R v Majchrak No. DCCRM-98-985 Judgment No. D37

R V MAJCHRAK
[1999] SADC D37

Judge Robertson
Criminal

The accused seeks orders excluding from evidence in the trial the following matters:
(1)The search of the accused's motor vehicle at North East Road Valley View by the police on 4 June 1998, and the items seized from the vehicle;
(2)The search of the accused's person and the articles located and seized as a result of that search.
The grounds relied upon in each case is that the search conducted was lawful.
With respect to the search of the motor vehicle, the police rely upon the power provided by s.52 sub-s.9 of the Controlled Substances Act 1984 (as amended) (“the Act”) for the search of the accused's motor vehicle, and the seizure of the items from that motor vehicle.
I am satisfied, on the balance of probabilities that at the time Detective Simmonds entered the vehicle and seized the plastic bag and the scales, that he suspected on reasonable grounds that a substance that would afford evidence of an offence against the Act was in the accused's vehicle. In so doing, I have accepted the evidence of Detective Simmonds that he observed, through the front passenger window of the motor vehicle, a plastic bag situated on the floor in front of the passenger seat with traces of powder and on the front passenger seat a set of scales.
In reaching that conclusion, I have considered the submissions made by Mr McGee, counsel for the accused, and, in particular, his submission that I should not be satisfied, on the balance of probabilities, that Detective Simmonds' evidence that he observed the plastic bag and the scales through the front passenger's window before entering the vehicle was reliable. It follows, from what I have said, that I do not accept that submission.
As a result, I am satisfied that Detective Simmonds had the relevant suspicion before he entered the motor vehicle and seized the two items.
The accused also asserts, through his counsel, that the shining of the torch in the window of the motor vehicle for the purpose of inspecting the inside of the vehicle was the commencement of the search of the motor vehicle. It was not in dispute that, before Detective Simmonds observed the items in the vehicle, he did not have reasonable grounds to suspect. It was only after he observed the two items that he formed the requisite suspicion.
Mr McGee, counsel for the accused, relied upon the decision of Olsson J in Coleman v Zanker 58 SASR 7 and in particular his comments at page 15 which I quote:
‘Moreover, despite Mr Stevens' inference that at the point at which Constable Mensforth issued an edict to the appellant, that edict was the first active step in the ongoing process of an unlawful search of his vehicle which then ensued, a portion of which was the shining of Constable Mensforth's torch into the interior of the vehicle and the finding and seizure by her of the knife.'
In my view, the shining of the torch into the interior of the motor vehicle was not a search of the motor vehicle, or the commencement of a search of the motor vehicle. It seems to me that the comments by Olsson J at page 15, that a portion of the search was the shining of the torch in the interior of the vehicle, has to be understood in the context of the entire passage, which contains that comment. In my opinion, his Honour concluded in Coleman that the ordering of the accused out of the car, and all that followed, was all part of the search procedure adopted by the police officer in that case. Part of the search procedure which had already been undertaken, according to Olsson J was the shining of the torch into the interior of the motor vehicle.
The present case is distinguishable in that Detective Simmonds had no intention of entering the interior of the vehicle when he shone his torch through the window. The decision to search the vehicle only followed after he observed the items described earlier. The shining of the torch inside the vehicle was not part of a search procedure which had already begun.
In my opinion, for there to be search within a meaning of that expression in s.52 sub-s.9 of the Act, there must be some physical intrusion into the subject matter of the search. In my view, the shining of the light of a torch into the interior of a motor vehicle is not a physical intrusion into the motor vehicle. In reaching this conclusion, I rely upon the comments of Olsson J in the decision of Questions of Law Reserved (No.3 of 1998) (Judgment delivered 22 May 1998 S6696) at page 4 and I quote:
“According to its normal connotation, the word "search" implies some physical intrusion into what is searched for the purpose of examining what is in it.
In this regard, it seems that the Crown is on sound ground when it argues that sensory perception of any type simply cannot constitute an act of searching because it is a passive act which cannot possibly constitute a trespass.
As Sir Robert Megarry VC said in Malone v Commissioner of Police of the Metropolis (No.2) (1979) All ER 620 at 640. The reason why a search which is not authorised by law is illegal is that it involves commission of the tort of trespass in relation to the land goods or person searched.”
If I am wrong in my conclusion, and the shining of the torch inside the motor vehicle is a search or part of a search of the vehicle, and thus in this case an illegal search, I should indicate that I would not have exercised my discretion to exclude the evidence. I do not consider it can be suggested that the police officers were acting in a wilful, reckless or malicious nature, or even in a high-handed nature. It is not expected that the police officer who was shining a torch into the interior of the vehicle would understand that he was undertaking a search of the vehicle. Furthermore, such illegality does not affect the cogency of the evidence obtained. I should also add that I do not consider that conduct was improper conduct as that expression is explained by the High Court in Ridgeway v R (1994-1995) 129 ALR 41.
It follows from my conclusion that the search of the vehicle by Detective Simmonds when he seized the two items mentioned before was not illegal. Furthermore, that the later search of the vehicle and the seizure of others items of evidence from the vehicle was also not illegal.
I now turn to consider the application to exclude evidence of the search of the accused and the articles located and seized. In my opinion, the police were authorised to search the accused in accordance with the provisions of s.52 sub-s.6 of the Act. By the time a search of the accused person was undertaken, the police had in their possession, not only the initial items removed from the motor vehicle, but also small plastic bags retrieved from the motor vehicle which contained remnants of white powder and green vegetable matter. In addition, they had located the sum of $850 in cash in the accused's wallet. In my opinion, at the time the personal search was undertaken, Detective Simmonds had reached the state of belief on reasonable grounds that the accused had in his possession a substance in contravention of the Act. Accordingly, the personal search was not illegal.
It follows, from what I have said, that the application of the accused is refused.

[1999] SADC 37

5 March 1999