Director of Public Prosecutions (SA) v Welsley Garfield Smith No. SCCRM 94/468 Judgment No. 4871 Number of Pages 3 Criminal Law and Procedure

[1994] SASC 4871

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - warrants, arrests, search and seizure of goods, examination of the person and identification - accused stopped by police in vicinity of housebreak, searched and then arrested - accused seeking to have excluded evidence obtained as a result of the search on the basis that, when searched, he had been apprehended, but not read his rights - search conducted pursuant to the power in s68 Summary of fences Act to search persons suspected of having stolen property - the detention of a person to conduct a s68 search not amounting to an apprehension pursuant to s78 and, as such, s79a, requiring an apprehended person to be advised of their rights, inapplicable - application refused. Summary Offences Actss 68, 78, 79a. R v Conley (1982) 30 SASR 226; Burgess v Hall (1988) 48 SASR 394 and Scott v Pavia (1987) 46 SASR 563, applied.

HRNG ADELAIDE, 21-22 November 1994 #DATE 22:11:1994

Counsel for DPP:         Ms J R Adcock

Solicitors for DPP:     DPP (SA)

Counsel for accused:     Mr J D Lyons

Solicitors for accused: Nicholas Vadasz

ORDER
Application refused.

JUDGE1 OLSSON J I have permitted a voir dire to take place in this matter as a prelude to entertaining what are essentially two separate submissions which Mr Lyons seeks to advance on behalf of the accused. The first is an application that I should reject, as inadmissible, evidence of the possession by the accused of a syringe and any statements made by him related to his use of heroin. There are in fact two statements of the latter type, one made, so the accused says, at the time at which the syringe was found when he was searched, another made later, during the course of his record of interview. Mr Lyons says that the illegality of the police conduct on the occasion of the search was such as to, in any event, taint the reference to heroin in the later record of interview. He also, separately, set out to argue, as I understand it, that, in any event, on discretionary grounds, the second reference in particular should be excised.

2. For the purposes of the first application which I am now considering I take as accurate the summary given by Ms Adcock of the broad narative sequence of events up to at least the point in time when the accused left the corner of the street, where he was first accosted by a police officer and taken to a police vehicle. It seems to me that the summary which she has given fairly represents the evidence and there is no point in retracing the same ground. In the circumstances so outlined, and in light of the evidence generally, Mr Lyons argues that, at the time at which the accused was searched by Constable Tait, he had in fact been apprehended within the meaning of s79a of the Summary Offences Act but had not been given his rights; and that, therefore, it would be inappropriate to allow in the evidence of the finding of the syringe in his pocket, and also any other evidence relating to what might have been said at that time related to it. There is of course a difference between the police witnesses and the accused as to what may or may not have been said on that initial occasion.

3. It is said by Mr Lyons, as I understand him, that, within the meaning of R v Conley (1982) 30 SASR 226 what had occurred by the time of the search was an "apprehension" - by virtue of the fact that, to use the words of Conley, at the very least, in a de facto sense, the accused had been deprived of his liberty by the police actions - even if there had not been a formal pronouncement of his arrest - and/or it was the situation that it was made quite apparent to the accused that he had no genuine choice as to what he could or could not do at that point in time. Therefore, it is said, this was a classic s79a situation and, because the requirements of that section were not complied with, then the evidence of the search result should not be admitted.

4. It seems to me, with all due respect to Mr Lyons, there is a basic and fundamental fallacy in the argument which he advances.

5. The evidence patently establishes the situation that this was a classic s68 situation, by virtue of the facts which had emerged to the relevant point in time. It was one in which the police officers reasonably suspected that the accused may have been involved in the break which they were investigating and that there could possibly have been on or about his person stolen goods, or evidence of the commission of the offence. I do not propose to go through all of the evidence on this that was referred to in summary by Ms Adcock. Certainly there was the appearance and circumstantial identification, if I may so describe it, of the accused as related to the person seen absconding from the scene of the break. There was the appearance of leaves on his body, and also the white dust and his other appearance of perspiring and having cuts or nicks on his wrists. It was, in my view, a situation in which the police officers were well justified in deciding to stop, search and detain the accused, given those facts to which I have referred.

6. In my view the whole scheme of the Act is such that s68 stands quite separately and apart from s79a, and, for that matter, s78. It establishes a code whereby, short of the arrest of a person (which of course necessitates accusing that person of either the commission of an offence or indicating the existence of suspicion of committing one) police are entitled to carry out a search of someone, where there is reasonable cause, as contemplated by the section. It is not the case, in my view, that, on every occasion on which a police officer properly wishes to exercise a s68 power, the s79a rights have to be given. The Act quite clearly discriminates between the situation of an arrest, be it formal or de facto, and simply a stop, search and detain situation. True it is that, when s68 powers are exercised, there is, in a very real sense, at least a deprivation of liberty of action. But that is specifically authorised by the section and authorised by it in a scenario short of arrest.

7. It seems to me that there is a direct analogy between the s68 situation and that where a person who is required to accompany a police officer to a breath testing station under s.47e(2a) of the Road Traffic Act. It has been held in cases such as Burgess v Hall (1988) 48 SASR 394 and Scott v Pavia
(1987) 46 SASR 563 that, in such circumstances (where a person is also deprived of liberty in a very real sense), the requirement is not an apprehension for the purposes of s79a. So it is that the conceptual position is in the same category where there is a genuine stop, search and detain.

8. I do not take anything emerging from the evidence to justify a conclusion that, prior to the search, there was an actual or de facto arrest. What took place occurred very quickly and in circumstances which well justified exercise of the stop, search and detain power. It seems to me, therefore, that there is simply no basis in fact or law for arguing that this was an arrest; and therefore no basis for excluding the evidence which was secured as a result of what, in my view, was a lawful search. I therefore reject the first limb of Mr Lyons' application.