R v Mason No. DCCRM-98-279 Judgment No. D143

[1999] SADC 143

R v MASON
[1999] SADC 143

Judge Herriman
Criminal

1 In this matter, the accused at trial made an application for the exclusion of the evidence of a police search of his person conducted at Diamonds Nightclub on 14 September 1997.  He claimed that the search was an illegal one because the police officer who conducted it, Constable Downs, then had no reasonable grounds for believing that he was in possession of a drug of dependence.
2 He made a further application seeking exclusion of the evidence of later searches of his cars and premises.  It was conceded by the parties, however, that the lawfulness of those later searches would stand or fall on the finding I made as to the initial search, so no evidence or argument was directed to them.  Further, the prosecution conceded that if the searches were held to be illegal, this was not an appropriate case for the exercise of my discretion to allow evidence of them to be given.
3 At the conclusion of the hearing of that application, I refused it and said that I would later provide reasons for doing so.  These are those reasons.
4 The circumstances leading to the relevant search were as follows:  Constable Downs and Sergeant Foot were, on 14 September 1997, attached to a police exercise known as "Operation Expedite".  The purpose of that exercise was to target street crime and licensing offences in Hindley Street and associated areas.  The premises of Diamonds Nightclub are in Light Square, close to Hindley Street.
5 At about 9.45 a.m. on Sunday, 14 September, they were in plain clothes and approached the nightclub, which was then open.  According to Downs, before they actually entered the premises, he observed, near the entrance, a female known to him as "Stormy Summers" and a well-known brothel-keeper, together with a male companion.  Foot did not see them.  
6 Downs said that he and Foot then spoke to security officers and other people before they entered the nightclub proper.
7 From its foyer, one walks up three steps to a doorway which accesses the entertainment area.  As one passes through that door, one is on a platform and facing in a westerly direction. To the right and left, respectively on the northern and southern sides of the building, are two staircases, each rising to the first floor level of the venue.  Otherwise, one can descend three steps from that platform to the ground floor area itself, which comprises a bar, bistro and dance floor surrounded by clusters of tables and chairs.
8 The first floor comprises a bar, separate lounge and clusters of tables and chairs gathered around a central void which opens to the ground floor section.  Towards its western end, behind the bar, is a dividing wall with three sets of glass doors giving access to another lounge area.
9 The evidence of both Downs and Foot was to the effect that, upon ascending from the foyer and entering the nightclub proper, they moved immediately to their right along the platform and in the direction of the northern staircase.  They then stood on that platform for a few moments seeking to adjust their eyes to the reduced vision within.
10 According to Downs, he was at this point standing with his back to the eastern wall of the ground floor section and looking in a westerly direction.  Foot was, on both accounts, standing to Downs' left.
11 Downs then described how, soon after his arrival in that position, a male person whom he described as being five foot seven or five foot eight inches tall, 25 to 30 years old, of average build, with plain straight and black or dark hair, and of Greek or Italian appearance, approached him from his right and said to him "Richie is holding".   He said he had seen that person on a couple of occasions over a period of six months before then, but did not then know his name and could not now identify him. 
12 Downs said that, from his experience, he knew that the statement made by that stranger was conveying to him that a person known as "Richie" was holding drugs.  At that point, he said, he did not know who the "Richie" referred to, was.
13 Although he had not seen the informant actually come down the northern staircase towards him, he was confident that that person had not walked up to him from the ground floor proper.  He inferred from that, from the direction of approach and the fact that nobody else was in the immediate vicinity, that the informant had therefore descended from the first floor level and, accordingly, that the person referred to as "Richie" was also on that level.  Nothing further was said between the two of them and the informant then moved away from him and towards the downstairs bar area. 
14 He said that he inferred from the informant's conduct, and from what was said to him, that the informant somehow knew he was a police officer and that he, the informant, wished to remain anonymous.  He said that he respected that wish and did not, either then or later, attempt to discover that person's identity.
15 In consequence of receiving the information, however, he decided to go upstairs to see if there was somebody there he could identify as "Richie".  He said he did not immediately tell Sergeant Foot what the informant had said to him.  Foot had been standing to his left when he (Downs) had received the information and, on Foot's own account, his position and the level of noise in the premises had prevented him from hearing anything said between the two of them.  Downs said it was a common occurrence to receive tip-offs while they were on such an exercise.  He and Foot had worked together for some time and he did not see any need to immediately tell Foot what he was doing.  He just set off and Foot followed him upstairs. 
16 Foot's recollection of these events varied slightly in that he recalled Downs saying to him words to the effect of "We've got a job on" - before Downs set off upstairs.  At all events, Foot said that he was familiar with Downs' modus operandi, from working with him over a long time, and he assumed, from what he had seen, that Downs had received a "tip-off" and was proceeding upstairs to investigate it.  He was not surprised at, and did not question, Downs' actions: 
"... we have been working together a fairly long time, I follow his lead, and he does the same with me." (p.60) 
17 Downs said there were about twenty people in the upstairs area and, amongst them, were Stormy Summers and her male friend (whom, he believed, had, in the meantime, made their way upstairs) and the accused.  He already knew the accused, as "Richie", having had previous dealings with him, including, in particular, two incidents in which illicit drugs had been involved.  He agreed there might then have been other people upstairs bearing that name. 
18 Downs said that he then identified the accused to Foot.  Foot corroborated this to the extent of confirming that by that time, he thought he was aware that Downs was going to speak to the accused.
19 Downs said that, based on the information provided by the informant and his identification of the accused as a person known to him as "Richie", he then approached the accused.  As he got close to him, he saw that Mason's pupils were "severely" dilated (Exhibit VDD1).  He concluded that the accused might thus have been affected by a drug.
20 In evidence before me, Downs said that, on the basis of the information he had received from the informant, his recognition of the accused and his observation of Mason's pupils, he formed the belief required for a search under section 52 of the Controlled Substances Act. What he did not clearly articulate in that evidence, but what I find to be a fact, is that, in forming that belief, he also then had regard to what he knew of the accused's past, including his involvement with illicit drugs. That he had regard to this, became manifest during his cross-examination when matters relating to that past were put to him and, indeed, part of the accused's case was that he did have regard to that information. Further to that, he had identified the relevance of that knowledge when he had given evidence before Judge Lowrie in this court on 15 March 1999 (Exhibit 2VDP5 at page 17). I did not think the omission to mention that factor, before me, told against his credibility generally, because details of his knowledge of the accused's past were already on record and that knowledge was implicit in his evidence that he recognised the accused.
21 Downs therefore proceeded to conduct a search of the accused's person, and it yielded a substantial quantity of amphetamine. A subsequent search of the accused's car yielded a further quantity and together the three packages seized contained a mix weighing 58.6 grams and 4.83 grams of pure amphetamine.
22 I have already mentioned Downs' previous dealings with the accused and it is now appropriate to deal with them.  He had previously seen Mason at two city hotels, the Heritage Hotel and the Old Queens Arms.  There had also been an occasion when he had been passing Rundle Street and had seen other police speaking to Mason.  He had stopped his car for a moment, looked and then proceeded on.  He had later learned that the accused had been reported for "drug matters" over this incident. 
23 The more pertinent history, from the defence viewpoint, was Downs' awareness of the accused's connection with the death of one Alexander Radak, who had died at the accused's premises at 102 Childers Street, North Adelaide on 4 September 1995.  Radak had been Stormy Summer's lover at the time.  He had been found dead of an overdose of ecstasy in the accused's premises. 
24 Downs had been on mobile patrol at the time and had been called to the house.  He had been the person, at his particular level, responsible for submitting a report to the Coroner on the matter.  Other investigators had also been involved.  In cross-examination, he conceded that he had then had cause to think the accused was responsible for supplying the ecstasy to the deceased - indeed, that he was the prime suspect - but he said there had been other suspects, too.   His investigating officer's statement was tendered (Exhibit 2VDP12).  It described the observations he had made at the subject premises, whilst Radak's body was still there, and the investigations that had been carried out by other officers.  He commented (page 4):
"After speaking to all persons concerned there were obvious signs of the illegal drugs mentioned in statements ...  The recollection of all persons named and times and series of events varies greatly due mostly to the extent they too were affected by these drugs.  As far as the supplier of the drugs mentioned it is unknown.  The actual occupier of these premises Mason provided the least amount of information regarding the incident and was to say the least was very evasive about the series of events".
Later, in a separate covering letter to the Coroner (Exhibit 2VDP11), he commented:
"... it became obvious that persons involved in this matter were far from cooperative in passing on information pertaining to the series of events leading up to and contributing to Radak's death ....  As to the persons giving evidence, other than Police, in this matter I suggest that would be fruitless because of their antecedents, the culture from which Radak himself was involved or allegedly involved.  They would be extremely reluctant to give evidence to say the least.  I would suggest Radak's peers would themselves be holding their own inquest regarding his death not within any guidelines set down by any Government Act or Legislation. ... If it is deemed necessary that an inquest into the death of Radak I personally feel that it may be near impossible to get those people to give evidence publicly."
25 The coronial statement of Detective Senior Constable Jaensch (Exhibit 2VDP13) referred to the arrival at the premises, during police investigations of this death, of the president of the "Hells Angels" motor cycle gang.  That police officer concluded that the suspected cause of the deceased's death was
"due to a combination of drug overdose (ecstasy) and a diabetes attack/fit.  I have found that there are no suspicious circumstances relating to the death of late, Alexander Radak".
26 Finally, there was tendered the exhibit 2VDP14, which was a short statement of the accused, provided to Downs in connection with that same enquiry.  In it, the accused said how he was at his premises at Childers Street and was asked by a female person to come and see what was wrong with the deceased.  He saw him lying on the floor.  The deceased, he said, had had diabetes and "never did anything about it".  As a consequence of this discovery, the accused had to lie down "to come to terms with it". 
27 I have covered that coronial evidence in some detail because defence counsel, in this application, sought to rely upon Constable Downs' views about the accused's possible role in the death as constituting part of Downs' "motive" for conducting what the accused's counsel contended was the unlawful search at Diamonds on 14 September 1997.
28 Before I turn to discuss the attacks upon the evidence of Constable Downs, I should briefly refer to other evidence of Sergeant Foot which I have not mentioned.  Consistent with Down's evidence, he said he had placed himself to Downs' left as they entered Diamonds and they had stood just inside the ground floor entrance, to its right.  He had not seen Stormy Summers at that point, nor did he recall seeing her at any later time.
29 Foot described seeing a person standing to the right of Downs and having what he perceived to be a conversation with him.  He did not hear what was said between them, but described how Downs then said to him (Foot) words to the effect that they had a "job on", whereupon Downs went upstairs and he followed. 
30 When they got to the upstairs section, and after becoming aware Downs was going to approach the accused, he spoke to a security officer there and asked him to watch them. 
31 I return then to Downs' evidence.  He was cross-examined at length on the background to, and his motives for, conducting the subject search.  I have already mentioned his suspicion that Mason had supplied ecstasy to the deceased, Radak.  Downs had not, however, had any further investigatory role in the coronial matter, after his preliminary work had been done, and he did not know what others had done about it.
32 Under cross-examination, Downs said that his observation to the Coroner that the accused had provided "the least amount of information", arose out of comments he had received from other officers at the scene.  Otherwise, he said, he agreed with Detective Jaensch's conclusions about the cause of death, namely, that the death itself was not suspicious, because Radak had voluntarily taken the ecstasy and there was a supervening medical condition.
33 It was against that particular background, however, that it was suggested to Downs that he had strong reasons to want to search Mason whenever he saw him, including at Diamonds on 14 September 1997. He denied that, but said he was aware of Mason's antecedents and, in effect, that if he ever had grounds to do so, he would search him.  He had seen him in the meantime, since Radak's death, and had not sought to search him. He was pressed on that answer, but held to it.  He said that on the evening of 14 September 1997, he had formed the requisite belief, so that he did then have a proper ground to conduct the search. 
34 That same history of contact with Mason was relied upon by the defence to launch further attacks upon the evidence of Constable Downs:
(1) It was suggested that he had falsely invented the incident involving the informant in order to "manufacture" a ground for his intended search.  He denied that.   His evidence as to the presence of that person beside him at the time and as to some level of communication between them was, of course, supported by that of Foot.

(2)  It was suggested that the fact that that alleged information was not passed on by him to Foot at any time before he (Downs) approached the accused, cast doubt upon what was allegedly said by the informant.  As I have noted, Down's explanation for not telling Foot was that they had worked together for a long time and it was not an unusual thing for him to commence to act on information of that kind without first explaining it to his partner.  As I have also noted, Foot supported that modus operandi, but said that in fact Downs did say something to him, to the effect that they had a "job on", before setting off upstairs.

(3)  It was suggested Downs' credibility was suspect, anyway, with respect to what was allegedly exchanged between him and the informant.  On Downs' account it was a one-way communication, whereas Foot said it appeared Downs had a "conversation" with a person whom he (Foot) did not know.  Because of the general level of noise in the room and because the informant was on Downs' other side, Foot said he had not heard what was said.

(4)  Downs was criticised for not attempting to detain the informant and take some particulars from him and for not attempting to later discover his identity.  His response to that was that he treated the information as having been given to him in confidence, that it was obvious, from the informant's actions, that he wanted to pass on information and then move away.  He (Downs) respected that and did not pursue him further.

(5)  Downs was further attacked on the basis that, notwithstanding the sparseness of that information received, he had chosen to go upstairs looking for "Richie" when there were very many people in the ground floor section, there were probably a number of "Richies" in the premises, anyway, and the "Richie" referred to by the informant might have been somebody else. I have already dealt with his explanation for first going upstairs.  Once there, he saw about twenty people and the accused was amongst them.  He knew him as "Richie", obviously knew of his earlier connection with drugs and decided then to approach him. 

(6)  Downs was challenged over why he had chosen to mention in his notes, albeit not in his statement or evidence, that Stormy Summers had been present at Diamonds at the time of their visit.  He said he had put it there simply because he recognised her as a person present, both prior to their entry to the premises and when they arrived upstairs.  He said he had put it in his notes to support their credibility.  He was challenged at length on that and ultimately agreed that Summers had nothing to do with the case and was not a witness.  He said it was simply an observation made at the time.  He was not able to advance any further the reasons for recording it.

(7)  Some connection was then sought to be made between that observation and note of Summers' presence at the nightclub and the information there given to Downs, given his acknowledged suspicion that the accused was in some way responsible for the death of Summers' former partner.  Downs denied any such connection.

35 In considering the effectiveness of those attacks on the credit of Downs, I have had regard not only to all the evidence given before me, but to the statements, transcript and other documents tendered as exhibits on the hearing.
36 I have also taken account of counsel's addresses and the very detailed and helpful written submissions of defence counsel.  I remind myself that the first question I must decide is whether the prosecution has proved, on the balance of probabilities, that before he began to search Mason, Constable Downs believed on reasonable grounds that he (Mason) was in possession of illicit drugs.
37 Having had the opportunity to hear and consider the evidence of Constable Downs given in the witness box, to compare it with the documentation tendered, and having considered, as well, the evidence of Sergeant Foot, I find myself satisfied that the factual circumstances which led to the search being conducted were substantially as claimed by the prosecution.  I found Constable Downs to be a credible witness, his evidence was not substantially damaged in cross-examination, and there was no real attack on the credit of Sergeant Foot. 

38 I find that they entered the premises in the way they described.  They were in plain clothes, were on an identified mission and had worked together for some time.  They knew each other's methods and, given their obvious desire to avoid drawing attention to themselves and their status, I am not surprised at the lack of any detailed verbal communication between them during the events which transpired.
39 Foot's evidence corroborates that of Downs that they stood inside the premises, to the right of the entrance door, for a short while, to adjust their eyes.  I find that, at this time, an unknown person did approach Downs and say to him "Richie is holding".  Foot saw the approach and described it as a conversation.  Given the lighting conditions, the noise and the fact that this informant was on Downs' other side, I was unable to make much of the suggestion that Foot's evidence of a "conversation" necessarily implies that Downs was lying when he said that it was a one-way communication.  Foot can hardly have been expected to have had any real appreciation of what was occurring.  He obviously thought it was a two-way exchange, but he did not recall whether Downs' mouth was moving and the relative proximity of the parties might well have led him to mistakenly infer it was a two-way conversation.  Foot had no particular reason, at that point, to himself speak to the informant, but he inferred what must have happened from Downs' subsequent conduct, namely, that a tip-off had been given.
40 Likewise, I found Downs' explanation for responding by immediately going upstairs to be consistent with the circumstances to which he deposed.  The informant had not come from a position forward from where he was standing, but had approached from the right.  There were no other persons in the immediate vicinity and to the right was the staircase, so it seems to me to have been a reasonable and natural response for Downs to have then inferred that the "Richie" spoken about, was in possession of drugs and was upstairs.
41 Otherwise, I am satisfied that both Downs and Foot provided cogent explanations for not seeking to follow up on the informant.  Clearly, police must from time to time rely on this class of intelligence and to respect the wishes of its providers to remain anonymous.
42 I find that Downs went upstairs, followed by Foot, that he (Downs) saw about twenty people in the upstairs area and that amongst them was a person he knew as "Richie", namely, the accused.  That person was known to him as someone with a history of involvement in illicit drugs.  I find that he decided to approach him.
43 I find that, when he got close to the accused, he observed that the accused's eye pupils were substantially dilated and he formed the opinion that this may have been due to drug-taking.
44 I further find that, based upon the information he had received downstairs, his knowledge of the accused's prior involvement with drugs and his observations of the accused's pupils, Downs then believed, on reasonable grounds, that the accused was in possession of an illicit drug contrary to the Controlled Substances Act. I find that he was thus entitled to then search the accused.
45 As to the references in Downs' notes to Stormy Summers, there are two aspects to this:
(1)  her obvious connection with the accused through the death of Radak.  Any possible motive Summers might have had for wanting to implicate the accused in a crime can be speculated upon, but the evidence took the matter no further than that.  Even if it had pointed to the likelihood that the informant was in some way connected with Summers (and I do not find it did), it would not have damaged the prosecution case - the information, refined by later observations, proved to be correct;

(2)  The criticism of Downs for including the reference to Summers in his notes did not in my view particularly assist the accused's case.  Observation and the recollection of detail frequently enhance the quality of a witness's evidence, hence that witness's credibility may become relevant when it relates to the presence at the scene of a person clearly known to the police.  In this instance, Downs chose to make the observation in his notes, but then decided that it had little relevance to the matter and did not record it in his statement.  I conclude nothing adverse from that.

46 The further argument raised by Mr Wardle was "whether a belief attaching to a class of persons is a belief relating to any person and whether such a belief can be a reasonable belief such as would justify the search of one member of that class of persons". 
47 In this respect, he argued, quite properly, that when Downs was first told "Richie is holding", he did not know who "Richie" was, where he was in the premises and, indeed, whether there were perhaps several "Richies" amongst the attendees there.  On Downs' evidence, whilst there were only twenty or so people upstairs, there was perhaps a crowd of 80 to 100 on the ground floor.  Mr Wardle said that, in those circumstances and even when Downs identified the accused as being present upstairs, he cannot have known if he was the "Richie" mentioned by the informant - indeed, Downs himself conceded this. 
48 Mr Wardle then said that the process of combining that observation with Downs' personal knowledge of Mason's antecedents, so as to form a belief on reasonable grounds that the accused possessed illicit substances, was a flawed one. It excluded the possibility that the information received might have related to another "Richie". Counsel sought to draw a parallel between the "class of Richies" possibly encompassed by the informant's statement, and the "class" of persons stopped and searched in R v Armstrong (1989) 53 SASR 25. There is no doubt that the Full Court, in that case, strongly disapproved of the apparent basis for that search, based, as it seemingly was, simply on the occupants' racial characteristics.
49 But, in my view, the present circumstances are not comparable with that situation.  I find there were three steps, not two, which led Constable Downs to his suspicion:
(1)  the first was the information, "Richie is holding", which, as I have found, was received in circumstances from which it was reasonably inferred that a person named "Richie" was upstairs and in possession of drugs.  At that point, the information identified to Downs a class or group of "Richies", potentially upstairs;

(2)  when Constable Downs went upstairs, he saw about twenty people there and he recognised amongst them the accused, a person known to him as "Richie" and whom he knew already as somebody who had been previously associated with drug use and possible supply.  Whilst the possibility remained that there were other "Richies" amongst the nineteen or so remaining people, the class had, in Downs' view, narrowed significantly.  There was a "Richie" present whom he knew had been associated with possession of drugs.

Even so, Downs, on his own account, disclaims the suggestion he had then formed the requisite belief.  He was, however, sufficiently attracted to the possible connection, that he decided to approach the accused, as, clearly, he was entitled to do;

(3)  it is at that point, after the approach had been made, that Downs observed Mason's pupils to be substantially dilated.  In his experience, and his conclusion in this respect was not challenged, this was an indication of drug intoxication.

50 So Downs had by then further narrowed his enquiry; the "Richie" he knew amongst the group of twenty was not only a known possessor of drugs, but was apparently then under the influence of a drug.  In short, the class had narrowed to a point where, in my opinion, there were reasonable grounds for Downs to suspect the accused possessed drugs.  What began as information about a potential class or group of "Richies" holding drugs, became refined, because of other information and observations, to the point where Downs had reasonable grounds for suspecting the accused himself.
51 Of course, it remains possible that the "Richie" informed upon was in fact somebody else, but that is not the test; the test is whether Constable Downs believed on reasonable grounds that the accused himself was in possession of drugs. I am satisfied that, in all the circumstances, he did.

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