R v Griffin[2024] QSCPR 4

Introduction

1. [1]
   The applicant is charged on indictment that on 10 June 2022:

   1. he unlawfully possessed a relevant substance, 1, 4-Butanediol;
   2. he unlawfully had possession of the dangerous drug methylamphetamine in a quantity exceeding 2.0 grams;
   3. he unlawfully had possession of the dangerous drug lysergide.
2. [2]
   The items the subject of the three counts were found during the search of a vehicle which the applicant was driving when it was intercepted by police on the Gold Coast Highway in Southport.  By the time of the interception, the police officers who effected that interception had been following the applicant’s vehicle in an unmarked patrol car for more than 10 minutes through Surfers Paradise and then north along Ferny Avenue and onto the Gold Coast Highway.
3. [3]
   The applicant has applied under s 590AA of the Criminal Code for a ruling that the evidence obtained from the search be excluded from his trial.  He submits that the interception of the vehicle was unlawful because police misused the power to stop a vehicle under s 60 of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA). He submits that the true purpose of the vehicle interception was to investigate drug offending. 
4. [4]
   If the interception of the vehicle is found to have been lawful the applicant does not challenge the lawfulness of the search of the vehicle which was subsequently conducted.^[1]
5. [5]
   To determine whether the vehicle interception was lawful, I must first identify the power that the police relied upon to stop the vehicle and then consider whether the requirements for the lawful exercise of that power had been met when the interception occurred.
6. [6]
   If I conclude that the vehicle interception was unlawful, I must then consider whether to exercise the discretion to exclude the evidence obtained from the search which followed the interception on the basis that it was unlawfully or improperly obtained.^[2]

Statutory framework

7. [7]
   The PPRA relevantly provides two separate powers under which police are authorised to stop a vehicle.
8. [8]
   The first power is found in s 31 which is in Chapter 2, Part 2 of the PPRA.^[3] It relevantly provides:

“31 Searching vehicles without warrant

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.  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 occupants are detained.”

9. [9]
   The section confers three separate powers: to stop a vehicle; to detain a vehicle and the occupants; and to search the vehicle.^[4]
10. [10]
    The “prescribed circumstances” are set out in s 32 of the PPRA which relevantly provides:

“32 Prescribed circumstances for searching vehicle without warrant

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

1.  may be a weapon, knife or explosive a person may not lawfully possess …; or

…

3.  may be an unlawful dangerous drug; …”

11. [11]
    None of the circumstances identified in s 32 relate to general traffic enforcement.
12. [12]
    The threshold requirement in s 31 is that the police officer who decides to exercise the power reasonably suspects that one of the prescribed circumstances exists.  The term “reasonably suspects” is defined in Schedule 6 to the PPRA to mean “suspects on grounds that are reasonable in the circumstances”.  This concept was summarised by Dalton J (as her Honour then was) in R v Bossley:^[5]

“There is also well-established common law authority in relation to both the concept of suspicion and the concept of reasonable suspicion.  The meaning of suspicion in this context is discussed by the High Court in George v Rockett.  A suspicion and a belief are different states of mind.  A suspicion is a state of conjecture or surmise.  It is more than idle wondering.  It is positive feeling of apprehension or mistrust, but it is a slight opinion without sufficient evidence.  Facts which reasonably ground a suspicion may be quite insufficient to reasonably ground a belief.  Nonetheless, to have a reasonable suspicion some factual basis for the suspicion must exist.  There must be sufficient factual grounds reasonably to induce the suspicion.  The facts must be sufficient to induce the suspicion in the mind of a reasonable person.  The suspicion must be reasonable, as opposed to arbitrary, irrational or prejudiced. …”

13. [13]
    I accept the submission of the Crown that the statutory definition of “reasonably suspects”, considered in the context of s 31, directs attention to the presence of an actual suspicion in the mind of the relevant officer when the power is exercised and whether that officer’s suspicion is based on grounds that are reasonable in the circumstances.  That is, the circumstances existing at the time the power is exercised must be sufficient to induce the suspicion in the mind of a reasonable person in the circumstances confronting the police officer.
14. [14]
    The second power to stop a vehicle is found in s 60 which is in Chapter 3 of the PPRA.^[6]  It relevantly provides:

“60 Stopping vehicles for prescribed purposes

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.

2.  The person must comply with the requirement, unless the person has a reasonable excuse.

…

3.  The prescribed purposes are as follows—

1.  for enforcing a transport Act …;

2.  to check whether the vehicle complies, or the person is complying, with a transport Act …;

3.  for monitoring or enforcing a liquor provision;

…

5.  to conduct a breath test or saliva test; …”

15. [15]
    Unlike s 31, the lawful exercise of the power under s 60 does not require that the police officer who exercises the power reasonably suspect the existence of any prescribed circumstances.  However, the lawful exercise of the power under s 60 may only be exercised for one of the prescribed purposes.  Those prescribed purposes do not include the investigation of drug offences.
16. [16]
    In R v Hinds-Ravet,^[7] Davis J observed that the purported use of the power in s 60, when the true purpose of the interception of a vehicle is the investigation of drug offences, circumvents the restrictions in s 31(1) of the PPRA, namely the formation of the relevant suspicion. His Honour held that, in the circumstances of that case, the power in s 60 had been used for an improper purpose such that the interception of the car was unlawful.^[8]
17. [17]
    Likewise, in R v Davis,^[9] Davis J stated:^[10]

“The PPRA must be read as a whole.  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.  The requirement for a police officer to form a reasonable suspicion is a safeguard upon the exercise of the powers in s 31.  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.”

18. [18]
    I respectfully agree with those statements by Davis J.  The ultimate question for determination on this application is whether, as the applicant submits, the police misused the power in s 60 when they intercepted the vehicle. 

Factual background

19. [19]
    On the evening of 10 June 2022, three officers from the Gold Coast Rapid Action and Patrols division – Senior Constable Whitaker, Senior Constable O'Connor and Senior Constable Beattie – were conducting patrols of Surfers Paradise in an unmarked patrol car.  SC Whitaker was driving.  SC O'Connor was in the front passenger seat.  SC Beattie was in the rear passenger seat.
20. [20]
    The officers were conducting patrols focussed on the investigation of drug offences within the Surfers Paradise precinct, and particularly the area around the Q1 building on Hamilton Avenue.  They had been informed of the duties they would be performing that day in a briefing before they went out on patrol.
21. [21]
    Shortly before 8.40pm, the officers’ attention was drawn to a silver Mitsubishi Lancer.  They then followed the Lancer as it travelled a loop around streets in Surfers Paradise before turning north onto Ferny Avenue and travelling towards Southport.
22. [22]
    After passing across the bridge on the Gold Coast Highway leading into Southport, SC Whitaker activated the lights and sirens of the patrol car to intercept the Lancer.  By that stage, the officers had followed the Lancer for approximately ten minutes over about seven kilometres.
23. [23]
    As the Lancer came to a stop, the left rear passenger door opened and a man jumped out of the vehicle and ran into the bushes.  SC Whitaker and SC O'Connor pursued the man who had run from the Lancer but were unable to locate him.  SC Beattie remained with the Lancer and spoke with the occupants, including the applicant.
24. [24]
    SC Beattie conducted a check of the applicant’s name on his QLITE device.  That check revealed that the applicant was wanted on a warrant for failing to appear in connection with charges for drug possession.  SC Beattie then arrested the applicant.  SC Beattie then searched the car and located a black bag which the applicant acknowledged was his.  The counts on indictment arise from items located in that black bag, along with a wallet containing a driver’s licence, health card and bank card in the name of the applicant.

Evidence of the police officers

25. [25]
    Each of SC Whitaker, SC O'Connor and SC Beattie gave evidence and were cross-examined at the hearing.

SC Whitaker

26. [26]
    SC Whitaker has been a police officer for approximately 15 years and has been attached to the Gold Coast Rapid Action and Patrols division for approximately 7 years.
27. [27]
    In his evidence in chief, SC Whitaker stated that his attention was first drawn to the Lancer because of the way it was being driven up and down streets in Surfers Paradise, stopping and then moving on again.  He described that manner of driving as unusual. 
28. [28]
    After a few minutes observing the Lancer, SC O'Connor informed SC Whitaker of the results of a registration check which SC O'Connor had performed on his QLITE device.  SC O'Connor informed SC Whitaker that there were flags on the Lancer for drug activity as well as what SC Whitaker described as “armed flags” which I understood to be a reference to firearms. 
29. [29]
    In response to being asked when the decision to intercept the Lancer was made, SC Whitaker referred to SC O'Connor having advised him that the registered owner of the vehicle, Mr Sellars, was wanted on a warrant.  He stated that the decision to intercept the Lancer was based on that information as well as the flags attached to the vehicle for drug activity.  I understood his evidence to be that it was at that point that he activated the lights on the patrol car, and that this occurred after he had gone across the bridge into Southport.
30. [30]
    SC Whitaker stated that, in his mind, the intercept was made under the power conferred by s 31 of the PPRA to check if the person driving the vehicle was the registered owner who was wanted on a warrant.
31. [31]
    In cross-examination, SC Whitaker said that his attention was first drawn by the model of the car, a Lancer, as well as the fact that it was stopping and starting throughout Surfers Paradise.  He watched the Lancer start and stop and then followed it through various streets in Surfers Paradise.  At that time the Lancer was not being driven in a manner which breached road rules.  It was not speeding, and it did not travel through any red lights.
32. [32]
    By the time SC O'Connor informed SC Whitaker that Mr Sellars was wanted on a warrant, the police had followed the Lancer north onto Ferny Avenue.  Once the Lancer got onto the Gold Coast Highway, SC Whitaker observed it drift in and out of lanes and fail to indicate on a couple of occasions.  He said that, when he observed the Lancer drifting, he had concerns about the driver’s sobriety.
33. [33]
    Although there was some discussion among the three officers about intercepting the Lancer, SC Whitaker said that he ultimately made the decision to intercept.  He said he chose to intercept the Lancer after passing over the bridge to Southport because it was a safe, well-lit location with room for both vehicles to pull over.  He emphasised the importance of pulling over a vehicle in the location which he considers best protects the safety of him and his fellow officers as well as the occupants of the intercepted vehicle and other road users.  Ultimately, he accepted that there were opportunities to pull the Lancer over sooner than in fact occurred.
34. [34]
    SC Whitaker denied the suggestion that he did not have a reasonable suspicion for the purposes of s 31 of the PPRA when the Lancer was intercepted.  He said he had a suspicion based on his observation of the Lancer drifting between lanes once it reached the Gold Coast Highway as well as the information SC O'Connor had given to him about Mr Sellars being wanted on a warrant and the other flags on the Lancer. 
35. [35]
    His answers in cross-examination as to when he made the decision to pull the Lancer over were unclear.  First there was this exchange:^[11]

“Yeah.  But the drifting in and out had occurred at least 10 minutes after you’ve been – already been following the vehicle?‑‑‑No, not 10 minutes.  That happened on the Gold Coast Highway – Ferny Ave into Gold Coast Highway.  That’s what I said originally.  I originally said that when that car started drifting in and out of the lane on the dual lanes, that’s when I decided to pull it over.”

36. [36]
    Later, there was the following exchange:

“Well, you’d followed it for seven kilometres, and are you saying that it’s really at the end of that seven kilometres you decided ‑ ‑ ‑?‑‑‑No.

‑ ‑ ‑ to pull it over?‑‑‑No.  I wouldn’t say at the end of that seven – seven kilometres.  During that time, though, yes.

And you followed it for 10 minutes around various streets doing various turns in Surfers Paradise before heading north?‑‑‑Correct.

Yeah.  And it’s at that point in – I’d suggest, is when you decided that you were going to pull that vehicle over?‑‑‑Correct.

And by that time you weren’t really aware of the registered owner being wanted on a warrant, were you?‑‑‑On the Gold Coast Highway I was.

No, no.  The 10 minutes ‑ ‑ ‑?‑‑‑No, I wasn’t.  No.

No.  But nevertheless you made the decision to follow it?‑‑‑Correct.

Okay.  With very little information about the vehicle then?‑‑‑That’s true.  Yes.

So what I’m suggesting is that at that particular point you didn’t have a reasonable suspicion under section 31 to pull the car over, did you?‑‑‑At that point I guess not.  No.”^[12]

37. [37]
    On one reading, SC Whitaker accepted in this second exchange that he made the decision to intercept the Lancer while the police were following it around Surfers Paradise, and before it had headed north and onto the Gold Coast Highway.
38. [38]
    In re-examination, SC Whitaker repeated that he formed the view that the officers should intercept the Lancer once they got to the Gold Coast Highway.  He said that he had not pulled the vehicle over at an earlier time because he had not been provided the information by SC O'Connor about the flags on the vehicle and the people associated with it which formed the basis of his suspicion for the purposes of s 31.^[13]

SC O'Connor

39. [39]
    SC O'Connor has been a police officer for approximately 11 years and a senior constable for approximately six years.  He confirmed during his evidence that he is familiar with the stop and search powers under the PPRA.
40. [40]
    In his evidence in chief, SC O'Connor said that the Lancer came to his attention when he noticed it drive past the patrol car for the second time in the area around Surfers Paradise Boulevard.  He then ran a registration check on the Lancer through his QLITE device.  The results of that check indicated that the registered owner of the Lancer was wanted on a warrant and that a woman named Chelsea Cowin, who SC O'Connor was familiar with from previous dealings, was also linked to the vehicle.
41. [41]
    SC O'Connor said that he activated his body worn camera at the point the police had decided to stop the Lancer.  That footage was tendered as exhibit 1.  That footage was played during SC O'Connor’s evidence in chief and I watched it again in chambers.  I will return to what is recorded in the footage later in these reasons.  SC O'Connor said that before he activated his body worn camera he had a brief discussion with SC Whitaker about Chelsea Cowin, the woman who came up on the registration check as linked to the Lancer and with whom SC O'Connor had had some previous dealings.
42. [42]
    SC O'Connor gave evidence about the alert flags which he observed on his QLITE device when he performed the registration check on the Lancer.  These flags included that the registered owner was wanted on a warrant.  He also recalled the flags indicating a history of drug use and an association with firearms.  He said he thought the Lancer was involved in drug activities.  That was based on: the way it was being driven – in a circle around Surfers Paradise; the time of night the vehicle came to his attention; the information he received from the registration check about the persons associated with the vehicle; and his dealings on two previous occasions with one of those persons – Chelsea Cowin – for drug matters.
43. [43]
    SC O'Connor said that he was the officer who made the decision to intercept the Lancer.  He explained that was because, when he watched exhibit 1 played in court, he could hear that he had grabbed a saliva test and put it into his pocket.  He said that over the course of a shift the officers would do several interceptions to perform random saliva tests, breath tests and licence checks.  In this case, his decision to stop the Lancer was informed by his familiarity with persons associated with the vehicle and the fact that he considered the way it was being driven to be out of what he would ordinarily expect someone to be driving through Surfers Paradise.  He said that he relied on s 60 of the PPRA as the power to intercept the Lancer for the purpose of administering a saliva test.
44. [44]
    SC O'Connor said that he recalled saying to SC Whitaker that they should stop the Lancer, but there had not been any discussion between the officers as to why the vehicle was being stopped.
45. [45]
    In cross-examination, SC O'Connor confirmed that when he made the decision to stop the Lancer he acted under s 60 of the PPRA.  At that time he wasn’t thinking about searching the vehicle.  He accepted that when the intercept occurred he had no reasonable suspicion that there would be drugs in the vehicle.  He maintained that the Lancer was intercepted so that the police could administer a saliva test.  He repeated his evidence in chief that when exhibit 1 had been played in court he could hear the sound caused by him retrieving a saliva test from the door of the patrol car and putting it into his pocket.
46. [46]
    SC O'Connor repeatedly denied the suggestion that the administration of a saliva test was simply an excuse to pull the Lancer over so that the police could interact with the occupants of the vehicle.  He maintained that his team stops cars to perform such tests several times a night.
47. [47]
    As to when he made the decision to perform the intercept, SC O'Connor said he informed the other officers they should conduct a traffic stop when they first began following the Lancer around Surfers Paradise, well before it headed north on Ferny Avenue.  By that time, he had received the results of the registration check on his QLITE device.
48. [48]
    SC O'Connor was asked questions about a radio call he made while the police were following the Lancer.  In that call he stated that the patrol car was following the Lancer heading north on Ferny Avenue.  He accepted he said words to the effect of: “We’re going to have a chop at an interception and see how we go.”  When asked what he meant by that, SC O'Connor explained that from his previous experience with Chelsea Cowin he believed she was a person who would seek to avoid police.  From her association with the Lancer, SC O'Connor thought there was a chance that the car may drive off and seek to evade police.  Later, he said his belief that the Lancer might attempt to drive away from an interception was also based on his knowledge that the registered owner was wanted on a warrant.  He denied repeated suggestions that his radio call reflected an intention or a motivation on the part of the police officers to pull the Lancer over under s 60 of the PPRA so that they could interact with the occupants and see how they went with respect to detecting drug offending.
49. [49]
    SC O'Connor was also asked questions about the information he provided to the other officers about the registered owner of the Lancer.  He accepted that, about four minutes into exhibit 1, he can be heard saying that Mr Sellars was wanted on a warrant and was a meth user.  He accepted that he had not given that information to the other officers before that point.
50. [50]
    SC O'Connor did not accept that, at about seven minutes and 45 seconds into exhibit 1, he said “Gone fucking boom.  Straight through.  Guess we’re pulling over here.”  He said he thought one of the other officers, most likely SC Whitaker, made that statement.  He also did not accept that this statement was consistent with him and the other officers waiting for some kind of traffic infringement from the Lancer so that they could pull it over.  He said that they were looking for a safe place to pull the Lancer over, but he was not focussed on that question because he was not driving the patrol car.  He said that his focus was on his QLITE device and communications on the radio.

SC Beattie

51. [51]
    In his evidence in chief, SC Beattie said that SC O'Connor had first pointed out the Lancer.  SC Beattie then observed the vehicle driving loops around Surfers Paradise while the patrol car followed it.
52. [52]
    SC Beattie said that SC O'Connor had mentioned some things about the Lancer during this period, but he could not recall any express statement to the effect that they were going to intercept the car.  As to the power the police relied upon to intercept the Lancer, SC Beattie said he did not have anything in his mind in that regard.  The effect of his evidence was that the decision to intercept was one taken by SC Whitaker and SC O'Connor.
53. [53]
    SC Beattie also identified footage recorded by the body worn camera he was wearing when the intercept occurred.  That footage was tendered as exhibit 2. 
54. [54]
    In that footage, SC Beattie can be heard making a radio call in which he says that they had just stopped a high-risk car.  He said that statement was based on previous occurrences involving the car.  I understood this to be a reference to the information SC O'Connor had conveyed to the other officers while they were following the Lancer.
55. [55]
    SC Beattie can also be heard in the footage telling the passenger of the Lancer that the car was stopped for a random breath test and, later, telling the applicant that the police were performing a licence check.  His evidence was that he expected that SC Whitaker and SC O'Connor would speak with the occupants of the Lancer when it was pulled over.  He was not expecting to have to speak to anyone, but that he formed the view about a random breath test and a licence check when he walked up to the car.  That was after SC O'Connor and SC Whitaker had pursued the person who exited from the rear of the Lancer and ran from the police.
56. [56]
    In his cross-examination, SC Beattie repeated his evidence that he had not pulled the Lancer over and said that he did not know why the vehicle was being pulled over.  He explained that he had to give an answer to the passenger of the Lancer as to why they had been pulled over and he said it was for a random breath test because he assumed that would eventually be done.  He accepted no random breath test was ever performed.  He also accepted that if the Lancer was pulled over for a licence check or a random breath test, the police did not have to follow it for seven kilometres to do so.
57. [57]
    SC Beattie referred to SC O'Connor’s mentioning the flags on the Lancer and that the vehicle had previously been involved with drug matters.  He accepted the suggestion that this made him wonder whether there would be drugs in the vehicle and said that the information conveyed by SC O'Connor made the Lancer worthy of being intercepted.
58. [58]
    SC Beattie did not accept the suggestion that he and the other officers used s 60 of the PPRA to pull the Lancer over so they could interact with its occupants.  He maintained that he did not pull the Lancer over.  He was cross-examined about notes of a phone conference he had with the DPP on 25 July 2023.  He accepted that those notes recorded him saying that the police pulled the Lancer over to perform a licence check and that he only formed a reasonable suspicion of drug offending after he had spoken to the applicant.  He stated that during the conference with the DPP he took more ownership than he should have for the decision to intercept the Lancer.  He maintained that he did not have any input into that decision.

Exhibit 1 – SC O'Connor’s BWC footage

59. [59]
    Due to the position of the camera on SC O'Connor’s chest while he was seated in the patrol car, the footage does not show which of the three officers are speaking at relevant points.  This has made it necessary for me to infer which of the three officers is speaking at different times. 
60. [60]
    At the commencement of the footage the patrol car is in motion.  The buildings which can be seen through the front windscreen indicate that the officers are driving through Surfers Paradise.
61. [61]
    The first relevant discussion begins when one of the officers asks: “Do you reckon this thing will go?”.  I understand that to be a reference to the Lancer.  A second officer then says that he thinks the car is going to evade.  The first officer then asks if the second officer can see if POLAIR is up.^[14]  It seems likely to me that the first officer in this exchange is SC Whitaker, who was driving the patrol car and would be most focussed on the Lancer’s response when the police sought to intercept it.  The second officer is likely to be SC O'Connor, who was operating the radio in the patrol car and therefore the officer who would be tasked with making a request for information about the availability of POLAIR.
62. [62]
    Less than a minute later, SC O'Connor makes a call on the radio in which he identifies the patrol car before saying the words “vehicle intercept details”.^[15]  After a pause of about 10 seconds, he receives a response to his radio call asking him to standby because the police radio operator has a job on with another police vehicle.  Another 10 seconds passes before the radio operator indicates she can deal with the call about the traffic intercept.  After a brief pause, the voice I understand to be SC Whitaker says (apparently to SC O'Connor): “That’s you and me”.  SC O'Connor then gets back on the radio.  He repeats the patrol car’s identification details before saying he is calling “for the traffic intercept”.  He states that the officers are travelling “north bound, Ferny Ave, Surfers Paradise.”  He then gives the registration of the Lancer to the radio operator and says: “We’re going to have a chop at intercepting.  We’ll see how we go.”^[16]
63. [63]
    The officers then discuss how many occupants can be observed in the Lancer.^[17]  SC O'Connor then says that there is another person “wanted on a warrant … Ashley Sellars.  He’s a meth user.  Armed flags”.^[18]  I understand this to be information seen by SC O'Connor while he was reviewing the results of the registration check on his QLITE device.  The conversation then returns to the number of passengers in the Lancer with one of the officers saying that he is pretty sure there is a person in the back passenger seat on the left-hand side.^[19]  At about this point in the footage, ^[20] SC O'Connor’s left hand can be seen briefly moving down towards the door of the patrol car on his left side.  That is followed by a rummaging sound lasting several seconds that is consistent with SC O'Connor’s evidence about him having retrieved a saliva test from the door of the patrol car.
64. [64]
    There is then some discussion between SC Whitaker and SC O'Connor about where the intercept should occur. ^[21]  This part of the conversation is difficult to hear over messages being received on the patrol car’s radio, however I was able to hear the voice I understand to be SC Whitaker ask SC O'Connor where he thinks they should stop the Lancer and SC O'Connor respond: “Wherever we can”.
65. [65]
    SC O'Connor then says: “It’s a bit weird how they have done the lap”.^[22]  I understand this to be a reference to the Lancer being driven around various streets in Surfers Paradise in a loop.
66. [66]
    After some discussion about what address the Lancer was registered at,^[23] a third voice, which is likely to be SC Beattie, then says something about “the bridge”.^[24]  From the oral evidence of the officers, and the location where they eventually pulled the Lancer over, I understand this to be a reference to the bridge on the Gold Coast Highway leading into Southport.  The voice I understand to be SC Whitaker then says: “Yeah, that’s what I’m thinking.  Anywhere along here is shit.  There’s not enough room.”  From the context provided by SC Whitaker’s oral evidence, I understand that conversation related to where the officers could pull the Lancer over safely.
67. [67]
    As the patrol car slows (at what I infer is a red light where the Lancer had stopped ahead of the officers), the voice I understand to be SC Whitaker says: “I thought they were going to punch it there.  Going to go fuckin’ boom, straight through.  Guess we’re pulling over here”.^[25]
68. [68]
    Once the patrol car starts up again (I infer when the light changed to green and the Lancer had moved off), the officers continue to follow without any audible conversation between them for about 90 seconds.  The voice I understand to be SC Whitaker then says what sounds like: “Beautiful.  Just here on the left.”^[26]  He activates the lights and sirens of the patrol car about 10 seconds after that. 
69. [69]
    As the patrol car slows to a stop, SC O'Connor says: “Someone’s running” and then alights from the vehicle to pursue that person.

Assessment of the evidence

70. [70]
    There is a conflict between the evidence of SC Whitaker and SC O'Connor on several issues: first, what point in time the decision to intercept the Lancer was made; secondly, which of the officers made that decision; and thirdly, what power was relied on in deciding to perform the intercept. 
71. [71]
    As to the first of those issues, I accept the evidence of SC O'Connor that the decision to intercept was made when the officers first began following the Lancer around Surfers Paradise, well before it headed north on Ferny Avenue (see [47] above) and that he activated his body worn camera immediately upon the decision to intercept the vehicle being made (see [41] above).
72. [72]
    Although I consider that SC Whitaker gave his evidence honestly, I do not consider his recollection to be reliable on this issue.  There was some inconsistency between different parts of his evidence as to whether the decision to intercept the Lancer was taken after the police had followed it north onto the Gold Coast Highway or at an earlier point in time when they were following it around Surfers Paradise (see [29]–[29] and [35]–[37] above).
73. [73]
    More importantly, SC Whitaker’s evidence that the decision to intercept was made only after the Lancer had reached the Gold Coast Highway is not consistent with the conversations and radio calls recorded in exhibit 1.  As noted at [61] above, the first reference to the Lancer in that footage concerns the officers’ beliefs as to what will happen when they attempt to intercept the vehicle – that is, whether it would attempt to evade the interception.  At that stage, the police were still following the Lancer around Surfers Paradise.  While the police continued to follow the Lancer as it travelled a “lap” around Surfers Paradise, SC O'Connor provided details of the proposed intercept on the radio.  SC Whitaker’s prompting of SC O'Connor when the radio operator asked for details of the traffic intercept (see [62] above) indicates that SC Whitaker was aware of SC O'Connor’s radio communication about the proposed intercept. 
74. [74]
    SC O'Connor’s evidence as to the time the decision to intercept was made is more consistent with the conversations and radio communications recorded in the footage.
75. [75]
    As to the person who made the decision to intercept, I accept SC O'Connor’s evidence that he made the decision after he reviewed information provided on his QLITE device when he performed a registration check on the Lancer.  In addition to being the officer who received the results of that registration check, SC O'Connor was also the officer who had previously dealt with Ms Cowin, one of the persons who was shown to be associated with the Lancer.  SC O'Connor conveyed some of the information he obtained from the registration check with the other officers, including that the registered owner of the vehicle was wanted on a warrant (see [63] above), but that did not occur until after the decision to intercept had been made and SC O'Connor had provided details of the proposed intercept on the patrol car’s radio.  
76. [76]
    That SC O'Connor was the officer who made the decision to intercept is also supported by my viewing of exhibit 1 in which SC Whitaker asks SC O'Connor where he wanted to intercept the vehicle (see [64] above).  That exchange is more consistent with SC O'Connor being the officer who made the decision to stop the Lancer.  That it was SC Whitaker who determined where the police should attempt the interception by activating the patrol car’s lights and siren is consistent with the evidence of both SC Whitaker (see [33] above) and SC O'Connor (see [50] above) that the driver of the patrol car was responsible for determining a safe location to attempt to perform the interception.  However, the fact that SC Whitaker determined this should occur some distance from where the police commenced following the Lancer does not alter my view that the actual decision to intercept had already been made by SC O'Connor around the time the police commenced following the Lancer.
77. [77]
    Having accepted SC O'Connor’s evidence that he made the decision to intercept the Lancer, I also accept his evidence that he relied on the power conferred by s 60 of the PPRA.  That is consistent with his reference during radio calls to the “traffic intercept” (see [62] above).  That is, an intercept under s 60 for the purpose of enforcing traffic laws.

Was the interception of the Lancer unlawful?

78. [78]
    Having concluded that SC O'Connor made the decision to intercept the Lancer relying upon s 60 of the PPRA, the question whether the interception was lawful depends upon whether SC O'Connor’s true purpose in exercising the power to intercept was to investigate the possibility that the occupants of the Lancer were engaged in drug offending.
79. [79]
    The applicant submitted that, viewed in the context that the purpose of the officers’ patrols was to investigate drug offences, it is difficult to see how SC O'Connor’s statement to the police radio operator – “We’re going to have a chop at intercepting.  We’ll see how we go.” – could be taken to mean anything other than that the interception under s 60 was a ruse to stop the Lancer with the intent of investigating drug offences. 
80. [80]
    I do not accept that submission.  SC O'Connor explained that this statement reflected his belief that the Lancer would attempt to evade police when they attempted an interception.  He also explained the basis for that belief (see [48] above).  Nothing in that explanation strikes me as inherently implausible.  To the contrary, it is supported by the discussion between SC O'Connor and SC Whitaker at the commencement of exhibit 1 about the prospect that the Lancer would seek to evade an interception and whether they should find out whether POLAIR would be available to assist if that occurred.
81. [81]
    The applicant also submitted that the statement made while the police were following the Lancer – “Boom, straight through.  Guess we’re pulling up here” – indicates that the officers were aware of the intention to intercept the Lancer from the time they started following it but perhaps were waiting for a breach of the traffic laws as a basis to perform the interception under s 60 of the PPRA.
82. [82]
    As noted in [50] above, SC O'Connor rejected that proposition during his cross-examination and said that, in any event, he did not think he was the officer who made the statement.  Based on my viewing of exhibit 1 (see [67] above), I have found that it was SC Whitaker who made the statement.
83. [83]
    Regardless of which officer made the statement, I do not accept that it should be construed in the way the applicant suggests.  The statement must be understood in the context that SC O'Connor had made the decision to intercept the Lancer under s 60 of the PPRA but had deferred to SC Whitaker, as the driver of the patrol car, as to where the interception should be performed.  The statement also came after SC Whitaker’s indication that he would perform the interception past the bridge into Southport where he considered there was enough room to pull the Lancer over safely.  In that context, I consider that the statement the applicant relies upon was SC Whitaker saying that if (as he thought from observing the Lancer as it approached a red light) the Lancer had failed to stop at the red light then the officers would have had to perform the interception at that location before the Lancer reached the spot where SC Whitaker had decided was safest.  The statement does not indicate that the officers were waiting for a basis to intercept the Lancer.
84. [84]
    Further, to accept the applicant’s submission about the purpose of the interception, I would have to disbelieve SC O'Connor’s evidence that he decided to intercept the Lancer to perform a saliva test.  It would require me to find that SC O'Connor was dishonest in giving his evidence.  I am not prepared to make such a finding.  Nothing in the answers given by SC O'Connor, or the way he gave those answers, leads me to such a conclusion.  Although the focus of the officers’ patrols that evening was the investigation of drug offences, I do not accept that SC O'Connor made the decision to intercept the Lancer to permit the officers to investigate the possibility that the occupants of the car were engaged in such offending.  I do not accept that SC O'Connor’s purpose in intercepting the Lancer for the administration of a saliva test was to investigate whether there was a sufficient suspicion to search the Lancer for drugs pursuant to s 31 of the PPRA.  I accept SC O'Connor’s evidence that when he made the decision to intercept the Lancer his purpose was to perform a saliva test and he was not thinking about searching the car.
85. [85]
    The fact that, after the police intercepted the Lancer, they did not administer a saliva test on the applicant does not alter my conclusion.  SC O'Connor did not administer such a test because he was immediately engaged in the pursuit of the man who ran from the Lancer when it was intercepted.  SC Beattie did not administer a saliva test when he was left remaining at the Lancer because, there having been no relevant conversation between the officers about the reason for intercepting the Lancer, he was not aware of SC O'Connor’s intention to perform such a test.  However, the fact that events transpired in that way after the police intercepted the Lancer does not affect my acceptance of SC O'Connor’s evidence of his state of mind at the time he made the decision to intercept the Lancer and the purpose for which he exercised the power under s 60 of the PPRA.
86. [86]
    Nor is my conclusion altered by other submissions the applicant made concerning the credibility of the officers’ evidence more generally.
87. [87]
    First, the applicant submitted that the difference between the evidence given by SC O'Connor and SC Whitaker as to the power relied upon to perform the interception weakened the overall credibility of the officers’ evidence.  I disagree.  That the different officers had different things in each of their minds when they were following the Lancer is explained by the fact that the footage in exhibit 1 records no discussion between them about the basis upon which the interception was performed.  The difference in the evidence on that point indicates to me that there has been no collusion between the officers directed towards justifying an unauthorised vehicle interception.  Although I have preferred the evidence of SC O'Connor about the power under which the interception was performed, I do not consider that SC Whitaker was other than honest when giving his evidence.  There is no basis to suggest that SC Whitaker’s evidence amounted to a reconstruction intended to justify an unauthorised interception.
88. [88]
    Secondly, the applicant criticised SC Beattie’s conduct in making statements to the occupants of the Lancer, as well as statements in his telephone conference with the DPP, which differed from his evidence at the hearing of the application.  In my view, the answers SC Beattie gave to the occupants of the Lancer as to why they had been pulled over were an instinctive response given in circumstances where he did not feel able to state the true position – that he did not know the exact reason they had been pulled over because he was not the officer who had made the decision and there was no discussion between the officers about the basis for making the decision while they had followed the Lancer.  Likewise, SC Beattie’s answers to questions asked by the DPP are best explained as him seeking to avoid embarrassment caused by his not having been aware of the basis for the interception when it was performed.  While I accept that SC Beattie made earlier statements which were not consistent with the evidence he gave under oath, that does not cause me to doubt the honesty of SC O'Connor or the credibility of the evidence he gave concerning the purpose for which he decided to intercept the Lancer.

Conclusion

89. [89]
    In circumstances where I am satisfied that SC O'Connor decided to intercept the Lancer for one of the purposes prescribed in s 60 of the PPRA, I find that the interception was authorised under that provision and was, therefore, lawful.  As the applicant does not separately challenge the lawfulness of the search of the vehicle performed after the interception, it follows that the evidence obtained from that search was lawfully obtained.  For that reason, the application must be dismissed.