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R v Wassmuth[2022] QCA 113

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wassmuth; Ex parte Attorney-General (Qld) [2022] QCA 113

PARTIES:

R

v

WASSMUTH, Kyanne Marie

(respondent)

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

(appellant)

FILE NO/S:

CA No 294 of 2021

SC No 189 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Reference under s 668A Criminal Code

ORIGINATING COURT:

Supreme Court at Townsville – [2021] QSCPR 15 (North J)

DELIVERED ON:

24 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

10 May 2022

JUDGES:

Morrison and Bond JJA and Boddice J

ORDERS:

  1. 1.The question referred to the Court, “Is the operation of s. 31 of the Police Powers and Responsibility Act 2000 to be reserved for circumstances when it is not apt to obtain a warrant”, is answered “No”.
  2. 2.Set aside the order made on 23 September 2021, that the evidence of the search of the motor vehicle on 19 November 2018 and of the contents of the motor vehicle and of the contents of the mobile phone be excluded from evidence at the trial of the defendant.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARDON, COMMUTATION OF PENALTY, REFERENCE ON PETITION FOR PARDON AND INQUIRY AFTER CONVICTION – REFERENCE TO COURT – where the respondent was charged with drug offences relating to trafficking in methylamphetamine and possession of methylamphetamine – where the charges were based upon evidence obtained during police searches, one of which was a search of a motor vehicle stopped by police – where the police acted on intelligence that a vehicle was travelling to Townsville and may contain drugs – where the police searched the motor vehicle without a warrant – where an application for a pre-trial ruling was made pursuant to s 590AA of the Criminal Code (Qld) seeking to exclude the evidence obtained in the searches – where the learned primary judge held that the evidence obtained in the searches should be excluded – where a party has referred a point of law to this Court pursuant to s 668A of the Criminal Code (Qld) – whether s 31 of the Police Powers and Responsibility Act 2000 (Qld) (‘PPRA’) authorises police to search a vehicle only when the circumstances do not reasonably permit for the obtaining of a warrant pursuant to s 150 of the PPRA where police purported to exercise the power contained in s 31 and did not seek a warrant – whether it was necessary for the police to have obtained a warrant to lawfully search the vehicle which was found to contain the illegal drugs – whether the search was unlawful and the evidence obtained ought be excluded – whether the operation of s 31 of the PPRA should be reserved for circumstances when it is not apt to obtain a warrant

Acts Interpretation Act 1954 (Qld), s 14

Criminal Code (Qld), s 590AA, s 668A

Human Rights Act 2019 (Qld), s 19, s 48

Police Powers and Responsibilities Act 2000 (Qld), s 30, s 31, s 32, s 150

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, cited

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9, cited

Commissioner of Australian Federal Police v Kanjo (2019) 1 QR 568; [2019] QCA 143, cited

George v Rockett (1990) 170 CLR 104; [1990] HCA 26, cited

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited

R v A2 (2019) 269 CLR 507; (2019) 93 ALJR 1106; [2019] HCA 35, cited

R v Keen [2016] 2 Qd R 1; [2015] QSC 7, cited

R v Wassmuth [2021] QSCPR 15, cited

COUNSEL:

C W Heaton QC, with A J Walklate, for the appellant

M J Copley QC for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant

Purcell Taylor Lawyers for the respondent

  1. [1]
    MORRISON JA:  The Director of Public Prosecutions has referred a point of law to this Court pursuant to s 668A of the Criminal Code 1899 (Qld).[1]  It concerns the application of s 31 of the Police Powers and Responsibilities Act 2000 (Qld),[2] and the interplay between s 31 and s 150 of that Act. 
  2. [2]
    The reference arises as a result of a pre-trial ruling under s 590AA of the Code, excluding evidence derived from a police search of a motor vehicle.
  3. [3]
    The issue is phrased as: Is the operation of s 31 of the PPRA to be reserved for circumstances when it is not apt to obtain a warrant?

The pre-trial ruling

  1. [4]
    On 11 December 2020, the Crown presented an indictment in the Supreme Court at Townsville charging Ms Wassmuth, and others, with drug offences.  The most serious of those offences are: (i) trafficking in methylamphetamine between 16 September 2018 and 20 November 2018; and (ii) possessing methylamphetamine in excess of 2 grams (alleged to be 188.65 grams of pure methylamphetamine) on 19 November 2018.
  2. [5]
    The charges are based upon evidence obtained during two police searches.  The first involved a search of a house with which Ms Wassmuth was connected.  The second was a search of a motor vehicle stopped by police on the Bruce Highway on 19 November 2018On the second search a large quantity of methylamphetamine was found in the vehicle.
  3. [6]
    On 19 February 2021, an application for a pre-trial ruling under s 590AA of the Code was made, seeking the exclusion of the evidence found during both searches.
  4. [7]
    At the hearing of that application on 14 and 15 June 2021, police officers gave evidence as to the two searches.  On 23 September 2021, oral submissions with regard to the application took place.  The learned primary judge held that the evidence obtained in the searches should be excluded.[3]
  5. [8]
    The reference to this Court only relates to the search of the motor vehicle.
  6. [9]
    The learned primary judge’s approach was essentially based on the following steps:
    1. (a)
      s 31 of the PPRA authorises police to search a vehicle only when the circumstances do not reasonably permit for the obtaining of a warrant pursuant to s 150 of the PPRA;
    2. (b)
      when searching the vehicle the police purported to exercise the power contained in s 31 and did not seek a warrant;
    3. (c)
      as there was reasonable opportunity for the police to have obtained a warrant, s 31 did not authorise the search of the vehicle;
    4. (d)
      it was necessary for the police to have obtained a warrant to lawfully search the vehicle which was found to contain the illegal drugs; and
    5. (e)
      as the search was unlawful, the evidence obtained from it was excluded.
  7. [10]
    Relevantly, the learned primary judge relied upon the reasoning of Jackson J in R v Keen,[4] saying:[5]

[15] The operation of section 31 is to be reserved for circumstances when it is not apt to obtain a warrant, usually, because of the exigencies of some emergency or a circumstance is unfolding quickly that require action by police to preserve evidence, when there is not time to apply for a warrant; …

[16] In the circumstances where there was ample time to apply for a warrant, following the reasoning of Justice Jackson, I hold that the search was not authorised by the Act and was unlawful.”

  1. [11]
    His Honour also referred to several single judge decisions in which the reasoning in Keen had been followed or applied.[6]  I shall return to the applicability of Keen and those other decisions shortly.

Relevant facts

  1. [12]
    Before this Court it was accepted that the relevant facts were accurately summarised by the learned primary judge.[7]  What follows is drawn from the Reasons and the evidence of the police officers.
  2. [13]
    Sometime before the morning of 19 November 2018, police received some information in the course of an investigation that led them to believe that Ms Wassmuth, in company with another woman, Ms Barsley, was driving north on the highway towards Townsville.  The information led police to believe that the car may contain a substantial quantity of dangerous drugs.
  3. [14]
    At about 8 am on 19 November 2018, Officers Andersen and Oldfield received a briefing (from the officer leading the investigation), which caused them to form a reasonable suspicion that Ms Wassmuth and Ms Barsley may be travelling in a car from Airlie Beach to Townsville with a quantity of dangerous drugs in the car.  Andersen and Oldfield were tasked with the duty of intercepting the car.  They had time to formulate a tactical intercept plan.  Whilst they suspected Ms Wassmuth might be driving a particular red Audi, they were not completely sure it would be that car.  They did not know when the car would reach the area where they might intercept it.  Time was critical in the sense that they had to get to the highway quickly to ensure they might intercept whatever car it was that Ms Wassmuth was driving.
  4. [15]
    At around 1.10 pm on 19 November 2018 (approximately 30 to 40 minutes prior to the intercept), Andersen and Oldfield positioned themselves on the Bruce Highway near Alligator Creek.  This was for the purpose of intercepting the car and searching it for dangerous drugs.
  5. [16]
    At about 1.50 pm, they saw a red Audi travelling north on the Bruce Highway.  They intercepted the car.  Ms Wassmuth was driving and Ms Barsley was the passenger.
  6. [17]
    Andersen and Oldfield reasonably suspected that there may be unlawful dangerous drugs in the car and, exercising the power under s 31(1) of the PPRA, they detained Ms Wassmuth and Ms Barsley, and searched them and the car.
  7. [18]
    A package wrapped in black tape was found inside a panel in the boot of the car.  It contained a substance that weighed approximately 250 grams.  The substance was subsequently analysed and found to contain 188.6 grams of pure methylamphetamine.
  8. [19]
    Officer Andersen believed that he was empowered to search the vehicle by virtue of s 31 and s 32 of the PPRA and consequently did not seek a post-search approval warrant after the search.
  9. [20]
    Officer Andersen accepted that there was time, between the formulation of the reasonable suspicion and the interception of the car, to phone in for a warrant to search the car.

The relevant statutory provisions

  1. [21]
    Section 31 appears in Chapter 2, Part 2, Division 3 of the PPRA.  As will be discussed later it is notable that Part 2 and Division 3 are each entitled expressly by reference to searches “without warrant”: “Searching Persons, Vehicles and Places Without Warrant” in the case of Part 2, and Searching Vehicles Without Warrant” in the case of Division 3.
  2. [22]
    Relevantly, s 31 provides:

s 31 Searching vehicles without warrant

  1. (1)
    A police officer who reasonably suspects any of the prescribed circumstances for searching a vehicle without a warrant exist may, without warrant, do any of the following –
  1. (a)
    stop a vehicle;
  2. (b)
    detain a vehicle and the occupants of the vehicle;
  3. (c)
    search a vehicle and anything in it for anything relevant to the circumstances for which the vehicle and its occupants are detained.

  1. (4)
    If it is impracticable to search for a thing that may be concealed in a vehicle at the place where the vehicle is stopped, the police officer may take the vehicle to a place with appropriate facilities for searching the vehicle and search the vehicle at that place.
  2. (5)
    The police officer may seize all or part of a thing—
  1. (a)
    that may provide evidence of the commission of an offence; or …
  1. (6)
    Power under this section to search a vehicle includes power to enter the vehicle, stay in it and re-enter it as often as necessary to remove from it a thing seized under subsection (5).”
  1. [23]
    The “prescribed circumstances” are set out in s 32 which relevantly provides:

s 32 Prescribed circumstances for searching vehicle without warrant

  1. (1)
    It is a prescribed circumstance for searching a vehicle without a warrant that there is something in the vehicle that

  1. (c)
    may be an unlawful dangerous drug; or …”
  1. [24]
    Section 150 of the PPRA deals with the requirement to obtain a warrant in certain circumstances where a place is to be searched.  It relevantly provides:

150 Search warrant application

  1. (1)
    A police officer may apply for a warrant to enter and search a place (a search warrant)—
  1. (a)
    to obtain evidence of the commission of an offence; …”
  1. [25]
    For the purposes of s 150 a vehicle is a “place”: Schedule 6 of the PPRA.

Discussion

  1. [26]
    The principles applicable to the correct approach to statutory construction are not in doubt.  The proper approach has been often reinforced by the High Court in cases such as Project Blue Sky Inc v Australian Broadcasting Authority.[8]  It requires that consideration focus on the text of the provision, in context.
  2. [27]
    It is well established by Project Blue Sky that:[9]

“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’.”

  1. [28]
    Further, as was said in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:[10]

“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. ... The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”

  1. [29]
    The relevant principles of statutory interpretation were restated more recently in R v A2:[11]
  1. “[32]
    The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.
  2. [33]
    Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. ‘Mischief’ is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.
  3. [34]
    This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight.
  4. [35]
    The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a ‘substantial miscarriage of justice’ within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation.
  5. [36]
    These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.
  6. [37]
    None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, ‘if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance’. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.”
  1. [30]
    With those principles in mind one can turn to the PPRA itself.

The statutory context

  1. [31]
    In George v Rockett[12] the High Court was considering s 679(b) of the Criminal Code (Qld), which authorized a Justice to issue a search warrant if it appeared the applicant had reasonable grounds for believing various circumstances existed.  The Court said:[13]

“A search warrant thus authorizes an invasion of premises without the consent of persons in lawful possession or occupation thereof. … In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property ... The common law has long been jealous of the prima facie immunity from seizure of papers and possessions... Except in the case of a warrant issued for the purpose of searching a place for stolen goods, the common law refused to countenance the issue of search warrants at all and refused to permit a constable or government official to enter private property without the permission of the occupier ...

State and Commonwealth statutes have made many exceptions to the common law position, ... in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly… Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature’s concern to give a measure of protection to those interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.”

  1. [32]
    The recognition of the tension involved in balancing the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property, is one inherent in the various provisions of the PPRA which require a warrant to enter and search.
  2. [33]
    The purposes of the PPRA are relevantly set out in s 5:

5 Purposes of Act

The purposes of this Act are as follows—

  1. (a)
    to consolidate and rationalise the powers and responsibilities police officers have for investigating offences and enforcing the law;
  2. (b)
    to provide powers necessary for effective modern policing and law enforcement;

  1. (e)
    to ensure fairness to, and protect the rights of, persons against whom police officers exercise powers under this Act; …”
  1. [34]
    Section 7 of the PPRA sets out that police officers should comply with the Act:

7 Compliance with Act by police officers

  1. (1)
    It is Parliament’s intention that police officers should comply with this Act in exercising powers and performing responsibilities under it.”
  1. [35]
    Section 31 is to be found in Chapter 2, Part 2 of the PPRA, which is entitled “Searching persons, vehicles and places without warrant”.  And, within that Part, s 31 is in Division 3, itself entitled “Searching vehicles without warrant”.  Each heading forms part of the PPRA: s 14 of the Acts Interpretation Act 1954 (Qld).  They therefore form part of the context within which s 31 falls to be construed.
  2. [36]
    The fact that Part 2 and Div 3 specifically provide that the powers referred to in them may be exercised “without warrant” can be contrasted with Chapter 2 Part 1, where the words “without warrant” do not appear, either in the heading or in any of the sections within Part 1.  Each of those provisions deal with general powers to enter places and detain persons.  Within that suite of provisions s 21 provides for a power to enter, detain and arrest specifically directed at the enforcement of a warrant.
  3. [37]
    Within Part 2, each of Divisions 2-4 contains a heading which includes the words “without warrant”, as does the operative provision which gives power to do an act.
  4. [38]
    Thus, Division 2 deals with searching persons without a warrant, and s 29 gives power to stop, detain and search a person “without a warrant”, if the police officer “reasonably suspects any of the prescribed circumstances” exist.  The “prescribed circumstances” are in s 30 and include that the person has something that may be a weapon, knife or explosive, or an unlawful dangerous drug, stolen or tainted property, or evidence of various types of offence: s 30(1)(a).  Further, the person has some specific things that might cause harm,[14] or is committing an offence of various types.[15]
  5. [39]
    Division 4 deals with searching public places without a warrant, and s 33 gives wide powers such as to enter and search for evidence of the commission of an offence.  However, s 33 contains an exception, requiring a warrant in certain circumstances: s 33(2)(b).  And one can note that there is no requirement that the police officer “reasonably suspects any of the prescribed circumstances” exist.
  6. [40]
    Division 3 is therefore similar to Division 2. Section 31(1) gives power to stop, detain and search a vehicle “without warrant”, if the police officer “reasonably suspects any of the prescribed circumstances for searching a vehicle without a warrant” exist.  The “prescribed circumstances” are in s 32 and are in similar terms to s 30.  For present purposes s 32(1)(c) provides that a prescribed circumstances for searching a car without a warrant is where the police officer reasonably believes that there is something in the vehicle that “may be an unlawful dangerous drug”.
  7. [41]
    Chapter 2 Part 1 of the PPRA, which deals with “Entry, inquiries and inspection”, gives police general powers to do such things as: enter a place to make inquiries or investigations: s 19; arrest or detain persons: s 21; enter premises and inspect things for purposes under the Child Protection (Offender Reporting and Offender Prohibition) Act 2000 (Qld): ss 21A and 21B; and enter places and seize things to ensure compliance with laws: s 22.
  8. [42]
    Then, Chapter 2 Part 2 deals with “Searching persons, vehicles and places without warrant”.  Within that Part, Division 2 deals with “Searching persons without warrant”.  In that context one finds s 31.
  9. [43]
    Part 3 of Chapter 2 deals with the use of detection dogs without a warrant.  Use that can be made without a warrant includes use for the detection of drugs and the detection of firearms and explosives: s 35(1) and (2).  Section 35 applies despite “any other law”, and therefore nothing in the PPRA as to obtaining a warrant applies to this power: s 35(3) and s 39.
  10. [44]
    Part 3A of Chapter 2 also makes provision for police to act without a warrant.  This applies to the use of a hand held scanner in a public place.  Under s 39C a police officer may, without a warrant, stop a person in a public place and use a hand held scanner to ascertain whether that person has a knife.  But that can only occur if an authorisation has been given under s 39E.  That authorisation can be given by a police officer of specified rank and has to specify the area and time in respect of which the use is granted: s 39E(2).
  11. [45]
    It is notable that the provisions in Part 3A do “not affect the power of a police officer to search a person without a warrant under part 2, division 2”.  That, of course, refers to the power to search a person, rather than a vehicle, which is in Division 3 of part 2.
  12. [46]
    What then follows in the PPRA is a series of provisions dealing with the power of police to act in certain circumstances.[16]  It will be seen that where the PPRA permits a power to be exercised without a warrant, most of those provisions are not concerned with stopping and detaining a car and its occupants, but rather with the power to enter and search a place.
  13. [47]
    Section 150 makes provision for a warrant to be obtained if a “place” is to be entered and searched.  As noted above, the term “place” includes a vehicle.  The warrant can only be issued if there are reasonable grounds for suspecting that evidence or property is at a place, or is likely to be there: s 151.  In that way the legislature has guarded against arbitrary search.
  14. [48]
    One must note, though, that such a warrant does not enable a vehicle to be stopped or detained.
  15. [49]
    Part 2 of Chapter 7 of the PPRA also contains provisions for searches without requiring a warrant.  That Part applies only to certain offences, namely indictable offences, offences involving gaming or betting, and offences against five nominated statutes: s 159.  Section 160 gives power to enter and search a place if a police officer reasonably suspects a thing at or about a place is evidence and it might be concealed or destroyed unless it is immediately entered and searched.  In that case the officer may enter and exercise most of the powers under a search warrant: s 160(3).  However, the officer must obtain approval for the search after the event by applying for an order supported by an application which states the grounds on which it is sought: s 161.  The application is to a magistrate, not a justice, and the magistrate may only issue an approval order if satisfied that, inter alia, there was a reasonable likelihood the evidence would be concealed or destroyed: s 162.
  16. [50]
    Once again, it is to be noted that such a warrant does not enable a vehicle to be stopped or detained.
  17. [51]
    The PPRA provides that police can act without a warrant only in certain specific respects.  Some are to do with powers of arrest, which are not relevant in the present case.[17]  The others which concern powers of search are as follows:
    1. (a)
      Chapter 2 Part 2 as explained above: see paragraphs [42] to [45] above;
    2. (b)
      s 29 dealing with the power to stop, detain and search a person; the “prescribed circumstances” for that purpose are similar to those for s 31;
    3. (c)
      s 33, which deals with a police officer entering and searching a public place for anything that might be evidence of the commission of an offence, to photograph and seize those things, dig up the land and open anything that is locked;
    4. (d)
      s 53BG, which permits a police officer to stop a vehicle without a warrant where the police officer is dealing with an out of control event, such as preventing an event from becoming an out of control event; this provision is explained below: see paragraphs [52] and [67] to [68];
    5. (e)
      s 110 and s 775, court ordered powers to give effect to an impounding order;
    6. (f)
      s 160, as explained above: see paragraphs [49] to [50];
    7. (g)
      s 581, which gives power to enter a place without warrant where there is excessive noise and a noise abatement direction is to be given;
    8. (h)
      s 583, which gives power to enter a place without a warrant where a noise abatement direction has been given but another direction is necessary; and
    9. (i)
      s 593, giving power to enter a moveable dwelling if the officer reasonably suspects the person in the dwelling has caused, or is about to cause, a serious nuisance.
  18. [52]
    Of those, the only provision other than s 31 that deals with power to stop a vehicle without a warrant is s 53BG, dealing with out of control events.  All the others deal with power affecting a person or place.  As to the power in respect of out of control events, it must be noted that those powers can only be exercised with authorisation from a senior police officer: s 53BE and s 53 BF.  There is no scope for the police officer to act without authorisation, or on the basis of a reasonable suspicion as to events or circumstances.
  19. [53]
    Once the scope of the provisions enabling a police officer to act without a warrant is understood, it becomes apparent that the power to stop a vehicle only arises in two circumstances.  One is s 31, where the police officer must reasonably suspect that prescribed circumstances exist, the second is s 53BG, where the power can only be exercised once it is authorised by a senior officer.
  20. [54]
    Within that context one can turn to the construction of s 31.  There are a number of features that must be noted.
  21. [55]
    First, the headings of Part 2 and Divisions 2, 3 and 4 all state in terms that the subject matter of those parts of the PPRA are searches “without warrant”.
  22. [56]
    Secondly, the heading of s 31 states that the subject matter of that provision is searching vehicles “without warrant”
  23. [57]
    Thirdly, the opening words of s 31(1) provide the condition upon which the power exists.  It is that the police officer “reasonably suspects any of the prescribed circumstances for searching a vehicle without a warrant exist”.  Plainly that suspicion must exist before the power in s 31(1) can be exercised.
  24. [58]
    The “prescribed circumstances for searching a vehicle without a warrant” are those in s 32.  In broad terms, they are that there is something in the vehicle that is unlawful,[18] dangerous,[19] stolen or tainted,[20] unlawfully obtained,[21] evidence of an offence,[22] or used or to be used in an offence.[23]  Section 32(1)(c) provides a particular circumstance, namely where the police suspect that “there is something in the vehicle that may be an unlawful dangerous drug”.[24]
  25. [59]
    Fourthly, the power given under s 31(1)(a) is to “stop a vehicle”.  In my view, it means that the police have power to stop a moving vehicle.  That is plainly different from the power in s 31(1)(b) to “detain a vehicle”, which is the power to prevent a stopped vehicle from being moved.
  26. [60]
    Fifthly, the power under s 31(1)(b) is also to “detain … the occupants of the vehicle”.  When construed together with the power to “stop” a vehicle, that means that the police can make a vehicle stop moving and detain those who are in the moving vehicle.
  27. [61]
    Sixthly, s 31(1)(c) gives power to search the vehicle “for anything relevant to the circumstances for which the vehicle and its occupants are detained”.  The “circumstances for which the vehicle and its occupants are detained” are those of the “prescribed circumstances” under s 32 that are relevant to the particular case.  In other words, the police officer’s suspected “prescribed circumstances” that led to the power being exercised are the “circumstances for which the vehicle and its occupants are detained”.
  28. [62]
    Seventhly, the character of the power under s 31(1) can be seen from the power under s 31(2), namely to “stop, detain and search a vehicle … if the police officer reasonably suspects … the vehicle is being used unlawfully …”.  Under s 31(2) the power is not conditioned upon a suspicion as to “prescribed circumstances” in s 32(1).  Instead it is conditioned upon reasonable suspicion that the vehicle is being “used unlawfully”.  This is self-evidently a different concept from those delineated in the “prescribed circumstances”, which are concerned with something, i.e. an object, in the vehicle.  Instead, this power relates to the use of the vehicle regardless of what might be in it.
  29. [63]
    Eighthly, the power under s 31(1) can be contrasted with the power in s 31(2).  The exercise of power under s 31(2) is conditioned upon a suspicion of “prescribed circumstances” under s 32(2).  In that case the prescribed circumstances can be paraphrased as that “the driver has committed or is committing [a particular] offence”, or that the vehicle “is being used by, or is in the possession of, a person who has consorted with offenders”.  It can be seen that the focus is upon the person using the vehicle.
  30. [64]
    Ninthly, the police are given further powers by ss 31(4), (5) and (6) that augment the power in s 31(1).  Under s 31(4) if it is impractical to search the stopped vehicle where it was stopped, it may be taken “to a place with appropriate facilities for searching the vehicle” and police may “search the vehicle at that place”.  Under s 31(5) police may seize things that provide evidence of the commission of an offence, or that the person intended to use to harm someone.  Under s 31(6) the power to search the vehicle includes power to enter it, and stay in it, as often as necessary to remove a seized thing.
  31. [65]
    Thus, the PPRA gives general power to police to enter places (including a vehicle) and search persons, usually conditioned by obtaining a warrant first.  However, the legislature has identified two circumstances where police may stop, detain and search a vehicle without a warrant.[25]  The two circumstances are quite different from one another.
  32. [66]
    The first is s 31(1) which depends upon the police officer forming the reasonable suspicion that there are “prescribed circumstances”, namely that there is something in the vehicle that fits the definitions in s 32, which in turn means something that is unlawful, dangerous, stolen or tainted, unlawfully obtained, evidence of an offence, or used or to be used in an offence.[26]  No more senior authorisation is required.
  33. [67]
    The second is s 53BG,[27] which deals with “out of control events”.  These are events where 12 or more people are present and three or more of them engage in “out of control behaviour” as defined in s 53BC.  In a general sense that is antisocial behaviour[28] that includes: (i) unlawfully entering or remaining in a place or threatening to enter a place; (ii) disorderly, threatening or violent behaviour; (iii) unlawfully assaulting someone or threatening to do so; (iv) wilful exposure of genitals or doing an indecent act; (v) doing burnouts; (vi) throwing, releasing or placing things in a way that endangers others; (vii) obstructing people or vehicles; (viii) intoxication in a public place; (ix) supply or trafficking in dangerous drugs, and other offences under the Drugs Misuse Act 1986 (Qld), Part 2; (x) unlawful supply of liquor, and other offences under the Liquor Act 1992 (Qld), Part 6.
  34. [68]
    Therefore, it can be seen that s 53BG is aimed at conduct, rather than the subject matter of s 32, namely the particular quality of something in a vehicle.
  35. [69]
    It therefore appears that the PPRA has carefully identified two sets of circumstances sufficiently serious to call for the police to be given the power to stop, detain and search a vehicle may be used without a warrant.  And, of the two provisions that give such power to it is only s 31(1) which makes express provision enabling the police officer to act autonomously without more senior authorisation.
  36. [70]
    Further, the terms of s 32 which defines the “prescribed circumstances” reveals the legislature’s care in defining the things, and the dangerous nature of those things, attracting the power to act without a warrant in such a case.  One need only mention unlawful dangerous drugs, weapons, firearms, explosives and the tools of criminal activity to understand the particular delineation taken for the use of power under s 31.
  37. [71]
    In my view, the plain words of s 31, including those in the headings of the Part and Division, leave no room for the conclusion that the legislature intended to graft on an obligation not referred to, and, in fact, is contrary to the words of the section.  There are no words in s 31 that even colourably suggest that it is limited to a situation when it is not feasible to get a warrant.  The words say that the power is granted without a warrant, and the “prescribed circumstances” that must be reasonably suspected are prescribed circumstances “for searching a vehicle without a warrant”.
  38. [72]
    In my respectful view, the text of s 31, in context, permits no other conclusion but that the power to act without a warrant in those prescribed circumstances was not intended to be subject to an additional requirement, that is, that it could only be exercised if there was no reasonable time to get a warrant.
  39. [73]
    The respondent contended that the power in s 31 should be confined (to times when it is not feasible to obtain a warrant) by reason of the application of the statutory principle referred to in Commissioner of Australian Federal Police v Kanjo,[29] and found in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia.[30]
  40. [74]
    The principle found in Anthony Hordern was stated thus:

“When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power”.

  1. [75]
    That contention should be rejected.
  2. [76]
    Application of that principle favours the view that s 31 is not so confined.  It is a specific provision dealing with the power to stop a vehicle, detain it and its occupants, and search the vehicle.  That can only be done where specific prescribed circumstances are reasonably suspected.  As seen above it is one of only two provisions in the PPRA giving power to stop a vehicle.  The mode in which it is to be exercised is expressly prescribed as being without a warrant.  The other provisions requiring a warrant to be obtained, such as s 150 do not deal with the circumstances of stopping and detaining a vehicle, and are general in nature.  They cannot superimpose a requirement that s 31 expressly excludes.
  3. [77]
    The learned primary judge’s reliance upon R v Keen[31] was misplaced.  What was in issue there was the power to search an already stopped vehicle, not the power to stop a vehicle.  The relevant question was whether the occupants were “occupants … detained” when the search of the vehicle was done.[32]  Because the only issue concerned the search of an already stopped vehicle, that was a power that could be exercised under s 150.  His Honour held that the search was unlawful but only because the persons were not “occupants” of the vehicle when it was searched.[33]  That is not this case.
  4. [78]
    In any event, the more pertinent comment by Jackson J for present purposes is that when his Honour was considering the question of reasonable suspicion:[34]

[48] The applicant submits that by 2.00 pm SC Cameron was aware of the facts which formed the basis of the alleged reasonable suspicion. The applicant’s primary submissions focus on whether the police should have obtained a warrant to authorise a search of the vehicle. In my view, this focus misses the true question. If s 31 authorised the search, it does not matter that there may have been another way of obtaining a similar authority.”

  1. [79]
    In my respectful view, the question referred to the Court, “Is the operation of s 31 to be reserved for circumstances when it is not apt to obtain a warrant”, should be answered “No”.
  2. [80]
    The respondent conceded that if the referred question was answered in the negative there was no reason why the Court should not set aside the order below ruling the evidence from the search inadmissible.  That order should be made.
  3. [81]
    I propose the following orders:
  1. 1.The question referred to the Court, “Is the operation of s. 31 of the Police Powers and Responsibility Act 2000 to be reserved for circumstances when it is not apt to obtain a warrant”, is answered “No”.
  2. 2.Set aside the order made on 23 September 2021, that the evidence of the search of the motor vehicle on 19 November 2018 and of the contents of the motor vehicle and of the contents of the mobile phone be excluded from evidence at the trial of the defendant.
  1. [82]
    BOND JA:  I have had the advantage of reading in draft the judgment of Morrison JA.  His Honour’s judgment enables me to express in a summary way my reasons for agreeing with the outcome reached by his Honour.
  2. [83]
    On 19 November 2018, police officers, having formed the reasonable suspicion referred to in s 31(1) of the Police Powers and Responsibilities Act 2000 (the PPRA), exercised the power referred to in that section to stop, detain and search a motor vehicle and its occupants.  They found a large quantity of methylamphetamine in the motor vehicle.  They also seized a mobile phone which the respondent had in her possession.
  3. [84]
    The respondent obtained from the primary judge a pre-trial ruling that:

“…the evidence of the search of the motor vehicle on 19 November 2018 and of the contents of the motor vehicle and of the contents of the mobile phone be excluded from evidence at the trial of the [respondent].”

  1. [85]
    That ruling was founded on the conclusions of the primary judge that s 31 was an exception to the requirement that in general a search warrant must be obtained to search a place and the operation of the section should be reserved for circumstances when it was not apt to obtain a search warrant.  Given that the officers concerned in the exercise of power under s 31 in fact had time to apply for a warrant, the primary judge found the search was not authorised by the PPRA and was unlawful.
  2. [86]
    The question referred to this Court by the Director of Public Prosecutions pursuant to s 668A of the Criminal Code was:

“Is the operation of s. 31 of the [PPRA] to be reserved for circumstances when it is not apt to obtain a warrant?”

  1. [87]
    The circumstances in which a police officer has the power conferred by s 31 are explicitly stated in the section.  There is no justification in the text of s 31 of the PPRA to construe the power conferred on police to be the subject to a further limitation that the circumstances do not reasonably permit for the obtaining of a search warrant pursuant to another section of the Act.  Nor can any such justification be found in the legislative context comprehensively identified in the judgment of Morrison JA and for the reasons stated by his Honour.
  2. [88]
    The primary judge’s ruling to the contrary was founded on a misunderstanding of the judgment of Jackson J in R v Keen [2016] 2 Qd R 1.  As Morrison JA has explained at [77] to [78] above, Jackson J was dealing with different circumstances and in fact explicitly recognised that if the power conferred by s 31 was legitimately engaged in its own terms, it would not matter that there may have been an alternative way under the PPRA to achieve the same result.
  3. [89]
    In R v Keen, Jackson J examined the question facing him by a principled examination of how in a difficult case one might embark upon an examination of the proper construction of a section which was plainly intended to interfere with what might otherwise be regarded as the important right of a person to possession of a motor vehicle free from search: see R v Keen at [32] to [39].  For reasons Jackson J explained by reference to Lee v New South Wales Crime Commission (2013) 251 CLR 100 at 310–311 per Gageler and Keane JJ, the principle of legality might be regarded to have limited utility in such circumstances.  His Honour regarded resort to the statutory context of s 31 as a source likely to provide the greatest assistance.
  4. [90]
    To his Honour’s observations, I would add only the following:
    1. (a)
      All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights: s 48 of the Human Rights Act 2019 (Qld).
    2. (b)
      Relevant rights in the present context include a person’s right under s 19 to move freely within Queensland, a person’s right under s 25 not to have his or her privacy unlawfully or arbitrarily interfered with, and a person’s rights under s 29 to liberty and security.
    3. (c)
      The Human Rights Act accepts that some statutory interference with such rights may be permissible.  Thus s 13(1) provides that human rights may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and s 13(2) identifies a list of factors which are relevant to the decision whether a limit on a human right is reasonable and demonstrably justifiable in that sense.
    4. (d)
      There may well be cases where the question of the proper construction of a statutory provision intended to authorise some abrogation of rights by some form of search and seizure may be assisted by a consideration of the factors listed in s 13(2) and evidence relevant to that consideration.
  5. [91]
    The present case does not provide the occasion for such consideration.  Indeed, the respondent expressly disclaimed reliance on any argument that to construe the power conferred by s 31 of the PPRA in the way for which the Director of Public Prosecutions contended would be to act contrary to s 48 of the Human Rights Act.  In particular, the respondent expressly disclaimed reliance on any argument that to construe s 31 in that way would be to subject the respondent’s relevant human rights to limits that were not reasonable or demonstrably justified in the sense referred to in s 13 of the Human Rights Act.
  6. [92]
    It remains to note that s 668A(2)(d)(ii) of the Criminal Code empowers this Court, in addition to giving its opinion on a point referred, to give the orders it thinks appropriate including the directions or rulings which it considers appropriate to give effect to its opinion.  The Director of Public Prosecutions also sought an order overturning the evidentiary ruling of the primary judge.  Because the order was founded on the erroneous view that the search was unlawful, the ruling should be overturned.  This Court should so order.
  7. [93]
    BODDICE J:  I agree with Morrison JA.

Footnotes

[1]  To which I shall refer as “the Code”.

[2]  To which I shall refer as “the PPRA”.

[3] R v Wassmuth [2021] QSCPR 15.

[4]  [2016] 2 Qd R 1, at [34]-[35].

[5]  Reasons below [15] and [16]; internal footnotes omitted.

[6] R v AB [2018] QSCPR 14; R v Versac [2013] QSC 46; R v Pohl [2014] QSC 173; R v Toon [2015] QSC 117; R v P & Anor [2016] QSC 49; and R v Purdon [2016] QSC 128.

[7]  Reasons below [2] and [12]-[15].

[8]  (1998) 194 CLR 355; [1998] HCA 28.

[9]  (1998) 194 CLR 355 at 381 [69]; internal citations omitted.

[10]  (2009) 239 CLR 27 at 46-47 [47]; internal citations omitted.

[11]  (2019) 93 ALJR 1106 at 1117-1118 [32] to [37], per Kiefel CJ and Keane J with whom Nettle and Gordon JJ agreed (at 1136 [148]); footnotes omitted.

[12]  (1990) 170 CLR 104; [1990] HCA 26.

[13] George v Rockett at 110-111.

[14]  Section 30(1)(b), (d) and (k).

[15]  Section 30(1)(c) and (e)-(j).

[16]  Part 5, directions to move on; Part 6, breaches of the peace, riots and prevention of offences; Part 6A, prevention of criminal consorting; and Part 7, out of control events.

[17]  Sections 365, 365A, 366, 367, 368 and 374.

[18]  Section 32(1)(a) and (c),

[19]  Section 32(1)(b), (m) and (p).

[20]  Section 32(1)(d) and (i).

[21]  Section 32(1)(e).

[22]  Section 32(1)(g), (j), (k), (l), (n) and (o).

[23]  Section 32(1)(f) and (h).

[24]  That suspicion can be based on the use of a drug detection dog: s 37(2).

[25]  Section 60 of Chapter 3 also provides that police may stop a vehicle but that is for the limited purposes in s 60(3).  They are concerned with traffic related matters such as enforcement of transport rules, drink driving, littering, excessive noise and the like.  Those purposes are remote from those under consideration here.

[26]  The use of these general descriptors is not to be taken as a substitute for the defined circumstances in s 32.

[27]  Which can only be used where there is more senior authorisation.

[28]  The use of that general descriptors is not to be taken as a substitute for the defined conduct in s 53BC.

[29]  (2019) 1 QR 568 at 590 [48] and 596 [74].

[30]  (1932) 47 CLR 1 at 7.

[31]  [2016] 2 Qd R 1.

[32] Keen at [28]-[32].

[33] Keen at [58].

[34] Keen at [48]; emphasis added.

Close

Editorial Notes

  • Published Case Name:

    R v Wassmuth; Ex parte Attorney-General (Qld)

  • Shortened Case Name:

    R v Wassmuth

  • MNC:

    [2022] QCA 113

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Bond JA, Boddice J

  • Date:

    24 Jun 2022

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2021] QSCPR 1523 Sep 2021Pre-trial application under Code s 590AA for exclusion of evidence obtained from search of vehicle; search unlawful; evidence excluded; PPRA s 31 only authorises searches in circumstances where it is not apt to obtain a search warrant: North J.
Notice of Appeal FiledFile Number: CA294/2115 Nov 2021Code s 668A reference filed.
Appeal Determined (QCA)[2022] QCA 11324 Jun 2022Code s 668A reference of point of law arising in [2021] QSCPR 15; power to act without warrant pursuant to PPRA s 31 not subject to additional requirement that it be unfeasible to obtain a search warrant; order excluding evidence set aside: Morrison and Bond JJA and Boddice J.

Appeal Status

Appeal Determined (QCA)

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