R v Bevich No. DCCIV-00-640

[2001] SADC 4

R -v- BEVICH
[2001] SADC 4

Judge Robertson
Criminal

1. 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.

2. 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.

3. 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.

4. 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”.

5. 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”.

6. Following this Constable May said that he formed the view that there may have been stolen property or further drugs. Having formed that view he picked the bag up off the boot and searched it. He discovered some personal property, one item of which was a plastic bag containing two white pills. He said that in searching the bag he was exercising power provided by Section 68 of the Summary Offences Act. He said he believed the two pills were an illegal drug.

7. After the searching of the bum bag Constable May asked the accused if he could have a look in the car, and the accused agreed to this. He searched the car and located a number of items, including a plastic bag containing powder. This powder was subsequently analysed and was found to contain a significant quantity of methylamphetamine, which is now the subject of the charge in Count 1. Constable May said that in searching the motor vehicle it was his belief that he was authorised to do so pursuant to Section 68 of the Summary Offences Act and Section 52 of the Controlled Substances Act 1984.

8. Mr Gaite, counsel for the accused, submitted that the request by the police to produce his driver’s licence, when he was at the rear of the motor vehicle, and the request for the accused to go to the motor vehicle and produce some evidence of identification, were illegal. It was his submission that because the police suspected that an offence had occurred, namely the driving of an unregistered vehicle, then Section 74A of the Summary Offences Act applied. Mr Gaite submitted that sub-section (2) of Section 74A provides that a police officer is only entitled to ask for the production of evidence of the correctness of a name given if he has reasonable cause to suspect that the name provided was false. He submitted that at the time of the request to produce the driver’s licence and the request to produce evidence of identification that the police officers did not have “reasonable cause to suspect”, and accordingly the requests were illegal. Mr Gaite submitted that everything about the searches which followed were tainted by that illegality. He submitted that in those circumstances I should exercise the public policy discretion and order that the items of property located during the searches be excluded from evidence.

9. Mr Gaite’s submission that the request to produce the driver’s licence was illegal fails at the threshold. Section 96 of the Motor Vehicles Act 1959 authorises a police officer to require the driver of a motor vehicle to produce his or her licence. Clearly, the police were authorised in these circumstances to make the request. During his address in reply, Mr Gaite conceded this point.

10. Constable May said in evidence that at the time he made the request of the accused to ascertain if there was any identification evidence in the motor vehicle, he had a belief that the accused had possibly furnished a false name.  Constable May said he suspected a false name had been given for a number of reasons.  He said that the accused had admitted he did not have a driver’s licence.  The accused had said the vehicle was owned by Ned Kelly, and the KDT check did not show the name of the accused as having been recorded in the system.  Constable May also had information that the car was last registered in the name of a person by the name of Tiller.

11. I accept the evidence of Constable May regarding the grounds upon which he suspected that the accused had given him a false name. I found Constable May to be a truthful and reliable witness. In my opinion, those grounds provided Constable May to have “. . .reasonable cause to suspect. . .” the correctness of the name stated by the accused. Accordingly, Constable May was exercising the power provided by Section 74A(2) of the Summary Offences Act in requesting the production of identification evidence. It follows that the request was not illegal. Accordingly, the threshold for the operation of the Public Policy discretion has not been met.

12. It was submitted by Mr White, counsel for the Crown, that Constable May was entitled to make the request pursuant to Section 49 of the Road Traffic Act 1961. Section 49 empowers a police officer to ask the driver of a motor vehicle questions for the purpose of ascertaining the name of the driver. However, in view of my earlier finding, I do not propose to consider this submission.

13. If I had found that Constable May had acted illegally when he requested the accused seek some identification evidence in his car, then I would have needed to have considered whether such illegality “tainted” everything that followed.  The request caused the accused to produce the bum bag.  As a result of that, the accused produced the white powder from the bum bag, which led to the search of the bum bag and subsequently the motor vehicle.  I have not considered this issue closely.  My tentative view is that such an illegality would be sufficient for me to consider the exercise of Public Policy discretion.  I will assume that it does for present purposes.  Accordingly, the question then arises, if I am wrong in finding that there has been no illegality in Constable May making the request then would I have exercised my discretion to exclude the evidence.

14. In Frantzis v Batsas (1996) 186 LSJS 301 at 329, Lander J in considering the exercise of the discretion in that case:-

    “However, and although this Court was not addressed on the topic, I would be inclined to find that even if the search of the vehicle was attended by illegality, in my opinion, it would have been within the proper exercise of the trial judge’s discretion to refuse to exclude the evidence (Bunning v Cross (1978) 141 CLR 54).  The police officers were acting reasonably and sensibly.  If there was any illegality, it could only have been of a technical and not of a wilful or malicious nature.  Such illegality would not have affected the cogency of the evidence obtained.  Further, the evidence obtained was evidence which it was important that the fact-finder have in its inquiry into the truth of a serious criminal charge (Wilson v R; Morrison v R (supra) at 440; Bunning v Cross (supra)).”

15. In my view, all of the points set out in the passage are apposite to the present circumstances.  As a result, even if there was illegal conduct, I would not exercise my discretion to exclude the evidence.

16. I have found that Constable May did not engage in illegal conduct as submitted by Mr Gaite. Whilst the point was not raised by Mr Gaite, I should address the question of whether the search of the bum bag and the motor vehicle were legal. In my opinion, in the circumstances known to Constable May at the time, he was authorised to search the bum bag by Section 68 of the Summary Offences Act. Furthermore, in the circumstances known to Constable May at the time, he was authorised by Section 68 of the Summary Offences Act and Section 52(9) of the Controlled Substances Act to search the motor vehicle.

17. Finally, I should consider whether the items sought to be excluded from evidence should be excluded by virtue of the general unfairness discretion identified in the judgment of the Court of Criminal Appeal in The Queen v Lobban (2000) 77 SASR 24 (per Martin J at pp 39-50). In my view there is nothing before me to suggest that the evidence should be excluded by the exercise of the general unfairness discretion.

18. The application by the accused for the exclusion of the evidence is refused.