R v Wassmuth; Ex parte Attorney-General (Qld)

This case was an opinion of the Court of Appeal on a point of law referred by the Director of Public Prosecutions. The point of law arose from a pretrial ruling, which relevantly, excluded evidence obtained as a result of a search of a vehicle without warrant under s 31 Police Powers and Responsibilities Act 2000 (“PPRA”). The point of law was framed as the following question: “Is the operation of s 31 of the [PPRA] to be reserved for circumstances when it is not apt to obtain a warrant[?]”. Justice Morrison (with whom Boddice J agreed; and with whom Bond JA gave separate but concurring reasons) answered “No”. The power to search a vehicle without warrant in “prescribed circumstances” under s 31 of the PPRA was not intended to be subject to an additional requirement i.e. that it can only be exercised if there was “no reasonable time” to obtain a warrant.

Morrison and Bond JJA and Boddice J

24 June 2022

Background

The defendant (“respondent”) was indicted in relation to offences including trafficking in dangerous drugs and possessing a large quantity of a dangerous drug. [4]. The evidence against the respondent was obtained during the course of two police searches in relation to: a premises for which the respondent was associated (“first search”); and a vehicle driven by the respondent which was stopped on the Bruce Highway (“second search”). [5], [16].

As a result of the second search, police seized a large quantity of methylamphetamine. [5], [18]. The respondent applied for a pretrial ruling under s 590AA Criminal Code 1899 to exclude the evidence obtained as a result of both searches. [6]. The primary judge allowed the application and ruled that the evidence obtained as a result of both searches be excluded (“pretrial ruling”). [7].

The Director of Public Prosecutions (“applicant”) referred a point of law under s 668A Criminal Code 1899 to the extent that the pretrial ruling excluded the evidence obtained as a result of the second search only. [8]. The point of law referred was: “Is the operation of s 31 of the Police Powers and [Responsibilities] Act 2000 to be reserved for circumstances when it is not apt to obtain a warrant[?]”. [79], cf. [10].

Whether s 31 of the PPRA is reserved for circumstances where it is “not apt to obtain a warrant”

The primary judge relied on the reasons of Jackson J in R v Keen [2015] QSC 7; [2016] 2 Qd R 1 (“Keen”) and held that s 31 Police Powers and Responsibilities Act 2000 (“PPRA”) only authorises a police officer to search a vehicle “when the circumstances do not reasonably permit” the police officer to obtain a warrant. [9]–[10]. The primary judge found that the police officer in this case did not obtain a warrant in circumstances where there was “reasonable opportunity” to obtain a warrant. [8]. The primary judge then reasoned that s 31 of the PPRA did not authorise the second search, and as a result, the evidence was unlawfully obtained and should be excluded. [9].

The PPRA gives a general power to a police officer to search a “place” which is defined to include a “vehicle”: see s 150 of the PPRA. [47], [65]. A condition or restriction on exercising this general power is that the police officer must obtain a warrant from a justice (or a judicial officer as applicable). [65]. However, Morrison JA (with whom Boddice J agreed; and with whom Bond JA gave separate but concurring reasons) observed that: the PPRA has “carefully identified” two circumstances which are “sufficiently serious” to give a police officer the specific power to stop, detain, and search a vehicle without obtaining a warrant ([65], [68]–[70]):

(1) Where a police officer reasonably suspects a “prescribed circumstance” for searching a vehicle exists (e.g. there is a thing that may be an unlawful dangerous drug in the vehicle): see ss 31 and 32 of the PPRA. [66].

(2) Where a senior police officer has formed a reasonable belief that an event is, or is likely to become, an “out of control event” and a police officer is taking action in relation to the “out of control event”: see s 53BG(2) and Pt 7 of the PPRA more generally. [67].

Justice Morrison discussed the context of s 31 of the PPRA: see [35]–[53]. It was notable that whilst a search of a place with warrant under s 150 (or a post-search approval order in the absence of such a warrant under s 160) is defined to include a vehicle, the power “does not enable a vehicle to be stopped or detained”. [48], [50]. This is an incidental power expressly contemplated in the text of s 31. [48], [50]. Justice Morrison also identified nine features apparent from both the text and context of s 31, all of which were consistent with a construction that it contained a specific power exercisable without warrant in “prescribed circumstances”: see [54]–[64]. Justice Morrison concluded from his Honour’s careful analysis that:

“… [T]he text of s 31, in context, permits no other conclusion but that the power to act without warrant in … prescribed circumstances was not intended to be subject to an additional requirement, that is, that it could only be exercised if there was no reasonable time to get a warrant.” [72].

Justice Morrison considered that the primary judge’s reliance on Keen was “misplaced.” [77]–[78]. In Keen, Jackson J had held that the search was unlawful on the more narrow basis that the relevant persons were not “occupants … detained”. [77].  Justice Bond agreed in his Honour’s concurring reasons observing that it was: “explicitly recognised [in Keen] that if the power conferred by s 31 was legitimately engaged in its own terms, it would not matter that there may be an alternative way under the PPRA to achieve the same result.” (emphasis added). [88]–[89].

Disposition

In the result, the answer to the point of law referred by the applicant was “No”. [79], [81]–[82], [93]. It was appropriate to set aside the pretrial ruling to the extent that it related to the evidence obtained in the course of the second search. [80]–[81], [92]–[93].

D Kerr