R v Duncan[2024] QSCPR 24

SUPREME COURT OF QUEENSLAND

1. [1]
   Maureen Duncan is charged with the aggravated possession of 60 grams of cocaine found in a police search of a vehicle she was driving on 12 July 2023.   She applies for the exclusion of evidence derived from the search.^[1]
2. [2]
   Ms Duncan argues the search was illegal because it resulted from the unlawful stopping of her vehicle by police.  It is alleged, the stopping was performed under the ruse of carrying out a random breath test and licence check when its actual purpose was to investigate a potential drug offence. 
3. [3]
   The issues to be determined are whether the stopping of the vehicle was unlawful because the power to do so was not exercised for its statutory purpose, and, if so, whether the evidence should be excluded in the exercise of my discretion.

4. [4]
   In my conclusion, the stopping of the vehicle was lawful with the consequence the application must fail.

A licence check and breath test site is deployed to find and search a suspect vehicle

5. [5]
   By early morning on the day the vehicle was stopped, police in the Cairns Major and Organised Crime Squad had received apparently credible information sourced from an informant that one Ben Kubler was driving dangerous drugs from Brisbane to Cairns in a utility motor vehicle, with a fold out camper fitted to the vehicle’s tray.  The information was that the vehicle would drive straight through to Cairns and return after an overnight stay.   
6. [6]
   The police obtained a photograph to know what Kubler looked like but did not know the registration number of the vehicle.  The content and timing of the information suggested the vehicle would likely be approaching Cairns that morning, potentially as early as 9am. 
7. [7]
   In order to screen oncoming traffic and catch the suspect vehicle, police from the Cairns Major and Organised Crime Squad enlisted the assistance of police from the Far Northern District Tactical Crime Squad to set up and commence operating a roadside random breath test and licence inspection interception site on the Bruce Highway at Fishery Falls.
8. [8]
   Police directed north bound vehicles into the site, where licence checks and breath tests were carried out.  The site had apparently been operating for some time prior to the stopping of Ms Duncan’s vehicle at about 11am.
9. [9]
   Two police officers positioned further south sighted a utility with a fold out camper driving north.  They followed it, discretely, and radioed its progress to police at the interception site.  The vehicle was waved into the interception area and stopped by Sen Const Querruel of the Far Northern District Tactical Crime Squad.  Other vehicles were similarly flagged over by police.  
10. [10]
    Sen Const Querruel approached the driver’s door.  Ms Duncan was the driver.  Sen Const Querruel requested Ms Duncan to provide her licence.  He also administered a roadside breath test on her as she sat in the driver’s seat.  While doing so he noticed a male in the passenger’s seat looked like Kubler. 
11. [11]
    Also in the meantime, a different officer, Sen Const Lucht of the Cairns Major and Organised Crime Squad, approached and walked about the vehicle, seeing a male who appeared to be Kubler in the front passenger’s seat.  Sen Const Lucht then approached the driver’s window and advised Ms Duncan and the male passenger that they and the vehicle were detained as he believed there to be dangerous drugs in the vehicle.
12. [12]
    In the ensuing search sixty grams of cocaine was found within the camper.  It transpired the male passenger was indeed Kubler.

The stopping of the vehicle was not authorised by s 31(1) 

13. [13]
    Section 31(1), read with s 32(1) Police Powers and Responsibilities Act 2000 (Qld), confers power upon police, who reasonably suspect there is something in a vehicle that may be an unlawful dangerous drug, “to do any of the following”:

“(a)   stop a vehicle;

2. detain a vehicle and the occupants of the vehicle;
3. search a vehicle and anything in it for anything relevant to the circumstances for which the vehicle and its occupant are detained.”

14. [14]
    Once the vehicle had been stopped and the police saw the passenger looked like Kubler, it is not in issue that Sen Const Lucht had grounds to hold a reasonable suspicion a dangerous drug was in the car.  On the face of it police therefore had power to detain and search the vehicle, pursuant to s 31(1).  But they had stopped the vehicle by then.
15. [15]
    Prior to stopping the vehicle and sighting the male passenger, the police only knew that the vehicle matched the description of a northbound utility with a foldout camper affixed to the tray.  That was not enough to ground the requisite reasonable suspicion, for there would potentially be multiple northbound vehicles of that description traversing the Bruce Highway in far North Queensland in July.  
16. [16]
    The stopping of the vehicle and sighting of an occupant looking like Kubler was a necessary step in enabling police to form the requisite suspicion under s 31(1).  Unless the stopping was lawful, the ensuing chain of events of reasonable suspicion, detention, search and finding of the drugs would have been the product of unlawful police conduct.  

Stopping vehicles to check licences and conduct breath tests is authorised by statute

17. [17]
    Sen Const Querruel stopped the vehicle in exercise of a power conferred by s 60(1) Police Powers and Responsibilities Act.  
18. [18]
    Section 60 relevantly provides:

“60 Stopping vehicles for prescribed purposes

1. A police officer may require the person in control of a vehicle … to stop their vehicle for a prescribed purpose. 

…

3. The prescribed purposes are as follows - …

2. to check whether … the person is complying, with a Transport Act …

5. to conduct a breath test …”

19. [19]
    The use of the words “for a prescribed purpose” in s 60(1) is a representative way of referring to the carrying out of one of the tasks in s 60(3).  Substituting those words with the relevant tasks here, the combined effect of s 60(1) and (3)(b)(e) is:

“A police officer may require the person in control of a vehicle … to stop the vehicle … to check whether … the person is complying with a Transport Act … or to conduct a breath test”.

20. [20]
    To check that a person is driving whilst licensed comes within the meaning of checking whether the driver is complying with a Transport Act.^[2] So it is that, if police stop a vehicle to check that the driver is licenced to drive or to conduct a breath test of the driver, they are acting under the lawful power to do so, pursuant to s 60.
21. [21]
    The evidence shows that Sen Const Querruel did carry out a licence check and breath test on Ms Duncan.  It therefore appears Sen Const Querruel’s stopping of Ms Duncan’s vehicle and conducting of the licence check and breath test of Ms Duncan was executed pursuant to a statutory power to do so, and was thus lawful. 

The stopping was motivated by an investigative purpose

22. [22]
    The applicant contends Ms Duncan’s vehicle was not stopped for the purpose of conducting a licence check and breath test of its driver.  Rather, the applicant contends it was for the investigative purpose of checking whether Kubler was an occupant of the vehicle and, if so, for the purpose of detention and search for unlawful drugs.  
23. [23]
    The police agree their purpose in setting up and operating the roadside random breath test and licence inspection interception site was to allow them to screen vehicles matching the suspect vehicle’s description for the presence of Kubler as an occupant, to thereby locate the suspect vehicle and search for the dangerous drugs they suspected it was transporting.  I will refer to this purpose hereafter as the “investigative purpose”.  
24. [24]
    Some police witnesses additionally described the exercise as also tending to mitigate risk in comparison to an isolated highway intercept.  It was considered that attempting an isolated highway intercept would forewarn the vehicle’s driver of police holding a specific interest in the vehicle, potentially provoking an unsafe response.  In contrast the exercise of drawing vehicles into a stationary position amongst the driving public at a mundane multiple vehicle interception site was apparently thought less likely to forewarn and provoke an unsafe response.  
25. [25]
    Minds may differ on the wisdom of using the enveloping nearby presence of an unwitting driving public to reduce the potential danger of catching criminals in cars.  But the exercise of operating a roadside interception site at which vehicles were stopped to conduct licence checks and breath tests - a purpose authorised by s 60 - was clearly integral to the investigative purpose.  It served the investigative purpose by allowing police to screen vehicles for the presence of Kubler in the setting of another policing exercise, unlikely to forewarn Kubler of specific police interest in him.  

Vehicles were being stopped to conduct licence checks and breath tests

26. [26]
    Several police witnesses in the application accepted the exercise of operating a roadside random breath test and licence inspection interception site was effectively a “ruse” designed to stop cars to check for the presence of Kubler.  That acceptance was obviously intended as an acknowledgement of the motivating investigative purpose.  
27. [27]
    However, it is not as if vehicles were being waved in, stopped and police would just have a look at the occupants and then send them on their way.  Such evidence as was adduced of relevance to this point demonstrates that police were not just pretending.  They were in fact breath testing and checking the licences of the drivers of the vehicles which were stopped.^[3] It was not argued to the contrary.^[4]
28. [28]
    The fact that police were conducting breath tests and licence checks of the drivers once stopped is powerful evidence that a purpose of stopping the vehicles – albeit not the sole purpose – was to conduct breath tests and licence checks of the drivers. I find in each instance of stopping vehicles, including the stopping of Ms Duncan’s vehicle, the immediate specific purpose was to stop and conduct a licence check and breath test of the driver.  It was not until after the licence check and breath testing of Ms Duncan was underway, when it was realised a passenger resembling Kubler was in the car, that the object of the background investigative purpose manifested.  

There can be and were concurrent purposes

29. [29]
    The applicant argues Ms Duncan’s vehicle was not stopped to conduct a licence check and breath test because it was stopped for an investigative purpose, not authorised by s 60.  The argument is premised upon the flawed assumption police execute their duties with a singular rather than concurrent purposes.  It assumes that the existence, at one level of abstraction, of a motivating policing purpose like investigating drug offending, excludes the existence, at a less abstract level, of a purpose specific to s 60, like stopping vehicles to carry out breath tests and licence checks.
30. [30]
    Yet the language of s 60(1) does not exclude the potential concurrent existence of purposes additional to its prescribed purposes.  Further, s 60 does not limit its operation by reference to background police suspicions or purposes.  For example, it is not fettered by pre-requisites such as reasonable suspicion that the driver is unlicenced or affected by alcohol.  Nor does it fetter the exercise of its power by reference to the concurrent presence or absence of any motivating purposes additional to the specific prescribed purposes.
31. [31]
    There may be many concurrent operational reasons why police want to operate a roadside licence check and breath test interception site.  It may be to catch unlicensed or intoxicated drivers. It may also be to specifically deter unlicensed or intoxicated driving by publicly demonstrating the ever present random possibility of drivers being licence checked or breath tested.  It may also be to deter crime generally via a raised visual operational police presence in the community.  It also may be to detect any other crime that happens to be exposed by the operation of the interception site.   
32. [32]
    As to the latter concurrent purpose, its presence to at least some degree is an inevitable incident of vigilant policing.  It is inherent in the role of police officers that having stopped a vehicle to conduct licence checks and breath tests pursuant to s 60, they will be vigilant of potential evidence of crime observed or exhibited during that process.  That may be crime generally or some specific crime which they have reason to be vigilant of.  There are multiple degrees in play as to when a police officer’s vigilance of crime may range from the general to the specific and the stage at which it is reached in the timeline between prior to a vehicle being seen by police, during the phase between it being seen and stopped for the conducting of a licence check or breath test or during the ensuing process of conducting the licence check or breath test.  In a similar vein the graduation from vigilance to suspicion to reasonable suspicion of crime involves matters of degree.  It is thus unsurprising the legislature chose not to confine s 60 by reference to a difficult to predict and articulate set of concurrent policing related purposes.
33. [33]
    Of course, the pursuit by Sen Const Querruel of the specific purpose in stopping the vehicle driven by Ms Duncan, of conducting a licence check and breath test, did not exclude the co-existence of the broader investigative purpose behind the whole exercise of setting up and operating this roadside interception licence check and breath test site.  After all, as already explained, the actual operation of a licence check and breath test interception site - stopping cars to check licences and breath tests - was integral to the pursuit of that broader investigative purpose.  However, there is nothing in s 60 to suggest that the existence of the broader investigative purpose somehow excludes the co-existence of the specific purpose, expressly authorised by s 60, of stopping vehicles to conduct licence checks and breath tests. 

A dominant purpose test should not be implied as an exclusory fetter upon the power conferred by s 60

34. [34]
    This only leaves for consideration, whether there ought be a fetter implied on the exercise of power pursuant to s 60 to preclude its operation where police are also motivated to act by a purpose additional to the section’s prescribed purposes.  The applicant submits the primary or dominant purpose in stopping Ms Duncan’s vehicle to conduct a licence check and breath test was the investigative purpose, with the consequence the stopping was therefore not authorised by s 60. 
35. [35]
    The applicant’s argument relies upon a decision of this court in R v Davis.^[5] In Davis, police were patrolling a road believed to be commonly used by drug offenders.  They intercepted a vehicle driven by Davis, purportedly exercising their power under s 60 of the Act, to stop the vehicle and conduct a licence check.  The Court found police intercepted Davis’ vehicle to investigate the possibility the vehicle’s occupants were offending against the Drugs Misuse Act and that their interest in the licence status of Davis was only a step in the investigation of possible drug offending.  In holding the interception of the vehicle was unlawful, the Court reasoned it was not authorised by s 60, as the purpose of the interception was not a prescribed purpose pursuant to that section. 
36. [36]
    It was held the Police Powers and Responsibilities Act must be read as a whole and s 60 is concerned with the enforcement of traffic laws while ss 31, which has the safeguard of reasonable suspicion, is concerned with the detection of other criminal  offences. It was reasoned that where the “dominant purpose” of the decision to intercept a vehicle is the investigation of possible drug offences, the police officer’s power is sourced in s 31, not s 60.  Thus, it was concluded, that to avoid the safeguard of reasonable suspicion before stopping a vehicle pursuant to s 31, by instead 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”.^[6]

37. [37]
    The applicant argues the reasoning in Davis applies in the same way here. 
38. [38]
    The circumstances of the present case differ from Davis in that the stopping of Ms Duncan’s vehicle occurred at a roadside interception site where multiple vehicles were being stopped to conduct licence checks and breath tests.  The applicant would have it that such a distinction is not to the point, because the police were motivated to conduct the whole exercise by the investigative purpose.
39. [39]
    Yet, as I have already found, operating concurrently with that motivating investigative purpose, was the more specific purpose of stopping vehicles to conduct licence checks and breath tests – a purpose authorised by s 60.  In contrast, the reasons in Davis appear to involve a rejection of the existence of that concurrent specific purpose.^[7]   
40. [40]
    The part of the reasoning in Davis which implied the existence of a dominant purpose test therefore does not appear to have been essential to the decision reached.  In light of my finding of the co-existence of the specific and broader purposes, it becomes essential to the present application’s success that such a dominant purpose test is implied as an exclusory fetter upon s 60’s operation. I am respectfully unable to conclude that such a fetter should be implied. 
41. [41]
    The reasons in Davis placed reliance upon the principle that a statutory power must be exercised for the purpose for which it was granted.^[8] Such a principle is of ready conceptual assistance in cases where public officials, while exercising a lawfully conferred power, exceed its bounds.  It is of no material particular assistance here, where the power was in fact exercised for the purpose for which it was granted but its exercise was concurrently motivated by another purpose.  
42. [42]
    In developing a foundation for the inference of a dominant purpose test, the reasons in Davis drew upon the judgment of Bleby J in Police (SA) v Prinse.^[9] In Prinse it was only after stopping a vehicle that police gained a reasonable suspicion the driver of a vehicle was affected by alcohol.  This suspicion grounded the legislatively required basis to submit the driver to a breath test which was positive.  The vehicle had been stopped pursuant to s 42 of the then Road Traffic Act 1961 (SA), which gave police the unfettered power to stop a vehicle and ask questions to ascertain the driver’s identity.  That is what the police did, but a Magistrate ruled there was no justifiable reason to have randomly stopped the vehicle for that purpose.  In reversing that decision Bleby J emphasised that unlike some other provisions of the Act, s 42 was  not conditional upon the pre-condition of a particular state of belief and its unfettered power could be exercised randomly.^[10]  

43. [43]
    His Honour acknowledged there may be circumstances in which it can be shown the exercise of power under s 42 “has been carried out capriciously or for an identifiable purpose not connected at all with legitimate policing of the law”.^[11] Examples were given, such as a male officer stopping a female driver to ask her identity to ask her out or stopping a vehicle to offer to purchase it.  Bleby J observed that “if it is quite apparent” from the directions made or inquiry made that the stopping and questioning “has no connection whatever with proper policing inquiries” but is a capricious exercise or abuse of power “for a purpose irrelevant to law enforcement” then it may be unlawful.^[12] 
44. [44]
    Prinse related to a provision which permitted stopping a vehicle and asking the driver identifying questions as distinct from stopping for a prescribed purpose such as stopping “to” ask identifying questions.  In that, the provision was different from s 60.  Applying the reasoning in Prinse to s 60 supports the view that if it were apparent the conducting of a licence check or breath test was for a purpose irrelevant to law enforcement then the stopping of the vehicle to conduct such a check or test would not be lawful under s 60.  That does not support the present application, because it was not contended that the licence check and breath test were conducted for a purpose irrelevant to law enforcement.  
45. [45]
    The facts in Prinse are similar to those in the Queensland case of Garrow v Platsis,^[13] where, in 1989, the Full Court dismissed the appeal of a woman convicted of drink driving on the strength of evidence of her intoxication, including a positive breathalyser test, gathered only because of what occurred after police had stopped her vehicle.  The stopping of the vehicle was authorised by s 39(1) of the then Traffic Act 1949 (Qld) which authorised police, making inquiries or investigations “with a view to establishing” whether or not an offence against the Act has been committed, to require drivers to stop their vehicle, produce their licence and state their name and address.  The conducting of a breathalyser test required police to first hold a reasonable suspicion the driver had alcohol in her body, per s 16A.  
46. [46]
    One of the arguments advanced on appeal in Garrow v Platsis was that the evidence of the offence should have been excluded because it “was obtained after the appellant was stopped by a police officer intending at least primarily to check for drink driving”.  
47. [47]
    That argument, of an unauthorised primary purpose, has echoes of the dominant purpose argument advanced here. It was rejected by De Jersey J, with whose conclusions Andrews CJ agreed, Thomas J not deciding the point. Andrews CJ accepted that the “main purpose” with which police were bringing vehicles to a halt was to see if they were affected by alcohol but observed the power to stop was “quite wide” and that the object of asking the driver to produce her licence “was sufficient to authorise a stopping”.^[14] Reasoning to like effect, De Jersey J concluded the  provisions conferring a power to stop meant the stopping was clearly lawful so that the lawfulness of the means by which police then came to entertain the reasonable suspicion requisite to requesting a breath specimen and obtaining the relevant evidence was “clear”.^[15]

48. [48]
    While the relevant legislative provisions are now different there is a sufficient parallel between Garrow v Platsis and the present case to make the reasoning in Garrow v Platsis persuasive here.  The police in the present case could not have arrived at the reasonable suspicion necessary to search for drugs until after the vehicle had been stopped.  Similarly, in Garrow v Platsis, the police did not have the reasonable suspicion necessary to breathalyse the driver until after her vehicle had been stopped.  That the Full Court in Garrow v Platsis found the exercise of the power to stop was not made unlawful by the presence of an accompanying main purpose not specified as grounding a power to stop, appears to be persuasive appellate authority against the implication of a disqualifying main or dominant purpose test here.
49. [49]
    The real effect of the present applicant’s argument, drawing on the reasoning in Davis, is if police in stopping a vehicle pursuant to s 60 are more dominantly motivated by a purpose relevant to s 31, than the concurrently operating s 60 purpose of checking licences and conducting breath tests, then stopping the vehicle without the reasonable suspicion which is required for s 31 is unlawful.
50. [50]
    Regulating the availability of the exercise of the power to stop per s 60, by reference to the power to stop per s 31 and comparing the relative force of the potential motivations behind each, does not find support in the language of the Act.  
51. [51]
    I am respectfully unable to derive any support for the applicant’s argument by comparing the purposes of ss 31 and 60 because it is not a comparison of conceptually similar purposive mechanisms.  The purpose of the stopping in s 31 is to search the vehicle.  In contrast, the purpose of the stopping in s 60 is to execute one of the purposes prescribed in s 60(3).  The conceptual foundation for stopping a vehicle to search it pursuant to s 31 is reasonable suspicion of the existence of any of the prescribed circumstances listed in s 32 “for searching a vehicle”.  In contrast s 60 does not require any pre-existing belief or suspicion to justify the pursuit of one of the purposes listed in s 60(3).
52. [52]
    The legislature must be taken to have appreciated the possibility that the reasonable suspicion required for a s 31 search might only arise at a time after the vehicle is already stopped.  That is because stopping the vehicle is but one of three powers, “any” of which are authorised, in s 31.  The legislature conferred them as separate, not cumulative powers.^[16] Yet the legislature was content to permit the stopping of vehicles for an array of other purposes in s 60 and to permit it without the kind of specific suspicion required for s 31. There has always existed the obvious possibility, which manifested here, that police may lawfully stop a vehicle pursuant to s 60 and only after doing so witness something grounding the reasonable suspicion in s 31, thus authorising a lawful detention and search under s 31.  Such a possibility is quite consistent with the legislature’s conferral of the powers in s 31 as separate rather than cumulative.   
53. [53]
    For all of these reasons I find the language of the Act does not imply a dominant purpose test as an exclusory fetter upon the power conferred by s 60. If it is considered as a matter of policy that police should not conduct breath test and licence check interception sites motivated by any purpose more dominant than conducting those tests and checks then the remedy lies in the hands of the legislature.   
54. [54]
    I record for completeness that it was not submitted the rights of free movement, privacy, liberty and security per ss 19, 25, 29 Human Rights Act 2019 (Qld) informed the interpretation of the Police Powers and Responsibilities Act in aid of this application. Nor was it submitted that, to the extent s 60 interferes with such rights, it does so beyond reasonable, justifiable limits.

Conclusion and Orders

55. [55]
    I have concluded the stopping of the vehicle was lawfully performed pursuant to s 60.  It in turn follows from the subsequent recognition of a passenger appearing to be Kubler, thus grounding the requisite reasonable suspicion per s 31, that the evidence obtained in the ensuing detention and search under s 31 was lawfully obtained.
56. [56]
    That conclusion makes it unnecessary to consider whether, in the event of a finding to the contrary, I would have allowed the evidence obtained in consequence of the detention and search into evidence in the exercise of my discretion. Indeed such an exercise in alternative decision-making is not practicable because the reasons for such a finding would here need to be known in order to properly weigh the competing discretionary considerations.
57. [57]
    My order is:

Application dismissed.