DPP v Kaba  VSC 52 (18 December 2014)
The Supreme Court of Victoria found that while the police did have the power to conduct a random stop and license check of Mr Kaba, the officers’ subsequent coercive questioning of him disproportionately limited his rights to privacy and freedom of movement under the Victorian Charter and was therefore unlawful.
Mr Kaba, a young black African man, was the passenger in a vehicle travelling in Flemington one afternoon.
Two uniformed police stopped the driver, without any suspicion of wrongdoing, for a random check of his licence and vehicle registration.
Mr Kaba left the vehicle and walked along the footpath. The officers asked for his name and address three times which he refused to provide, protesting vehemently about racist harassment. One of the officers arrested him for using offensive language and in the course of the arrest, Mr Kaba allegedly assaulted the officer and committed other street offences for which he was charged.
At the hearing of these charges at the Magistrates’ Court, Mr Kaba successfully objected to the evidence of the police under section 138(1) of the Evidence Act arguing that the charges were the result of the police’s unlawful and improper conduct in carrying out a random licence check for which they had no power. Mr Kaba also argued that there had been a breach of his rights to freedom of movement and privacy under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter”).
At the trial of Mr Kaba for various street offences at the Magistrates’ Court in Melbourne, the presiding magistrate exercised the discretion in section 138(1) of the Evidence Act 2008 (Vic) (“Evidence Act”) to exclude particular evidence of the police on the basis that it was illegally or improperly obtained.
The magistrate excluded the evidence on the basis that the police had carried out a random licence check for which they had no power under the Road Safety Act 1986 (Vic) (“Road Safety Act”) and which breached Mr Kaba’s Charter rights.
The prosecution sought judicial review of the Magistrate’s decision to exclude the evidence of the police, without which the prosecution would collapse.
Upon judicial review of the magistrate’s decision, Justice Bell of the Victorian Supreme Court found that the evidence had been rightly excluded. Justice Bell deemed the actions of the police to be unlawful under section 38(1) of the Charter and inconsistent with the individual rights to privacy and freedom of movement under the International Covenant on Civil and Political Rights (“ICCPR”). However, Justice Bell quashed the decision on the basis that the magistrate had made an error of law on the face of the record in finding the police did not have power under the Road Safety Act to carry out random licence checks.
Police have a power of random stop and check under section 59(1) of the Road Safety Act 1986
Contrary to the magistrate’s opinion, Justice Bell found that section 59(1) confers a power on police that allows them to conduct a routine or random stop and check for the purposes of the administration of the Road Safety Act.
In the present case, stopping the vehicle, requesting the driver’s name and address and driver’s licence was authorised.
The police exceeded their common law powers and breached Mr Kaba’s human rights
Justice Bell held that, up to a certain point, police questioning does not unlawfully interfere with the rights and freedoms of individuals. Police questioning does unlawfully interfere with these rights and freedoms, however, when the questioning becomes coercive, which is when the individual is made to feel that they cannot choose to leave or refuse to co-operate. In drawing the line between voluntary and coerced questioning, Justice Bell stated that courts will consider the duties of the police to protect the community and prevent crime, as well as the imbalance of power between police in uniform and ordinary members of the community.
In the present case, Mr Kaba did not actually provide the details asked of him by the police. However Justice Bell considered that a reasonable person in Mr Kaba’s circumstances would have felt they had no choice but to do so. The conclusion that the line of permissible questioning had been crossed was “irresistible”.
Section 38(1) of the Charter deems it unlawful for the police to act in a way that is disproportionate or incompatible with human rights. In the present case, the actions of the police did limit human rights, namely freedom of movement and privacy, and the police reasonably could have acted differently in the circumstances. On this basis, Justice Bell held that the coercive questioning of the police was unlawful.
The evidence was rightly excluded
Justice Bell found that the magistrate was correct to exclude the evidence of the police in relation to the criminal charges under section 138(1) of the Evidence Act on the basis that the police questioning was improper and unlawful at common law, and additionally on the basis the evidence was obtained in consequence of impropriety or contravention of Australian law.
As required by section 138(3)(f) of the Evidence Act, in exercising his discretion to exclude the evidence of the police, Justice Bell took into account the finding that the relevant impropriety or contravention was inconsistent with Mr Kaba’s rights under the ICCPR. In particular, the police pressing him to divulge his name and other personal details breached his right to privacy under article 17(1) of the ICCPR. His right to freedom of movement under article 12(1) was also breached because the questioning interfered with his right to walk freely in the public streets.
The decision of the magistrate was quashed
The decision of the magistrate to exercise his discretion in section 138(1) of the Evidence Act not to admit the evidence was based upon two legal grounds, one of which was in error. For this reason, Justice Bell quashed the ruling because the magistrate had committed an error of law on the face of the record in relation to the interpretation of section 59(1) of the Road Safety Act.
The proceeding was remitted to the magistrate for reconsideration of the exercise of the discretion to exclude the evidence under s 138(1) of the Evidence Act.
This case again raises the issue of racial profiling by Victoria Police, following the settlement of the high profile case led by Daniel Haile-Michael and Maki Issa in the Federal Court in 2013.
While the decision confirms the power of police to conduct random stop and checks under section 59(1) of the Road Safety Act, it recognises that this power - and the power to ask further questions - is not unfettered. The coercive nature of the police questioning in this case led to the exclusion of evidence which was critical to the prosecution of various offences, including physical assault. Police must ensure that, at least when the individual in question is an ordinary member of the public and not someone reasonably suspected of wrongdoing, questioning is conducted voluntarily and not coercively or it may disproportionately limit the individual’s human rights and lead to the evidence obtained being excluded.
Grace Walton is a Seasonal Clerk at King & Wood Mallesons.
Additional commentary from Flemington & Kensington Community Legal Centre
While positive in many respects, the Supreme Court’s interpretation of s59(1)(a) of the Road Safety Act 1986 (the “Act”) leaves some aspects of law in an unsatisfactory place. On the positive side, the Court made it clear that s59(1)(a) stops could only be conducted for the purpose of licence and registration checks. On the negative side however, by authorising random vehicle stops the Court makes racial profiling inevitable. For example, in the UK, black people are 12 times more likely than whites to be stopped when police are authorised to conduct suspicion-less stops. There is no reason to believe these patterns would not be repeated in Australia.
One possibility to address this risk is further litigation. Another is for Parliament to amend s59(1)(a) of the Act to make random stops unlawful while ensuring that police can undertake licence and registration checks in a genuinely unbiased and human rights compliant manner.
There are five key legislative reforms that would protect people from racial profiling and other forms of discrimination while permitting police to check licences and registration.
Make suspicion-less stopping unlawful
Parliament should remove any authorisation police have to intercept vehicles without reasonable grounds to suspect a person has committed an offence.
Make racial profiling explicitly unlawful
Victoria Police have stated in Equality is Not the Same that they have ‘zero tolerance for any form of racial profiling’. While Federal anti-discrimination legislation makes, in general terms, racial profiling unlawful, at the State level there is considerable uncertainty. To clarify the position, Parliament should clearly define and make unlawful racial profiling in all legislation that creates powers for police as well as anti-discrimination legislation. A good definition of racial profiling set out by the Human Rights Commission in Quebec in its “Racial Profiling Context and Definition” report is as follows:
Racial profiling is any action taken by one or more people in authority with respect to a person or group of persons, for reasons of safety, security or public order, that is based on actual or presumed membership in a group defined by race, colour, ethnic or national origin or religion, without factual grounds or reasonable suspicion, that results in the person or group being exposed to differential treatment or scrutiny. Racial profiling includes any action by a person in a situation of authority who applies a measure in a disproportionate way to certain segments of the population on the basis, in particular, of their racial, ethnic, national or religious background, whether actual or presumed.
Reverse the onus of proof
Because of the difficulties of proving racial profiling in individual cases, it is essential that the legislature reverse the onus of proof so that a police officer has the burden of proving that a stop was not racially motivated. That is the officer must prove that they had reasonable grounds to suspect an offence or otherwise conduct a stop.
Authorise police to check licences at random breath-testing stations
Random breath testing is explicitly authorised in the Act. Most commonly, police conduct random breath testing at roadside stations where vehicles are pulled over in organised batches in a truly random (but not arbitrary) manner. It is possible that if police chose to position their stations in highly racialised communities, such as a housing estate, this could amount to racial profiling. However, the general practice is to position random breath test stations on major roads. If Parliament wished to provide police with a licence inspection power of drivers who were not suspected of committing offences, it could do so by explicitly authorising police to check licences of people pulled over for random breath testing. Because the process is not subject to officer discretion, but is systematic and controlled, racial profiling is eliminated from the process. Random registration checks are already possible through the mobile registration checking capacity in police patrol cars.
In order to monitor the extent of racial profiling, it is essential that Parliament legislate to ensure police collect data on the reason for the stop, the effectiveness of the stop (i.e. whether it lead to an arrest/infringement or warning) and the racial background of the person stopped (as it appears to police). Failure to collect data should attract a penalty similar to the penalty applying to police who fail to provide their name and rank to a person who has requested it under s 246AA of the Crimes Act 1958. Failure to collect data should also undermine a defence to any allegation of individual discrimination, that is, the data record should be treated as the central evidence to justify the stop. While data collection is currently the subject of a Victoria Police trial arising from the Equality is Not the Same report, leaving such an important mechanism in the hands of police does not sufficiently address the States obligation under the ICCPR to eliminate discrimination.
There are other legislative mechanisms that are also required to eliminate racial profiling. For example creating an independent complaint investigation system, a racial profiling tort and amending the services definition in section 4 of the Equal Opportunity Act 2010 (Vic) to ensure it applies to people under investigation as well as victims of crime are all important steps. Each of these reforms will increase the transparency, accountability, effectiveness and community support for policing as well as working towards the elimination of racial discrimination.
The full decision can be found here.
Additional commentary provided by Tamar Hopkins, the Principal Lawyer at Flemington & Kensington Community Legal Centre.