R v Wassmuth; Ex parte Attorney-General (Qld) [2022] QCA 113

Date: 24 June 2022
Court: Court of Appeal
Judicial Officer: Morrison and Bond JJA and Boddice J
Human Rights Act 2019 (Qld) Sections: ss 19, 25, 29, 48
Rights Considered: Freedom of Movement; Right to privacy and reputation; Right to liberty and security of person
Other Legislation: Acts Interpretation Act 1954 (Qld) s 14; Criminal Code (Qld), s 590AA, s 668A; Police Powers and Responsibilities Act 2000 (Qld), ss 30, 31, 32, 150
Keywords: Criminal Law and Corrective Services: Police

The case concerned the operation of section 31 of the Police Powers and Responsibilities Act 2000 (Qld). Bond JA considered the potential application of the Human Rights Act 2019 (Qld) and opined that this case did not provide the occasion for a consideration of the factors listed in section 13(2) of the Human Rights Act 2019 (Qld) in determining the question of the proper construction of the provision in the Police Powers and Responsibilities Act 2000 (Qld).

The case concerned a referral of a point of law pursuant to section 668A of the Criminal Code 1899 (Qld) by the Director of Public Prosecutions as to whether the operation of section 31 of the Police Powers and Responsibilities Act 2000 (Qld), which authorises police to search a vehicle without a warrant, should be reserved for circumstances where police are unable to obtain a warrant: at [1] and [3]. This arose due to a pre-trial ruling under section 590AA of the Criminal Code 1899 (Qld) which excluded evidence that was found during a police search of a motor vehicle: at [2].

Bond JA, in his judgment, observed that all statutory provisions, to the extent possible that is consistent with their purpose, must be interpreted in a way compatible with human rights: at [90]. His Honour highlighted that the Human Rights Act 2019 (Qld) accepts that rights are subject to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom through considering relevant factors: at [90]. His Honour noted that the relevant rights that were engaged in the circumstance of a police search of a motor vehicle, included the right to move freely (section 19), the right to not have a person’s privacy unlawfully or arbitrarily interfered with (section 25), and to liberty and security (section 29): at [90]. Bond JA further acknowledged the consideration of factors listed in section 13(2) of the Human Rights Act 2019 (Qld) may assist questions of proper construction of a statutory provision intended to authorise some forms of search and seizure: at [90]. However, His Honour did not consider that the present case provided for this consideration: at [91]. Notably, the respondent expressly declined to rely on the Human Rights Act 2019 (Qld).

The Court decided that the operation of section 31 of the Police Powers and Responsibilities Act 2000 (Qld) was not reserved for circumstances when it is not apt to obtain a warrant.

Visit the judgment: R v Wassmuth; Ex parte Attorney-General (Qld) [2022] QCA 113