DPP v Kaba: Our freedom of movement, liberty, and right to not be racially profiled

By Fia Walker
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Background

One sunny afternoon, Magnus Kaba (“Kaba”) and a friend were driving along the streets of Flemington when two uniformed patrol police officers stopped their car for a random check of licence and car registration. Section 59(1) of the Road Safety Act (Vic) 1986 (“RSA”) states that the driver of a motor vehicle must stop, obey directions, and produce their licence documents when requested by police or other authorised officers. Non-compliance is a summary (less serious) offence.

The driver of the car complied with the police request and gave them permission to search their car. After considerable delay, Kaba, who was a passenger in the car, became upset and exercised his liberty by walking away from the scene,. A police officer chased after him and repeatedly requested that he provide his name and address. He refused.

This chain of events led Kaba to be charged with various summary offences. Kaba pleaded not guilty to all those charges, arguing that section 59(1) of the RSA does not confer power to police to randomly stop motor vehicles. He argued that the police officers’ conduct was unlawful and improper; therefore all evidence against him must fall.

Voir Dire at the Magistrates’ Court

A Voir Dire is a mini trial in which a judge or judicial officer determines whether a witness or a piece of evidence is admissible or not on discretionary grounds (the power to make a particular decision). Magistrate Reynolds exercised his discretion to interpret section 59(1) of the RSA and dismissed the police evidence against Kaba on two grounds.

First, he found that the police have no power under section 59(1) of the RSA to randomly stop motor vehicles. The police conduct was legislatively unauthorised; therefore it was unlawful and improper.

Second, as a consequence, all evidence against Kaba was inadmissible according to section 138(1) of the Evidence Act 2008 (Vic). The Magistrate also ruled that the police conduct breached Kaba’s right to freedom of movement, liberty and privacy guaranteed by the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“the Charter”) and Australia’s obligations under the International Covenant on Civil and Political Rights (ICCPR). The Director of Public Prosecution (DPP) sought judicial review against this ruling.

Judicial Review at the Supreme Court of Victoria

The DPP sought judicial review on two grounds: (1) section 59(1) of the RSA confers power on the police to stop motor vehicles in respect of license status (error of law on the face of the record), therefore their conduct is lawful; and (2) that the Magistrate had made an incorrect interpretation that lead to the inadmissibility of the evidence obtained by the police officers (a jurisdictional error).

Key findings from DPP v Kaba

  • S 59(1) of RSA confers power on police officers to conduct random stops of motor vehicles in respect to licence checks for the administration of the Road Safety Act.
  • However, if the power is being used selectively to target a particular race or ethnicity, it may amount to an abuse of power and breach of the Charter.
  • The police have ordinary powers to ask questions to prevent crime and protect the community. However, this power is limited to the extent that it does not interfere with individual rights of liberty, privacy and freedom of movement.
  • The reasonable person test applies when judging the limit of police interference to these rights; that is, if it can objectively be said that individuals are made to feel that he or she cannot choose to cease co-operating or leave in those circumstances, the police may have breached their rights.
  • Magistrate Reynolds was correct in deciding that under section 138(1) of the Evidence Act the police questioning was improper and breached Kaba’s rights to freedom of movement, liberty and privacy.

Analysis

Justice Bell’s judgment on DPP v Kaba may be seen as a solid approach toward a human rights-based statutory interpretation. It not only limits the power of public authorities to be more compatible with human rights principles but also strengthens the development of Australian human rights jurisprudence.

The Victorian Equal Opportunity and Human Rights Commission comments:

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.

This matter has now been referred back to the Magistrates’ Court for re-consideration. The legal proceeding is scheduled for later in 2015.

Nonetheless, in my view, Justice Bell failed to take into consideration Kaba’s personal circumstances and the history of institutional racism committed by Victoria Police. Kaba is a young African-Australian, a person of colour, who is more likely to be stopped by police officers compared to his white-Australian counterparts.

According to Tamar Hopkins of the Flemington-Kensington Community Legal Centre, “young African Australian men are 2.5 times more likely to be stopped arbitrarily and have field contacts with police than others in the North Melbourne/Flemington area, even though they commit statistically less crime”.

Conclusion

Although the police have been found to have a legislative power to randomly stop motor vehicles according to section 59(1) of the RSA, this power is not unlimited. A proper and accountable mechanism must be put in place to monitor the use of police power under this section.

The “Stop & Search Receipting” mechanism may be a good place to start. It aims to prevent arbitrary and racially discriminatory stops and searches by police, as well as assisting in tracking and documenting any racial disparities in stop and search patterns. A trial of the receipting program will start in limited suburbs of Mooney Valley, Dandenong, and a regional area this year.

Fia Hamid-Walker is completing an Arts/Law degree at Monash University and a law reform internship with the Flemington-Kensington Community Legal Centre.

Feature image: Faramarz Hashemi/ Flickr 

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