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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
The defendant (“respondent”) was indicted in relation to offences including trafficking in dangerous drugs and possessing a large quantity of a dangerous drug. . 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”). , .
As a result of the second search, police seized a large quantity of methylamphetamine. , . The respondent applied for a pretrial ruling under s 590AA Criminal Code 1899 to exclude the evidence obtained as a result of both searches. . The primary judge allowed the application and ruled that the evidence obtained as a result of both searches be excluded (“pretrial ruling”). .
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. . 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[?]”. , cf. .
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  QSC 7;  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. –. 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. . 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. .
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. , . 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). . 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 (, –):
(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. .
(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. .
Justice Morrison discussed the context of s 31 of the PPRA: see –. 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”. , . This is an incidental power expressly contemplated in the text of s 31. , . 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 –. 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.” .
Justice Morrison considered that the primary judge’s reliance on Keen was “misplaced.” –. In Keen, Jackson J had held that the search was unlawful on the more narrow basis that the relevant persons were not “occupants … detained”. . 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). –.
In the result, the answer to the point of law referred by the applicant was “No”. , –, . 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. –, –.