R v Davis

This case considered whether unlawfully obtained evidence should be excluded from a criminal trial. Davis J considered that police had used a power granted for the purpose of investigating transport offences to investigate drug offences, thereby avoiding the stricter requirements of another power granted to investigate drug offences. His Honour considered that the improper exercise of the power rendered the vehicle interception unlawful, and that evidence obtained in consequence should be excluded.

Davis J

22 May 2023

Background

The applicant faces a trial on charges relating to the supply and possession of methylamphetamine. [1]. All of the evidence against him comes directly or derivatively from a search of his car conducted by police on 13 April 2019. [2]. The applicant alleges that the search was unlawful and seeks the exclusion of the resulting evidence from his trial, in the exercise of the discretion explained in Bunning v Cross (1978) 141 CLR 54. [3].

In the result, Davis J concluded that the evidence should be excluded. [77].

The stop, search and exercise of relevant powers

The police stopped the applicant’s car in purported reliance on s 60 Police Powers and Responsibilities Act 2000 (“the Act”). [7]. That provision permits officers to stop a vehicle for purposes which include, “to check whether the vehicle complies, or the person is complying, with a transport Act”. [7]. That may include stopping a vehicle to check if a driver is licensed – which was said to be the purpose which justified officers stopping the applicant’s car in this case. [9].

Having stopped the car, police noticed a bag of powder on the driver’s seat. [11]. In purported reliance on powers bestowed by ss 31–32 of the Act, police then searched the vehicle. [11]–[13]. Those provisions permit a search where an officer “reasonably suspects any of the prescribed circumstances”, which include a circumstance in which there “may be an unlawful dangerous drug” in the vehicle. [13]. Further searches, including of the applicant’s phone (with his permission), provided “evidence of the applicant being involved … in trafficking in drugs”. [18].

Why the interception was unlawful

The evidence revealed that although officers had purported to rely on s 60 of the Act to stop the applicant’s vehicle, they were not exercising that power to investigate compliance with any transport Act. Instead, his Honour found that “the two police officers were on patrol specifically targeting drug offenders”. [37]. Further, their “interest in the licence status of the applicant was only a step in the investigation of the possible drug offences”. [37].

His Honour noted that a statutory power must be exercised for the purposes for which it was granted (quoting O’Reilly v State Bank of Victoria Commissioners (1982) 153 CLR 1). [43]–[44]. In this case, the use of s 60 to investigate drug offences avoided the safeguard provided in s 31 (which requires the formation of a reasonable suspicion). That amounted to a “misuse” of the power in s 60, rendering “the interception of the car unlawful”. [53].

In summary, his Honour considered that (at [55]):

“The interception of the car was not authorised by s 60 of the PPRA [the Act] 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.”

Why the discretion to exclude the evidence was exercised

His Honour noted that in Bunning v Cross, Barwick CJ explained the discretion to exclude unlawfully obtained evidence as follows (at [72]):

“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.”

In this case, the evidence supported an inference that senior police had instructed that when investigating possible drug offences, police should exercise powers under s 60 of the Act instead of under s 31. This was 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”. [74]. His Honour said that the effect was that “the power vested by s 60 … is being systematically misused so as to avoid the specific safeguards” contained in s 31. [75].

His Honour considered that it was in the public interest to “denounce the conduct of police in deliberately misusing statutorily vested powers” (such as s 60), and that this consideration outweighed the “interest of the public in seeing the applicant prosecuted”. [76].

Accordingly, his Honour exercised the discretion to exclude the evidence. [77].

W Isdale