This case raises important issues about police powers and human rights.
The Supreme Court decision finds that police acted incompatibly with the human rights to privacy and freedom of movement when they coercively questioned a person during a vehicle stop, when they had no legal authority to do so.
The decision highlights the obligation on Victoria Police to act compatibly with human rights in the performance of its duties and exercise of their powers. To fulfil this obligation police must ensure they have legal authority for all conduct.
The Supreme Court decision overturns a magistrate’s ruling in 2013 that police have no statutory power to carry out random stop and checks of vehicles. However, the Supreme Court agreed with the magistrate’s finding that coercive questioning by police when requesting the name and address of a person who is stopped can amount to a breach of the human rights to freedom of movement and privacy (and that in this case it did).
Mr Kaba, an Australian man born on the Ivory Coast, was a passenger in a car subject to a random stop and licence and registration check by two uniformed police officers on mobile patrol in Ascot Vale in 2012. Mr Kaba walked away from the car and the police, without suspecting Mr Kaba of any wrongdoing, repeatedly pressed him for his name and address. Mr Kaba refused the requests using offensive language and protested about racist harassment and was arrested for using offensive language and failing to state his name and address. He was led handcuffed to the police vehicle, allegedly assaulting one of the officers.
At the hearing of the charges against Mr Kaba, the magistrate exercised his discretion in section 138(1) of the Evidence Act 2008 not to admit the evidence of offending on the grounds that it was the result of unlawful and improper conduct by the police in carrying out a vehicle check. The magistrate found the police had no power under the Road Safety Act 1986 to carry out the check and had breached the driver’s and Mr Kaba’s rights to freedom of movement and privacy protected by the Charter of Human Rights and Responsibilities Act 2006 (Charter).
The police applied for judicial review of the magistrate’s ruling in the Supreme Court.
The Commission intervened under section 40 of the Charter to make submissions on the interpretation of the Road Safety Act compatibly with Charter rights and the obligations of police as a public authority under the Charter. The Commission submitted:
- section 59(1) of the Road Safety Act does not give police an unfettered power to stop motorists because such a power amounted to an unjustified limit on the right to freedom of movement, there being less restrictive means to achieve road safety,
- in this case, the random traffic stop breached Mr Kaba’s right to freedom of movement (in section 12 of the Charter) and the repeated demands for identification breached Mr Kaba’s right to privacy (in section 13(a) of the Charter), and
- both these breaches of rights were unlawful under section 38 of the Charter and warranted the exclusion of the evidence under section 138(1) of the Evidence Act.
Justice Bell found that the magistrate erred in interpreting section 59(1) of the Road Safety Act and found that police do have a power of random stop and check under that provision. However, he found that the magistrate was correct to find that the police demands for Mr Kaba’s name without authority breached Mr Kaba’s rights to privacy and freedom of movement.
Because the magistrate’s decision not to admit the evidence was based on both findings, one of which Justice Bell considered to be in error, Justice Bell quashed the decision and directed that the case be returned to the magistrate for reconsideration.
When will police questioning breach human rights?
The decision confirms that the lawful power of police to ask questions is an important means by which police fulfil their duty to prevent crime and protect the community.
Up to a certain point, questioning will not interfere with rights and is a legitimate part of effective law enforcement. However, the line is crossed and questioning will interfere with rights when it becomes ‘coercive questioning’, that is ‘when the individual is made to feel that he or she cannot choose to cease co-operating or leave, judged by reference to how a reasonable person would feel in the circumstances’ .
Whether questioning is voluntary or coercive will depend on the imbalance of power between the police and ordinary members of the community, including the characteristics of the individual, such as age or minority status. Coercive questioning will breach human rights unless it is authorised by law.
Scope of section 59(1) of the Road Safety Act
Section 59(1) expressly states a duty of a driver to stop a vehicle when requested or signalled to do so, to produce a licence, and state a name and address when requested to do so. However it does not expressly confer a power on police to make requests. The issue for the Court was whether section 59(1) includes an implied power for police.. The Commission submitted that section 59(1) only applies where police have an express power to stop and request under some other source of power.
Justice Bell considered that to determine the correct interpretation, it was necessary to consider Australia’s human rights obligations and section 32 of the Charter Taking into account common law rights and freedoms, the human rights in the Charter and relevant international cases, Justice Bell concludes that section 59(1) confers, ‘by necessary implication’, both a duty on drivers and a power on police to stop and request information.
When will evidence be excluded because it was obtained in breach of human rights?
Under section 138(1) of the Evidence Act 2008, courts have a discretion to exclude evidence that was obtained improperly or in breach of an Australian law.
The Supreme Court decision is clear where police breach their obligation in section 38(1) of the Charter to act compatibly with and give proper consideration to human rights, this will be an important consideration when deciding whether to exclude evidence under the Evidence Act. Breaches of the Charter are a breach of the law for the purposes of section 138(1) and are improper for being ‘inconsistent with the standards expected in our society of law enforcement officers’ . The gravity of the human rights violation will be relevant in assessing whether to admit the evidence.
In this case, while there was no physical interference with Mr Kaba and the interference with his human rights was of short duration, the police human rights breach was not simply ‘a brief and innocuous request for Mr Kaba’s name and address’:
‘He was not suspected of wrongdoing. He was free to go and he sought to go. He was then coercively asked for his name and details. Police could see that he was angry. They were trained to deal with such situations and made professional choices. Police could easily have let Mr Kaba go on his way and they should have done so. Whether he would give them his name and details was his private business but they pressed him well over the line of permissible questioning.’ 
The magistrate will now consider whether to admit the evidence, taking into account the finding that the police questioning was in breach of Mr Kaba’s rights.
A copy of the Commission's submissions in the case are available for download below.
View the Supreme Court’s decision: DPP v Kaba  VSC 52
Further background on the case is available on Flemington and Kensington Community Legal Centre’s Police Accountability Project website.