R v Willison (the Applicant)[2025] QMC 11

MAGISTRATES COURT OF QUEENSLAND

THE APPLICATION

1. Pursuant to section 83A(3) and (5)(i) of the Justices Act, the Applicant defendant seeks an order that evidence obtained from the interception of a car and subsequent search, be excluded by the exercise of a fairness discretion provided by section 130 of the Evidence Act (Qld).

2. It is contended that the interception and arrest by police, on 17 November 2023, was unlawful.

THE DETECTION AND ARREST

3. Body-worn camera footage contains an 8 minute 40 second audio-visual recording of the relevant interception.

4. Police in an unmarked police car checked the registration plate of a motorcycle travelling in front of them. The plate did not match the motorcycle.

5. To avoid a potential evasion, police followed the motorcycle for “some time” before becoming stationary behind the motorcycle at a red-light.

6. The police immediately took action by detaining the rider, physically restraining him from being able to ride away and removing him from the motorcycle.

7. In a matter of some 4 seconds, both officers approach the motorcycle from opposite sides, one officer restrains the male, saying something indistinct and then telling his work partner to turn off the bike. He is saying “come here” and “hands off the bike”.

8. Whilst he is doing this, the other officer, dressed in a fully kitted out police uniform, turns off the bike and is heard to say something in reference to “false plate”.

9. The rider is removed and placed to face up against the side of the police vehicle with his hands on that vehicle.  There are 3 lanes of stationary traffic, with this all happening in the centre lane.

10. The rider, in full protective riding attire, is protesting that that the bike is his motorbike but is told the bike has false plates and he is under arrest for unlawful use of a motor vehicle. He asked to remove his helmet.

11. Traffic can be seen in the footage moving off and around the stationary vehicles slowly. The roadway is flat and wide, with good visibility for any vehicles approaching from behind, although none are seen after the stationary traffic moves off and around after the redlight changes to green. The second officer turns on the lights and sirens of the unmarked police vehicle as the traffic starts to move.

12. The arresting officer escorts the rider to the side of the road and asks him to remove other items of his protective riding clothing.

13. The rider says the plate belongs to another motorbike he owns.  He says the plates are in “my girl’s name”.

14. The rider is hand-cuffed and told that because he is using the vehicle “unlawfully” he is detained by arrest and now subject to a search.

15. The rider questions why he is subject to a search and the officer replies “because you are in custody, you are under arrest.”

EVIDENCE OF THE ARRESTING OFFICER

16. The officer gave a statement on 4 February 2024. His statement was consistent with the footage from his body-worn camera.

17. In his statement he said that “given previous interactions with motorbikes employing the same methodology of utilising false plates to avoid police detection, I reasonably suspected this motorbike was being used unlawfully.”

18. The officer gave evidence in his statement that both he and his colleague discussed, prior to the interception, that a mobile intercept would result in an evasion offence. They decided that should the motorbike become stationary, and it was deemed safe, they would then attempt to apprehend the rider and prevent his ability to decamp.

19. The officer was not cross-examined about this joint discussion.

20. In oral evidence, the officer stated:-
    1. he worked in the Tactical Crime Squad, and as part of those duties he would:-
       1. look for persons the subject of “return to prison” warrants,
       2. undertake search warrant duties,
       3. fill the void in the capabilities of general duty officers, who do not have the same equipment at their disposal, to effectively perform certain police tasks, and
       4. deal with more serious and organised crime.
    2. he had not watched the recorded footage since he compiled the brief.
    3. they (he and his colleague) were leaving another job.
    4. they ran the plates of the motorcycle in front of them.
    5. his assumption from detecting the false plates was that the motorbike was stolen.
    6. the motorbike clearly did not match the description of the motorbike that correlated to the registration plate.
    7. the motorbike was a new, fancy motorcycle and the plate did not look it belonged on that motorbike (taking that to mean, from evidence seen of the plate, that the plate looked like an older plate and was in poor condition).
    8. the “previous interactions” with motorcycles bearing false plates (see paragraph 17 above) were many/countless over the years. He had first-hand/direct experiences that a false plate/s usually relate to unlawful use of a motor vehicle and secondary to that, drugs.
    9. he was not looking for drugs, his arrest was for his suspicion of unlawful use of a motor vehicle.
    10. he arrested the rider under section 21 of the Police Powers and Responsibilities Act (PPRA), it was an arrest for an indictable offence section 365 of that Act and the power to search was exercised under section 443 of that Act.
    11. he had no idea who the registered owner of the plates were as they had been cancelled, but he believed it was a female name.
    12. his experience was that riders of motorbikes tend to “take off” when they have false plates, when police try to intercept with lights and sirens. It was his experience that this occurred “100%” of the time.
    13. this situation as different to when intercepting motorbikes with correct plates.
    14. when quizzed on why he did not check the VIN of the motorbike to establish the owner (which seemingly could not be done until after any interception anyway), he made it clear he was acting on the false plates at the time and had arrested the rider because of the suspicions aroused by the false plates that the bike was stolen.
    15. after finding drugs, that the conduct of the rider was like “ham cheese, tomato”, clarifying false plates led to the arrest for unlawful use of a motor vehicle, and that search whilst in custody located drugs.
    16. his experience was that whilst drugs are often found after such an intercept, they are not always found.
    17. the interception of cars with false plates and motorbikes are distinguishable. That cars they can be intercepted in a way that prevents them taking off by placement of the police vehicle, which is different to a motorbike.
    18. the use of section 21 was also to prevent a dangerous situation of an evasion offence being committed in circumstances where he suspected the bike was stolen. The force used to detain the rider was reasonable to avoid an evade being subsequently committed. He made sure to grab the rider to prevent use of the clutch and accelerator on the bars.
    19. he accepted it would be shocking to be grabbed as a rider before the rider was made aware it was police, but he abided by the Use of Force Training Model.  In applying that, he did not use communication first because the situation did not allow for that to happen safely first.

APPLICANT (DEFENCE) SUBMISSIONS

21. It is contended by the Applicant that the police misused their powers by intercepting the motorbike rider as they did.

22. The submission was:
    1. the suspicion held by the police officer was not reasonable, that he could have detained the rider by way of a traffic stop under section 60 of the PPRA for a licence check, given the offence of displaying a false plate is a fine only traffic offence.
    2. That there should be some question as to the officer’s credibility in referring to his use of section 21 as the power to arrest the rider.
    3. That importing previous experience and assuming that this was an unlawful use of a motorbike situation was unreasonable.
    4. That the officer’s credibility was tainted by his over exaggeration that 100% of the time those riding motorbikes with false plates flee.
    5. That the real basis used by the officer was section 31 of the PPRA, not 21. That the officer was “hedging his bets” by referring to section 21.
    6. There was either a misuse of section 21 or 31 because there was no reasonable suspicion.
    7. The Applicant maintains the use of force was also excessive.

23. Caselaw of R v Hinds-Ravet [2022] QSC 66 was referred to relating to the improper use of section 60 when stopping a motor vehicle for other purposes. This was akin to using section 21 when the true purpose was under section 31.

24. Caselaw of R v Richardson [2024] QSCPR 25 was also referred to as providing some assistance in relation to the “particular purpose and state of mind” issues.

25. The Applicant contends the real reason for the intercept and search was to locate drugs, in reference to the Officer’s use of the terminology “Ham, cheese, tomato” comment made to the defendant.

PROSECUTION SUBMISSIONS

26. The Prosecutor submitted the experience of the police officer was that false plates are often attached to stolen motor vehicles and section 21(3) allows police the power to stop arrest and detain for that reasonably suspected offence.

27. The force used by the officers was reasonable to prevent an evasion offence and protect the rider, the police and public road users from the dangers such an offence would then impose.

28. The identify of the rider was not known at the time of the arrest and it was clear the officer said he was not acting under any suspicion about drug offending. The officer is clearly heard on the footage referring to unlawful use of a motor vehicle being the reason for his arrest.

29. The officer maintained what he said in his statement under cross-examination.

30. The officer did not use section 60 or 31 because when a false plate was attached to a motorbike it was his experience that the rider would then commit an evasion offence and put persons at risk.

31. The arrest and search was therefore lawful, the drugs were lawfully detected after the lawful arrest for unlawful use of a motor vehicle, with the suspicion arising from the false plate and it did not have anything to do with drugs that were subsequently lawfully found.

THE LAW

32. Section 21 of the Police Powers and Responsibilities Act 200) (Qld) [PPRA] contains the general power of police to arrest or detain someone.
33. Sub-section (3) states, if the place is a vehicle, a police officer may stop and detain the vehicle and enter it to arrest or detain the person.
34. Sub-section (5) canvasses the meaning of “arrest” in section 21 to include apprehend, take into custody, detain.
35. Section 31 sets out a specific power to search vehicles without a warrant.
36. Section 60 sets out powers for stopping vehicles for some eleven prescribed purposes.
37. Section 365 provides for an arrest without a warrant. Specifically, it is lawful for a police officer, without warrant, to arrest an adult the police officer reasonably suspects has committed or is committing an offence if it is reasonably necessary for 1 or more reasons, as set out in that section. Twelve reasons are listed, including to prevent the continuation or repetition of an offence or the commission of another offence; to make inquiries to establish the person’s identity; to preserve the safety or welfare of any person, including the person arrested; to prevent a person fleeing from a police officer or the location of an offence; because of the nature and seriousness of the offence.
38. Section 443 provides a police officer may search a person in custody. A person in custody being a person how is lawfully arrested. A police officer may search and seize anything found that the officer reasonably suspects may provide evidence of the commission of an offence.
39. The purposes of the PPRA are set out in section 5, as replicated here:-

1. to consolidate and rationalise the powers and responsibilities police officers have for investigating offences and enforcing the law;
2. to provide powers necessary for effective modern policing and law enforcement;
3. to provide consistency in the nature and extent of the powers and responsibilities of police officers;
4. to standardise the way the powers and responsibilities of police officers are to be exercised;
5. to ensure fairness to, and protect the rights of, persons against whom police officers exercise powers under this Act;
6. to enable the public to better understand the nature and extent of the powers and responsibilities of police officers;
7. to provide for the forced muster of stray stock.

40. R v Hinds-Ravet [2022] QSC 66 provides the following assistance:
    1. It is a decision where evidence of a search of a motor vehicle was excluded by the Court.
    2. The interception of the car was purportedly to conduct a licence check of the driver. It was found that it was, in fact, actually made for the purposes of investigating possible drug offences.
    3. That case related to the police purportedly acting under section 60.  A hired car was seen by patrolling police at 1.45am. Within the Officer’s knowledge at the time of the intercept was evidence that linked both the hire car and the driver directly to addresses of interest relating to drug offences. Those connections were also recent, within the last 3 months.
    4. After stopping the car and having a conversation with the driver (the Applicant Defendant) police claimed to have reasonably suspected there may been unlawful dangerous drugs in the car so detained the driver and searched the car.
    5. Justice Davis was unimpressed by the police officer as a witness and found he tailored his evidence to attempt to achieve the result he desired. He was not investigating the driver’s licence status but on patrol targeting drug offenders knowing drug offenders were using hire cars in the early hours of the morning.
    6. The Court considered the exercise of a power to intercept the car and then the search. Section 31 was considered relating to the search of a vehicle where there is a “reasonable suspicion” or a “prescribed circumstance”.  The requisite suspicion is to be subjectively held and objectively reasonable.
    7. A suspicion is:-
       1. a state of intellectual conviction less than the belief in the existence of something.
       2. more than mere idle wondering, it is a positive feeling of actual apprehension or mistrust, a slight opinion but without sufficient evidence.
       3. a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.”
       4. Something that arises at or near the starting point of an investigation of which the prima facie proof is the end.
    8. The objective element, as defined in the PPRA is “‘reasonably suspects’ means suspects on grounds that are reasonable in the circumstances.”
    9. “reasonable” requires sufficient grounds to reasonably induce the state of mind amounting to a suspicion.
    10. A set of facts may give rise to different inferences and therefore different and competing suspicions, but each may be held on reasonable grounds.
    11. A statutory power must be exercise for the purpose for which it was granted.
    12. Broader powers are given to police to regulate vehicles and traffic than to investigate general crime. There are restrictions on invasive powers to recognise private civil rights.
    13. The use of section 60 was not the true purpose of the interception which was to investigate drug offences. It was therefore used for an improper purpose, and for that reason the interception of the car was, in the circumstances of that case, unlawful.
    14. The exercise of the discretion to exclude evidence improperly obtained was considered (Bunnings v Cross).
    15. The discretion is to balance differing public interest considerations, such as,
        1. Was the unlawful act by police inadvertent or a deliberate flouting of the law;
        2. Was there serious misconduct;
        3. Does the failure to comply with the law affect the cogency (strength) of the evidence;
        4. How serious is the offence charged;
        5. Are the police powers deliberately limited to protect the public.
    16. Drug offences are serious but the offences for Hinds-Ravet were not the most serious of drug offences.
    17. The officer resorted to an improper use of section 60 of the PPRA to circumvent section 31 which was a serious impropriety, and the evidence was then excluded balancing public interest considerations.
41. R v JAMES TIMOTHY RICHARDSON [2024] QSCPR 25 is another decision of Justice Davis which provides the following:-
    1. Police were patrolling when they saw a vehicle which had been previously intercepted but evaded the police. The police suspected the driver to be the same person who evaded the police and therefore intercepted the car. The driver was not the evader, but police then suspected drugs were in the car, so searched and located drugs. The application was made to exclude the drug evidence as being illegally obtained.
    2. Section 21 is exercised to arrest or detain a person; section 60 is to check whether the vehicle or person are compliant with traffic laws.
    3. Both sections require a police officer to act for a particular purpose, that raises an issue as to their state of mind.
    4. A purported exercise of power in pursuit of some purpose other than that prescribed will render the police action unlawful.
    5. This case concerned the search of a motor vehicle exercising power under section 31 regarding the suspicion of the possession of a unlawful dangerous drug.
    6. The same definitions of suspicion given in R v Hinds-Ravet were stated.
    7. A set of facts may give rise to various competing suspicions. Provided one is prescribed by section 32 PPRA, and it is actually held on reasonable grounds, then the jurisdictional fact will have been established even though there are other inferences open.
    8. The evidence of the officer controlling the intercept was clear in that he saw a car recently driven by a wanted person who was thought to have evaded the police in that same car. He formed the view it was likely the wanted person was driving the car again, so he intercepted it to arrest that wanted driver.
    9. This case concerned 2 partnered officers with different understandings as to the powers they were using and had different knowledge of past events involving the relevant car and driver, but the most important consideration was the officer who initiated the intercept and the arrest.
    10. The interception was found to be lawful.
    11. There was unchallenged evidence of police intelligence showing significant drug activity in around the address associated with the vehicle sighted and intercepted and that the vehicle had been driven off in an evade on a previous occasion. The intercept for the purpose of arresting a driver for an evade and the reasonable suspicion as to the present of drugs with associated persons in the car being directly associated with a unit involved in drug activity were held to be reasonable suspicions.
    12. The application to exclude evidence was therefore dismissed.
42. R v TZK [2024] QSC 238 is a very recent decision by Justice Davis again on the issue of evidence and the Bunnings v Cross discretion. Of assistance is the following:-
    1. When assessing the effect of the illegal or improper conduct, the relevance and importance of any unfairness either to a particular accused or to suspected or circumstances. Ordinarily, however, any unfairness to the particular accused will be of no more than peripheral importance.
    2. The public policy discretion is enlivened only where the impugned conduct was the means by which the evidence was obtained.

CONCLUSION

43. The police officer gave evidence of his operational experience in coming across motorbikes being ridden with a false and cancelled plate. It is reasonable to accept his experience that:-
    1. False plates on motorbikes often are indicative of the motorbike being stolen, that is unlawfully being used; and
    2. when police identify themselves with lights and sirens whilst confined in a car, the motorbike rider of a motorbike with stolen plates is more than likely (his experience being “100% of the time” to then commit an evasion offence (deliberately taking off to avoid a police intercept).
44. Of importance is that the plate was not just a false plate for the motorcycle in question, but it was also a cancelled plate. This is an additional concerning factor that can only add weight to reasonability of the police officer’s belief that the motorcycle was stolen.
45. As to the particular suspicion held by the police officer on the facts as they presented, it is accepted that this police officer had more than mere idle wondering but held a positive feeling of actual apprehension or mistrust; a slight opinion but without sufficient evidence.  He was in a state of conjecture or surmise where proof is lacking, arising at or near the starting point of an investigation.
46. As to the suspicion being reasonable, there clearly were sufficient grounds to reasonably induce the state of mind amounting to a suspicion.  Whilst the use of a false and cancelled plate on a motorbike may give rise to different inferences and therefore different and competing suspicions, (such as some other illegal activity being engaged in by the true owner of a motorbike versus the motorbike being a stolen bike), all that matters is the suspicion acted upon was reasonable. Caselaw principles support this analysis and conclusion.
47. The existence of the stand-alone offences easily proven from the false and cancelled plates, being traffic infringement offences, is not the only available reason open to the police for an interception. It is the commission of these offences that enliven the reasonable suspicion the vehicle in question could very well be stolen.
48. To suspect a more serious offence from the confirmation of other, less serious offending, must be accepted as being both an actually held suspicion and a reasonable suspicion. The question that would naturally arise for police after identifying the false and cancelled plates would be “Why would a rider be on a motorcycle with not just false but cancelled plates?”. A reasonable answer would then follow because it may be stolen.
49. Just because the more serious offence is not subsequently made out, or that there may be another reason less sinister behind the registration plate offending, does not mean the suspicion that the motorbike is stolen is not reasonable.
50. The police officer readily identified that the purpose of the arrest was for unlawfully using a motor vehicle. There was no reference to any other offence suspected at that time. Reference to “unlawful using a motor vehicle” was made by the police officer a number of times, as recorded on the body-worn camera footage. 
51. A statutory power exists to facilitate the arrest of someone suspected of using a stolen motorbike, and this power was used legitimately.
52. The nature of the motorbike versus a car in size, agility (in being able to move around through traffic), acceleration rate and handling at speed are all relevant, reasonable objective factors that support the relevant police officer’s subjective concerns about intercepting a motorbike with false plates in a manner that avoids an evasion offence.
53. Motorcycle riders by law also wear helmets that restrict immediate identification.
54. The general public, the rider and police are all better protected if riders of motorbikes bearing false plates are cleverly detained so as to restrict the opportunity to commit a further offence of an evasion offence.
55. False plates allow a rider to avoid identification, an important purpose to facilitate if the motorcycle is actually stolen and being unlawfully used.
56. It also makes more than reasonable sense that when a motorbike displays a false and cancelled plate, with the rider’s identity hidden under protective clothing and helmet, that if the police were to attempt to pull the bike over without using a method that catches the rider unawares and without warning, there is a high potential that rider may evade the police. The rider has a high potential to know the plates are false and or cancelled, and with his identity undetectable he is more likely to commit an evade.
57. The use of smart policing police to intercept a motorcycle and its operator, in circumstances where the traffic offence being committed is reasonably suspected as being committed because the motorbike is stolen, is to be commended. It is not accepted that there was any use of excessive force nor any impugnment in the conduct of the police on this occasion.
58. It is overtly non-sensical that police should have acted under section 60 and attempted to intercept the motorbike and rider with lights and sirens.
59. Having acted appropriately under section 21 and 365, the search conducted pursuant to section 443 was lawful and justified.
60. The Defence submissions as to concerns about the comment “ham, cheese and tomato”, a reference to 3 items going together in the context of false plates, stolen bike and drugs, carries little justification when this comment is made after the lawful search reveals the possession of drugs. 
61. No doubt persons actively engaged in conduct surrounding deceptive conduct with motor vehicle identification may well be doing that to specifically also hide other illegal activities they are engaged in. It was the officer’s experience that false plates often lead to stolen vehicles and then sometimes, drugs are then also discovered in a search, but to use his words, “not always.”
62. The officer’s comment, when he did find the drugs, demonstrates he has observed this scenario before. That is as high as it gets. It is also a comment following the rider’s denial that he had anything illegal in his possession and was questioning the officer as to why he was the subject of a search. There is nothing adverse that should be drawn from the officer’s conduct in using the phrase “ham, cheese, tomato” given the circumstances in which he did use this phrase.
63. The intercept and arrest were lawful.
64. The search was lawful.
65. There is no justification for the exercise of any discretion to exclude evidence.
66. The application before the Court is accordingly dismissed.

Magistrate Tracyann E Mossop

Delivered 26 March 2025