Motor Vehicles Searches (Qld)
The Queensland police do not have the automatic right to search a person’s car. Section 60 of the Police Powers and Responsibilities Act 2000 (PPRA) allows a police officer to require a person in control of a vehicle to stop the vehicle for a prescribed purpose. A prescribed purpose includes conducting a breath test or a saliva test. It is quite common for police to stop vehicles for this purpose. In some circumstances, the police may wish to conduct a motor vehicle search. Usually, the police officer will ask the driver if they can search the car and if they agree then they have consented to the search.
Motor vehicle searches without consent
If a driver does not consent to a motor vehicle search, then Section 31 of the PPRA provides that a police officer who has a reasonable suspicion of any of the prescribed circumstances for searching a vehicle without a warrant may do any of the following:
(a) Stop the vehicle;
(b) Detain the vehicle and the occupants of the vehicle;
(c) Search the vehicle and anything in it for anything relevant to the circumstances for which the vehicle and its occupants are detained.
What are the prescribed circumstances for searching a vehicle?
Section 32 of the PPRA details the prescribed circumstances for a motor vehicle search without a warrant. One of those prescribed circumstances, and in our experience the most common ground, is that the police reasonably suspect that there is an unlawful dangerous drug in the vehicle. Reasonably suspects means suspects on grounds that are reasonable in the circumstance.
What this means is that if the police ask to conduct a motor vehicle search and the driver does not agree and the police proceed to carry out the search anyway, they will have to satisfy the court that they had a reasonable suspicion of a specific offence. If the court finds that a suspicion held was not reasonable, the evidence found as a result of the search may be excluded from evidence at the hearing. A simple example of this is where the police stop a person for a random breath test and decided to search their car because they appeared nervous. This would be unlikely to be found to amount to a reasonable suspicion to search the car for an offence relating to possession of dangerous drugs.
Bunning v Cross
However, if a motor vehicle search is found to have been unlawful the court is still required to consider whether it should exercise its discretion and admit the evidence. This is known as the rule in Bunnings v Cross.
In the 2010 case of R v Munck, Philippides J summarised this discretion as follows.
“Th[e] discretion calls for a balance to be struck between competing public interests which in essence may be summarized as:
“…The desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval or even encouragement being given to the unlawful conduct of those whose task it is to enforce the law (Bunning and Cross (1979) 141 CLR 54,74).”
In deciding whether to exercise this discretion the court must consider the following:
(a) whether the unlawfulness was a deliberate or reckless disregard of the law, as distinct from a mere oversight or accidental non-compliance with the law;
(b) the cogency of the evidence and whether the nature of the illegality affects the cogency of the evidence so obtained;
(c) the importance of the evidence in the proceeding;
(d) the nature and seriousness of the offence;
(e) the nature of the unlawful conduct;
(f) whether such conduct is encouraged or tolerated by those in higher authority in the police force; and
(g) how easy it would have been to comply with the law.
Usually, these matters are dealt with as applications to exclude evidence in a criminal proceeding. There is no certainty in the outcome because it will turn entirely on findings of fact by the court. In saying that, you will always protect your interests by asking to talk to a lawyer before you consent to a motor vehicle search.
If you require legal advice or representation in relation to a motor vehicle search or in any legal matter please contact Armstrong Legal.