R v Duncan

The applicant sought the exclusion of evidence, namely illicit drugs, located in the course of a police search of a car she was driving. Police had established a random breath test and licence check in order to search for the applicant, who was suspected of transporting drugs by car from Brisbane to Cairns. The applicant argued the stop and search was unlawful as the dominant purpose was to search for drugs, which required a reasonable suspicion before stopping a vehicle (s 31 Police Powers and Responsibilities Act (“PPRA”)), whereas police had purported to stop the vehicle on the basis of a breath test and licence check (which did not require a reasonable suspicion, per s 60 of the PPRA). Henry J dismissed the application. His Honour held concurrent purposes may exist in stopping a vehicle and thus the stop and search was lawful. His Honour rejected the “dominant purpose” test arising from R v Davis [2023] QSC 112 and found this does not accord with the statutory provisions or legislative intent.

Henry J

6 September 2024

Background

The applicant was charged with aggravated possession of 60 grams of cocaine, found by police inside a car she had been driving. [1].

Police had received intelligence about a male suspect trafficking drugs by vehicle. [5]–[6]. While they had a photograph of the suspect, they did not know the registration of the vehicle. [6]. In order to screen vehicles for the suspect, police established a roadside random breath test and licence inspection site on the Bruce Highway. [6]–[7].

The applicant’s vehicle was stopped by police as part of that operation. [10]. Police noticed the male suspect was a passenger in the applicant’s car. [11]. Police then detained the vehicle and occupants on the basis they believed dangerous drugs were in the vehicle. [11]–[12]. The cocaine was then located in the search. [12].

Exclusion of evidence

The applicant sought the exclusion of the evidence derived from the police search.

She argued the search was illegal as police had stopped the vehicle on a “ruse” of conducting random breath tests when the actual purpose was to search the vehicle; that being so, the search was not exercised for its statutory purpose. [2]–[3].

Sections 31(1) and 32(1) of the Police Powers and Responsibilities Act 2000 (“PPRA”) provides police the power to stop, detain, and search a vehicle where they reasonably suspect it contains unlawful dangerous drugs. [13]. However, in this case, police had already stopped the vehicle by the time they formed that reasonable suspicion (which was not in contention). [14]–[16].

The vehicle had been stopped pursuant to s 60 of the PPRA, which provides police the power to stop a vehicle for a “prescribed purpose” such as a breath test or licence check. [18]–[20]. Police did in fact conduct a breath test and licence check of the applicant. [21].

The applicant submitted the actual purpose of stopping the vehicle was for the investigative purpose of looking for the male suspect, such that police were not acting within their powers under the PPRA when they stopped and searched the vehicle. [22].

The applicant relied on R v Davis [2023] QSC 112 (“Davis”), where the Court held an interception of a vehicle was unlawful. [35], [38]. There, police had purported to stop a vehicle to conduct a licence check under s 60 of the PPRA, but in fact the “dominant purpose” was to investigate dangerous drugs. [35]. The Court found the police’s powers were consequently sourced in s 31, which required a reasonable suspicion before stopping a vehicle, rather than s 60. [36], [49].

Police accepted the “investigative purpose” of their conduct, but denied the search was unlawful. [23], [26].

Application dismissed

Justice Henry dismissed the application. [57].

His Honour held there can be concurrent purposes for police in stopping a vehicle. [29]. The language of s 60(1) of the PPRA does not prevent more than one purpose operating concurrently. [30]–[33], [50]. “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.” [32].

Justice Henry found that the purpose of police’s intercept of vehicles was in part for breath and licence checks, though this was not the sole purpose. [27]–[28]. That purpose was concurrent with the investigative purpose. [33]. Police had in fact conducted breath tests and licence checks of the vehicles they stopped. [27]. In the applicant’s case, it was not until after those checks were conducted that the suspect was identified and the “investigative purpose manifested.” [28].

His Honour rejected the applicant’s submission that where the primary or dominant purpose is distinct from that authorised by s 60 of the PPRA, the stopping of a vehicle will not be authorised by s 60. [34], [53]. Henry J rejected the “dominant purpose” test in Davis and otherwise distinguished the facts of that case. [38], [40]. Here, multiple vehicles had in fact been stopped and breath and licence checks conducted. [38]. In the present case, a concurrent purpose existed with s 60, which was not present in Davis. [39].

Further, his Honour considered “[t]he 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”. [52]. Three separate powers exist under s 31; these are not cumulative. [52].

Notably, his Honour also observed that human rights arguments concerning the freedom of movement were not raised by the parties and therefore not considered in this case. [54].

His Honour concluded that the stopping of the vehicle and subsequent search was lawfully performed and refused to exclude the evidence derived from this. [55]–[56].

H Edwards of Counsel