R v Bruno, Softley and Wilson (No 1) No. DCCRM-96-1156 Judgment No. D43

R v Carmine Bruno, Steven Angus Softley and Robert Neil Wilson
[1999] SADC D43

Judge Sulan
Criminal

The accused, Carmine Bruno, Steven Angus Softley and Robert Neil Wilson, are jointly charged with taking part in the manufacture of amphetamine contrary to section 32(1)(b) of the Controlled Substances Act 1984.
A rule 9 notice has been filed on behalf of each accused.
Each accused seeks the exclusion of certain evidence. They seek exclusion of evidence relating to items seized and obtained by police officers resulting from the search of and entry onto premises at 6 Garden Court, Para Hills West, and premises at 8 McBean Avenue, Holden Hill, on the 10th May 1996. The respective searches were conducted by officers who exercised their authority pursuant to a general search warrant purportedly issued pursuant to section 67 of the Summary Offences Act 1953 (“the Act”). In the case of each officer, the warrant had been issued and signed by the Deputy Commissioner of Police, Patrick Michael Hurley, acting in that capacity. It was argued on behalf of each accused that the warrants were invalid because the only person authorised to issue general search warrants is the Commissioner of Police or a person acting in the office of the Commissioner. It was submitted that the Commissioner cannot delegate the power or authority given to him under section 67 of the Act.
After hearing argument, I ruled that the warrant in each case was lawfully issued and the search and seizure in each case was not illegal. I ruled the evidence admissible. I indicated that I would publish my reasons later.
Mr Lister, counsel for the accused Softley, advanced the argument which was adopted by Mr White, on behalf of Bruno and Mr Wardle, on behalf of Wilson. Both Mr White and Mr Wardle added to the submissions of Mr Lister.
I do not need to canvas the facts in any detail, other than to observe that the prosecution case relies upon various observations made by police of the premises at 6 Garden Court, Para Hills West, prior to the 10th May 1996. On that day, Detective Sergeant Mostyn Wayne Geue, together with other police officers attached to the Elizabeth CIB, attended at the subject premises. He approached the front door and knocked. According to Geue, after about one minute had elapsed, the accused Wilson came to the door. When Geue identified himself and sought to enter the premises, the accused Wilson said he could not let Geue in because he, Wilson, did not have a key. Another officer, Detective Constable Carson, who had been standing towards the rear of the premises, called out that someone was getting over the back fence. He ran to the front door and under the direction of Detective Geue he pushed the screen door, which eventually opened. The officers then entered. The entry was effected pursuant to a general search warrant issued to Detective Geue under section 67 of the Act.
Later that same evening, Detectives Gray, Muldrew and Filmer attended at premises at 8 McBean Avenue, Holden Hill. Detectives Gray and Muldrew had in their possession, general search warrants. Copies of the respective search warrants issued to Geue, Gray and Muldrew are contained in the bundle of documents marked exhibit “B”. The warrants were issued on the 1st January 1996, under the hand of Deputy Commissioner Hurley. They are all in the same terms. Various items were seized during the two searches.
Section 67 provides as follows :
General search warrants
67.    (1)    Notwithstanding any law or custom to the contrary, the Commissioner may issue general search warrants to such members of the police force as the Commissioner thinks fit.
(2)    Every such warrant must be in the form in the schedule, or in a form to the same effect and must be signed by the Commissioner.
(3)    Every such warrant will, subject to prior revocation by the Commissioner, remain in force for six months from the date of the warrant, or for a shorter period specified in the warrant.
(4)    The member of the police force named in any such warrant may, at any time of the day or night, exercise all or any of the following powers:
(a)    the member may, with such assistants as he or she thinks necessary, enter into, break open and search any house, building, premises or place where he or she has reasonable cause to suspect that-
(i) an offence has been recently committed, or is about to be committed; or
(ii) there are stolen goods; or
(iii) there is anything that may afford evidence as to the commission of an offence; or
(iv) there is anything that may be intended to be used for the purpose of committing an offence;
(b)    the member may break open and search any cupboards, drawers, chests, trunks, boxes, packages or other things, whether fixtures or not, in which he or she has reasonable cause to suspect that-
(i) there are stolen goods; or
(ii) there is anything that may afford evidence as to the commission of an offence; or
(iii) there is anything that may be intended to be used for the purpose of committing an offence;
(c)    the member may seize any such goods or things to be dealt with according to the law.
The general search warrant issued to each named officer is in the following terms and is dated 1st January 1996 :
“You are hereby authorised at any time in the day or night, with such assistants as you think necessary to enter into and search any house, building, premises or place where you have reasonable cause to suspect that -
(a)    an offence has been recently committed, or is about to be committed;
(b)    there are any goods obtained by an offence;
(c)    there is anything which may afford evidence as to the commission of an offence; or
(d)    there is anything which may be intended to be used for the purpose of committing an offence,
and to break open the house, building, premises or place and to break open and search any cupboards, drawers, chests, trunks, boxes, packages or other things, whether fixture or not, in which you have reasonable cause to suspect that -
(e)    there are any goods obtained by an offence;
(a)    there is anything which may afford evidence as to the commission of an offence; or
(b)    there is anything which may be intended to be used for the purpose of committing an offence,
and to seize any such goods or things, to be dealt with according to law. This warrant remains in force for six months from its date.”
The ground relied upon, in support of each application, is that the Deputy Commissioner of Police, who signed the general search warrant, had no power to issue a general search warrant, and as a consequence the warrant held by each of the detectives was invalid and the search and seizure of items was illegal.
It is agreed that when the general search warrant was signed by Deputy Commissioner Hurley, he did so in his capacity as Deputy Commissioner of Police. The Commissioner of Police was not absent or otherwise out of office at the time.
Section 4(1) of the Act defines “Commissioner” :
“The Commissioner” means the Commissioner of Police or the person for the time being acting in the office of Commissioner of Police.
It is not suggested that Deputy Commissioner Hurley was at the time acting in the office of the Commissioner of Police.
It was submitted by Mr Lister that the power to issue general search warrants pursuant to section 67 is a power granted only to the Commissioner and it cannot be delegated. Mr Lister argued that general search warrants had been declared unlawful by the common law some centuries ago, and the existence of them is entirely a creature of statute. He submitted that as the statute impinges on a citizen’s rights, it is subject to strict construction in favour of the liberty of the subject.
In Tran Nominees v Sheffler (1986) 42 SASR 361 at 369, Jacobs J observed :
“The issue and execution of a warrant to enter, or to search and seize, or both, represents an invasion of the liberty of the subject, which was jealously protected by the common law, and the need for protection against abuse or unauthorised invasion is still a guiding principle when the authority to enter or search or seize is derived from statute: the court will construe such statutes strictly, resolving any ambiguity in favour of the subject, and insist upon strict compliance with the statute and the conditions upon which the warrant is authorised ...”

His Honour referred to the decision of Inland Revenue Commissioners v Rossminster Ltd (1980) AC 952 and in particular to the speeches of Lord Wilberforce and Lord Diplock. At page 370, Jacobs J referred to a passage from Lord Diplock in the following terms. Lord Diplock said :

“The construing court ought, no doubt, to remind itself, if reminder should be necessary, that entering a man’s house or office, searching it and seizing his goods against his will are tortious acts against which he is entitled to the protection of the court unless the acts can be justified either at common law or under some statutory authority. So, if the statutory words relied on as authorising the acts are ambiguous or obscure, a construction should be placed on them that is least restrictive of individual rights which would otherwise enjoy the protection of the common law. But judges, in performing their constitutional function of expounding what words used by Parliament in legislation mean, must not be over-zealous to search for ambiguities or obscurities in words which on the face of them are plain.”

Section 53 of the Police Act 1952 provides :
(1)    The Commissioner may, by instrument in writing, delegate any of the powers or functions conferred on, or assigned to, the Commissioner by or under this or any other Act-
(a)    to a particular person; or
(b)    to the person for the time being occupying a particular position.
(2)    A power or function delegated under this section may, if the instrument of delegation so provides, be sub-delegated.
(1)    A delegation or sub-delegation under this section-
(a)    may be absolute or conditional; and
(b)    does not derogate from the power of the delegator to act personally in any matter; and
(c)    is revocable at will by the delegator.
(4)    A copy of every instrument of delegation issued by the Commissioner under this section must be retained as part of the records of the police force.
Mr Lister argued that section 53 is so wide that if interpreted literally, it could result in the Commissioner delegating his authority to the lowest ranked officer in the police force or even to a person not a member of the police force. He referred to the power to sub-delegate and submitted that section 53 was so wide in its terms that it could never have been intended to apply to a power granted by section 67 of the Act. He submitted that the section has a special status given that it impinges upon the privacy rights of individuals. He argued that the privacy rights are so fundamental that they should be jealously guarded and if there be any ambiguity in respect of statutory provisions which impinge those rights, that ambiguity should be determined in favour of restricting the power rather than extending it.
In my view, section 53 is unambiguous in its terms. It provides that the Commissioner may, by instrument in writing, delegate any of the powers or functions conferred on or assigned to him under the Police Act and any other Acts. The authority to delegate gives the Commissioner a very wide power to delegate his functions. I consider section 53 still requires the Commissioner to exercise his authority reasonably.
In R v Way (1981) 2 NSWLR 653, the New South Wales Court of Criminal Appeal considered section 48B of the Prisons Act, which authorised the Corrective Services Commission to delegate to, inter alia, specified classes of officers “the exercise or performance of such of the Commission’s powers, or authorities, duties or functions (other than this power of delegation) ... under this or any other Act ...”. At page 657 Street CJ said :
“In recognition of the practical impossibility of the Commission itself exercising the power to permit temporary absence across the whole of the prison population, s 48D enables the Commission to delegate to specified classes of officers the authority to permit temporary absences. The Commission is thus placed in a position in which it can delegate as far down the line as it considers to be necessary, having regard to practical administrative exigencies, authority to permit temporary absences. A delegate under s 48D, being ‘a person belonging to such class of officers of the Public Service so employed as is specified in the resolution’ necessarily belongs to such class of officers as is regarded by the Commission as having, by virtue of his office, a sufficient degree of seniority to justify confidence being imposed in his exercising responsibly the powers of the Commission as its delegate. Whilst the delegation is not in terms a personal one - (it is authorised by s 48D by reference to the class to which the officer belongs) - it is nevertheless a delegation which would not lightly be made by the Commission and which ought to be regarded as requiring exercise of responsibility directly by the delegate. If considerations of administrative expediency indicate that a lower or different class of officer should participate jointly or should act solely in the exercise of delegated authority from the Commission to permit temporary absence, then it is for the Commission itself to meet such administrative requirement by an appropriate delegation. The authority is, I repeat, one attended by no little importance and solemnity. The delegate should be regarded as required to exercise the statutory authority in self-operative terms.”

In that case, the court was dealing with the authority of the delegate to sub-delegate, and it determined there was no such power to sub-delegate.

Section 53 of the Police Act 1952 gives very wide power to the Commissioner to delegate his powers. As Street CJ pointed out it would be expected that the Commissioner would only delegate to those who, by virtue of their office, he regarded as having a sufficient degree of seniority to have confidence imposed in that person in exercising the power responsibly.
The Commissioner published a delegation manual which delegated various functions to different officers of the Police Department holding various ranks. The delegation of functions under section 67 of the Act is to the level of Deputy Commissioner alone.
I observe that pursuant to section 9 of the Police Act, the Deputy Commissioner is required to exercise and perform such powers, authorities, duties and functions of the Commissioner as the Commissioner may direct. It is envisaged by that Act that the Deputy Commissioner will therefore assist the Commissioner in carrying out functions of the Commissioner as directed from time to time. The legislature envisaged that the Deputy Commissioner would, in respect of many functions of the Commissioner, perform those functions and exercise power and the authority granted to the Commissioner. It is impractical for the Commissioner to personally attend to every function vested in him and he is therefore empowered to direct the Deputy Commissioner to carry out functions and exercise powers vested in him. It follows that the legislature regards the office holder of Deputy Commissioner as being sufficiently responsible to carry out the functions of the Commissioner.
At the time when section 67 was enacted, section 53 of the Police Act 1952 was in force. If Parliament had intended to restrict the Commissioner’s power to delegate his authority pursuant to section 67, it could easily have done so. In my view, there is no conflict between section 67 of the Act and section 53 of the Police Act, nor is there any ambiguity in the words of either Act.
Mr White referred me to section 32 of the Act and submitted that because section 32 specifically refers to the Commissioner or any Superintendent or Inspector of Police or any member of the police force authorised in writing by the Commissioner, or a Superintendent or Inspector of Police, to enter and search premises which that officer suspects on reasonable grounds to be a brothel, the words of that section support the submission that the legislature did not envisage section 53 of the Police Act applying to the Summary Offences Act. In my view, the words of section 53 make it clear that the section applies to the Police Act and any other Act. The fact that section 32 may go further than what may be strictly necessary, does not, in my view, lead to the conclusion that section 53 does not apply to the Summary Offences Act.
The effect of Mr Lister’s submission is that the Commissioner of Police personally would be required at each six monthly period, to issue or re-issue general search warrants to all those members of the police force who are appropriately issued with such warrants. His argument goes further, in that the Commissioner and only the Commissioner could exercise powers and carry out functions under the Act, unless the Act or the relevant section specifically authorised others to carry out those powers. In my view, for that result to occur, there would need to be clear language in the legislation. In the absence of such clear language, I consider that the weight of administrative functions upon the Commissioner, does not support such an interpretation.
I have had regard to the decision of Judge Anderson in R v Thaller and Gee, (judgment number 1999, SADC14), and I refer in particular to His Honour’s observations at paragraphs 21 and 22 of his judgment. I agree with His Honour that the plain words of section 53 can not be regarded as having been impliedly repealed or in any way limited in respect of the operations of section 67 and I adopt His Honour’s reasoning.
Accordingly, I rejected the applications to exclude the evidence of the search and seizure at the respective premises. I determine that the issue of the search warrants was valid in each case and the respective searches were therefore not illegal.

[1999] SADC 43

17 March 1999