A search often ends with something being taken away. Division 4 of Part III of the Search Act (Chapter 341) governs what happens next — and it contains the record-keeping duty that makes recovering your property possible.
What may be seized: section 10
The general power is section 10(1). Where, during the course of a search authorised by this Act, a policeman finds any thing he believes on reasonable grounds:
- has been stolen or otherwise unlawfully obtained; or
- has been used or is intended to be used in the commission of any indictable offence; or
- will provide evidence of an offence,
he may seize that thing. Note that the third limb is wider than the second — evidence of any offence, not only an indictable one.
The other three seizure powers are tied to specific searches:
- 10(2) — for searches under sections 3(2), 5(2) and 5(3): a firearm or offensive weapon found may be seized.
- 10(3) — for searches under sections 3(3) and 3(4): anything which in the searcher’s opinion may be dangerous or inexpedient to leave in the possession of the person searched.
- 10(4) — for searches under sections 3(5) and 5(4): anything that in the searcher’s opinion constitutes or is capable of constituting a danger to the safety of the craft, or is capable of being used to threaten a person on board.
The register: section 12
This is the provision to remember if property of yours is taken.
Where any thing is seized by a policeman under the Act, or is handed to a policeman, he shall enter in a permanent register of property:
- a full description of the thing, including where appropriate a note of any identification marks;
- the time and date it was seized or received — and, for things received, the name and address of the person who handed it over;
- the place and the person from whom it was seized; and
- such other details as are prescribed.
The register is a statutory record, not an internal courtesy. If your property has been seized, ask for the entry — the description, the date and time, and the place. It is the document that later proves what was taken and from whom. A failure to make the entry is a failure to perform a duty imposed by the Act, which section 17 makes actionable.
Handing things on: section 11
Where a person seizes something under the Act and, in their opinion, it may be evidence relating to an offence, they may hand it to a policeman.
There is a separate rule for craft. Where the person in command of a craft considers that property seized on board during a journey may be evidence of an offence committed on that journey, they may — on behalf of the owner — give possession of it to the person they believe on reasonable grounds is a representative of the authority responsible for law enforcement in the country where the offence will be tried.
Who is deemed to hold it: section 13
Section 13 answers a question people rarely think to ask — whose property is it now, legally speaking?
| Who seized it | Deemed to be in the possession of |
|---|---|
| A policeman, or a thing handed to a policeman | The State |
| A person other than a policeman, under section 10(4) on a craft | The owner of the craft |
| A person other than a policeman, in the course of employment | Their employer |
| A person other than a policeman, in any other case | That person |
Under section 13(4), the thing may be retained for the purpose of examination and investigation. If a person is charged with an offence in relation to it, or in relation to which it is evidence, it may — subject to any order of a court to the contrary — be retained until the charge and any subsequent proceedings have been determined.
Those words are the opening. Retention pending proceedings is the default, not an absolute entitlement. A court can order otherwise, and that is the route to take if property is being held longer than the investigation reasonably requires.
How a court decides where it goes: section 14
Once proceedings relating to seized property, or in which it was used as evidence, have been determined, a court may order under section 14(3):
- that the property be delivered to the person appearing to the court to be entitled to it; or
- that it be otherwise disposed of as the court thinks fit.
Where a person is convicted of an offence relating to the property and such an order is made, section 14(4) suspends the operation of the order until the determination of any appeal, and section 14(5) lets the appeal court annul or vary it.
Section 14 also deals separately with forgery equipment — forged notes, special or revenue paper, moulds, plates and instruments, counterfeit coin and coining tools whose possession is an offence. On application by any person, a court may order that forgery equipment be forfeited, defaced or destroyed.
Two special disposals: section 15
- Where a policeman seizes something in a corrective institution under section 10(3), he may hand it to a correctional officer at the institution.
- Where a person seizes something on board a craft under section 10(4), they may throw it away, destroy it or otherwise deal with it so that the craft and the people on board are no longer endangered.
Recovering seized property depends on the stage of the investigation or prosecution. See how to get seized property back, and take advice from a lawyer or the Office of the Public Solicitor.
Sources
- Constitution of the Independent State of Papua New Guinea — PacLII (section 53, protection from unjust deprivation of property)
- Criminal Code Act (Chapter 262) — PacLII
- Eton Pakui v The Independent State of Papua New Guinea (2006) N2977 — 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. Pakui is listed as an example of a claim over property destroyed or misappropriated during a police operation; read the judgment in full before relying on it.