R v Hinds-Ravet[2022] QSC 66

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant, Luke Edwards Hinds-Ravet, is charged on indictment:

“Count 1 That on the seventh day of September, 2020 at Kingston in the State of Queensland, LUKE EDWARD HINDS-RAVET unlawfully had possession of the dangerous drug methylamphetamine.

And the quantity of the dangerous drug exceeded two grams.

Count 2 That on the seventh day of September, 2020 at Kingston in the State of Queensland, LUKE EDWARD HINDS-RAVET unlawfully had possession of the dangerous drug cocaine.

And the quantity of the dangerous drug exceeded two grams.

Count 3 That on the seventh day of September, 2020 at Kingston in the State of Queensland, LUKE EDWARD HINDS-RAVET unlawfully had possession of the dangerous drug cannabis.

Count 4 That on the seventh day of September, 2020 at Kingston in the State of Queensland, LUKE EDWARD HINDS-RAVET unlawfully had possession of the dangerous drug buprenorphine.”

2. [2]
   All four counts concern drugs which were discovered by two police officers, Senior Constable Brent Newham and Senior Constable Brenton Hore, when they searched a motor vehicle driven by Mr Hinds-Ravet on 7 September 2020.
3. [3]
   Mr Hinds-Ravet submits that the search was unlawful and he seeks the exclusion of the evidence pursuant to the discretion identified in R v Ireland^[1] and explained in Bunning v Cross^[2] (the Bunning v Cross discretion).

Background

4. [4]
   SC Newham and SC Hore are police officers stationed at the Logan District Drug and Firearm Team.
5. [5]
   They were working patrols in the early hours of the morning on 7 September 2020.  SC Newham saw a white Hyundai Accent sedan turn onto Kingston Road from Juers Street, Kingston at about 1.45 am.  A registration check of that vehicle on the police computer system identified it as a hire car.
6. [6]
   A decision was made to intercept the car.  That decision was purportedly made under powers conferred by s 60 of the Police Powers and Responsibilities Act 2000 (the PPRA).  That provision is, relevantly here:

“60 Stopping vehicles for prescribed purposes

3. (1)
   A police officer may require the person in control of a vehicle, other than a train or a vehicle being pulled by an animal, to stop the vehicle for a prescribed purpose. …

3. (3)
   The prescribed purposes are as follows—

1. (a)
   for enforcing a transport Act or the Heavy Vehicle National Law (Queensland);

2. (b)
   to check whether the vehicle complies, or the person is complying, with a transport Act or the Heavy Vehicle National Law (Queensland);

3. (c)
   for monitoring or enforcing a liquor provision;

4. (d)
   for enforcing a contravention of law involving putting, dropping and leaving litter on a public place from a vehicle;

5. (e)
   to conduct a breath test or saliva test;

6. (f)
   to investigate the emission of excessive noise from—

1. (i)
   a motor vehicle on a road or in a public place; or

2. (ii)
   a motorbike being driven on a place other than a road;

7. (g)
   to give a noise abatement direction to the person responsible for the emission of excessive noise from—

1. (i)
   a motor vehicle on a road or in a public place; or

2. (ii)
   a motorbike being driven on a place other than a road;

Note—

For the power to give noise abatement directions, see section 581.

8. (h)
   to impound or immobilise a motor vehicle under chapter 4;

1. (i)
   for enforcing the Tobacco and Other Smoking Products Act 1998, section 26VC;

10. (j)
    to give the person any of the following under the Peace and Good Behaviour Act 1982—

1. (i)
   a public safety order;

2. (ii)
   a restricted premises order;

3. (iii)
   a fortification removal order;

(k) to give a person, under section 53BAC, an official warning for consorting. …” (statutory examples omitted)

7. [7]
   The two police officers pulled up alongside the Hyundai car and SC Newham recognised Mr Hinds-Ravet.  Mr Hinds-Ravet was the subject of information that the police officers knew.  In short, police suspected that Mr Hinds-Ravet was dealing in illicit drugs in the Logan area.  The vehicle was directed to pull over still, it seems, in purported exercise of the power under s 60 of the PPRA.
8. [8]
   The subsequent search of the car was said to be authorised by s 31 of the PPRA.  Sections 31 and 32 provide:

“31 Searching vehicles without warrant

3. (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. …

32 Prescribed circumstances for searching vehicle without warrant

3. (1)
   It is a prescribed circumstance for searching a vehicle without a warrant that there is something in the vehicle that—

1. (a)
   may be a weapon, knife or explosive a person may not lawfully possess, or another thing that the person is prohibited from possessing under a domestic violence order or an interstate domestic violence order; or

2. (b)
   may be an antique firearm that a person possesses and the person is not a fit and proper person to possess the firearm—

1. (i)
   because of the person’s mental and physical fitness; or

2. (ii)
   because a domestic violence order has been made against the person; or

3. (iii)
   because the person has been found guilty of an offence involving the use, carriage, discharge or possession of a weapon; or

3. (c)
   may be an unlawful dangerous drug; or

4. (d)
   may be stolen property; or

5. (e)
   may be unlawfully obtained property; or

6. (f)
   may have been used, is being used, is intended to be used, or is primarily designed for use, as an implement of housebreaking, for unlawfully using or stealing a vehicle, or for the administration of a dangerous drug; or

7. (g)
   may be evidence of the commission of an offence against any of the following—

• the Racing Act 2002

• the Racing Integrity Act 2016

• the Corrective Services Act 2006, section 128, 129 or 132^[3]

• the Nature Conservation Act 1992; or

8. (h)
   may have been used, is being used, or is intended to be used, to commit an offence that may threaten the security or management of a prison or the security of a prisoner; or

1. (i)
   may be tainted property; or

10. (j)
    may be evidence of the commission of a seven year imprisonment offence that may be concealed or destroyed; or

10. (k)
    may be evidence of the commission of an offence against the Criminal Code, section 469 that may be concealed on the person or destroyed if, in the circumstances of the offence, the offence is not a seven year imprisonment offence; or

10. (l)
    may be evidence of the commission of an offence against the Summary Offences Act 2005, section 17, 23B or 23C;^[4] or

10. (m)
    may be something the person intends to use to cause harm to himself, herself or someone else; or

10. (n)
    may be evidence of the commission of an offence against the Penalties and Sentences Act 1992, section 161ZI;^[5] or

10. (o)
    may be evidence of the commission of an offence against the Termination of Pregnancy Act 2018, section 15 or 16;^[6] or

10. (p)
    may be a dangerous attachment device that has been used, or is to be used, to disrupt a relevant lawful activity.

3. (2)
   Also, the following are prescribed circumstances for searching a vehicle without a warrant—

1. (a)
   the driver or a passenger in the vehicle has committed, or is committing, an offence against the Summary Offences Act 2005, section 10C;^[7]

2. (b)
   the vehicle is being used by, or is in the possession of, a person who has consorted, is consorting, or is likely to consort with 1 or more recognised offenders.

3. (3)
   For subsection (1)(p), a relevant lawful activity is disrupted by using a dangerous attachment device if the use—

1. (a)
   unreasonably interferes with the ordinary operation of transport infrastructure within the meaning of the Transport Infrastructure Act 1994, schedule 6; or

Example—

placing an obstacle, on a railway, that stops the passage of rolling stock

2. (b)
   stops a person from entering or leaving a place of business; or

3. (c)
   causes a halt to the ordinary operation of plant or equipment because of concerns about the safety of any person.” (emphasis added)

9. [9]
   Money acquired from the sale of dangerous drugs is “tainted property” for the purposes of s 32(1)(i) of the PPRA.  That is of some significance because when the police spoke to Mr Hinds-Ravet, they noticed he was in possession of a significant amount of cash.
10. [10]
    Once the car was by the side of the road, there was conversation between SC Newham and Mr Hinds-Ravet which then led the police officer to “reasonably suspect”^[8] that there may be an unlawful dangerous drug within the car, so he detained Mr Hinds-Ravet and searched the vehicle.  What was identified was:

1. four clip seal bags containing various amounts of a crystalline substance which contained 5.091 grams of pure methylamphetamine.  That was count 1;
2. two clip seal bags of powder found to contain 2.361 grams of pure cocaine.  That was count 2;
3. two grams of cannabis.  That was count 3;
4. two packages containing a total of 84 strips of buprenorphine.  That was count 4.

The evidence of SC Newham

11. [11]
    SC Newham made two statements.  In his first statement,^[9] he said this:

“3. I can recall the events of Monday the 7th day of September 2020. On 6th day of September 2020 I was working from 6:00pm until 4:00am on the 7th day of September 2020 along with Senior Constable Brenton HORE (SC HORE).

1. 4.At approximately 1:45am the 7th day of September 2020 I observed a white Hyundai Accent sedan bearing Queensland registration 704YWU turn onto Kingston Road from Juers Street, Kingston. I conducted a check of the vehicle on the police computer system and identified that vehicle was a hire car.

1. 5.We pulled alongside the vehicle and I identified the driver of the vehicle to be Luke HINDS-RAVET the defendant in this matter.

1. 6.At this time I and officers from the Logan District Drug and Firearm Team were actively investigating the defendant in relation to the possession and supply of dangerous drugs based on current intelligence in relation to the defendant’s activities.

1. 7.We have intercepted the vehicle on Kingston Road, Kingston.

1. 8.I have approached the vehicle and had a conversation with the defendant. At this time I have activated my body worn camera device (X81262394).

I can now produce my body worn camera footage.

1. 9.As a result of the conversation with the defendant, observing him in possession of a quantity of cash, the use of a hire vehicle, the time of night and the current intelligence in relation to drug possession and supply of the defendant I suspected that he was in possession of dangerous drugs and detained him for the purpose of a search.” (emphasis added)

12. [12]
    The statement goes on to explain how the search was conducted and what was found. 
13. [13]
    A supplementary statement was made by SC Newham.^[10]  It contains:

“2. As outlined in statement one (6/12/20) paragraph 6, both myself and other officers from the Logan District Drug and Firearm Team were actively investigating the defendant in relation to possessing dangerous drugs and supplying dangerous drugs based on current intelligence in relation to the defendant’s activities. At the time of completing statement one I was unable to fully articulate the investigation as it would likely compromise ongoing investigations at that time.”

14. [14]
    The statement goes on to explain the information known to SC Newham as at 7 September 2020.  That was:

1. On 11 June 2020, Mr Hinds-Ravet was in a Nissan X-Trail hire car.  He was ultimately detained and a search of the car revealed $5,000 in cash.
2. The Nissan X-Trail hire car was seen at an address of interest to drug offence investigators on 17 June 2020.
3. A Nissan Qashqai, being a hire car and driven by Mr Hinds-Ravet, was intercepted on 27 June 2020 but a search revealed nothing.
4. The Nissan Qashqai hire car was seen at an address of interest to drug offence investigators on 27 June 2020 and also on 1 July 2020.
5. Mr Hinds-Ravet was located in the company of five other people known to police on 28 June 2020.
6. Mr Hinds-Ravet was seen exiting the Nissan Qashqai hire car and entering a place of interest to drug offence investigators on 30 June 2020.
7. Mr Hinds-Ravet was intercepted by police when driving a Kia hire car on 5 July 2020.
8. The Kia hire car was seen at addresses of interest to drug offence investigators on each of 6 and 8 July 2020.
9. The Kia hire car was seen parked at an address of interest to drug offence investigators on 11 July 2020.
10. The Kia hire car was intercepted by police on 12 July 2020 leaving an address of interest to drug investigators.  In the car was Mr Hinds-Ravet and $35,000 in cash.
11. On 14 July 2020, the Kia hire car was intercepted.  Mr Hinds-Ravet was the driver and $750 in cash was found in the car.
12. The Kia hire car was seen at an address of interest to drug offence investigators on 15 July 2020.
13. The Kia hire car was seen again on 15 July 2020 near another place of interest to drug offence investigators.
14. On 30 July 2020, Mr Hinds-Ravet was intercepted driving a purple Mazda.  In the car was found over $30,000 in cash.
15. On 29 August 2020, Mr Hinds-Ravet was intercepted driving a white Nissan Pulsar.  A search of the car revealed that he was in possession of $2,000.
16. The same Nissan hire car was intercepted on 31 August 2020.  Mr Hinds-Ravet and another occupant were detained but no items of interest were located.

15. [15]
    In addition to that evidence, SC Newham had information that:

1. Mr Hinds-Ravet was unemployed;
2. he had no obvious means to legitimately secure large sums of cash.

16. [16]
    Police had intercepted Mr Hinds-Ravet on numerous occasions and never found drugs.  They had though found him in possession of large amounts of cash.  SC Newham explained that the illicit drug trade had been heavily impacted by COVID‑19 which led to a shortage of dangerous drugs and a subsequent increase in the price of them.  The police officer explained:

“It was not uncommon at this time to not find dangerous drugs on persons who had extensive intelligence relating to drug offences and was likely due to the shortage.”

17. [17]
    SC Newham also said in his second statement that police had noticed an increase in the use of hire vehicles by drug dealers in the Logan district which was thought to be an attempt to avoid detection.
18. [18]
    In neither statement does SC Newham identify the statutory power pursuant to which he directed Mr Hinds-Ravet to stop the car.  This is understandable.  His statements concentrated on the search of the car and both referred to his “reasonable suspicion” that Mr Hinds-Ravet was in possession of dangerous drugs.  While s 31 of the PPRA is not mentioned in the statements, that is clearly the provision relied upon to authorise the search.
19. [19]
    SC Newham gave evidence before me and was cross-examined.  SC Hore did not.  SC Newham gave evidence of being on patrol with SC Hore.  He then said:

“All right. Now, why was it that you were in Kingston that night?---So part of our duties in the Drug and Crimes Team is to conduct patrols. Obviously the name speaks for itself. So we’re targeting drug and crime offences within the Logan district, and part of that is conducting patrols and trying to look - trying to identify offences, people utilising streets or those, you know, transporting drugs and the like.

Okay. So at 1.45 in the morning you and Senior Constable Hore pulled over a white sedan with registration 704YWU?---Yes.

Why was it that you pulled over that car?---So I initially saw the car on Juers Street as it was about to turn on to Kingston Road. I conducted a check on my QLiTE device of the registration. That identified to me that it was a hire car. I believe it was Crazy Clark’s Rentals. At that time I was aware that, offenders involved in drug offences in the Logan district were utilising hire cars. At that time I hadn’t - I didn’t know who was driving it so I attempted to stop the vehicle to note the licence check, enforcing the Transport Act under the section 60 of the PPRA.” (emphasis added)

20. [20]
    He said that he pulled alongside the car and he identified Mr Hinds-Ravet as the driver.  He then said:

“All right. And so then it was at that stage you said that you were - you pulled the car over. You had the car pulled over to conduct a licence check - - -?---Yes.

- - - under section 60 of the PPRA?---Yes.

At that stage, did you have any suspicion in relation to conducting a search under either section 29^[11] or 31 of the PPRA?---Relating directly to the driver of that vehicle?

The driver of the vehicle or of the car?---No.”

21. [21]
    I then asked:

“HIS HONOUR: What was the reason you pulled the car over in the first place? A licence check?---Yes, your Honour.

Did you think that he didn’t have a licence?---No. At the time, we decided to intercept the vehicle. I didn’t know who the driver was. When I said to Senior Constable Hore, ‘Yep. I want that car intercepted,’ that’s when I identified that it was a hire car, and so we were behind it. I - at this stage, I didn’t know who it was, and then part of that process of the - I guess, the intercept, basically, just for our own benefit to see who it was if it did evade, we pulled alongside, and that’s when we identified as the driver, but our intention was, at that time, to conduct a check of the driver [indistinct] a licence check the driver.”

22. [22]
    The prosecutor then asked:

“MR KAPLAN: Was it - and this - so you formed the view to act under section 60 before you had identified the driver of the car?---Yes.”

And later:

“All right. So the car’s then been pulled over, and you’re talking to him at the side of the car. What reasonable suspicion did you form in the purpose - in the course of that conversation?---So once I clearly identified that it was the defendant in the driver’s seat, I was, obviously, aware of current intelligence in relation to the defendant suspected involvement in supply of dangerous drugs to the Logan district. I was also aware of previous interactions with police leading up to that effect where he’d been utilising multiple hire cars. He’d been involved in an evade police offence in tho - one of those hire cars, and [indistinct] also some records of him taking extended times to pull over and being located with large quantities of currency leading up to that point, so there was an ongoing investigation in relation to the defendant. Officers in my team, the Drug and Firearm’s team - about his involvement the supply of dangerous drugs leading up to that point. I also had a conversation with him where he outlined his reason for using of a hire car, and I also looked down and observed that he had a large quantity of cash in his wallet, so with the use of a hire car, his previous use of multiple hire cars, my current intelligence in relation to his involvement in supply of dangerous drugs, being, obviously, 1 o’clock in the morning, I suspected, at that time, he was in possession of dangerous drugs.”

And later:

“MR KAPLAN: Now, officer, from what we could see in that search, the defendant had the cash in what could be described as a pouch that was attached to a cord around his neck?---Yes.

Yes. And it’s the case that you only detained him for the purposes of a search after you saw him pull out that wad of cash, and then he started giving you an explanation for that money. He said he’d won 12,300 on the pokies a couple of weeks ago?---Yes. Obviously, I had the previous - all the information leading up to that point with that ongoing investigation, but then once seeing that money there, that was obviously that point that I determined to act and detain him.

So is it the point that you saw the cash that you formed the reasonable suspicion?---Yes.” (emphasis added)

23. [23]
    Therefore, SC Newham’s evidence is that he intercepted the car in reliance upon s 60 of the PPRA which authorises him to conduct a licence check.  He had no relevant suspicion in relation to Mr Hinds-Ravet having drugs in the car until he identified Mr Hinds-Ravet and formed further suspicions once he was by the side of the stationary car and he saw that Mr Hinds-Ravet had an amount of cash.
24. [24]
    The exchange between police and Mr Hinds-Ravet by the side of the car was all caught on a body worn camera.  It is clear that the police officer notices the cash and asks for an explanation.  The explanation given was that the money was won on poker machines.  Mr Hinds-Ravet had documents which appeared to be receipts. 
25. [25]
    SC Newham was cross-examined to the effect that given that Mr Hinds-Ravet could produce receipts, the explanation for the money being from the poker machines was plausible.  SC Newham accepted that it was a plausible explanation for Mr Hinds-Ravet having the cash.  He said “… but we hear that from a lot of people that we deal with, then it’s not - when we follow that up, it’s not justified”.
26. [26]
    In cross-examination, SC Newham was asked:

“Right. Now, you’ve described being a Senior Constable with a Tactical Crime Squad in Logan?---Yes.

How often does a Senior Constable in a Tactical Crime Squad conduct licence checks in that way?---Regularly.

Would you just conduct traffic stops like that to check licences in the general course of your duties?---Yes. Daily.”

27. [27]
    The point though is not whether SC Newham regularly conducts licence checks.  The real point here is whether that power is misused and was misused in the current situation. 
28. [28]
    In relation to the police officer’s interest in Mr Hinds-Ravet’s licence status, this exchange occurred:

“Okay. You would’ve gathered from that that Mr Hinds-Ravet was a man with a licence before you pulled him over?---Licence status changes on a regular basis, so at that time, I wasn’t aware of that. I already made that decision to intercept the vehicle.

Sure, but you gathered further information after you’ve had that decision, as in, the identity, that it was Mr Hinds-Ravet?---Yes.

I mean, from all the information that you had about him - fairly recent information - was that he was a man with a licence?---I don’t check his licence status on a regular basis.

Right?---So things change with court outcomes and stuff like that - whether they get suspended, and I clearly verbalised to him that I was [indistinct] stop you for a licence check.

But barring an unexpected intervening event, the information you had was that, up until that point, he had a licence?---I didn’t know him to be charged with unlicensed driving, is - - -

Oh, exactly. As in there was various interactions which you- would’ve involved a check of his licence. You were aware of them, and there were no issues arising in relation to his licence status?---It also relates to if he’s appropriate to drive that car being a manual or automatic. There’s other things that go into that, but predominantly is that - a licence - - -

HIS HONOUR: But that wasn’t - - -?--- - - - check, whether they’re - - -

That wasn’t what you were checking, though, was it?---The licence- sorry, your Honour?

You weren’t checking whether he was driving a manual or an automatic car, surely?---Oh, I’m just saying there are the - some other reasons, but I was checking if that driver of that vehicle had a licence, yes. No, I intercepted the vehicle.

MR WILSON: Well, I guess what I’m getting at is: was the licence check a ruse to be able to pull over Mr Hinds-Ravet to interact with him in some way?---No.” (emphasis added)

29. [29]
    The passage above shows that SC Newham was making no real attempt to give responsive answers to defence counsel’s questions.  His answer about checking for a licence to drive a manual car bordered upon the absurd.  SC Newham was giving whatever answers he thought best served to justify his search of the car.
30. [30]
    I then asked:

“HIS HONOUR: I think what you should do is just step back through it. So you’ve got you saying that you see this car at 1.45 in the morning?---Yes, your Honour.

And that arises some suspicion - general suspicion?---Yes, your Honour.

You then do a registration - or your partner does a registration check?---No, I did the check, your Honour.

I’m sorry. You did the registration check, and you ascertained that it’s a hire vehicle?---Yes, your Honour.

You then approach, and when you approach it, you see it’s Mr Hinds-Ravet, and you’ve got information that he’s involved with illicit drugs?---Yes, your Honour.

And you also have information that he has a licence, by the time - - -?---I didn’t do a licence check prior on the QLiTE device.

Okay?---I was aware that previously he had a licence at some point when he got intercepted by other police.

All right. So at that point, when you identify him, you continued to pursue your purpose to pull him over for a licence check?---Yeah, well, that was my intention from the start, so I didn’t see the need to deviate until I’d seen that through.

Right. And when you saw him in the car, did you form any suspicion that - about dangerous drugs on him?---Yes.

Okay. And with those two suspic - well, with that suspicion, you then pull him over, so you’re holding that suspicion when you pull him over?---Well, he’s already pulled over at that stage.

No, no, no. You’re holding that suspicion when you pull him over?---I am holding an - a lot of suspicion in relation to him, yes.

Okay?---Obviously, that is sort of running - I guess, you can just say they’re running parallel - - -

Well, you haven’t got any suspicion that he hasn’t got a licence, have you? You haven’t got any basis for that?---Well, the - like I said, the status changes daily. I can pull someone over today and tomorrow they could have no licence.”

31. [31]
    SC Newham was asked questions about the information that he had, and the fact that Mr Hinds-Ravet had never been caught with drugs during any of the prior intercepts.  He had only been caught with money.  He was also challenged on the basis that the cash that was found on the search the subject of the present proceedings, did not form the basis of a charge.  That cannot take the matter far.  The point under s 31 of the PPRA is whether there is a reasonable suspicion of the commission of a drug offence.  That is a completely different proposition to determining whether there is sufficient evidence to justify a prosecution.

Findings about SC Newham’s evidence

32. [32]
    I did not find SC Newham to be an impressive witness.  As already explained, he tailored his evidence to attempt to achieve the result he desired.  That motivated him rather than a desire to give truthful evidence in obedience of the affirmation he had made.
33. [33]
    SC Newham, I find, was not investigating Mr Hinds-Ravet’s licence status when he pulled the car over by the side of the road.  He was on patrol targeting drug and crime offenders.  He knew that drug offenders were using hire cars to avoid detection and he saw a hire car in the early hours of the morning.  On suspicion that the driver may be involved in drug or other crime related activity, he decided to intercept the vehicle.  He purportedly acted under a provision which authorised him to intercept a vehicle for a registration and licence check and he did ask Mr Hinds-Ravet for his licence.  However, gaining information about Mr Hinds-Ravet’s licence status was not what motivated him.  What motivated him was the investigation of his suspicion that the occupier of the car may have been involved in drug or crime related activity.

Was the search unlawful?

34. [34]
    The interaction between police and Mr Hinds-Ravet should be considered in two parts.  The first is the exercise of a power to intercept the car.  The second is the search of the car and Mr Hinds-Ravet. 
35. [35]
    It is convenient to deal with the second issue first. 

Search of the car and Mr Hinds-Ravet

36. [36]
    If the interception of the car was lawful, then in my view the search of the car and Mr Hinds-Ravet was lawful.
37. [37]
    Section 31 is a provision in common form which authorises the search of a vehicle where the person exercising the power of search holds a particular state of mind.  That state is one of a “reasonable suspicion” of a “prescribed circumstance”, relevantly here, that a dangerous drug or tainted property (the cash) is in the vehicle.  Section 29 authorises a search of a person, here, Mr Hinds-Ravet, in similar circumstances. 
38. [38]
    There are two elements to a “reasonable suspicion”.  One element is subjective:  the person exercising the power must hold the suspicion.  The second is objective:  there must be reasonable grounds upon which the person exercising the power holds the suspicion.
39. [39]
    A suspicion is a state of intellectual conviction less than the belief in the existence of something.  As said by Kitto J in Queensland Bacon Pty Ltd v Rees:^[12]

“A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust amounting to ‘a slight opinion, but without sufficient evidence’, as Chamber’s Dictionary expresses it.”

40. [40]
    Hussien v Chong Fook Kam^[13] was a case where a power of arrest was dependent on the formation by a police officer of a “reasonable suspicion” that the person being sought to be arrested had committed an offence.  Sitting in the Privy Council, Lord Devlin described “suspicion” as:

“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove’. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end.”^[14]

41. [41]
    This is consistent with the structure of s 31.  A police officer forms a “suspicion” as to whether something exists.  The officer is then authorised to exercise powers pursuant to that “suspicion” so as to ascertain whether the thing (drugs or tainted property) is in the vehicle or upon the suspect’s person.  These principles are well-settled.^[15]  They have been applied in cases concerning s 31 of the PPRA.^[16] 
42. [42]
    The objective element of a reasonable suspicion is the subject of definition within the PPRA.  The term “reasonably suspects” is defined as:

“reasonably suspects means suspects on grounds that are reasonable in the circumstances.”^[17]

43. [43]
    That definition accords with the common law concept of a “reasonable” suspicion which is that the person must be satisfied “… that there are sufficient grounds reasonably to induce that state of mind”.^[18]
44. [44]
    Of some importance here is that a suspicion is something short of both belief and proof.  A set of facts may give rise to different inferences and therefore different and competing suspicions.  Different suspicions may arise from the same set of facts, but each suspicion may be held on reasonable grounds.
45. [45]
    Although Mr Hinds-Ravet had previously been intercepted on numerous occasions by police and no drugs had been found, SC Newham was aware that Mr Hinds-Ravet had been connected to various places of interest to drug investigators.  He knew that Mr Hinds-Ravet had on occasions been found in possession of large amounts of cash and that he did not have any apparent legitimate means to raise such large sums, let alone any legitimate reason to hold them in cash.  All that gives rise to a suspicion that Mr Hinds-Ravet is associated with illicit drugs.
46. [46]
    SC Newham intercepted Mr Hinds-Ravet in the early hours of the morning in a hire car in circumstances where SC Newham knew that drug dealers in the local area had been using hire cars to avoid detection.  He then saw Mr Hinds-Ravet in possession of significant amounts of cash.  All those facts form a very substantial basis upon which SC Newham formed a suspicion that Mr Hinds-Ravet was dealing in drugs and consequently there may be drugs in the car.
47. [47]
    On Mr Hinds-Ravet’s behalf, it was pressed that Mr Hinds-Ravet gave an explanation for the money and produced receipts.  The role of the police officer was not to determine whether the money was in fact won gambling, or whether the money was in fact the proceeds of crime.  The question was whether there were reasonable grounds for the suspicion which SC Newham held that the money was proceeds of drug dealing.  If that point was reached, then a reasonable suspicion arose that there may have been dangerous drugs in the car and s 31 of the PPRA authorised him to search the car without warrant.
48. [48]
    Subject to the lawfulness of the interception of the car, I find that there were reasonable grounds upon which the suspicion was formed, and the search of the car was lawful.

Lawfulness of the interception of the car

49. [49]
    As already observed, s 31 of the PPRA confers a power of search where the police officer forms a reasonable suspicion as to the existence of certain facts as defined by s 32.  Section 60 has no such precondition.  Section 60 simply grants a power to police to intercept vehicles.  However, the power is granted for “a prescribed purpose”.
50. [50]
    In R v Fuentes,^[19] Dalton J observed:

“[15] Section 60 of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA) permits a police officer to require the person in control of a vehicle to stop that vehicle, inter alia, ‘to check whether the vehicle or person is complying with a transport Act’ – s 60(3)(b). A transport Act is defined in the dictionary schedule to the PPRA and the dictionary schedule to the Transport Operations (Road Use Management) Act 1995 (Qld) as including that latter Act, and it is a requirement of that latter Act that a driver be licensed – s 78. There is no requirement that a police officer have any state of mind – such as a reasonable suspicion etc – before exercising a power under s 60(1) and (3)(b) of the PPRA, compare, for example, s 58(1)(b) of the PPRA. Thus, when the police officers pulled Mr Fuentes’ car over and checked that he was a licensed driver, they had power to do so which did not depend on their having any reasonable suspicion, or any other state of mind in relation to Mr Fuentes and his passenger. This is a major point of distinction between this case and the case of R v Rondo which was relied upon heavily by the applicant Fuentes. In this case there was a proper basis to stop Mr Fuentes’ car – cf [4] and [48] of Rondo, where there was not. It does not matter to this point that the police officers chose Mr Fuentes’ car to stop because they saw two young men in an expensive car. They were not required to have a reasonable suspicion to stop the car under s 60 of the PPRA.”

51. [51]
    R v Rondo,^[20] referred to by her Honour is a decision of the Court of Criminal Appeal of New South Wales and concerns the construction and operation of s 357E of the Crimes Act 1900 (NSW).  That section gave a power to intercept a vehicle if a police officer “reasonably suspects” certain things.  The structure of s 357E is similar to that of ss 31 and 32 of the PPRA, not s 60.  I respectfully agree with her Honour that Rondo is of little assistance when considering s 60.
52. [52]
    A statutory power must be exercised for the purpose for which it was granted.  In Swan Hill Corporation v Bradbury,^[21] Dixon J, as his Honour then was, observed, in a case where a local authority had made a by-law pursuant to statutory authority:

“… it is incumbent upon the public authority in whom the discretion is vested not only to enter upon the consideration of applications for its exercise but to decide them bona fide and not with a view of achieving ends or objects outside the purpose for which the discretion is conferred.”^[22]

53. [53]
    There are many cases which have considered, for instance, the use that could be made of material seized under warrant where the use is beyond the purpose for which the warrant was issued.  See generally, cases such as Williams v Keelty,^[23] Grollo v MacAuley^[24] and Australian Securities and Investments Commission v Rich.^[25]
54. [54]
    In Police v Prinse,^[26] Bleby J recognised that a power to intercept a vehicle, even if given in seemingly unfettered terms, was limited to the purpose for which the power was granted.  Those observations were approved in Director of Public Prosecutions (Vic) v Kaba & Anor.^[27]
55. [55]
    Any implied limitations to the power will ultimately depend upon the proper construction of the relevant provisions.
56. [56]
    Section 60 of the PPRA is contained within Chapter 3, which is entitled “Powers relating to vehicles and traffic”.  There are numerous provisions in Chapter 3 which empower police to regulate vehicles and traffic, no doubt for the purposes of broad ambitions of road safety. 
57. [57]
    Sections 31 and 32 are contained within Chapter 2 Part 2 of the PPRA.  Chapter 2 is entitled “General enforcement powers” and Part 2 is entitled “Searching persons, vehicles and places without warrant”.
58. [58]
    Section 60 prescribes the purposes of a search under that section.  As already observed, they are defined as “the prescribed purpose” for the exercise of the power to require the driver to stop the vehicle.  All the prescribed purposes relate to vehicles or traffic.
59. [59]
    Section 31, like s 60, empowers a police officer to stop a vehicle.  However, the police officer may only do that, in reliance upon s 31, where the police officer reasonably suspects “the prescribed circumstances”. The “prescribed circumstances” for exercising that power as they appear in s 32 all relate to the commission of possible offences other than traffic offences.
60. [60]
    The legislative purpose is clear.  Broader powers are given to police to regulate vehicles and traffic than to investigate general crime.  That there are broad, virtually unfettered powers over vehicles and traffic is no doubt a recognition of the importance of road safety.  That there are restrictions on invasive powers used in the investigation of general crime recognises the importance of private civil rights.^[28]
61. [61]
    Here, the purported use of the power in s 60, when the true purpose of the interception of the car is the investigation of drug offences, circumvents the restrictions in s 31(1) of the PPRA, namely the formation of the requisite suspicion.  The power in s 60 has been used for an improper purpose.  The interception of the car in purported use of that power was, in the circumstances of this case, unlawful. 

The exercise of discretion

62. [62]
    There are various discretions which arise to exclude evidence.^[29]  The discretion to exclude unlawfully or improperly obtained evidence (the Bunning v Cross discretion) involves public policy considerations.  In R v Ireland,^[30] Barwick CJ said this:

“Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.”^[31]

63. [63]
    The discretion to exclude unlawfully or improperly obtained evidence does not concern questions of unfairness to the particular accused but rather the balancing of differing public interest considerations.
64. [64]
    In Bunning v Cross,^[32] R v Ireland was approved and applied.  Justices Stephen and Aickin in an often quoted passage, listed a number of considerations which might arise in the exercise of the discretion to exclude unlawfully obtained evidence.  The list is not meant to be exhaustive. It is unnecessary to set out or analyse the passage in detail. The identified considerations can be summarised as follows:

1. was the unlawful act inadvertent; or
2. was it a deliberate flouting of the law; and
3. was the misconduct serious; and
4. does the failure to comply with the law affect the cogency of the evidence; and
5. how serious is the offence charged; and
6. are the powers of the police deliberately limited by the legislation to protect the public.

65. [65]
    All drug offences are serious given the damage drugs inflict on the community.  However, while Mr Hinds-Ravet could expect to receive a custodial sentence if convicted, they are not the most serious of drug offences.
66. [66]
    There is no suggestion that the cogency of the evidence seized is affected by the impropriety of the search.
67. [67]
    The police had justification to search the car and Mr Hinds-Ravet once the conversation with him by the side of the road had commenced and police saw the cash.  Probably a relevant suspicion could have been formed earlier, perhaps when Mr Hinds-Ravet was identified.  There was evidence from which SC Newham may have formed a suspicion at that time which may have authorised the interception of the car pursuant to s 31 of the PPRA.
68. [68]
    However, SC Newham in his evidence specifically disavowed the formation of a relevant suspicion before he saw the cash.  Therefore he has, when investigating possible drug offences, misused a traffic provision (s 60 of the PPRA) to justify intercepting Mr Hinds-Ravet’s vehicle without firstly forming the necessary suspicion under s 31 of the PPRA.  The unlawful interception of the vehicle resulted in the search which, in turn, resulted in the evidence being obtained.
69. [69]
    In my view, SC Newham has resorted to an improper use of s 60 of the PPRA in order to circumvent the legislative safeguards within s 31.  I consider that a serious impropriety.
70. [70]
    Balancing the relevant public interest considerations, I exclude the evidence.
71. [71]
    I order:

1. The evidence obtained from the search of Luke Edward Hinds-Ravet and the car in which he was travelling on 7 September 2020 be excluded from his trial.