R v Davis[2023] QSC 112

SUPREME COURT OF QUEENSLAND

1. [1]
   Sheldon John Davis is charged on indictment:

Count 1 That on the second day of October, 2018 at Brisbane or elsewhere in the State of Queensland, SHELDON JOHN DAVIS unlawfully supplied the dangerous drug methylamphetamine to another person.^[1]

Count 2 That on the second day of January, 2019 at Brisbane or elsewhere in the State of Queensland, SHELDON JOHN DAVIS unlawfully supplied the dangerous drug methylamphetamine to another person.^[2]

Count 3 That between the first day of January, 2019 and the fourteenth day of April, 2019 at Brisbane or elsewhere in the State of Queensland, SHELDON JOHN DAVIS carried on the business of unlawfully trafficking in a dangerous drug.^[3]

Count 4 That on the thirtieth day of January, 2019 at Brisbane or elsewhere in the State of Queensland, SHELDON JOHN DAVIS unlawfully supplied the dangerous drug methylamphetamine to another person.^[4]

Count 5 That on the fifth day of February, 2019 at Brisbane or elsewhere in the State of Queensland, SHELDON JOHN DAVIS unlawfully supplied the dangerous drug methylamphetamine to another person.^[5]

Count 6 That on the sixteenth day of February, 2019 at Brisbane or elsewhere in the State of Queensland, SHELDON JOHN DAVIS unlawfully supplied a dangerous drug.^[6]

Count 7 That on the twelfth day of March, 2019 at Brisbane or elsewhere in the State of Queensland, SHELDON JOHN DAVIS unlawfully supplied the dangerous drug methylamphetamine to another person.^[7]

Count 8 That on the thirteenth day of April, 2019 at Brisbane in the State of Queensland, SHELDON JOHN DAVIS unlawfully had possession of the dangerous drug methylamphetamine.

And the quantity of the dangerous drug exceeded 2.0 grams.^[8]

Count 9 That on the thirteenth day of April, 2019 at Brisbane in the State of Queensland, SHELDON JOHN DAVIS unlawfully had possession of the dangerous drug methylamphetamine.

And the quantity of the dangerous drug exceeded 2.0 grams.^[9]

2. [2]
   All evidence against the applicant comes either directly or derivatively from a search by police of his car on 13 April 2019. 
3. [3]
   The applicant seeks the exclusion of that evidence in exercise of the discretion identified in R v Ireland^[10] and explained in Bunning v Cross^[11] (the Bunning v Cross discretion).

Background

4. [4]
   Constable Michael Carr and Senior Constable Brent Schulz were, in April 2019, attached to the Moreton District Tactical Crime Squad.  They were on duty together on 13 April 2019 patrolling in an unmarked police car.
5. [5]
   For reasons later explained,^[12] the two police officers were patrolling Boundary Road and Narangba Road, Dakabin.^[13]
6. [6]
   A black Holden Senator motor car came to the officers’ attention.  They intercepted the car on Narangba Road, Dakabin.  The applicant was the driver of the car and Paul Daniel Langford was its only other passenger. 
7. [7]
   In order to intercept and stop the applicant’s car, the police purportedly relied upon s 60 of the Police Powers and Responsibilities Act 2000 (the PPRA).  It provides, relevantly:

“60 Stopping vehicles for prescribed purposes

1. (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;

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;

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

8. [8]
   Sections 60(3)(a) and (b) effectively identify the enforcement of all traffic laws as a purpose for which the power created by s 60(1) may be exercised.
9. [9]
   Drivers of vehicles must be licensed to drive on public roads.^[14]  A vehicle may be stopped by police pursuant to s 60 for the purpose of ascertaining whether the driver is licensed (a licence check).^[15]  This was said to be the purpose which justified the police officers directing the applicant to stop his car.^[16]
10. [10]
    Once both the applicant’s car and the police car were stationary by the side of the road, the two police officers approached it.  Observations were made to which I will later return.^[17]  Constable Carr spoke to the applicant, made some observations and then detained both occupants of the car.  During the applicant’s conversations with police during the search, he made statements which might be incriminating.
11. [11]
    As directed by police, the applicant exited the car.  As he did so, police noticed a bag of powder on the driver’s seat.  That powder was later examined and found to be 27.659 grams of substance containing 20.550 grams of methylamphetamine.  This is the basis of count 8 on the indictment.
12. [12]
    The car was then searched. 
13. [13]
    The search of the car was made in reliance upon powers bestowed by s 31 of the PPRA.  Sections 31 and 32 provide, relevantly:

“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…

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. (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^[18]

• 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

9. (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

11. (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

12. (l)
    may be evidence of the commission of an offence against the Summary Offences Act 2005, section 17, 23B or 23C;^[19] or

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

14. (n)
    may be evidence of the commission of an offence against the Penalties and Sentences Act 1992, section 161ZI;^[20] or

15. (o)
    may be evidence of the commission of an offence against the Termination of Pregnancy Act 2018, section 15 or 16;^[21] or

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

2. (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;^[22]

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

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, statutory examples omitted)

14. [14]
    Section 31 refers to a police officer who “reasonably suspects” certain things.  That term is defined in the PPRA as:

“reasonably suspects means suspects on grounds that are reasonable in the circumstances.”^[23]

15. [15]
    During a pat down search, a further packet containing methylamphetamine was found on the applicant.  This is the basis of count 9.
16. [16]
    The applicant’s mobile telephone was identified and upon request the applicant allowed police access to it.  Messages on the telephone evidenced the supply of dangerous drugs.  The telephone was seized and the applicant was arrested and taken to the Burpengary Police Station.
17. [17]
    While at the police station, the applicant participated in an interview in which he admitted ownership of the drugs found during the search of the car and also made admissions to sharing the drugs with others.
18. [18]
    After the applicant was charged and released on bail, further examination was conducted of the applicant’s telephone.  These investigations provided evidence of the applicant being involved with Langford in trafficking in drugs.
19. [19]
    On 17 June 2019, the applicant was again interviewed by police and made admissions to assisting Langford in a business he was conducting in trafficking in dangerous drugs.
20. [20]
    The various investigations following the search of the applicant’s car have resulted in counts 1-7 on the indictment.

The issues

21. [21]
    The police, in purported exercise of powers vested under the PPRA:

1. directed the applicant to stop his car; an action taken in purported reliance upon s 60 of the PPRA (the interception);
2. detained the occupants of the car, namely the appellant and Langford; an action taken in purported exercise of powers granted by s 31(1)(b);
3. searched the applicant’s car; an action taken in purported reliance upon s 31(1)(c) of the PPRA.

22. [22]
    The applicant submits that the interception of the car was unlawful because the power vested by s 60 of the PPRA was misused.  The real purpose of the interception was submitted to be not to “enforc[e] a transport Act”,^[24] or to check whether the applicant “is complying with a transport Act”,^[25] but was to determine whether an unlawful dangerous drug was in the vehicle.  Resort was made by police to s 60, the applicant submits, to avoid the legislative safeguard to the exercise of the power in s 31, namely the formation of a reasonable suspicion that an unlawful dangerous drug may be in the applicant’s car.^[26]
23. [23]
    It is submitted in the alternative by the applicant that if the interception was lawful, the detention and search are not.  It is submitted that any suspicion of the presence of dangerous drugs in the car was not held “on grounds that are reasonable in the circumstances”.^[27]
24. [24]
    The Crown accepted that if the interception was illegal, then the detention and search and all that followed (including the interviews of the applicant) were tainted by the illegality and subject to the Bunning v Cross discretion.  Similarly, if the interception was lawful but the detention and search were not, then all evidence obtained from the time of the search was liable to be excluded in exercise of the discretion.
25. [25]
    The issues then are:

1. Was the interception lawful?
2. Was the detention and subsequent search lawful?
3. If either was unlawful, should the Bunning v Cross discretion be exercised so as to exclude the evidence?

The Crown case defending the application

26. [26]
    Both police officers were wearing body cameras.  Footage from both were tendered into evidence before me by the Crown.^[28]
27. [27]
    Senior Constable Schulz made the decision to intercept the applicant’s car for the purposes of a licence check.  Constable Carr made the decision to detain the occupants of the car and search it.
28. [28]
    Constable Carr passed away on 4 April 2023.  Senior Constable Schulz gave evidence before me.  The case was conducted on the basis that:

1. Constable Carr did in fact form a suspicion that there were dangerous drugs in the applicant’s car;
2. Constable Carr purported to detain the occupants and search the car in exercise of powers vested by s 31;
3. reliance by the Crown is made on Senior Constable Schulz’s evidence to establish grounds that are reasonable in the circumstances to support Constable Carr’s suspicion.

The evidence

29. [29]
    Senior Constable Schulz gave evidence.  Although I do not accept his assertions that the applicant’s vehicle was intercepted in order to investigate compliance with traffic laws, I found him to be an honest witness who was motivated to tell the truth and to fulfil his oath as a witness.  His miscategorisation of his actions as traffic enforcement was no doubt a reflection of what he had been instructed by more senior police.^[29]
30. [30]
    In examination-in-chief, Senior Constable Schulz said that he and Constable Carr were on duty patrolling the Narangba area.  He gave evidence:

“And what was the nature of your duty that night?---During that shift, we were patrolling in an unmarked police vehicle and we would just, sort of, target high traffic areas or previously known drug offences - or drug addresses of interest.

Now, you’ve said ‘high traffic areas’?---Yeah.

What do you mean by that?---Usually when - if previous intercepts - or if we know a drug address is nearby, we, sort of, identify pathways that are commonly used by drug offenders.”^[30] (emphasis added)

And:

“Right, What were you looking for?---We were conducting patrols along the Narangba Road, Dakabin, which is a main thoroughfare for keeping off the highway from Petrie, being North Brisbane, up into Narangba, into Moreton district at that time. There’s a couple of drug addresses both - either off that address and you can commonly, sort of, identify - a lot of cars of interest, stolen cars or offenders utilise that to keep off the main highway.”^[31]

31. [31]
    The purpose of the patrol was explored by Mr Rutledge of counsel (for the applicant) in cross-examination:

“All right. The first few questions I’m working off notes that were taken by the clerk working with the prosecutor when he had a telephone conversation with you, okay, and I’m assuming that they are accurate notes. Okay. That night your duties were:

Proactive patrols targeting street-level drugs.

That’s what you told the prosecutor; is that right?---Correct.

Okay. And that was it; you were out looking for drugs. That’s fair enough?---Yes.

Yeah. Okay. And the area that you had your car positioned in was a high-interest area for drug offenders; correct?---Correct.

All right. And I think I picked up that it was positioned between a couple of what I’ll call drug houses, you know, houses connected with drug dealers; is that right?---Yes.”^[32] (emphasis added)

32. [32]
    It was explained by Senior Constable Schulz in examination-in-chief that a decision was made to intercept the applicant’s car for a “licence check”.^[33]  By that, Senior Constable Schulz was relying upon the power conferred by s 60 of the PPRA, namely for the purpose of enforcing a transport Act^[34] or to check whether the driver of the vehicle was complying with a transport Act.^[35]  In cross-examination:

“In terms of the Police Powers and Responsibilities Act, what is a licence check?---A licence check is utilising the main road - transport Main Roads system to check a driver’s licence status.

Okay. And how do you go about that?---On the - we’ve got iPads, and when we run names on the iPad, it goes into the TMR and tells us the status of the licence or - and/or the status of the registration of the motor vehicle.

And does that supply any other information to you?---Yep. So also - when you do that check for their licence, it also gives us access to the police database system. Whilst on that database system, it shows if the person who we’ve stopped - if they’re currently got outstanding matters, warrants, wanted for questionings.

How about criminal intelligence?---Yeah. It also has access to intelligence holdings and also associates, previous street checks that they’ve been linked with.”^[36]

33. [33]
    As to how a licence check was determined as the appropriate purpose for which to intercept the applicant’s car, this exchange occurred under cross-examination by Mr Rutledge:

“Okay. All right. Okay. The - you were also asked by the prosecutor how useful licence checks are as an investigative tool, okay, and you told him, ‘It’s critical’. All right. Remember that?---Yes.

All right. Tell me why it’s critical - - -?---In identif - - -

In terms of investigating drug offences?---It identifies that person.

Yeah. All right. So is this a fair enough - and I’m not saying there’s anything unusual about what you did. I’m not making any comment on that at all, okay. The - one standard procedure when you or other police are out on the lookout for drug offenders is to - for whatever reason, a car becomes of interest and you stop the car to identify who the driver and the passengers are; correct? Am I right so far?---Correct.

All right. And, at that point in time, that opens the potential door to suspicion about whether there are any drugs in the car or drug offences connected to the car; correct?---Correct.

All right. Okay. The - and that’s exactly what you were doing that night - and I’ll summarise it. You were out looking for - doing a proactive patrolling, looking for drug offenders in the area. You see a car that, for whatever reason, you decide is worthwhile stopping and finding out what’s going on. You stopped the car. You give the driver’s licence to your partner, who does the check, and then he brings up the information that, at least for him, is enough to do a search of the car. Is that what happened?---Correct.”^[37] (emphasis added)

And:

“HIS HONOUR: But you’re investigating drugs, aren’t you, at this point?---Not - not at this point, your Honour.

Not at that point?---No.

you weren’t going to the - you’ve got a licence - you’ve got his licence and you’ve got his name?---Correct.

And you’ve told us earlier that a licence check is important in, as I understood it, your drug investigation, because you identify the person?---Yes.

Right. And then you’re checking on the QPRIME about this person generally, aren’t you?---Yes.

To see, amongst other things, surely whether he’s got priors for drugs?---Initially for the - the traffic offences, and then it’s kind of - then you, sort of, drift into that, yes.”^[38] (emphasis added)

And:

“MR RUTLEDGE: Yeah. I think you - let’s live in the real world a little bit, if I might make that comment. And we’ll assume we’ve all been around a lot of time. The reality is that the licence check was, on that night, and is used, on occasion, as the - what I’ll call the key to finding out whether the person connected - that’s sitting in that driver’s seat is connected with drug offending?---Correct.

And that’s what was happening that night. I’m not being critical, right, and I’m not saying you’ve done anything different to whatever you were trained to do, but that’s what was happening that night?---Initially I - I believed that it was a vehicle intercept for a traffic offence which turned ---”^[39] (emphasis added)

And:

“MR RUTLEDGE: All right. Look, I’ll just remind you what you told the prosecutor, right? Okay. The prosecutor asked you - and this is on the phone - asked you what your duties were on the night of the search. And you told him:

Proactive patrols targeting street-level drugs.

You did not tell him you were out looking for traffic offences or anything else like that; agree?---Agree.”^[40]

34. [34]
    In cross-examination, Senior Constable Schulz said that while on patrol police were alive to enforce all laws, including traffic regulations.^[41]  Then this exchange occurred:

“HIS HONOUR: Just before you sit down.

You’re, obviously, versed in the powers vested in you as a sworn police officer under the PPRA?---Yes, your Honour.

Yes. And you would be aware of section 31, which talks about searching vehicles without warrant?---Yes, your Honour.

And that says:

A police officer who reasonably suspects any of the prescribed circumstances for searching a vehicle without a warrant exists -

and one of those is a reasonable suspicion that there’s drugs in the car?---Yes, your Honour.

Continuing:

May, without warrant, do any of the following.

And the first is:

Stop a vehicle.

?---Yes, your Honour.

Right. so you’re aware of all that?---Yes.

You didn’t go under section 31. You instead went under section 60, which is stopping the vehicle for a licence check?---Yes, your Honour.

Right. You mentioned earlier that you’d received advice to go under section 30 from your superiors - I beg your pardon, under section 60?---Yes, your Honour.

Right. The reason for that is, is it, that - you go under section 60, rather than section 31, is because you don’t have to have any reasonable suspicion to pull over a car for a licence check; is that right?---Correct.

Right. So even when you’re investigating drugs, you can pull over a car under section 60 without forming the reasonable suspicion under 31?---Correct.

And that’s why you adopt - and I’m not just saying you, but police adopt the procedure under section 60, rather than 31?---I believe so.”^[42] (emphasis added)

35. [35]
    The reference in that exchange to earlier evidence of Senior Constable Schulz receiving advice from his superiors was a reference to this evidence in chief in response to a question asked by Mr Byrnes of counsel for the Crown:

“Now, this will perhaps sound like a strange question. Where did you learn how to do this?^[43]---At the time of this, our officer-in-charge, senior - Senior Sergeant Richard Downey, he and the senior officer within Tac Crime, sort of - the Best Practice method and, sort of, taught us how - of how he wanted his officers to conduct themselves out on the road. And then we’d, I guess, utilise those powers on a daily basis.”^[44]

Was the interception lawful?

36. [36]
    Section 60 of the PPRA authorises police interception of a motor vehicle.  The exercise of the power is expressly limited by the purpose for which it was granted.  The power may only be exercised “for a prescribed purpose” being one or more of such purposes prescribed by s 60(3).  Here, the “prescribed purpose” alleged was to “enforce a transport Act”^[45] or “to check whether the … person [driving the vehicle] is complying with a transport Act …”.^[46]  Senior Constable Schulz stated in evidence that he intended to perform a licence check once he and Constable Carr had observed the applicant’s car.  I accept that evidence.  He then said that he was exercising the powers of interception to investigate a traffic offence.  That is not so.
37. [37]
    I find that the two police officers were on patrol specifically targeting drug offenders.  They intercepted the applicant’s car in order to investigate the possibility that the occupants of the car were offending against the Drugs Misuse Act 1986.  The police officers did that by intercepting the car and identifying the driver so as to then investigate whether there was sufficient suspicion to search the car for drugs pursuant to s 31 of the PPRA.  Their interest in the licence status of the applicant was only a step in the investigation of the possible drug offences.
38. [38]
    Section 31 of the PPRA also vests power in police to intercept a motor vehicle.  It does not use the language of “purpose”.  It refers to “prescribed circumstances”.
39. [39]
    The “prescribed circumstances” referred to in s 32 can be categorised as follows:

1. there is contraband in the car (s 32(1)(a), (c), (d), (e), (f), (h), (i) and (p) with 32(3)); or
2. there is something in the car that should be seized to prevent harm or the commission of an offence (s 32(1)(b), (m) and see also 32(2)); or
3. there is evidence in the car of the commission of some offence (s 32(1)(j), (k), (l), (n) or (o)).

40. [40]
    The obvious purpose of s 31 is to empower police to stop a vehicle and search it to then seize and preserve the things and investigate possible offences.^[47]
41. [41]
    Section 31, when read with s 32, provides that the power of a police officer to “stop a vehicle” may be exercised where there is a reasonable suspicion that “an unlawful dangerous drug” may be in the vehicle.  No attempt was made by the Crown to establish that there was such “reasonable suspicion” before the interception. 
42. [42]
    For the purpose of enforcing the traffic law, police officers may stop a vehicle without forming any reasonable suspicion of the commission of an offence.^[48]  However, in order to stop a vehicle as a pre-condition to then searching it for dangerous drugs, a statutory protection of the citizen has been prescribed.  The vehicle may only be stopped for the purposes of a drug investigation where there is a reasonable suspicion that there are drugs in the car.^[49]
43. [43]
    It is well-established that a statutory power must be exercised for the purposes for which it was granted.  In Swan Hill Corporation v Bradbury,^[50] Dixon J (as his Honour then was) said:

“... 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.”^[51]

44. [44]
    In O'Reilly v State Bank of Victoria Commissioners,^[52] the High Court considered powers vested in the Commissioner of Taxation to access buildings and documents for the purpose of an investigation.  The High Court said of that power:

“Like all statutory powers, that power must be used bona fide for the purposes for which it is conferred and that involves that its exercise be not excessive in the circumstances of the case.”^[53]

45. [45]
    That statement was followed by the Full Federal Court^[54] in Deputy Commissioner of Taxation v De Vonk.^[55] There, the Commissioner of Taxation had used coercive powers to obtain information.  The relevant statutory provision did not expressly limit the purposes for which the power could be exercised.  However, the Full Court observed:

“… it may readily be accepted that where a coercive power such as s 264^[56] has been conferred, that power may only be exercised bona fide for the purpose for which it was conferred.”^[57]

46. [46]
    Various other cases concerning the use of documents seized in exercise of statutory powers have confirmed and applied such a principle.^[58]
47. [47]
    The power to stop a vehicle is a power to interfere with important common law rights to liberty and free movement.^[59]  Where such rights are being interfered with, the legislation will be read strictly.^[60]
48. [48]
    In Police (SA) v Prinse,^[61] a magistrate excluded evidence of the results of a roadside breath test.  Section 42 of the Road Traffic Act 1961 (SA) (now repealed) provided:

“42(1)   a member of the police force or an inspector may:

(a) request the driver of a vehicle on a road to stop that vehicle;

(b) ask the driver or the person apparently in charge of a vehicle (whether on a road or elsewhere) questions for the purpose of ascertaining the name and place of residence or place of business of that driver or person, or of the owner of the vehicle, or the nature or constituents of the load on the vehicle, or for the purpose of estimating the mass of the vehicle.

2. (2)
   A person must forthwith:

(a) comply with a request made under subsection (1) to stop a vehicle;

(b) truthfully answer any questions put under subsection (1).”

49. [49]
    A police officer took a particular vehicle under observation.  He then accessed the police database and learnt that the vehicle was registered to a woman at an address far from where it was then on the road.  The driver was male.  The police officer, in exercise of powers under s 42 of the Road Traffic Act, intercepted the car.  Once by the side of the road, the police officer noticed indicia of alcohol consumption by the driver and administered a roadside breath test.  A magistrate held that there was no justifiable reason to intercept the car and ruled the interception was unlawful and the evidence which followed was unlawfully obtained.
50. [50]
    Bleby J allowed an appeal from the magistrate’s orders.  His Honour held^[62] that the power under s 42 was largely unfettered and its exercise in that case was not improper.  Dalton J (as her Honour then was) made similar observations about s 60 of the PPRA in R v Fuentes.^[63]
51. [51]
    However, Bleby J recognised the implied limitation of the power to the attainment of its proper statutory purposes.  His Honour observed:

“There may be circumstances where it can be shown that the exercise of the powers under s 42 has been carried out capriciously or for an identifiable purpose not connected at all with legitimate policing of the law. In those circumstances, the stopping and what follows may be unlawful.”^[64]

And:

“It cannot be presumed, because the exercise of the power under s 42 is not justified in a particular case by reference to a suspicion or belief, that it is exercised for an unlawful purpose. However, if it is quite apparent from the nature of the inquiry made or directions given that the stopping and questioning has no connection whatever with proper policing inquiries but is merely a capricious exercise of the power or an abuse of the power for a purpose irrelevant to law enforcement, then it may well fall into the unlawful category.”^[65]

And:

“In my view there was nothing in the evidence which suggested that the exercise by Const Baker of his powers under s 42 of the Road Traffic Act was outside the course of his duty or that it was an improper exercise of his power.”^[66]

52. [52]
    The powers under s 60 of the PPRA are more limited than those under s 42 of the South Australian legislation.  The power under s 60 must be exercised for a “prescribed purpose” being one of those purposes expressed in the section.  The power under s 31 does not concern traffic enforcement.  It also must be exercised for particular purposes.  Those powers may only be exercised in certain “prescribed circumstances”, one being where there is a reasonable suspicion formed by a police officer that drugs are in the car.
53. [53]
    The PPRA must be read as a whole.^[67]  Sections 31 and 60 have different purposes.  Section 60 concerns the enforcement of traffic laws and ss 31 and 32 are concerned with the detection of other criminal offences.^[68]  The requirement for a police officer to form a reasonable suspicion is a safeguard upon the exercise of the powers in s 31.^[69]  On a proper construction of the PPRA, where the dominant purpose of the police officer’s decision to intercept a vehicle is the investigation of possible drug offences, the police officer’s power is sourced in ss 31 and 32, not s 60 of the PPRA.  To avoid the safeguard provided in s 31, by using the powers in s 60 to investigate a drug offence, is to misuse the power in s 60 and render the interception of the car unlawful.
54. [54]
    Such a construction is consistent with cases decided in other jurisdictions where powers in traffic legislation have been purportedly used for purposes other than the enforcement of traffic laws and evidence obtained through the exercise of those powers has been excluded.^[70]
55. [55]
    The interception of the car was not authorised by s 60 of the PPRA as the purpose of the interception was not a “prescribed purpose”.  The interception was not authorised by s 31 as neither of the police officers formed the required reasonable suspicion.  The interception was unlawful.

Was the search of the applicant’s car lawful if the interception was lawful?

56. [56]
    It is conceded by the Crown that if the interception of the car was unlawful, then all evidence thereby obtained was unlawfully obtained and the Bunning v Cross discretion arises to exclude all evidence.
57. [57]
    If I am wrong, and the interception of the applicant’s car was lawful, then the lawfulness of the search of the applicant’s car is relevant. It is an issue which I should decide. 
58. [58]
    As already observed, ss 31(1)(c) and 32(1)(c) are relied upon as the source of the power to search the applicant’s car.  Given the definition of “reasonably suspects”,^[71] the issues in this case are:

1. did Constable Carr suspect there “may be an unlawful dangerous drug” in the applicant’s car? if so,
2. was the suspicion held on grounds that were reasonable in the circumstances?

59. [59]
    Constable Carr did in fact suspect that unlawful dangerous drugs may be in the car.  What is critical is whether that suspicion was held on reasonable grounds.
60. [60]
    Sections 31 and 32 operate in the investigative stage of the police officers’ duties.  A police officer forms a “suspicion” as to whether something exists.  The officer is then authorised to use investigative powers to ascertain whether the thing suspected is a fact.^[72]
61. [61]
    In Queensland Bacon Pty Ltd v Rees,^[73] Kitto J explained that a suspicion is a state of intellectual conviction less than satisfaction of the existence of something:

“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 Chambers’s Dictionary expresses it.”^[74]

62. [62]
    Lord Devlin, sitting in the Privy Council, in Hussien v Chong Fook Kam,^[75] 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.”^[76]

63. [63]
    The High Court, in George v Rockett,^[77] cited and followed the statements in Queensland Bacon Pty Ltd v Rees^[78] and Hussien v Chong Fook Kam^[79] which appear above.^[80]
64. [64]
    In evidence before me, Senior Constable Schulz identified the grounds which he understood were relied upon by Constable Carr in forming his suspicion.  Senior Constable Schulz then said: “I felt there wasn’t enough to detain”.^[81]
65. [65]
    The evidence of Senior Constable Schulz as to whether he formed the relevant suspicion on reasonable grounds is irrelevant.  It is common ground that it was Constable Carr who formed the suspicion.  Whether that suspicion was held on reasonable grounds is an exercise in objectively assessing the evidence upon which Constable Carr formed the suspicion.  Senior Constable Schulz’s views about that are irrelevant, inadmissible opinion and I should ignore them.
66. [66]
    The grounds identified in evidence were:

1. Police had intelligence that drug offences were being committed at two houses in the vicinity of the interception of the applicant’s car.^[82]
2. Police had intelligence that offenders connected to the two drug houses used Narangba Road as an alternative route rather than the highway.^[83]
3. The vehicle was travelling at night.^[84]
4. Observation into the car showed that there were loose internal panels.  Police experience was that offenders often removed internal panels, concealed drugs and then replaced the panels over the drugs.  The continued clipping and unclipping causes a looseness of the panels consistently with what police saw in the applicant’s car.^[85]
5. There was an age gap between the driver and the passenger.  They did not interact much together and they did not appear to be friends.^[86]
6. The car contained a lot of rubbish indicating that it may have been lived in.^[87]
7. Conversation with the applicant suggested that the applicant was proud of his car but the exterior did not reflect that the car had been well maintained, thus suggesting an unreliability of what was being told to police by the applicant.^[88]

67. [67]
    There are various references in Senior Constable Schulz’s evidence to Constable Carr referring to the QPRIME police database and obtaining information from that.  Senior Constable Schulz said that Constable Carr relied upon that information as grounding his suspicion. 
68. [68]
    There is nothing in Senior Constable Schulz’s evidence which says what that information obtained from QPRIME was.  However, Mr Byrnes conducted the case on the basis that an affidavit of the applicant’s solicitor^[89] would be tendered. Mr Rutledge read and relied upon that affidavit.  The affidavit exhibited the statement of Constable Carr. The application was conducted on the understanding that Constable Carr’s statement was in evidence before me as evidence of the truth of what he stated therein.  Constable Carr said in his statement:

“13. I conducted checks on my police iPad via the police computer system QPRIME. I observed that DAVIS was a 39-year old male who resided at a Griffin address. I observed an intelligence report dated 7 April 2019 whereby DAVIS was alleged to be involved in a drug trafficking network distributing the dangerous drug methylamphetamine. I read the report and observed it to be detailed and descriptive and was given an intelligence evaluation of ‘Probably true report’ by QPS intelligence.

14. I was then handed identification in the name of Paul Daniel LANGFORD 13/05/1976 (‘LANGFORD’). I conducted a check of LANGFORD on my police iPad via the computer system QPRIME. Checks revealed that LANGFORD was a 42-year old male from a Margate address. I also observed two intelligence reports against LANGFORD relating to drug use from October 2018 and January 2019.”

69. [69]
    In my view, Constable Carr’s suspicion was held on reasonable grounds.  Both occupants of the car were known to police as having suspected links to a drug dealing network.  They were intercepted at night in an area between two known drug houses on a road known by police to be used to avoid more conventional routes.  In addition, the interior of the car was in a state consistent with having had items hidden behind the door panels.  Those factors reasonably raised a suspicion that dangerous drugs may have been in the car.
70. [70]
    Had the interception of the car been lawful, the search and subsequent police investigations would also have been lawful and the Bunning v Cross discretion would not arise for consideration.

How should the Bunning v Cross discretion be exercised?

71. [71]
    Evidence may be excluded from a criminal case in exercise of one or more of various recognised discretions.^[90]  Some of those discretions raise questions of fairness to the accused.  The Bunning v Cross discretion does not raise those considerations.
72. [72]
    The Bunning v Cross discretion has its roots planted in R v Ireland^[91] where Barwick CJ said:

“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.”^[92]

73. [73]
    R v Ireland was applied and explained in Bunning v Cross.^[93]  Justices Stephen and Aickin identified a number of considerations which may be relevant when balancing the competing public interest factors.  It is unnecessary to replicate or analyse the passage from their Honours’ judgment.  The considerations can be summarised as:

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.

74. [74]
    The inference I draw from the evidence is that senior police have instructed that when investigating possible drug offences, police should exercise powers under s 60 of the PPRA in order to intercept motor vehicles rather than s 31.  This is to avoid the necessity to form a reasonable suspicion that drugs are in the vehicle sought to be intercepted as a precondition to the right to stop it.^[94]
75. [75]
    The effect of such a direction is that the power vested by s 60 for the purposes of the investigation of traffic offences is being systematically misused so as to avoid the specific safeguards which have been put in place in relation to the exercise of powers for the investigation of drug offences.
76. [76]
    It is in the public interest to denounce the conduct of police in deliberately misusing statutorily vested powers.  In my view, that consideration outweighs the interest of the public in seeing the applicant prosecuted for what are obviously fairly serious offences.
77. [77]
    The evidence should be excluded.
78. [78]
    It is ordered:

The following evidence is excluded from the trial of the applicant:

1. Evidence of things found during the search of the applicant’s car on 13 April 2019 including the applicant’s mobile telephone.
2. Evidence of the conversation between the applicant and police during the search of the applicant’s car on 13 April 2019.
3. Evidence derived from the examination of the applicant’s mobile telephone.
4. The recorded interviews between the applicant and police on each of 13 April 2019 and 17 June 2019.