R v Mlaco No. DCCRM-01-1241

[2002] SADC 69

R v MLACO
[2002] SADC 69

Judge Vanstone
Criminal

1. The accused was charged with offences against the Controlled Substances Act 1984.  Before the jury was empanelled Mr Edwardson, who appeared for the accused, sought a voir dire hearing on the question of the legality of the search made by police of the accused’s person and of his vehicle on the occasion to which these charges relate. 

2. Mr Edwardson submitted that if the initial search of the accused’s person was unlawful then that illegality would flow through to the search of the vehicle and to a later search of the accused’s house premises.

3. Ms David for the prosecution did not oppose the holding of a voir dire hearing.  She called three police officers, all of whom were present on the occasion of the search of the accused and his vehicle.

4. The searching and arresting officer was Senior Constable Kokkotos.  He gave evidence in part relying on notes, which he said were made – at the latest – within a few minutes of the relevant events.

5. In essence his evidence was that the three officers approached a person in the car park immediately south of the Heritage Hotel on Light Square, at about 8.20 am on Sunday, 15 April 2001.  The area was known to police and was also adjacent to the Rise Nightclub where all night “recovery” type functions were held, and drug dealing was not uncommon. 

6. When Kokkotos approached and spoke to the accused, he said the accused appeared to be nervous and shaky. When the officer asked the accused what he was doing there the accused replied “nothing”. He saw an object concealed in the front of the accused’s trousers. When he asked the accused what was down the front of his pants, he received no answer. Kokkotos said that he formed a belief that the object might well be a weapon, possession of which would be in contravention of section 15 of the Summary Offences Act 1953, and he determined to search the accused, utilising his powers under section 68 of the Summary Offences Act.  For reasons I shall describe, in my view Kokkotos was amply justified in forming that suspicion and proceeding as he did.

7. The object turned out to be a bottle containing liquid which the officer believed – on the basis of its appearance and odour – to be liquid Fantasy, the correct nomenclature of which is 4-hydroxybutanoic acid, a prohibited substance.  The officer then sought to justify completing the search on the basis of that find, and to see if there were other drugs in the accused’s possession.  He continued to search the accused, now utilising, he said, his powers under the Controlled Substances Act 1984.  Further controlled substances were found on the accused’s person.  The officer then determined to search the accused’s vehicle, a Mazda 626 sedan, again acting upon the belief that there would be further controlled substances there and under the authority of the Controlled Substances Act.  Further controlled substances and other relevant items were found in the vehicle.

8. The accused gave evidence on the voir dire.  His evidence differed from that of Kokkotos in some matters of detail, but he did not resile from the fact that the officer had indeed seen a bulge, consistent with an object, in his trousers, as he approached the accused.

9. I accept the evidence of Kokkotos.  Indeed I found him to be an impressive witness.  Where his evidence differs from the accused, I prefer that of Kokkotos. 

10. The relevant subsection of section 68 of the Summary Offences Act is as follows:

    68. (1)  A member of the police force may do any or all of the following things, namely, stop, search and detain –

    (a)(irrelevant);

    (b)a person who is reasonably suspected of having, on or about his or her person –

    (i)     stolen goods;  or

    (ii)an object, possession of which constitutes an offence;  or

    (iii)evidence of the commission of an indictable offence.

11. The subsection of the Controlled Substances Act by which Kokkotos justified his further personal search of the accused is in different terms:

    52. (6)  Subject to subsection (7), an authorised officer who is a member of the police force may search any person whom the officer believes on reasonable grounds has in his or her possession any substance or equipment in contravention of this Act.

12. The subsection relevant to Kokkotos’ search of the vehicle is section 52, subsection 9:

    52. (9)  Where an authorised officer who is a member of the police force suspects on reasonable grounds that a substance that would afford evidence of an offence against this Act is in any vehicle, vessel or aircraft, the officer may –

    (a)require the driver of the vehicle, the master of the vessel or the pilot of the aircraft to stop the vehicle, vessel or aircraft;  and

    (b)detain and search the vehicle, vessel or aircraft;  and

    (c)seize and remove from the vehicle, vessel or aircraft anything that the officer has reasonable cause to suspect affords evidence of an offence against this Act.

13. Dealing with the personal search, it is plain that the formula set out in section 52(6) of the Controlled Substances Act is more demanding than that in section 68(1)(b) of the Summary Offences Act:  R v Fazio (1997) 69 SASR 54. But in my view the officer was entitled by virtue of his original reasonable suspicion (which as I have said he expressed as a belief) to continue his search of the accused person, notwithstanding that the nature of the object which in part gave rise to that suspicion had been established. The search was quite simply incomplete. Not that I would deny Kokkotos the right to rely on the Controlled Substances Act.  Rather, it was unnecessary for him to do so. 

14. Plainly, once Kokkotos had located controlled substances on the accused person, he was well justified in forming the requisite state of mind entitling him to search the vehicle under section 52(9) of the Controlled Substances Act.

15. Mr Edwardson referred me to R v Nguyen [1999] SADC 93, in which Judge Bishop found to be unlawful, and excluded evidence of, the search of a person who was the driver of a car stopped for traffic offences. The searching officer had previously been given information by a detective to the effect that a man answering the accused’s particular description and driving a vehicle consistent with that driven on this occasion, was dealing in drugs in that area. When the car was stopped by police the officer claimed to have observed a film canister tucked into the top of the man’s jeans. On the basis of that observation, coupled with the intelligence he already had, the police officer claimed to have formed the belief required under section 52(6) of the Controlled Substances Act.  However, he did not conduct a search at that point as might have been expected. 

16. Judge Bishop found that what was in fact observed by the police officer was only a bulge in the man’s jeans.

17. Having disbelieved the officer as to what he observed and consequently as to the belief which rested on that observation, Judge Bishop was not prepared to go on to consider whether section 68(1)(b) of the Summary Offences Act might have theoretically justified the later search, which revealed heroin.

18. Clearly the facts of R v Nguyen were far removed from those in the case at bar.  In my view Kokkotos acted lawfully in his dealings with the accused and no discretion to exclude the evidence of what was found upon the searches arises.

19. I so ruled.