside the narrow warrantless powers in section 5, a search of premises runs through a warrant. Division 2 of Part III of the Search Act (Chapter 341) sets out who issues one and on what basis.
Who can issue a warrant
Section 6(1) gives the power to a court, other than a Local Court. Read with the definition in section 1 — “court” means any court other than a Village Court, and includes a Judge or Magistrate of such a court — the position is:
- the National Court and the District Court may issue search warrants;
- a Local Court may not, because section 6 expressly excludes it; and
- a Village Court may not, because it is excluded from the definition of “court” altogether.
And under section 19, no warrant can issue under a common law power, because those powers are abolished.
What the court must be satisfied of
The court must be satisfied by information on oath that there are reasonable grounds for suspecting that there is, in any building, craft, vehicle or place:
- any thing with respect to which an offence has been, or is believed on reasonable grounds to have been, committed; or
- any thing as to which there are reasonable grounds for believing it is likely to afford evidence of the commission of such an offence; or
- any thing as to which there are reasonable grounds for believing is intended to be used to commit such an offence.
Two features are worth noting. The threshold is suspicion on reasonable grounds, not belief — a lower bar than several of the warrantless powers. And unlike sections 3(1) and 5(1), the trigger is any offence, not only an indictable one.
A warrant is not issued on a phone call or a request across a counter. Somebody must swear the information. That sworn document is the foundation of the warrant, and it is what a later challenge is measured against.
The special rule for villages
Section 6(2) deals with something the Act treats as distinct from an ordinary premises search: a warrant to search a village.
Where 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 any of the section 6(1) things is in any building or buildings in a village, or in any part of a village or village garden, it may issue a warrant to search the building, buildings, village, part of the village or village garden.
The safeguard is in section 6(3). Where a warrant has been issued under section 6(2), the person or police to whom it 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.
A village warrant requires a commissioned officer to swear the information — a rank requirement that does not apply to ordinary warrants. And it requires an attempt, where practicable, to work through the customary leaders of the village before the warrant is executed.
This is one of the clearest places where the Act builds custom into police procedure. See part 8 of this series.
Section 6(4) adds that neither subsection (1) nor (2) justifies the use of greater force than is reasonable in the circumstances.
Who the warrant is directed to
Section 7 allows a warrant to be directed to all or any of:
- a named person;
- the officer for the time being in charge of police in a particular province or place; or
- all members of the Police Force.
What the warrant must contain
Section 8 requires a warrant to:
- describe the place to be searched;
- state briefly the offence or matter of the information on which it is founded; and
- order the person to whom it is directed to search the place and seize any thing found there which relates to that offence or matter, or to any other offence.
A warrant issued about one matter authorises seizure of things relating to other offences discovered during the search. The search must be within the scope of the place described — but what may be taken is not confined to the offence named.
What to check on a warrant
If a warrant is produced to you, read it. The Act tells you what it should contain:
- Which court issued it, and that it is not a Local Court.
- The place described — and whether the officers are searching that place or somewhere else.
- The offence or matter stated.
- Who it is directed to under section 7.
- For a village search, whether it was founded on the information of a commissioned officer, and whether the customary leaders were approached.
Do not obstruct the search while you read it. Note what the warrant says, note what was done, and take advice afterwards.
Challenging a warrant or a search carried out under one is a matter for a lawyer. Contact the Office of the Public Solicitor.
Sources
- Constitution of the Independent State of Papua New Guinea — PacLII (sections 44 and 49)
- Arrest Act (Chapter 339) — vLex
- Kangual Kwialu v Dumop Dage (2016) N6270 — vLex
- PNG Consolidated Legislation — PacLII index
The Search Act (Chapter 341) is not carried in PacLII’s consolidated Acts database or on vLex at the time of writing. Section references are to the text consolidated to No 40 of 2015.