When is the search of a heavy vehicle lawful?

Following on from our previous article here on enforcement by the National Heavy Vehicle Regulator (NHVR), we look at the circumstances in which searches of heavy vehicles are lawful, with reference to the recent case of R v Carter [2020] SADC 27 (R v Carter).

In what circumstances can a heavy vehicle be searched?

Section 521 of the Heavy Vehicle National Law (HVNL) sets out the circumstances in which an authorised officer (for example, a police officer or State/Territory road safety officer), can enter and search a heavy vehicle. These include when the authorised officer reasonably believes one or all of the following:

• the vehicle is being, or has been, used to commit an offence against the HVNL
• the vehicle, or thing in the vehicle, may provide evidence of an offence against the HVNL that is being or has been committed
• the vehicle has been or may have been involved in an incident involving the death of, or injury to, a person or damage to property.

What does a search involve? 

The HVNL also provides guidance on what this search may involve. It is not an exhaustive list, but essentially it can include:

• the inspection, examination, filming or search of any part of the heavy vehicle or any part of its equipment or load
• the inspection or search of any document, device (for example an intelligent transport system) or other thing
• taking a copy of, or extract from a document, device or other thing. The copy of the document may be made elsewhere (although it must be returned) and includes, by way of example, a document required to be kept in the vehicle under the HVNL such as a work diary, transport or journey documentation or any other document that evidences that an offence under the HVNL has taken place
• producing an image or writing in or near the vehicle from an electronic document in the vehicle or, in circumstances where this is not practicable, do this elsewhere (again, the thing containing the electronic document must be returned).

It should be noted that an authorised officer is not permitted to search a person under the HVNL.

R v Carter: An example of when the legality of a heavy vehicle search was contested

The case of R v Carter concerned whether the search of a vehicle by Senior Constable Petts (SC Petts) was lawful under the HVNL. SC Petts received a tip-off that the owner of a prime mover was a drug user, had recently purchased a truck that was capable of travelling faster than the heavy vehicle maximum speed and paid for in cash. SC Petts located and pulled over the vehicle which was being driven at the time, not by the owner, but one of his “mates”, Mr Carter. 

After determining the driver’s identity, SC Petts asked to see his work diary. Upon inspection of the work diary, as well as information from a safety camera, SC Petts formed the belief that the driver had committed an offence under the HVNL. In particular, that Mr Carter had failed to complete his work diary, by stating that he started work at 10am when his truck had been recorded by the safety cameras as being on the road earlier than that. It was at this point that SC Petts searched the vehicle and found evidence of drug offences in addition to those under the HVNL.

In the lead up to the trial of Mr Carter for drug trafficking, his defence team made an application to exclude the evidence of the heavy vehicle search on the basis that it was undertaken to unlawfully search for drugs. The Court dismissed this application on the basis that as soon as SC Petts became aware that the owner of the vehicle was not the driver, he focused on the work diary and breaches of the HVNL. 

Accordingly, a lawful search of the heavy vehicle had been undertaken based on a reasonable belief of a contravention under that law and only after this belief had been formed. Furthermore, even if SC Petts had conducted the search for a dual purpose, the unlawful secondary purpose (i.e. a search for evidence of drug-related offences) would not have, in this case, invalidated the overriding lawful purpose.  

Takeaways

• An authorised officer can lawfully search a heavy vehicle if he/she holds a reasonable belief of one of the factors set out in section 521 of the HVNL (summarised above).
• A search of a heavy vehicle can include the inspection or search of any part of the heavy vehicle, equipment or load.
• A search can also include the search and inspection of a document, device or other thing in the heavy vehicle.
• An authorised officer can also take copies of these documents and copies (in various forms) of electronic documents. Anything taken away from the heavy vehicle must be returned.
• A search will be lawful so long as the authorised officer holds the requisite reasonable belief that a contravention of the HVNL has or is being committed and does not conduct the search until after this belief is formed. This can even be the case when an officer conducts the search for a secondary (unlawful) purpose.

Author: Melanie Long

• This article was originally published in CoR Adviser. The article is © 2020 Portner Press Publishing Pty Ltd and has been reproduced with permission of Portner Press.

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

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