The District Courts Act lists a warrant of search among the warrants a magistrate may issue, but the power itself is in the Search Act. It is a power exercised in the magistrate’s chambers, on paper, and usually without the person affected knowing until the police arrive.
The constitutional starting point
Section 44 of the Constitution guarantees freedom from arbitrary search of the person or property and entry of premises, and section 49 guarantees reasonable privacy. Both permit a law to make reasonable provision for search and entry, and the Search Act is that law. The Magistrates’ Manual puts it plainly: the police have no general power to search people or premises, and outside the narrow situations where the Act allows a search without warrant, they must apply to a court. See freedom from arbitrary search under section 44, can the police search me on the street and can the police search my house without a warrant.
The power to issue a warrant
(1) If a court, other than a Local Court, is satisfied by information on oath that there are reasonable grounds for suspecting that there is in any building, craft, vehicle or place (a) any thing with respect to which an offence has been or is believed on reasonable grounds to have been committed; or (b) any thing as to which there are reasonable grounds for believing it is likely to afford evidence of the commission of any such offence; or (c) any thing as to which there are reasonable grounds for believing is intended to be used to commit any such offence, it may issue a warrant to search that building, craft, vehicle or place.
(2) A warrant to search any building in a village, or any part of a village or village garden, may be issued only on the oath of a commissioned officer of the Police Force.
(3) Before executing a village warrant the police shall, where practicable, endeavour to obtain the co-operation of those persons who by custom are regarded as the leaders of the village.
(4) Neither subsection justifies the use of greater force than is reasonable.
What the police must show
The Manual describes what the affidavit generally contains: the offence or offences alleged to have occurred or to be intended; the type of thing, document or property the police are looking for; and the address or description of the premises, vehicle or place. The magistrate’s task is to be satisfied, on that sworn material, that the grounds for suspicion are reasonable. A warrant granted on a bare assertion that “police believe stolen property is at the house” is vulnerable, because the Act requires grounds, not belief.
| Element | Why |
|---|---|
| Information on oath | Section 6(1) requires it; an unsworn request is not enough |
| Identified offence | Each limb of s 6(1) is tied to an offence committed, evidenced or intended |
| Identified place | The warrant authorises a search of “that” building, craft, vehicle or place |
| Reasonable grounds set out | The magistrate, not the officer, must be satisfied of them |
| For a village: a commissioned officer’s oath | Section 6(2) |
Execution
Section 7 of the Search Act allows the warrant to be directed to a named person, to the officer in charge of police in a province or place, or to all members of the Police Force. Section 10(1)(c) of the District Courts Act provides that a magistrate’s warrant of search may be executed in any part of the country and on a Sunday, and section 274 obliges every police officer to obey it. The warrant should be shown to the occupier on request. Section 6(4) limits force to what is reasonable.
Searches without a warrant
The Search Act permits some searches without a warrant, and the Manual summarises them: a search of a person, clothing and immediate belongings on a belief on reasonable grounds that the person has stolen goods, weapons or the like, conducted with due regard to decency (sections 3 and 4); and a search of a vehicle or premises on reasonable grounds regarding theft, or entry in immediate pursuit of a suspect (section 5). Where a search of premises is carried out without a warrant and not in immediate pursuit, the Manual cites The State v James Bero Popo [1987] PNGLR 286 for the proposition that the search is unlawful and evidence obtained in it may be rejected.
If the search was unlawful
First, the evidence obtained may be excluded by the trial court in its discretion, which for a District Court trial means the magistrate and for a committal means the National Court at trial. Second, the occupier may have a claim for damages for trespass and for breach of the constitutional right under section 44, enforceable under Constitution sections 57 and 58; a claim in trespass to goods or land within the money limit can be brought in the District Court, but a constitutional enforcement claim belongs in the National Court. Third, a search under a warrant regular on its face protects the officer even if the information behind it turns out to be wrong; the remedy then lies against whoever swore a false information, and section 94A of the District Courts Act and the Criminal Code’s false swearing offences apply.
Electronic evidence
Searches for computers, phones and data are governed by the additional provisions of the Cybercrime Code Act 2016. See what a cybercrime search warrant must contain.
What happens to property seized
Property seized under a warrant is held by the police as an exhibit. Section 121 of the District Courts Act gives the committing Court custody of exhibits tendered at a committal, and section 276 lets a magistrate order the delivery of property alleged to have been stolen to its apparent owner once the prosecution has ended. See stolen property held by the police.
The Search Act linked above is the 1986 consolidation on PacLII; it has since been amended, most recently in 2015. The District Courts Act is not on PacLII and is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.