It is common for people to be charged with drug and property offences arising from being pulled over by police and being subject to either a personal and/or a vehicle search.
It is important for people to understand what the Police’s powers are and subsequently what your individual rights are, in these types of situations.
Power to stop a vehicle
There are prescribed circumstances under which Police can stop a vehicle pursuant to section 60 (3) of the Police Powers and Responsibilities Act 2000 (‘PPRA’). They include:
- To enforce a Transport Act or the Heavy Vehicle National Law (Queensland);
- To check whether the vehicle complies, or the person is complying, with any transport Act or the Heavy Vehicle National Law (Queensland);
- To monitor or enforce a liquor provision;
- Enforcing a contravention of law involving putting, dropping and leaving litter on a public place from a vehicle;
- To conduct a breath test or saliva test;
- To investigate the emission of excessive noise from;
- A motor vehicle on a road or in a public place; or
- A motorbike being driven on a place other than a road;
- To give a noise abatement direction to the person responsible for the emission of excessive noise from-
- A motor vehicle on a road or in a public place; or
- A motorbike being driven on a place other than a road;
- To impound or immobilise a motor vehicle under chapter 4;
- To enforce the Tobacco and Other Smoking Products Act 1998, section 26VC;
- To give the person any of the following under the Peace and Good Behaviour Act 1982 –
- Public safety order;
- A restricted premises order;
- A fortification removal order;
- To give a person, under section 53BAC an official warning for consorting…” (statutory notes and examples omitted, emphasis added)
So when can police stop my vehicle?
Many of the circumstances prescribed by Section 60 (3) are unique to specific circumstances and not relevant to most people.
The most common use of Section 60 (3) is to stop vehicles to conduct a “licence check”, to ensure drivers are licenced to drive a motor vehicle. This is a legitimate purpose for which police can stop a vehicle.
A common methodology/tactic used by police is to stop people for a “licence check” and use this as an opportunity to question them about whether there are any ‘items of interest’ in their vehicle and attempt to form a basis for a ‘reasonable suspicion’ to allow them to search a vehicle pursuant to section 31 of the Police Powers and Responsibilities Act.
This methodology was subject to a recent application in the Supreme Court of Queensland (R v Davis [2023] QSC 112) complaining of the tactics and behaviour of police on that occasion.
His Honour Justice Davis was critical of this approach by police. His Honour distinguished the differences between s31 and s60, and their different purposes and uses. His Honour determined that police in that instance improperly used s60 to stop the vehicle, despite doing so with a purpose of investigating a potential drug offence, which would require a reasonable suspicion pursuant to s31.
In this instance, the Applicant’s mobile phone and an amount of methylamphetamine was discovered during the search. Further, he was subject to interviews with police on 13 April 2019 and 17 June 2019. His Honour excluded all of this evidence as a result of police’s misuse of their powers pursuant to the PPRA.
What do I do if I have been charged with an offence following the search of my vehicle by police?
If you have been pulled over by police, you should always comply with police’s demands but be aware you should not consent to any search of your vehicle. Should you consent to police searching your vehicle, they may (and will) conduct that search whether the basis of the search would otherwise be illegal, but for the consent.
Should you have had your vehicle searched and as a result have been charged with criminal offences, you should immediately legal advice.
If police have acted beyond their powers as prescribed by the legislation, you may have a legal argument available to you to exclude the evidence discovered during the search.
At Jones + Associates, we have extensive experience in the area of unlawful searches and have conducted numerous successful applications before the courts.
We are always available to discuss your matters and give you advice as to your prospects of any argument in relation to an illegal search. You can contact us at (07) 3229 3166.