22 June 2021
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  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:
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:
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.
Author: Melanie Long
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.