R v Bevich No. DCCIV-00-640 - [2001] SADC 4

R -v- BEVICH
[2001] SADC 4

Judge Robertson
Criminal

The accused seeks an order excluding a number of items of property located by the police in what is commonly known as a “bum bag” belonging to the accused, and a number of items of property located by the police in the accused’s motor vehicle. The accused relies upon the Public Policy discretion in seeking the order for exclusion. The accused submits that the location of the items of property arose as a result of illegal conduct on the part of the police.
Briefly, the facts are that Constables Frukacz and May were on mobile patrol when they ascertained that a vehicle being driven by the accused on South Road was unregistered. The accused complied with their request to pull over to the kerb. Constable Frukacz approached the vehicle and requested the accused step out of his vehicle and, I find, requested him to bring his driver’s licence. The accused joined Constable Frukacz at the rear of the vehicle and gave the accused his name. I pause to say that initially Constable May remained in the police car and communicated with the police central communication centre. I find that he joined the accused and Constable Frukacz at the rear of the vehicle about the time the accused provided his name.
After furnishing his name, the accused was asked to produce his licence and he said that he did not have a licence to drive. Constable May, on hearing the accused’s name, operated what is called the KDT system to ascertain whether the accused’s name was recorded in the police records. The accused was not recorded on the system. At that time the officers were aware that the name of the person who was last recorded as the registered owner of the vehicle was not that of the accused.
Following all this, Constable May asked the accused if he had any evidence of identification on him and the accused said he had none. He then asked the accused:
“Is there anything in the car at all with your name on it? I need to know who you are”.
Constable May said in making this request that he was exercising a power provided by Section 74A of the Summary Offences Act 1953. He said he suspected that the accused had given a false name. The accused responded to the question by going to the motor vehicle and returning with a bum bag. The accused opened the bag and looked into it. He then took out some fifty dollar notes and placed them in his pocket. No identification evidence was produced from the bag by the accused. Constable May then asked the accused if he could look in the bag to see if there was any such evidence. With that, the accused produced a plastic bag containing some white powder. Constable May asked him whether the powder was “. . . speed or hammer”. The accused replied that it was “speed”.
Following this Constable…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] SADC 4
Decision Date: 10 January 2001

CaseChat Overview and Summary

In the matter of R v Bevich, the accused sought an order to exclude certain items of property found in a "bum bag" and a motor vehicle from being admitted as evidence in the proceedings against him. The accused argued that the police had engaged in illegal conduct, and that the evidence obtained as a result of this illegality should be excluded under the public policy discretion. The case came before the court, which was required to decide whether the police conduct was indeed illegal and whether the evidence should be excluded under the public policy discretion. The court found that the police were authorised to request the driver’s licence and identification evidence from the accused, and therefore, there was no illegality in their conduct. Even if there had been illegality, the court considered that the evidence obtained was important for the inquiry into the serious criminal charge against the accused, and it would not have exercised its discretion to exclude the evidence. The court also found that the searches of the bum bag and motor vehicle were legal under the applicable provisions of the Summary Offences Act and the Controlled Substances Act. Finally, the court considered the general unfairness discretion but found that there was no basis to exclude the evidence under this discretion. Therefore, the application by the accused for the exclusion of the evidence was refused.

Orders