Director of Public Prosecutions v Kaba

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST S CI 2012 03970

DIRECTOR OF PUBLIC PROSECUTIONS (ON BEHALF OF DAVID WATSON)	Plaintiff
v
MAGNUS KABA	First defendant
- and –
THE MAGISTRATES’ COURT OF VICTORIA	Second defendant

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JUDGE:	BELL J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 & 12 FEBRUARY, 7 NOVEMBER 2014
DATE OF JUDGMENT:	18 DECEMBER 2014 (revised 13 January 2015)
CASE MAY BE CITED AS:	DPP v Kaba
MEDIUM NEUTRAL CITATION:	[2014] VSC 52

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ADMINSTRATIVE LAW – magistrate’s decision that police had no statutory power of random traffic stop – exercise of discretion to exclude evidence of alleged street offences – whether judicially reviewable error – statutory interpretation – human rights – principle of consistency – principle of legality – principle of Charter-consistent interpretation – whether evidence improperly or unlawfully obtained – evidence, police powers and human rights - ‘liberty’, ‘freedom of movement’, ‘privacy’ – Road Safety Act 1986 (Vic) s 59(1), Evidence Act 2008 (Vic) s 138(1), (3), Charter of Human Rights and Responsibilities Act 2006 (Vic) s 38(1).

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APPEARANCES:	Counsel	Solicitors
For plaintiff	Mr P Kidd SC and Ms J Davidson	The Office of Public Prosecutions
For first defendant	Dr S Donaghue SC and Mr E Nekvapil and Mr C Tran	Flemington & Kensington Community Legal Centre
For second defendant	No appearance
For Victorian Equal Opportunity and Human Rights Commission (intervening)	Ms K Walker SC	Victorian Equal Opportunity and Human Rights Commission

TABLE OF CONTENTS

INTRODUCTION.............................................................................................................................. 1

APPLICATION FOR JUDICIAL REVIEW.................................................................................... 2

Grounds relied upon......................................................................................................................... 2
Rule against fragmentation.............................................................................................................. 3
Relief to be granted............................................................................................................................ 7

FINDINGS AND RULING OF MAGISTRATE........................................................................... 8

Criminal charges................................................................................................................................. 8
Findings on the evidence.................................................................................................................. 9
Ruling to exclude evidence............................................................................................................ 13

INDIVIDUAL RIGHTS AND FREEDOMS................................................................................ 16

Context............................................................................................................................................... 16
Common law..................................................................................................................................... 17

Foundational principles.................................................................................................... 17
Liberty................................................................................................................................. 27
Freedom of movement....................................................................................................... 28
Privacy................................................................................................................................ 30

ICCPR................................................................................................................................................. 33

State obligations................................................................................................................ 33
Liberty................................................................................................................................. 35
Freedom ofmovement...................................................................................................... 35
Privacy................................................................................................................................ 36

Charter................................................................................................................................................ 37

Scope of rights.................................................................................................................... 37
Liberty................................................................................................................................. 39
Freedom of movement....................................................................................................... 40
Privacy................................................................................................................................ 42

STATUTORY INTERPRETATION: PRINCIPLES................................................................... 48

Centrality of parliamentary intention.......................................................................................... 48
Principle of consistency.................................................................................................................. 50
Principle of legality.......................................................................................................................... 60

Content and rationale....................................................................................................... 60
Rights and freedoms covered........................................................................................... 66
Application......................................................................................................................... 72

Section 32(1) of Charter................................................................................................................... 79

STATUTORY INTERPRETATION: APPLICATION............................................................... 84

Legislative history............................................................................................................................ 84
Comparative analysis...................................................................................................................... 93

Australia............................................................................................................................. 93
United Kingdom................................................................................................................. 98
Canada.............................................................................................................................. 109

EXCLUSION OF UNLAWFULLY OBTAINED EVIDENCE: PRINCIPLES...................... 119

Victoria............................................................................................................................................. 119
Comparable jurisdictions............................................................................................................. 130

New Zealand.................................................................................................................... 130
Canada.............................................................................................................................. 137
United States of America................................................................................................ 150
United Kingdom (and Europe)....................................................................................... 159

EXCLUSION OF UNLAWFULLY OBTAINED EVIDENCE: APPLICATION................... 163

General issues................................................................................................................................. 163
Sequence of events........................................................................................................................ 164
Magistrate’s decision..................................................................................................................... 165
Improper and unlawful police conduct..................................................................................... 166

Common law.................................................................................................................... 166
ICCPR............................................................................................................................... 167
Charter (s 38(1))................................................................................................................ 168

Evidence obtained in consequence............................................................................................ 169
Discretion not to admit evidence................................................................................................. 171

CONCLUSION............................................................................................................................... 173

HIS HONOUR:

INTRODUCTION

Two young black African men were minding their own business when driving in the streets of Flemington one afternoon. Two uniformed police officers on mobile patrol stopped the driver for a random check of his licence and the registration of the vehicle. They also obtained his permission to search the vehicle.

Magnus Kaba, the passenger, expressed indignant anger over the delay, left the vehicle and exercised the liberty, which we all take for granted, to walk along the footpath towards the nearby flats. While he was doing so and without suspicion of wrongdoing, the police repeatedly pressed him for his name and address, which he abusively refused to provide, protesting vehemently about racist harassment.

When Mr Kaba’s abuse worsened considerably, one of the officers arrested him for using offensive language. Led handcuffed to the police vehicle, he allegedly assaulted that officer and committed other street offences for which he was charged.

On the hearing of the charges before Duncan Reynolds, Magistrate, counsel for Mr Kaba objected to the evidence of the police under s 138(1) of the Evidence Act 2008 (Vic) upon the ground that the criminal charges were the result of their unlawful and improper conduct in carrying out a random licence check for which they had no power under the Road Safety Act 1986 (Vic) or otherwise and which breached the driver’s and Mr Kaba’s right to freedom of movement under the Charter of Human Rights and Responsibilities Act 2006 (Vic). It was also submitted that demanding Mr Kaba’s name and address was contrary to his right to privacy under the Charter.

His Honour heard and determined these objections at a preliminary hearing. Ruling against the police on both grounds, his Honour exercised his discretion to refuse to admit their evidence, causing the prosecution to collapse. The trial was adjourned part-heard so that the prosecution could consider its position. This application for judicial review of the magistrate’s ruling, which raises important issues about police powers, exclusion of evidence and human rights, is the result.

APPLICATION FOR JUDICIAL REVIEW
Grounds relied upon

By originating motion, the Director has made an application under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) seeking an order in the nature of certiorari quashing the ruling of the magistrate under s 138(1) of the Evidence Act not to admit the evidence of the police, an order in the nature of mandamus compelling his Honour to admit the excluded evidence, a declaration that s 59(1) of the Road Safety Act confers a power of stop and request upon members of the police force and certain procedural and other orders.

The grounds of the application are that, in making the ruling, his Honour committed jurisdictional errors and errors of law upon the face of the record.[1] On examination, these grounds raise two main legal issues.
[1]In summary, the grounds were: (a) determining that the officers had no power, either at common law or under to s 59 of the Road Safety Act, to stop the vehicle; (b) determining that there was no lawful power for the police officers to request the driver of the vehicle to consent to a search of the vehicle; (c) determining that there was no lawful power for the police to ask Mr Kaba for his identification when he left the vehicle and proceeded to move off; (d) determining that the actions of Senior Constable Randall and Constable Andrews in stopping the vehicle unjustifiably breached the right to freedom of movement of Mr Kaba and the driver of the vehicle and subjected them to arbitrary detention, contrary to the provisions of s 21(2) of the Charter and of the International Covenant on Civil and Political Rights (opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)) (‘ICCPR’); (e) determining that Constable Andrews’ request of the driver of the vehicle to consent to a search of the vehicle contravened Mr Kaba’s right to privacy in s 13 of the Charter; (f) determining that the requests by police for Mr Kaba’s identification when he left the vehicle and proceeded to move off contravened his right to privacy in s 13 of the Charter and of the ICCPR; (g) determining that the police officers did not give proper consideration to Mr Kaba’s rights under the Charter; (h) determining that the entirety of the evidence of Senior Constable Randall and Constable Andrews as Mr Kaba’s conduct, including criminal conduct after his arrest, was inadmissible because that conduct was a consequence of the unlawful conduct of police prior to his arrest; and (i) exercising the discretion under s 138 of the Evidence Act when, on no reasonable view, could the impugned conduct of the police justify exclusion of all of the evidence of Senior Constable Randall and Constable Andrews.

The first legal issue is whether the magistrate erred in law upon the face of the record in concluding that the police had acted unlawfully and improperly because s 59(1) of the Road Safety Act did not confer any power on them to undertake random checks in respect of the licence status of drivers and motor vehicles. It was agreed between the parties that this is a question of pure law and is raised upon the face of the record, being the written ruling of the magistrate. For reasons which I will later give, I have concluded that the magistrate did so err.

The second legal issue is whether the magistrate erred in law upon the face of the record, or committed a jurisdictional error, by exercising his discretion not admit the evidence upon the basis that the police had acted unlawfully or improperly by breaching Mr Kaba’s right to privacy under the Charter and the ICCPR. As I will later explain, his Honour did not so err in law or jurisdiction because his approach to the interpretation and application of the Charter (and the ICCPR) was correct.

Before giving reasons for these conclusions, it is necessary to consider the rules governing the making of orders by way of judicial review in relation to evidentiary rulings in part–heard criminal proceedings.

Rule against fragmentation

As submitted on behalf of Mr Kaba and acknowledged on behalf of the Director, it is highly unusual, and usually highly undesirable, for this court to intervene in part-heard criminal proceedings in another court. At common law there is a strong rule, subject only to limited exceptions, against the fragmentation of criminal proceedings by the grant of prerogative relief, such as prohibition or certiorari. Thus, in Sankey v Whitlam,[2] Gibbs ACJ criticised the practice of making declaratory orders as to matters of criminal evidence or procedure. His Honour said that ‘the circumstances must be most exceptional to warrant the grant of relief’[3] and that ‘[o]nce criminal proceedings have begun they should be allowed to follow their ordinary course’ unless ‘for some special reason it is necessary in the interests of justice’ to grant relief.[4]
[2](1978) 142 CLR 1, 25-6 (‘Sankey’).
[3]Ibid 25.
[4]Ibid 26.

In R v Judge Mullaly[5] the prosecution (through the Attorney-General) sought judicial review in respect of an evidentiary exclusion ruling made in the exercise of the discretion of a judge of the County Court. The same rule against fragmentation of criminal proceedings was applied. Brooking J said ‘there is a good deal of weighty authority for the view that in general the erroneous reception or rejection of evidence is no ground for a prohibition’[6] and also referred to cases in which the same rule had been applied in relation to certiorari.[7] His Honour expressed the ‘strong view’ that such remedies were not available with respect to evidentiary rulings[8] and would in any event be refused on discretionary grounds,[9] even where the ruling was fatal to a party’s case.[10] When refusing special leave to appeal in R v Iarlano,[11] Gibbs CJ, Murphy, Wilson, Brennan and Dawson JJ repeated the rule that

it is highly undesirable to interrupt the ordinary course of criminal proceedings by applications for leave to appeal or prerogative relief for the purpose of challenging rulings on questions of admissibility of evidence.[12]

Examples of the application of this well-established rule include R ex rel City of Fitzroy v Casey,[13] Ex parte Alldritt,[14] Ex parte Buzzacott; Re Burns,[15] Ex parte Ball; Re Tanner,[16] Ex parte Dowsett; Re Macauly,[17] Ex parte Crothers; Re Anderson v Commissioner for Motor Transport[18] and R v Tennant; Ex parte Woods.[19]

[5][1984] VR 745.

[6]Ibid 748.

[7]Ibid 749.

[8]Ibid 748.

[9]Ibid 750.

[10]Ibid.

[11](1983) 151 CLR 678.

[12]Ibid 680.

[13](1897) 23 VLR 495, 498 (Holroyd J).

[14](1898) 15 WN(NSW) 43, 44 (Stephen J), 45 (Cohen J).

[15](1920) 20 SR(NSW) 144, 146-49 (Cullen CJ, Gordon and Ferguson JJ agreeing).

[16][1960] SR(NSW) 465, 466 (Street CJ, Ferguson and Hardie JJ agreeing).

[17](1943) 60 WN(NSW) 40, 41 (Roper J).

[18](1961) 78 WN(NSW) 316, 321 (Kinsella J).

[19][1962] Qd R 241, 255 (Warstall J).

It was held in Kirk v Industrial Court of New South Wales[20] that, for the purposes of prerogative relief such as prohibition and certiorari, there is in Australia a distinction between jurisdictional and non-jurisdictional error. Prerogative relief is only available with respect to the former.[21] It was established in Craig v South Australia that an inferior court did not ‘ordinarily’ commit a jurisdictional error by deciding questions of law and fact which fell within its jurisdiction, including the ‘identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence’.[22]
[20](2010) 239 CLR 531, 571-2 [66] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (‘Kirk’); see also Craig v South Australia (1995) 184 CLR 163, 178-9 (Brennan, Deane, Toohey, Gaudron and McHugh JJ) (‘Craig’).
[21]See Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 141 [163] (Hayne J).
[22](1995) 184 CLR 163, 179-80 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); approved in Kirk (2010) 239 CLR 531, 572 [67] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

On the other hand, in Kirk French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that it was a jurisdictional error for the Industrial Court to permit the accused to be called as a voluntary witness for the prosecution.[23] Moreover, Craig established[24] and Kirk confirmed[25] that judicial review was available with respect to decisions of inferior courts vitiated by error of law on the face of the record.
[23](2010) 239 CLR 531, 575 [75]-[76] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); see also 565 [53] (‘It may be that some departures from the rules of evidence would not warrant the grant of relief in the nature of certiorari’) (emphasis added).
[24](1995) 184 CLR 163, 175-6, 180 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
[25](2010) 239 CLR 531, 575-8 [78]-[90] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ)

It was decided in Craig[26] that
[26](1995) 184 CLR 163, 181 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

in the absence of some statutory provision to the contrary, the record of an inferior court for the purposes of certiorari does not ordinarily include the transcript, the exhibits or the reasons for decision.[27]

No application to reconsider this decision was made in Kirk.[28] In Victoria, there is a relevant statutory provision. Section 10 of the Administrative Law Act 1978 (Vic) provides:
Any statement by a tribunal or inferior court whether made orally or in writing … of its reasons for a decision shall be taken to form part of the decision and accordingly to be incorporated in the record.

As was held in Easwaralingam v Director of Public Prosecutions (Victoria),[29] the transcript of the hearing may be considered where this is necessary for the purpose of understanding the reasons in context. In the present case, it has been necessary to look at the transcript of the hearing before the magistrate in order to give context to and understand the written reasons. I refer to and set out the relevant passages below.

[27]See, in particular, R v District Court of Queensland Northern District; Ex parte Thompson (1968) 118 CLR 488, 495-6 (McTiernan J), 501-2 (Menzies J); Hockey v Yelland (1984) 157 CLR 124, 131 (Gibbs CJ), 142-3 (Wilson J); Public Service Board (NSW) v Osmond (1986) 159 CLR 656, 667 (Gibbs CJ, Wilson, Brennan and Dawson JJ concurring) (this footnote in original quotation).

[28](2010) 239 CLR 531, 577 [85] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[29](2010) 208 A Crim R 122, 127 [22] (Tate JA, Buchanan JA agreeing) (‘Easwaralingam’); followed in Green v Magistrates’ Court of Victoria [2011] VSC 584 (16 November 2011) [6] (Pagone J); Director of Public Prosecutions v Batich (2012) 226 A Crim R 118, 129 [40] (Bell J) (‘Batich’); O’Connor v County Court of Victoria [2014] VSC 295 (24 June 2014) [28]-[30] (Kaye J); McKenzie v Magistrates’ Court of Victoria [2013] VSC 2 (25 January 2013) [38], [46] (Sifris J). Special leave to appeal in Easwaralingam was refused: Easwaralingam v Director of Public Prosecutions [2011] HCASL 99 (7 June 2011) (Hayne and Crennan JJ).

Of course, even where ground of error of law on the face of the record is established, relief might be refused in the exercise of the court’s discretion because of the importance of the principle against fragmentation (see above).

An example of an exceptional case in which relief was granted in respect of the wrongful evidentiary ruling of a trial judge is Rozenes v Beljajev.[30] The ruling had the effect of excluding virtually all of the evidence of the prosecution. The application for judicial review was made by the Commonwealth and State Directors of Public Prosecution. The analogy with the present case will be obvious. Brooking, McDonald and Hansen JJ held that the way in which the trial judge exercised the discretion constituted an error of law. While not doubting the importance of the principle that ‘fragmentation [of judicial proceedings] should be avoided unless there are exceptional or special circumstances’,[31] their Honours held that such circumstances had been established. Those circumstances were that
[30][1995] 1 VR 533.
[31]Ibid 571.

the Crown wishes to call admissible evidence in a criminal trial and the judge has excluded it on the application of the defence, and in which no evidence has actually been heard and the impugned evidence may constitute the substantial body of evidence, if not the essence of the case, relied on by the Crown, with the effective result of denying to the Crown - and thereby the community - the trial which it requires.[32]
[32]Ibid 570.

Distinguishing those circumstances from standard evidentiary rulings of the kind mentioned by Gibbs ACJ in Sankey, Brooking, McDonald and Hansen JJ said:
There is a significant difference between this situation and a ruling on a point of evidence along the way in a committal or a trial … Such a ruling would be part of a trial conducted in accordance with established principles.[33]

Their Honours decided that relief would be granted because
the plaintiffs have been affected by a ruling given by a judge at a preliminary stage, without any evidence having been given and on a highly contentious basis in law and fact which could have serious future consequences, both in the instant case and in the administration of justice generally.[34]

The submission of counsel for the Director was that the present case falls into the same category. I agree.

[33]Ibid.

[34]Ibid 571.

Despite the importance of the principle against fragmentation, this is one of those exceptional cases in which judicial review should be granted upon the ground that the magistrate’s ruling to exclude the evidence constituted an error of law on the face of the record and the discretion of the court should be exercised in favour of granting relief. The ruling of the magistrate, if upheld, will cause the complete collapse of the prosecution case.

Relief to be granted

As I have explained, my conclusion in relation to the two critical legal issues is that the Director has established that the magistrate’s ruling was based upon an error of law on the face of the record in relation to the interpretation of s 59(1) of the Road Safety Act. However, the Director has not established that the magistrate committed any jurisdictional error in relation to his Honour’s interpretation and application of the Charter.

If the magistrate’s ruling in relation to the exercise of the discretion in s 138(1) of the Evidence Act not to admit the evidence had clearly been based independently upon each of these two legal grounds, it may have been appropriate to allow it to stand. However, that is not clear. The court should quash the ruling by reason of the error made with respect to the interpretation of s 59(1). His Honour should then be given the opportunity to reconsider the admission or exclusion of the evidence because the conduct of the Senior Constable Randall was unlawful or improper by reason of the breach of Mr Kaba’s rights under the Charter (and the ICCPR) which occurred.

In the circumstances, the ruling should be quashed because his Honour committed an error of law upon the face of the record in relation to the interpretation of s 59(1) of the Road Safety Act and his Honour should reconsider the exercise of his discretion to exclude the evidence under s 138 of the Evidence Act upon the ground, which I have upheld, that Senior Constable Randall breached Mr Kaba’s rights under the Charter (and the ICCPR). There will be orders to that effect.

FINDINGS AND RULING OF MAGISTRATE
Criminal charges

I will begin by explaining in more detail the charges brought against Mr Kaba and the course of the hearing before his Honour.

Arising out of events that occurred at Flemington on 19 April 2012, eight charges[35] were brought against Mr Kaba. The facts allegedly giving rise to the charges all occurred after the driver of the car in which Mr Kaba was travelling had been stopped and questioned and police had sought Mr Kaba’s name. The hearing of the charges commenced in the Magistrates’ Court at Melbourne on 9 April 2013. Mr Kaba pleaded not guilty to all of the charges.
[35]The eight charges were that Mr Kaba: (1) without lawful excuse, intentionally caused injury to Senior Constable Randall (under s 18 of the Crimes Act 1958 (Vic), this is an indictable offence with a maximum penalty of imprisonment for 10 years); (2) without lawful excuse, recklessly caused injury to Senior Constable Randall (under s 18 of the Crimes Act, this is an indictable offence with a maximum penalty of imprisonment for five years); (3) assaulted Senior Constable Randall, a member of the police in the execution of his duty (under to s 31(1)(b) of the Crimes Act this is an indictable offence with a maximum penalty of imprisonment for five years); (4) used indecent language in a public place (under s 17(1)(c) of the Summary Offences Act 1966 (Vic) this is a summary offence with a maximum penalty for a first offence of a fine of 10 penalty units or imprisonment for two months); (5) behaved in an offensive manner in a public place (under s 17(1)(d) of the Summary Offences Act this is a summary offence with a maximum penalty for a first offence of fine of 10 penalty units or imprisonment for 2 months); (6) wilfully and obscenely exposed a genital area of his body in a public place (under s 19 of the Summary Offences Act this is a summary offence with a maximum penalty of imprisonment for two years); (7) after Senior Constable Randall believed on reasonable grounds that Mr Kaba had committed an offence, namely using indecent language in a public place, and that was explained to him, he refused to state his name and address (under s 456AA(3)(a) of the Crimes Act this is a summary offence with a maximum penalty of a fine of 5 penalty units); and (8) assaulted Senior Constable Randall in indecent circumstances while being aware that Senior Constable Randall was not consenting (under s 39(1) of the Crimes Act this is an indictable offence with a maximum penalty of imprisonment for 10 years).

The prosecution proposed to call witnesses of whom only Senior Constable Randall and Constable Andrews could give evidence of the alleged events. The defence objected to the admissibility of their evidence under s 138 of the Evidence Act and a voir dire (preliminary hearing) was conducted for the purpose of ruling upon this objection. It was agreed that Senior Constable Randall and Constable Andrews would give their evidence in full but that counsel for Mr Kaba would cross-examine them only in relation to the objection to the admissibility of their evidence. Only the two officers gave evidence for the prosecution. No evidence was led on behalf of the defence.

At the conclusion of the voir dire, his Honour reserved his decision. After an exchange of written submissions, his Honour ruled on 20 June 2013 that the evidence of the two police officers would be excluded. The hearing was adjourned pending the determination of the application for judicial review which the prosecution now makes to this court.

It is clear that the factual foundation of the charges brought against Mr Kaba depends entirely upon the evidence of the two police witnesses. If their evidence was properly excluded, the prosecution will have to withdraw the charges or produce no evidence of the alleged facts in which case the charges will inevitably be dismissed.

Findings on the evidence

In the ruling, his Honour found that, on the evidence of the two police officers, the case against Mr Kaba was that the officers were on patrol in their police vehicle on 19 April 2012. They were engaging in the routine and random interception of motor vehicles primarily to check the driver’s licence of the driver, registration of the vehicle and whether the driver was the subject of any outstanding warrants.[36] They were not equipped with a mobile data terminal which disclosed information about a vehicle upon entering its registration number. Before requiring drivers to stop, the officers had no information about the status of the registration of the vehicle, whether the driver had a valid driver’s licence and whether the occupants were associated with any breach of the road traffic laws. Their focus was upon intercepting an adequate quota of vehicles during their shift.
[36]The Director submitted that the evidence before his Honour was that the sole or at least primary purpose of the interception was to check the licence of the driver and the registration of the vehicle but nothing turns on this.

The Mazda in which Mr Kaba was a passenger was intercepted at about 1.50 pm in Portal Street, Flemington. Constable Andrews was driving the police vehicle. While Senior Constable Randall remained in the passenger seat, Constable Andrews approached the Mazda and explained to the driver that he was undertaking a routine licence and vehicle check. On that constable’s request, the driver produced a current Victorian licence and he voluntarily remained in the vehicle while checks were carried out.

Constable Andrews walked to the front of the Mazda to check the expiry date of its registration label. Speaking through the open window of the front passenger door, Mr Kaba asked:

How long was this fucking going to take? I have somewhere to be.

Constable Andrews went back to the police vehicle. In doing so, he observed a laptop computer protruding from underneath the rear of the driver’s seat and a pair of orange handled scissors on the back seat. A police radio inquiry revealed that at some time in the past marijuana had been found in the intercepted vehicle or in the possession of the then driver.

Constable Andrews returned to the Mazda. He asked the driver for consent to search the vehicle, which was given. The driver then got out of the vehicle. As it happened, the search was not undertaken.[37]
[37]I was told in submissions that in fact the search was undertaken but after the arrest of Mr Kaba and his alleged offending. This is not relevant in any way.

At this time, Senior Constable Randall was still in the passenger seat of the police vehicle. About the time when Constable Andrews asked the driver for permission to search the Mazda, Senior Constable Randall observed Mr Kaba leave the vehicle and walk towards some residential units in Portal Street. Constable Andrews asked Mr Kaba for his name or identification.[38] This is the first request. Mr Kaba’s response was:

Fuck off.

Constable Andrews again asked Mr Kaba for identification. This is the second request. His Honour’s ruling does not refer to the response but the evidence reveals that it was abusively refused.

[38] Senior Constable Randall’s evidence in chief in this respect was:

At about this point, Senior Constable Randall got out of the police vehicle and approached Mr Kaba. He said to him that he needed his name ‘to say I spoke to you’. This is the third request. In response, Mr Kaba said to Senior Constable Randall:

Go and get fucked cunt, I’ve done nothing wrong.

Senior Constable Randall then informed Mr Kaba that he had committed the offence of using offensive language. Mr Kaba said:

That’s fucking bullshit cunt, you are a racist.

Senior Constable Randall then asked Mr Kaba for his name and address. Mr Kaba said:
I don’t have to tell you anything, I’ve done nothing wrong.

Senior Constable Randall told Mr Kaba that, if he did not state his name and address, he would be placed under arrest ‘until I can confirm who you are’. Mr Kaba replied:
This is fucking bullshit, you’re just harassing me because I am black.

Senior Constable Randall then told Mr Kaba that he was under arrest for failing to state his name and address.

Mr Kaba was then asked to turn out his pockets. In response, he removed his T-shirt, dropped his trousers and underpants and exposed and grabbed hold of his penis, saying:

See I have got nothing on me.

Mr Kaba then pulled up his trousers.

After being cautioned, Mr Kaba was handcuffed with his hands behind his back. The two police officers walked him to the police sedan. As he was about to be placed in the back seat, from behind Mr Kaba grabbed and squeezed the testicles of Senior Constable Randall, who felt immense pain for 10-15 seconds.

His Honour said that it was on the basis of these alleged events that the eight charges were brought against Mr Kaba.

Ruling to exclude evidence

In ruling on the application for exclusion of the evidence under s 138(1) of the Evidence Act, his Honour said that he had to decide whether the evidence was obtained as a consequence of impropriety or illegality, as to which the onus lay on the defence, and whether the desirability of admission outweighed exclusion, as to which the onus was on the prosecution.

As to the first issue, his Honour determined that, in the circumstances, the police had no power to stop the Mazda or detain the driver or Mr Kaba to seek identification details. There was no such power at common law because neither were under suspicion of having committed an offence (until Mr Kaba allegedly used abusive language). There was no such power under s 59(1)(a) of the Road Safety Act because, properly interpreted, it imposed duties upon a driver to whom a lawful request had been made without actually authorising such a request.[39]
[39]In reaching that conclusion, his Honour took into account s 32(1) of the Charter (as explained by French CJ in Momcilovic v The Queen (2011) 245 CLR 1, 46) (‘Momcilovic’) and the principle of legality (as explained by Redlich JA in Mastwyk v DPP (2010) 27 VR 92, 107 (‘Mastwyk’)).

In relation to human rights, his Honour referred to s 38(1) of the Charter and the obligations of members of Victoria Police as public authorities to act consistently with human rights. He accepted Mr Kaba’s submission that, in stopping the Mazda, the police officers had acted unlawfully. Without common law or statutory power, their ‘conduct’ had:

unjustifiably breached the right to freedom of movement of [Mr] Kaba and the driver [contrary to s 12 of the Charter] and subjected them to arbitrary detention, contrary to the provisions of s 21(2) of the Charter.

His Honour then referred to the obligations of police officers under s 38(1), when making decisions, to give proper consideration to relevant human rights. He found that the concentration of the focus of the two officers was upon achieving their vehicle interception quota.

Moving to Mr Kaba, his Honour found that his arrest had occurred after he had left the Mazda and started to move off. At this point, he was ‘twice’ (his Honour earlier identified three requests) asked by police for identification. On neither occasion were the police purporting to act under s 456AA of the Crimes Act. His Honour accepted the submission of the defence that these requests ‘were unlawful and improper and contravened [Mr] Kaba’s right, protected by the terms of s 13(a) of the Charter, not to have his privacy interfered with’.

His Honour found that Mr Kaba’s ultimate arrest was lawful under s 456AA. By then, Senior Constable Randall reasonably believed that Mr Kaba had committed the offence of using offensive language and Mr Kaba and had refused the constable’s lawful request to state his name and address.

As to the second issue, his Honour said that it was necessary to determine whether the evidence relating to the eight charges, including those charges connected with the lawful arrest, should be excluded under s 138(1) of the Evidence Act because it was evidence of Mr Kaba’s conduct obtained in consequence of an impropriety or contravention of Australian law.[40] Assessing the evidence of that conduct, his Honour found:

·Mr Kaba was ‘angry that the vehicle had been stopped and detained while checks were undertaken by police’;
·his ‘demeanour and attitude did not change when he moved away from the vehicle and was requested to provide identification details and it was maintained following his arrest’; and
·his ‘conduct … from which the charges arise, was directly responsive to and a consequence of that police conduct prior to his arrest, which I have considered to be unlawful’.

[40]His Honour referred to DPP v Carr (2002) 127 A Crim R 151 (Smart AJ) (‘Carr’) and Robinett v Police (2000) 78 SASR 85 (Bleby J) (‘Robinett’).

In considering whether to admit or exclude the evidence, his Honour referred to the factors specified in s 138(3).[41] In balancing the desirability of admission against exclusion, his Honour said:

·he was unaware whether there were other prosecution witnesses to Mr Kaba’s alleged conduct (before me, it was clear that there was not) but found that the evidence of Senior Constable Randall and Constable Andrews had ‘significant probative value and is important evidence in the proceeding’;

·while the alleged offences included indictable offences (which can be heard summarily), they were ‘of modest seriousness’; and
·referring to Bunning v Cross,[42] the conduct of the two police officers did not involve ‘overt defiance of the will of the legislature or calculated disregard of the common law’.

[41]His Honour referred to the principles expounded by Whelan J in R v Mokbel (2012) 35 VR 156.

[42](1978) 141 CLR 54, 78 (Stephen and Aickin JJ) (‘Bunning’).

On the side of the evidence being excluded, his Honour said:

·the police had both engaged in ‘stopping the vehicle without … lawful justification, detaining the occupants’ and in asking ‘Kaba for his identification particulars [in] breach [of] rights recognised by the International Covenant on Civil and Political Rights’;[43] and
·the police had done so ‘without giving proper consideration as to whether acting in the manner they did interfered with the relevant human rights’ of Mr Kaba.

[43]The ICCPR is specified in s 138(3)(f) of the Evidence Act (see below).

His Honour concluded that, in the exercise of his discretion under s 138, the evidence of Senior Constable Randall and Constable Andrews was ‘inadmissible’ and would be excluded.

INDIVIDUAL RIGHTS AND FREEDOMS
Context

We have just seen the decision of the magistrate and his Honour’s findings and reasons. It is now necessary to determine the two legal issues that arise, namely whether the magistrate erred in law in deciding that, under s 59(1) of the Road Safety Act, police had no power randomly to stop the driver and whether his Honour properly exercised the discretion in s 138(1) of the Evidence Act to refuse to admit the police evidence.

In order to determine the first of these issues and address the submissions that were made on behalf of the parties, it is necessary to identify and apply the relevant principles of statutory interpretation. That will be done in the next section of this judgment. For reasons that will become clear, in my view, this involves consideration of the protection afforded to individual rights and freedoms under the common law, international law and the Charter. By way of foundation for the later analysis in this judgment, it is also convenient here to identify the scope of those human rights under the ICCPR and the Charter that are engaged and relevant to the issues of statutory interpretation that arise. It is also convenient to deal with the principles governing the limitation of human rights.

In order to determine the second of these issues and address the submissions of the parties, it is necessary to identify the scope of the human rights under the ICCPR and the Charter that are engaged and relevant to the issue of the exercise of the magistrate’s discretion not to admit the police evidence. That too is done here.

I will begin with the common law.

Common law
Foundational principles

Deep in the philosophical underpinning of the common law[44] lies the fundamental notion that rights and freedoms inhere naturally in all individuals as an attribute of their humanity. Blackstone declared that ‘rights and liberties [are] our birthright to enjoy entire’, unless constrained by law.[45] It is considered that these ‘traditional civil and political liberties, like liberty of the person and freedom of speech’ are not ‘solely residual’ but have ‘independent and intrinsic weight’.[46] So, held Black CJ, French and Weinberg JJ in Minister for Immigration and Citizenship v Haneef,[47] ‘[f]reedom is not merely left over when the law is exhausted’. As I pointed out in Antunovic v Dawson,[48] it is because everybody’s individual liberty is presumed and protected that the law of habeas corpus requires any restraint thereon to be lawfully established.
[44] The rights and freedoms protected by the common law form part of the setting in which the Charter was enacted. The Charter does not detract from them in any way. Indeed, s 5 makes clear that rights or freedoms recognised by law but not by the Charter are not thereby abrogated or limited.
[45]William Blackstone, Commentaries on the Laws of England (The University of Chicago Press, first published 1765, 1979 ed) vol 1, 140.
[46]T R S Allan, ‘The Common Law of the Constitution: Fundamental Rights and First Principles’ in Cheryl Saunders (ed), Courts of Final Jurisdiction – The Mason Court in Australia (Federation Press, 1996) 146, 148.
[47](2007) 163 FCR 414, 444 [113] (‘Haneef’).
[48](2010) 30 VR 355, 359 [9] (‘Antunovic’). It is the same with the tort of false imprisonment once the interference with liberty is established: Watson v Marshall and Cade (1971) 124 CLR 621, 626 (Walsh J).

Certain early decisions of the English courts gave common law effect to these inherent rights and freedoms and helped to lay the foundation for human rights in the modern sense. Two may be mentioned. In Entick v Carrington,[49] Lord Camden held that the state could not, without positive lawful authority, invade the privacy of a person’s property or papers. The principle thereby enforced finds expression in human rights charters, such as the Fourth Amendment of the Constitution of the United States of America, which provides that ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated’. In Somerset v Stewart,[50] Lord Mansfield decided that English law would, by habeas corpus, vindicate the right to personal freedom of an enslaved person because his detention was not supported by positive law. The principle thereby enforced finds expression, for example, in s 21(1) of the Charter, which provides that ‘[e]very person has the right to liberty and security’. It might be thought that the underlying interest protected by the principles applied in Entick and Somerset, as in human rights, is universal human dignity.
[49](1765) 19 St Tr 1030, 95 ER 807, 817-18 (‘Entick’).
[50](1772) Lofft 1, 98 ER 499, 510 (‘Somerset’).

The principle of inherency by which everybody naturally possesses rights and freedoms under the common law has a constitutional dimension. Dicey wrote that ‘freedom of person is not a special privilege but the outcome of the ordinary law of the land enforced by the courts’ and that individual rights constitute ‘the basis, not the result, of the law of the constitution’.[51] According to Lord Goff in Attorney-General v Guardian Newspapers [No 2],[52] it follows that, under the common law, ‘everybody is free to do anything, subject only to the provisions of the law’. Because liberty is valued so highly by the common law, it will be actionably violated by unlawful interferences of any kind. As was held by Black CJ, Sundberg and Weinberg JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri, ‘[e]ven apparently minor deprivations of liberty are viewed seriously by the common law’.[53] In that connection, their Honours referred to Watson v Marshall and Cade.[54] In that case, Walsh J awarded damages of $200 for the minor unauthorised detention of a mentally ill person, holding: ‘An interference with personal liberty even for a short period is not a trivial wrong. The injury to the plaintiff’s dignity and to his feelings can be taken into account.’[55]
[51]A V Dicey, Introduction to the Study of the Law of the Constitution (Macmillan & Co, first published 1885, 1959 ed) 207.
[52][1990] 1 AC 109, 283 (‘Guardian Newspapers [No 2]’).
[53](2003) 126 FCR 54, 77 [88] (‘Al Masri’).
[54](1971) 124 CLR 621.
[55]Ibid 632; appeal dismissed: Marshall v Watson (1972) 124 CLR 640 (Barwick CJ, McTiernan, Menzies and Stephen JJ).

As individual rights and freedoms constitute the basis of the constitution, the state can interfere therewith only to the extent permitted by law. This is explained in the current edition of Halsbury’s Laws of England:

Under the ancient traditions of the English common law, the freedom of the individual has been protected against infringements by public officials under the twin doctrines that every citizen is free to carry on any activity not expressly limited or prohibited by law, and that public officials may only interfere with a citizen’s personal liberty and property where authorised by the common law or by statute.[56]

Therefore, states De Smith’s Judicial Review, the powers of the individual and the state cannot be exactly acquainted:
While central government must be able to carry out incidental functions that are not in conflict with its statutory powers, it is wrong to equate the principle pertaining to private individuals — that they may do everything which is not specifically forbidden — with the powers of ministers, where the opposite is true. Any action they take must be justified by a law …[57]

[56]LexisNexis, Halsbury’s Laws of England, vol 20 (at 1 March 2014) Constitutional and Administrative Law, ‘1 Constitutional Fundamentals’ [31] (citations omitted).

[57]Lord Woolf et al, De Smith’s Judicial Review (Sweet & Maxwell, 7^th ed, 2013) 253 [5-025]. These principles were eloquently explained by Laws J in Re Somerset County Council; Ex parte Fewings [1991] 1 All ER 513, 524, with the later endorsement (and biblical embellishment) of Sir Thomas Bingham MR in R v Somerset County Council; Ex parte Fewings [1995] 1 WLR 1037, 1042.

As demonstrated by the judgment of Elias CJ in Hamed v The Queen,[58] the scope of police power is identified from this standpoint. The question was whether police had power to conduct video surveillance of private property. The Chief Justice commenced negatively answering that question by stating that ‘[p]ublic officials do not have freedom to act in any way they choose unless prohibited by law, as individual citizens do’.[59] Rather they ‘must point to lawful authority for all actions undertaken’.[60] Her Honour went on to explain why this was important to the protection of individual liberty:

The lack of equivalence between the subject and public authorities is a necessary condition of the liberties of the subject: ‘[w]here public authorities are not authorised to interfere with the subject, he has liberties’.[61] Equivalent liberty for public authorities would destroy individual liberty.[62]

[58][2012] 2 NZLR 305 (‘Hamed’).

[59]Ibid 323 [24].

[60]Ibid.

[61]Halsbury’s Laws of England (4^th ed, 1974) vol 8, Constitutional Law at [828]; (3^rd ed, 1954) vol 7 Constitutional Law at [416].

[62][2012] 2 NZLR 305, 324 [28].

The same approach has been adopted in Australia since the earliest days of federation. The question in Clough v Leahy[63] was whether a royal commission could lawfully make enquiries. We shall come to the answer presently. Griffiths CJ (Barton and O’Connor JJ concurring) said this about the starting point:

We start, then, with the principle that every man is free to do any act that does not unlawfully interfere with the liberty or reputation of his neighbour or interfere with the course of justice. That is the general principle. The liberty of another can only be interfered with according to law …[64]

[63](1905) 2 CLR 139 (Griffith CJ, Barton and O’Connor JJ) (‘Clough’).

[64]Ibid 157.

Similarly, in Williams v The Queen[65] the court was concerned with the extent of police power to detain in custody for questioning someone who had been lawfully arrested. Mason and Brennan JJ referred to the statement of Fullagar J in Trobridge v Hardy[66] that personal liberty was ‘the most elementary and important of all common law rights’. Citing Blackstone, their Honours said that ‘[p]ersonal liberty … [is] an absolute right vested in the individual by the immutable laws of nature’.[67] They referred with approval[68] to the statement of Deane J in Cleland v The Queen[69] that:

It is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed.[70]

Mason and Brennan JJ concluded by emphasising that ‘[t]he right to personal liberty cannot be impaired or taken away without lawful authority but then only to the extent for the time which the law prescribes’.[71]

[65](1986) 161 CLR 278 (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ) (‘Williams’).

[66](1955) 94 CLR 147, 152.

[67](1986) 161 CLR 278, 292.

[68]Ibid.

[69](1982) 151 CLR 1.

[70]Ibid 26.

[71](1986) 161 CLR 278, 292.

The present case concerns the existence, scope and exercise of the power of police to stop and ask questions of motorists, passengers and pedestrians. Consistently with the principles I have discussed, the starting point is the respect and protection that the common law affords to personal liberty. As Sedley LJ (Tuckey and Brooke LJJ agreeing) said in Chief Constable of Thames Valley Police v Hepburn,[72] ‘[i]t is a bedrock of our liberties that a citizen’s freedom of person and of movement is inviolable except where the law unequivocally gives the state power to restrict it’.
[72][2002] EWCA Civ 1841 (13 December 2002) [14].

At common law, without statutory authority police do not have power to stop a person riding a bicycle for the purpose of obtaining his or her name and address[73] nor to remain on private premises after being told to leave.[74] Police do have power to arrest on reasonable suspicion of offending.[75] Police do not have power to arrest for questioning or facilitating an investigation and such conduct is ‘unlawful’.[76] Police are not acting in the course of their duties when executing, and a person may use reasonable force when resisting, such an arrest.[77] Statutory power to arrest a person on reasonable suspicion until taken without delay before a court must, like the equivalent common law power, be exercised strictly according to the condition and no power to engage in questioning is conferred.[78] It follows that the magistrate was right to conclude that, at common law, police had no authority to stop the vehicle or subject the driver or Mr Kaba to compulsory questioning. That authority had to be found in statute.
[73]Hatton v Treeby [1897] 2 QB 452, 454 (Collins J).
[74]Davis v Lisle [1936] 2 KB 434, 438 (Lord Hewart CJ), 439 (Du Parcq J), 441 (Goddard J).
[75]R v Banner [1970] VR 240, 249 (Winneke CJ, Smith and Gowans JJ) (‘Banner’).
[76]Williams (1986) 161 CLR 278, 294 (Mason and Brennan JJ); Banner [1970] VR 240, 249 (Winneke CJ, Smith and Gowans JJ).
[77]Kenlin v Gardiner [1967] 2 QB 510, 519 (Winn LJ, Lord Parker CJ and Widgery J agreeing); Ludlow v Burgess (1982) 75 Cr App R 227, 228 (Lord Parker CJ, Melford Stevenson and Cooke JJ agreeing); Waaka v Police [1987] 1 NZLR 754, 757-8 (Cooke P, Somers and Hillyer JJ); Brooke v Chadwick (Unreported, England and Wales Court of Appeal, Lord Bingham CJ, Brooke LJ and Chadwick LJ, 3 March 1999).
[78]R v Iarlano (1983) 151 CLR 678, 680 (Gibbs CJ, Murphy, Wilson, Brennan and Dawson JJ).

R v Eeet[79] is interesting because the underlying interest at stake was privacy in the context of identity. Following a traffic stop, the accused was subjected to a search solely directed at establishing his identity. He forcibly resisted and bit the thumb of a police officer. Judge Hewitt directed the jury to acquit the accused on a charge of assaulting police because there was no authority at common law to search him for the purposes of establishing identity (which could have been lawfully established by other readily available means) and he used no more than reasonable force to resist.[80]
[79][1983] Crim LR 806 (Teeside Crown Court).
[80]Ibid 807.

On the other hand, as explained by Lord Parker CJ (Marshall and James JJ agreeing) in Rice v Connolly,[81] people may choose to assist police but are not obliged to answer their questions:

It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority, and to refuse to accompany those in authority to any particular place; short, of course, of arrest.[82]

[81][1966] 2 QB 414 (‘Rice’).

[82]Ibid 419, approved in R v Grafe (1987) 36 CCC (3d) 267, 271 (Ontario Court of Appeal) (Martin, Tarnopolsky and Krever JJA) (‘Grafe’).

The application of these principles is illustrated by the decision of Kaye J in Director of Public Prosecutions v Hamilton.[83] Police attended at a restaurant which the accused was suspected of leaving without paying the bill. When they sought to speak to him, he fled and was ultimately caught and arrested. A statutory charge of resisting arrest was brought on the sole basis of his action in fleeing from police. The magistrate acquitted the accused and Kaye J dismissed the prosecution appeal. After analysing the principal authorities, his Honour said:

The authorities to which I have just referred make it clear that, at common law, and in the absence of specific legislation to the contrary, the respondent in this case was not required to stop, when he was requested to do so by the police. I have no doubt that, in requesting the respondent to speak to them, the police were acting in the course of their duties as police constables. However, they were not, at that point, acting ‘in the execution’ of their duties as police members for the purpose of [the provision]. It follows that, in the absence of any specific legislative provision of imposing on the accused an obligation to remain and speak to the police, he would not be guilty of [the] offence …[84]

[83](2011) 33 VR 505.

[84]Ibid 513 [32].

The principles are also illustrated by the decision of Kourakis CJ, Blue and Stanley JJ in R v Nguyen.[85] Police were involved in surveillance of a private home. When the appellant drove his vehicle into the common driveway, they acted under an entrenched but mistaken view of their statutory powers to block his exit for the purpose of searching him and the vehicle. They did not act under road safety regulations. Drugs were found, leading to charges and a conviction.
[85](2013) 117 SASR 432.

Upholding the appeal and entering a verdict of acquittal, the court held the judge should have exercised the judicial discretion at common law to exclude the evidence.[86] The mistaken view of the police of their statutory powers was ‘calculated to lead to widespread and arbitrary infringements on civil liberties’.[87] The evidence had to be excluded because it was of ‘great importance that police officers entrusted with powers which abrogate fundamental liberties pay close attention to the conditions on which their lawful exercise depends’.[88] Moreover, it was ‘necessary to censure the excesses of power by which the evidence was procured in order to better secure compliance with the statutory limitations’.[89]
[86]Ibid 440 [35].
[87]Ibid 442 [40].
[88]Ibid 442 [41].
[89]Ibid 443 [42].

It is not inconsistent with these principles for police to invite someone to accompany them to a police station for questioning and there is no deprivation of liberty if a person agrees to do so.[90] In Clough, Griffith CJ (Barton and O’Connor JJ concurring) held that a royal commission could make enquiries (without compelling an answer) because no deprivation of liberty was involved.[91] It has likewise been held that ‘[t]here is nothing unlawful in asking a person, even if he be in custody, to provide fingerprints and, with his agreement, taking those fingerprints’[92] or in taking a sample of breath for an alcohol test ‘with the co-operation of a person willing without being required or commanded to take it’.[93] But a person who volunteers answers to questions is free to choose when to cease co-operating and, unless lawfully arrested, may leave when they please and must not be impeded.[94] For the police to detain someone for questioning past the point of voluntary co-operation is ‘unlawful’ and an actionable civil wrong, at least.[95]
[90]R v King (1978) 19 SASR 118, 128-9 (King J); R v Conley (1982) 30 SASR 226, 239-40 (King CJ, White and Cox JJ agreeing); Grafe (1987) 36 CCC (3d) 267, 272-3 (Ontario Court of Appeal) (Martin, Tarnopolsky and Krever JJA).
[91](1905) 2 CLR 139, 157.
[92]Carr v The Queen (1973) 127 CLR 662, 663 (Menzies, Walsh, Gibbs, Stephen and Mason JJ).
[93]Bunning (1978) 141 CLR 54, 64 (Barwick CJ).
[94]Bentley v Brudzinski (1982) 75 Cr App R 217, 225 (McCulloch J, Donaldson LJ agreeing); R v Leecroft (1987) 46 SASR 250, 253 (White J); Grafe (1987) 36 CCC (3d) 267, 272 (Ontario Court of Appeal) (Martin, Tarnopolsky and Krever JJA).
[95]Banner [1970] VR 240, 249 (Winneke CJ, Smith and Gowans JJ).

This leads to an issue of critical importance that often arises in these situations, and does arise in relation to the questioning of Mr Kaba in the present case: whether police have sought to exercise a power of coercion not possessed. According to the principles applied by the court, there is a line beyond which police cannot go.

In drawing that line, the courts take into account the duties of police to protect the community and prevent crime. In Director of Public Prosecutions (Vic) v Zierk,[96] Warren CJ describes the duties of police in the following general terms:[97]

The ‘duties’ of a police officer are ancient[98] and include: the duty to preserve the peace;[99] the duty to protect life and property;[100] the duty to prevent crime;[101] the duty to detect crimes when they occur;[102] the duty to apprehend offenders;[103] the duty to prevent obstructions of highways;[104] and the duty to uphold the law.[105]

[96](2008) 184 A Crim R 582.

[97]Ibid 586 [18].

[98]See generally Halsbury’s Laws of England, (4th ed, 2007), [477] and following; Halsbury’s Laws of Australia, vol 20 ‘Police’, 585,175 and following; also see Duncan v Jones [1936] 1 KB 218 (Lord Hewart CJ and Singleton J) (‘Duncan’); Glasbrook Brothers Ltd v Glamorgan County Council [1925] AC 270 (Viscount Cave LC, Viscount Finlay, Lord Shaw, Lord Carson and Lord Blanesburgh) (‘Glasbrook’); Haynes v Harwood [1935] 1 KB 146 (Greer, Maugham and Roche LJJ) (‘Haynes’); R v Waterfield [1964] 1 QB 164 (Lord Parker CJ, Ashworth and Hinchcliffe JJ) (‘Waterfield’); Attorney-General (HK) v Chow Sau-sing [1966] HKLR 220 (Hogan CJ and Huggins J) (‘Chow Sau-sing’); R v Westlie (1971) 2 CCC (2d) 315 (British Columbia Court of Appeal) (McFarlane, Branca and Robertson JJA) (‘Westlie’); Donaldson v Police [1968] NZLR 32 (Perry J) (‘Donaldson’); R v Metropolitan Police Commissioner; Ex parte Blackburn [1968] 2 QB 118 (Lord Denning MR, Salmon and Edmund LJJ) (‘Blackburn).

[99]Duncan[1936] 1 KB 218 (Lord Hewart CJ and Singleton J).

[100]Glasbrook [1925] AC 270 (Viscount Cave LC, Viscount Finlay, Lord Shaw, Lord Carson and Lord Blanesburgh); Haynes [1935] 1 KB 146 (Greer, Maugham and Roche LJJ).

[101]Haynes [1935] 1 KB 146 (Greer, Maugham and Roche LJJ); Waterfield [1964] 1 QB 164 (Lord Parker CJ, Ashworth and Hinchcliffe JJ); Chow Sau-sing [1966] HKLR 220 (Hogan CJ and Huggins J); Westlie (1971) 2 CCC (2d) 315 (British Columbia Court of Appeal) (McFarlane, Branca and Robertson JJA).

[102]Rice [1966] 2 QB 414 (Lord Parker CJ, Marshall and James JJ); Westlie (1971) 2 CCC (2d) 315 (British Columbia Court of Appeal) (McFarlane, Branca and Robertson JJA); Chow Sau-sing [1966] HKLR 220 (Hogan CJ and Huggins J).

[103]Haynes [1935] 1 KB 146 (Greer, Maugham and Roche LJJ); Waterfield [1964] 1 QB 164 (Lord Parker CJ, Ashworth and Hinchcliffe JJ); Rice [1966] 2 QB 414 (Lord Parker CJ, Marshall and James JJ); Westlie (1971) 2 CCC (2d) 315 (British Columbia Court of Appeal) (McFarlane, Branca and Robertson JJA); Chow Sau-sing [1966] HKLR 220 (Hogan CJ and Huggins J).

[104]Haynes [1935] 1 KB 146 (Greer, Maugham and Roche LJJ); Stunt v Bolton [1972] Crim LR 561 (Lord Widgery CJ, Melford Stevenson and Milmo JJ); Gelberg v Miller [1961] 1 WLR 153 (Lord Parker CJ, Streatfield, Slade, Ashworth and Elwes JJ); Donaldson [1968] NZLR 32 (Perry J).

[105]Blackburn [1968] 2 QB 118 (Lord Denning MR, Salmon and Edmund LJJ).

It is recognised that, in the performance of these duties and without reasonable grounds of suspicion, police might exercise their ordinary capacity to ask questions of and seek co-operation from persons in reliance upon every citizen’s ‘moral duty, or … social duty to assist the police’, to use the words of Lord Parker CJ in Rice.[106] As was held in R v Grant[107] by McLachlin CJ and Charron J, ‘[e]ffective law enforcement is highly dependent on the cooperation of members of the public. The police must be able to act in a manner that fosters this cooperation, not discourage it’.
[106]Rice [1966] 2 QB 414, 419.
[107][2009] 2 SCR 353, 382 [39] (LeBel, Fish and Abella JJ agreeing) (‘Grant’).

Likewise, in R v Grafe,[108] which was approved in Grant,[109] it was held by Martin, Tarnopolsky and Krever JJA that the human rights in the Canadian Charter of Rights and Freedoms did ‘not seek to insulate all members of society from all contact with constituted authority, no matter how trivial the contact may be’.[110] So, at common law, it is not a deprivation of liberty for police to attract a person’s attention by touching him or her on the shoulder or arm.[111] But it is a deprivation of liberty for police to grab someone by the arm; that could only be legitimate for the purposes of a lawful arrest.[112]
[108](1987) 36 CCC (3d) 267.
[109][2009] 2 SCR 353, 381-2 [39] (LeBel, Fish and Abella JJ agreeing).
[110]Grafe (1987) 36 CCC (3d) 267, 274.
[111]Donnelly v Jackman [1970] 1 WLR 562, 565 (Talbot J, Lord Parker CJ and Ashworth J agreeing); Collins v Wilcock [1986] 1 WLR 1172, 1180 (Robert Goff LJ and Mann J) (‘Collins’).
[112]Collins [1986] 1 WLR 1172, 1180 (Robert Goff LJ and Mann J).

It is not presumed that a person is coerced simply upon being questioned by a police officer in uniform. That is so even though, as was held by Robert Goff LJ and Mann J in Collins v Wilcock,[113] the ‘advantage of authority’ enjoyed by police is deliberately enhanced by ‘the uniform which the state provides and requires’ them to wear. But, as Le Dain J explained in R v Therens:

Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand.[114]

Therefore, when drawing the line between the voluntary and the coerced, it is necessary to take into account the imbalance of power between police, especially when in uniform, and ordinary members of the community, as well as the psychological impact of apparent police authority. Barwick CJ adverted to this consideration in Bunning where he held that, ‘in deciding whether … willingness was uncoerced, it is proper to remember the apparent authority’ of police and the situation of the citizen.[115]

[113]Ibid 1178.

[114][1985] 1 SCR 613, 644 (‘Therens’).

[115](1978) 141 CLR 54, 64.

According to the test stated by Le Dain J in Therens, which I think is consistent with the common law here, a person is regarded as having submitted to psychological compulsion where, without the application or threat of application of physical restraint, he or she ‘reasonably believes that the choice to do otherwise does not exist’.[116] In Grant, McLachlin CJ and Charron J held that, in applying this test, the following factors could be taken into account:
[116][1985] 1 SCR 613, 644.

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

(b)The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
(c)The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.[117]

[117][2009] 2 SCR 353, 385 [44] (LeBel, Fish and Abella JJ agreeing).

I will return to these considerations when I examine the magistrate’s analysis of how Mr Kaba was treated by the police. As will become apparent, I think his Honour was right to conclude that, by crossing the line of permissible conduct, they acted unlawfully and in breach of his rights and freedoms under the common law.

As can be seen, the common law assumes the liberty of the individual and insists upon positive lawful authority for any governmental interference therewith. In the context of that general principle, certain particular rights and freedoms of relevance to the present case have been recognised. They are most especially relevant in relation to the application of the principle of legality. These rights and freedoms are liberty, freedom of movement and privacy (in a particular sense).

Liberty

It is clear enough from the discussion so far that individual liberty is both a foundational principle of the common law and a recognised right and freedom in itself. After reference to the principal authorities, it was held in Al Masri that the right to personal liberty was one to which the principle of legality applied.[118]
[118](2003) 126 FCR 54, 76 [86] (Black CJ, Sundberg and Weinberg JJ).

That being so, the question is whether the provisions of s 59(1) of the Road Safety Act would, on the Director’s interpretation, interfere with the common law right of personal liberty of a driver and passenger. On that interpretation, police would have a power to stop in respect of the vehicle and request in respect of the driver.

As we will see, in the United Kingdom, the right to liberty has been acknowledged in several cases concerning drivers and motor vehicles. For example, in R v Waterfield[119] police directed a driver not to remove a parked motor vehicle suspected of being used in the course of a criminal offence. Ashworth J said the direction represented ‘prima facie an unlawful interference with a person’s liberty or property’.[120] Lord Widgery CJ followed Waterfield in Hoffman v Thomas.[121] The question was whether police had a statutory power randomly to direct traffic into a census area. His Lordship approached that question of interpretation from the starting point that ‘the constable’s action … did amount to an interference with the defendant’s personal liberty or property’.[122]
[119][1964] 1 QB 164.
[120]Ibid 170 (Lord Parker CJ and Hinchcliffe J agreeing).
[121](1974) 1 WLR 374 (‘Hoffman’).
[122]Ibid 379 (Ashworth and Melford Stevenson JJ agreeing).

On those authorities stopping a vehicle for a random check represents a general interference with the liberty of a driver (and potentially a passenger) at common law. But it is not in the nature of a detention and I think freedom of movement more accurately represents the precise nature of the liberty interest that is engaged. The cases under the Canadian Charter and the United States Constitution (see above) are to be distinguished in this regard.

Freedom of movement

The general right to liberty that is an elementary principle of the common law includes the right to personal freedom of movement. When Blackstone referred to certain rights and liberties that are ‘our birthright to enjoy entire’ unless restrained by law,[123] he included:

the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.[124]

Freedom of movement is protected by habeas corpus.[125]

[123]William Blackstone, Commentaries on the Laws of England (The University of Chicago Press, first published 1765, 1975 ed) vol 1, 140.

[124]Ibid 130.

[125]Antunovic (2010) 30 VR 355, 380 [113] (Bell J).

In R (Gillan) v Commissioner of Police of the Metropolis,[126] Lord Bingham referred to this right in the context of using the public streets. Without doubting that the right to freedom of movement was amenable to state regulation, his Lordship said:

It is an old and cherished tradition of our country that everyone should be free to go about their business in the streets of the land, confident that they will not be stopped and searched by the police unless reasonably suspected of having committed a criminal offence. So jealously has this tradition been guarded that it has almost become a constitutional principle.[127]

[126][2006] 2 AC 307 (‘Gillan’).

[127]Ibid 332 [1] (Lord Hope, Lord Scott, Lord Walker and Lord Brown agreeing).

In Australia, s 92 of the Constitution provides (among other things) that ‘intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free’. In Cole v Whitfield,[128] approving Gratwick v Johnson,[129] it was held that the constitutional guarantee ‘extends to a guarantee of personal freedom “to pass to and fro among the States without burden, hindrance or restriction”’. The guarantee is not infringed by reasonable regulation[130] but leaves the means of carriage to the choice of the person.
[128](1987) 165 CLR 360, 393 (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ) (footnote omitted) (‘Cole’).
[129](1945) 70 CLR 1, 17 (Starke J).
[130]Cole (1987) 165 CLR 363, 393 (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ).

Consistently with the general common law right to personal freedom of movement, there is a common law right to use of the public highway. That right was described in Melbourne Corporation v Barry[131] by Higgins J in the following terms:

the common law right of the King’s subjects to pass through the highways, whether singly or in Indian file, or in groups, or four abreast or in processions cannot be forbidden, although the passage without such precautions as the by-law prescribes can be forbidden.[132]

In that case, a by-law prohibiting certain processions was held to be invalid. Higgins J applied the principle of legality to the interpretation of the enabling legislation.[133] The decision has never been doubted.

[131](1922) 31 CLR 174 (‘Melbourne Corporation’).

[132]Ibid 206.

[133](1922) 31 CLR 174, 206-7; see also Potter v Minahan (1908) 7 CLR 277, 305 (O’Connor J) (‘Potter’).

This right was acknowledged in Richards v Stange.[134] The court was required to interpret provisions very like those in issue here. I will go into the decision in more detail later. The driver was convicted of failing to stop when requested by police. On appeal against conviction, he challenged the authority of the police to make the request and supported his preferred interpretation by reference to the ‘common law … right to the unobstructed use of the highways for the purpose of legitimate travel’.[135]
[134]Unreported, Full Court of the Supreme Court of Western Australia, Wallace, Brinsden and Smith JJ, 2 April 1982 (‘Richards’).
[135]Ibid 4 in the judgment of Wallace J.

Wallace, Brinsden and Smith JJ dismissed the appeal. However, referring to Melbourne Corporation, Wallace J accepted the ‘common law right to free use of the highway’.[136] His Honour said the right was ‘confined to its legitimate use and the driving of a vehicle mechanically unsound or without a licence, neither of which conditions prevailed herein, would not come within that definition’.[137] Brinsden J generally accepted the reasons of Wallace J. His Honour held that the right of a person to use a highway for driving a vehicle was now subject to licence.[138]
[136]Ibid.
[137]Ibid.
[138]Ibid 4 in the judgment of Brinsden J. His Honour expressly declined to follow Waterfield [1964] 1 QB 164 on this point.

Therefore I do not accept the submissions made on behalf of the Director that there is no common law right to drive on the public roads. The authorities reveal that there is such a right. But it is not an absolute right and must be exercised according to law, including the licencing and road safety legislation. As an aspect of the common law right to freedom of movement, the right to drive a motor vehicle on the public roads is akin to the right to walk in public streets and navigate on public waters. It is not conferred by, but may be (and in Victoria is) qualified by and under legislation, to the interpretation of which the principle of legality applies on this basis.[139] That is consistent with the specific nature of the general right to liberty discussed in Waterfield and Hoffman.
[139]The rights engaged are very different but the principle of legality likewise applies to the interpretation of legislation creating traffic offences: Dover v Doyle (2012) 34 VR 295, 305 [44] ff (Bell J); Director of Public Prosecutions v Dover [2013] VSCA 233 (4 September 2013) [40] (Tate JA, Maxwell P and Garde AJA agreeing).

Privacy

It is uncertain whether there is a positive right to privacy that is independently enforceable at common law. As was pointed out in WBM v Chief Commissioner of Police (Vic)[140] by Warren CJ (Hansen JA agreeing), ‘the question of whether such a right exists at common law, and if so, its scope, is yet to be settled by the High Court or a superior court of record’.[141]
[140](2012) 230 A Crim R 322, 342 [81] (‘WBM’).
[141]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, [107] (Gummow and Hayne JJ, Gaudron J agreeing), [187] (Kirby J) and [313]–[320] (Callinan J); Giller v Procopets(2008) 24 VR 1, [129], [167]-[168] (Ashley JA), [447]-[452] (Neave JA) commenting in relation to a potential tort of an invasion of privacy. Cf the District Court of Queensland’s decision in Grosse v Purvis [2003] Aust Torts Reports 81–706 and Doe v Australian Broadcasting Corporation[2007] VCC 281.

However, the common law clearly recognises the right to privacy for particular purposes. As we have seen, Entick[142] held that positive lawful authority was required for any state intrusion into the privacy of a person’s property or papers. The property aspect of the interests so protected has received much attention. Over time the focus of that attention has shifted towards privacy.[143] This is evident in such cases as George v Rockett[144] where, in a similar context, the importance of both privacy and property was recognised. Speaking of provisions governing the issue of search warrants, the court noted that
[142](1765) 19 St Tr 1030, 95 ER 807, 817-18.
[143]David Feldman, The Law Relating to Entry, Search and Seizure (Butterworths, 1986) 1-2.
[144](1990) 170 CLR 104 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property.[145]

It went on to refer to a particular provision in which
the legislature has given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property.[146]

In Crowley v Murphy[147] Lockhart J (Northrop J agreeing) referred to the right to privacy and applied the principle of legality to the interpretation of legislation conferring warrant-issuing powers.

[145]Ibid 110 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

[146]Ibid.

[147](1981) 52 FLR 123, 141-2.

There have many other cases in which, under the principle of legality, the courts have taken into account the common law right to privacy when interpreting legislation. For example, in R v Secretary of State for the Home Department; Ex parte Phansopkar[148] Scarman LJ held that the principle of legality protected the right to family and private life recognised in art 8(1) of the Convention for the Protection of Human Rights and Freedoms.[149] Accordingly, ‘it is the duty of the courts, so long as they do not defy or disregard clear, unequivocal provisions, to construe statutes in a manner which promotes, not endangers, those rights’.[150] Among the cases I referred to in this connection in WBM[151] were Marcel v Commissioner of Metropolitan Police,[152] R v Secretary of State for Home Department; Ex parte Leech[153] and Taciak v Commissioner of Australian Federal Police[154] (in which Sackville J collected and discussed other authorities). As I noted in PJB v Melbourne Health and State Trustees Ltd,[155] such authorities have been cited with approval by the High Court in the context of the principle of legality. It was on the basis of this acceptance of the right to privacy at common law that I said in WBM:

the nature of the unlawful activity alleged, the gravity of the breach of Convention rights, any element of inducement or compulsion, the existence of other evidence implicating the accused, the probative weight of the disputed evidence and its reliability.[854]

[851](2001) 31 EHRR 45.

[852]Ibid 1023 [27]-[28].

[853]Ibid 1027 [38]; see also PG (2008) 46 EHRR 51, 1294-6 [76]-[81].

[854]Ben Emerson et al, Human Rights and Criminal Justice (Sweet & Maxwell, 3^rd ed, 2012) [647] (footnote omitted).

That brings me to the application of the principles in the present case.

EXCLUSION OF UNLAWFULLY OBTAINED EVIDENCE: APPLICATION
General issues

It was the case for the Director that the discretion in s 138(1) of the Evidence Act was not enlivened because there was no impropriety or contravention of Australian law or, alternatively, the evidence was not obtained in consequence thereof. Alternatively, if the discretion was enlivened, no magistrate acting reasonably could have exercised the discretion to exclude the evidence.

I have upheld the submissions of the Director in relation to the interpretation of s 59(1) of the Road Safety Act. Contrary to the submissions of Mr Kaba and the Commission, there was no unlawfulness in relation to the stopping of the vehicle or the request that the driver produce his driver’s licence and state his name and address.

I do not accept the submissions made for Mr Kaba, based on Patrick’s Case,[855] that even if the police had a power of stop and request under s 59(1) of the Road Safety Act, the exercise of that power could be attacked in the present case for breach of human rights under s 38(1) of the Charter. On the view I have taken of s 59(1), the provision confers a power of routine or random stop and request in respect of drivers for the purposes of the administration of the Road Safety Act. What the police did in stopping the vehicle, requesting the driver’s name and address and the production of his driver’s licence was so authorised and, in the circumstances of the case, they could not reasonably have acted differently (see s 38(2) of the Charter).
[855][2011] VSC 327 (19 July 2011) [310] (Bell J).

In so concluding I emphasise that, in those circumstances, there was nothing to suggest any human rights were interfered with beyond those involved as an ordinary and natural consequence of the due exercise of the power concerned. If the power had been being used selectively to target drivers of a particular race or ethnicity, or for other improper purposes, that might be an abuse of the power in s 59(1) and a breach of human rights under the Charter. But that was not pressed. Moreover, the interference with the right to freedom of movement of Mr Kaba as a passenger was the ordinary and natural consequence of the due exercise of the power in s 59(1) and was also covered by s 38(2).

The magistrate was critical of the request made by Constable Andrews to search the vehicle. His Honour said that the request was made ‘on [a] tenuous basis’. But he found that the driver had consented to the search and did not determine that it was unlawful. The search of the vehicle played no part in his Honour’s decision to exclude the evidence and it was not relevant to any question which arose before me. As submitted by the Director and the Commission, it is therefore not appropriate for me to determine Mr Kaba’s submission that the request for consent to conduct the search was unlawful.

Sequence of events

The authorities and human experience reveal that random police traffic stops are apt to be dynamic and develop in unpredictable ways with significant consequences for the police powers that may be available. Police must be ready to react to circumstances as they initially present and may develop. It is not appropriate to examine their conduct without appreciating the challenging nature of police work, although police are trained to withstand insult and expected to exercise restraint.[856] When analysing whether police have properly exercised their powers in a traffic stop situation, the approach described by Binnie J for the Supreme Court of Canada in Nolet[857] is instructive:

It is necessary for a court to proceed step by step through the interactions of the police and the appellants from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage or their inquiry.[858]

[856]Ferguson v Walkley (2008) 17 VR 647, 655-6 (Harper J), citing Coleman (2004) 220 CLR 1, 79 [200] (Gummow and Hayne JJ).

[857][2010] 1 SCR 851.

[858]Ibid 858 [4].

I have already set out the magistrate’s findings and reasons for decision. On the found facts, I think the sequence of events can be broken up into three stages: the random stop, the walking away and questioning of Mr Kaba and the arrest and alleged offending.

The interaction between the driver and Mr Kaba and the police began with the random traffic stop without suspicion of wrongdoing. Despite seeing the scissors and computer and getting radio information about the vehicle, police at this stage formed no reasonable suspicion and made no arrest. The only power available to support the stop was in s 59(1) of the Road Safety Act. Before the magistrate, Mr Kaba argued that this power did not have this power, not that it was exercised unlawfully (for example, in a manner that was racially discriminatory).

On the found facts, Mr Kaba left the vehicle while the stop was underway and walked along the footpath, as he was entitled to do. He was asked for his name and details on three occasions, twice by Constable Andrews and on the third occasion by Senior Constable Randall. On that last occasion, the senior constable said to Mr Kaba: ‘Mate, I need your name to say I spoke to you’. Mr Kaba was not then under suspicion.

What followed was the alleged abuse by Mr Kaba, the arrest and the alleged exposure, assault and other offending. For the purposes of the present application, I must take the facts alleged by police as established, as did the magistrate.

As I see it, the magistrate properly examined the facts of the case in that order.

Magistrate’s decision

After so examining the facts, the magistrate decided not to admit the evidence under s 138(1) of Evidence Act on the basis that both the police random stop of the vehicle and the persistent questioning of Mr Kaba was improper and unlawful. I have concluded that his Honour erred in concluding that s 59(1) of the Road Safety Act did not authorise the stop. The question remains whether he erred in concluding that Mr Kaba’s right to privacy under the common law, the ICCPR and the Charter was contravened by the questioning.

The issue may be considered by reference to whether police engaged in improper and unlawful conduct and whether the evidence was obtained in consequence of that conduct. The Director submitted that neither was the case. I will later turn to the discretionary considerations.

Improper and unlawful police conduct
Common law

On my reading of the reasons for decision of the magistrate, his Honour concluded that the questioning of Mr Kaba was improper and unlawful because it was done both without legal authority and in actual breach of his human rights under the Charter. His Honour explicitly accepted the submissions made on behalf of Mr Kaba to that effect.

It is clear from the authorities that I have discussed that people are not immune from contact with police in public places. The ordinary power of police to ask questions is an important means by which they can fulfil their duty to prevent crime and protect the community. Up to a certain point, police questioning of individuals does not interfere with their rights and freedoms at common law. The line of permissible questioning is crossed when the questioning becomes coercive, that is, when the individual is made to feel that he or she cannot chose to cease co-operating or leave, judged by reference to how a reasonable person would feel in the circumstances.

Whether the line of permissible questioning was crossed with respect to Mr Kaba was a question of fact for the magistrate to determine. Having regard to his Honour’s reasons for decision, I think he decided that the line had been crossed and that Mr Kaba had been subjected to unlawful questioning through the assertion of coercive authority by police in uniform. On the found facts, that conclusion was not only open, it was irresistible. Mr Kaba was stopped walking on his lawful way. He was asked on three occasions, increasingly persistently, for his name and details and police refused to take no for an answer. Although Mr Kaba did not provide his name and details, a reasonable person would have felt that he or she had no choice but to do so and not leave until it was done. I think the magistrate attributed at least some of Mr Kaba’s abusive language and behaviour to the stress that was placed upon him by the coercive police questioning.

In my view, the magistrate correctly decided that, under s 138(1)(a), the police questioning was improper and in contravention of Australian law because it was done without authority and in contravention of Mr Kaba’s rights and freedoms at common law. He made no error in so deciding, indeed was correct to so decide.

ICCPR

As you have seen, the magistrate decided that asking Mr Kaba for his name and identification particulars breached rights recognised in the ICCPR. From the context, I think his Honour was referring to the right to privacy in art 17(1).

In my view, that right was clearly engaged and actually breached by the police questioning of Mr Kaba. For the reasons I have given, it interfered with the privacy of Mr Kaba’s name and other personal details. Without legal authority, the police had no right to press him to divulge this information to them. No error of law was committed by the magistrate in so deciding.

It was also open on the found facts for the magistrate to decide that Mr Kaba’s right to freedom of movement under art 12(1) was also breached. Once the police questioning on the footpath became coercive, it interfered with his right to walk freely in the public streets. However, this does not affect the outcome of this case or add significantly to the seriousness of the violation.

Because the police questioning was not only unlawful and improper but also contrary to or inconsistent with Mr Kaba’s rights under the ICCPR, this was a relevant discretionary consideration under s 138(3)(f).

Charter (s 38(1))

It was common ground that, under s 4(1)(d), a police officer is a public authority under the Charter. Therefore the obligation in s 38(1) applies to police.

The magistrate spoke of police not giving ‘proper consideration’ to human rights. That is the language of s 38(1) in respect of decisions. There was no decision of police in this case. What they rather did was to ‘act’ in a way towards Mr Kaba that was incompatible with human rights. On a fair reading of his Honour’s reasons, he so decided.

There is a question whether, in relation to the concept of incompatibility with human rights, ss 7(2) and 38(1) must be read and applied together. I think the better view, as adopted in the submissions of the parties, is that they must be so read and applied. If that is correct, under s 7(2), Mr Kaba’s human rights could only be limited ‘subject to law’. But, when police interfered with Mr Kaba’s right to privacy in s 13(a), they acted without lawful authority. There was no law to which his right to privacy (and freedom of movement) was relevantly subject. He was standing dignified and free in the arena of civil protection fully possessed of his human rights. There was simply no legal foundation for the coercive questioning in which police engaged in the face of his plainly expressed resistance. Therefore the police actions could not satisfy the legality component of the limitations test in s 7(2). It follows that they acted incompatibly with human rights and unlawfully under s 38(1). Police should have given effect to and respected Mr Kaba’s human rights, not breached them. But in this case none of that necessarily matters. If, contrary to my view, the interpretation and application of s 38(1) must be disengaged from s 7(2), the police actions towards Mr Kaba were clearly unlawful under s 38(1) because, under s 38(2), there was no statutory provision or other law according to which police could not reasonably have acted differently. Being incompatible with the human rights in the Charter under s 38(1), and not being protected by s 38(2), the police actions were unlawful.

In my view, the magistrate correctly decided that, under s 138(1) of the Evidence Act, the police questioning of Mr Kaba was improper and in contravention of Australian law because it was in incompatible with his human right to privacy in s 13(a) and unlawful under s 38(1) of the Charter. He could equally have so decided in respect of the right to freedom of movement in s 12, although this does not affect the outcome of the case or add significantly to the seriousness of the violation.

In summary, the magistrate correctly decided under s 138(1)(a) of the Evidence Act that the police questioning of Mr Kaba was improper and unlawful at common law and under the Charter and was also contrary to or inconsistent with his rights under the ICCPR (see s 138(3)(f)).

Evidence obtained in consequence

In the alternative, it was submitted on behalf of the Director that, even if the police request for Mr Kaba’s name and details was improper, unlawful and in breach of human rights, the evidence of Mr Kaba’s offending was not capable of being characterised as being ‘obtained … in consequence‘ thereof under s 138(1)(b) of the Evidence Act. I do not accept that submission.

As I have discussed by reference to the authorities, under s 138(1)(b) a chain of causation must be shown between the impropriety or contravention and the obtaining of the evidence. It can be direct or indirect. Evidence of offending can be excluded where the impugned police conduct gave rise to the offending in circumstances that make it appropriate to find that the evidence was ‘obtained … in consequence of’ of that conduct. Where a person commits an offence by acting in a way that, viewed objectively, is disproportionate to impugned police conduct, the court might be compelled to find that the evidence of the offending was not, as a matter of causation, obtained in consequence of it.

The magistrate did not accept that Mr Kaba’s reaction was so disproportionate that, as a matter of causation, the offending was not in consequence of impugned conduct of police. His Honour did not accept that Mr Kaba’s reaction was induced by his unsubstantiated belief that he was being racially harassed. He found Mr Kaba’s offensive language, verbal abuse, indecent exposure and assault, viewed objectively, were provoked by the impugned conduct. He did not consider that the assault upon Senior Constable Randall was so grossly disproportionate that it could not sensibly be concluded that evidence of it was obtained in consequence of that conduct.

In my view, the magistrate was entitled to make those findings. In doing so, his Honour did not err in law in the interpretation and application of the requirement in s 138(1)(b) that the excluded evidence be ‘obtained … in consequence’ of the impropriety or contravention.

It is true that, on the found facts, this was not a case in which the evidence of offending arose out of an ill-advised or unlawful arrest or improper physical restraint. The actual arrest was a lawful response to Mr Kaba’s offensive language. His indecent exposure and physical assault of Senior Constable Randall occurred after that. However, the magistrate found that the offending was causally connected to the earlier improper and unlawful police conduct. His Honour was of the view, on the found facts, that the arrest did not sever the connection between that conduct and the offending. In my view, he was clearly entitled so to find.

It is also true that the magistrate did not find that police had intentionally provoked Mr Kaba into committing the offences. Although, on the found facts, the police conduct was deliberate in the sense that they knew what they were doing and nothing had happened by accident, I would accept that the facts did not support a finding that police had intentionally provoked Mr Kaba. But, in my view, the magistrate did not need to have facts supporting, or to make, such a finding. As his Honour decided, under s 138(1), evidence can be ‘obtained’ by police ‘in consequence of’ their improper or unlawful conduct without them intending, by that conduct, to produce offending and therefore to obtain evidence of offending. On his Honour’s finding, that had happened in this case. That finding was open. This case really did have similarities with Robinett and Carr. The reasoning in those cases was applicable, as his Honour found.

Finally it is true that, on the part of police, there was no physical interference with Mr Kaba or the driver, or with private property, and no tortious conduct. Any interference with his human rights was of short duration. There was no breach of his right not to incriminate himself. The police conduct was not objectively threatening, physically intimidating or inflammatory.

I accept, as I think the magistrate did, that these matters must be taken into account when considering the causation issues arising under s 138(1)(b). But I think his Honour considered, as I consider, that these matters fail to capture the objective gravity of how police behaved towards Mr Kaba. 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. I do not condone his offending. But it was objectively foreseeable that he might react in the way that he did in response to the police conduct. All that too had to be taken into account when applying s 138(1)(b), and the magistrate correctly did so. I would specifically reject the submission, as did his Honour, that the police human rights breach can be characterised as a brief and innocuous request for Mr Kaba’s name and address.

I reject the submission of the Director that the magistrate erred in law in the interpretation and application of the causation test in s 138(1)(b) of the Evidence Act. In so concluding I make clear that, in my view, the error committed by his Honour in relation to the interpretation of s 59(1) of the Road Safety Act did not undermine his decision in that regard.

Discretion not to admit evidence

It is first necessary for me to determine submissions that were made in relation to the exercise of the magistrate’s discretion to refuse to admit the evidence. Many of these submissions remain relevant even given my decision that his Honour erred when interpreting s 59(1) of the Road Safety Act. I will then return to the discretionary implications of that error.

The Director submitted that, in exercising the discretion, the magistrate was required to take into account the gravity of the impropriety and contravention (s 138(3)(d)) and whether it was deliberate or reckless (s 138(3)(e)) or contrary to a right in the ICCPR (s 138(3)(f)). Viewed across the spectrum, any improprieties of the police were minor and not found by the magistrate to be deliberate or reckless (in the relevant culpable sense of having foresight of impropriety but proceeding with indifference (mere negligence not being enough)).[859] On the evidence, the only conclusion available was that police acted in good faith and with integrity, honestly believing that they had power to do what they did. Their conduct was not designed to secure any advantage but was merely routine police work. It was not found, and there was no evidence, that the police believed that they were acting improperly by repeatedly asking Mr Kaba for his name and address. If misconduct occurred, it was at the lowest end of the spectrum. It was not suggested that any human rights breaches were trivial.
[859]R v Helmhout (2001) 125 A Crim R 257, 262-3 (Hulme J).

Many of these submissions may be accepted and were accepted by the magistrate. His Honour did not find that the police had acted intentionally or recklessly. He did not find bad faith. On the evidence, he could not have found either. His Honour did not find that the impropriety or contravention was minor and it was not. In relation to Mr Kaba, the interference with his common law right to privacy and the breach of his human right to privacy under the ICCPR and the Charter was serious. As submitted by the Commission, any violation of a Charter right should be regarded as serious[860] as the violation itself represents damage to the administration of justice[861] and the rule of law. That had to be weighed in the balance and it deserved to receive, and was correctly given, more consideration than the Director’s submissions would admit.
[860]Shaheed [2002] 2 NZLR 377, 418-19 [143] (Richardson, Blanchard and Tipping JJ); Grant [2009] 2 SCR 353, 393 [68]-[69] (McLachlin CJ and Charron J for the court).
[861]Hamed [2012] 2 NZLR 305, [187] (Blanchard J); Mellenthin [1992] 3 SCR 615, 629 (Cory J for the court).

The Director also submitted that the magistrate was required to take into account the probative value of the evidence (s 138(3)(a)) and the importance of the evidence in the proceeding (s 138(3)(b)). The consequence of the exclusion of the evidence was that the police had no case. All of the evidence of all of the alleged offending was excluded. In my view, his Honour paid due regard to these considerations.

The Director submitted that the magistrate was required to take into account the nature of the relevant offence (s 138(3)(c)). The most serious offence was the physical assault of Senior Constable Randall. Of course I would accept the public interest in prosecuting persons for physically assaulting police officers on duty. Here too it is clear that his Honour took this consideration into account. For this very purpose, he properly characterised Mr Kaba’s offence as one of ‘modest seriousness’. He did not under-value the significant public interest in punishing and deterring crimes of the kind charged. His Honour had to balance this consideration against the other considerations, including the gravity of the impropriety and contravention (s 138(3)(d)) and the breach of the ICCPR and the Charter that had occurred (s 138(3)(f)).

The difficulty is that the magistrate’s exercise of the discretion in s 138(1) of the Evidence Act not to admit the evidence appears to have been based upon two legal grounds, one of which was in error. Therefore it is not appropriate to allow it to stand. As I have explained, in the circumstances the ruling should be quashed because of the error made with respect to the interpretation of s 59(1) of the Road Safety Act. His Honour should reconsider the exercise of the discretion to refuse to admit the evidence upon the basis that the conduct of the Senior Constable Randall was improper and unlawful by reason of the breach of Mr Kaba’s rights under common law and the Charter (and the ICCPR) which occurred.

CONCLUSION

For the reasons given in this judgment, the ruling of the magistrate will be quashed because his Honour committed an error of law upon the face of the record in relation to the interpretation of s 59(1) of the Road Safety Act. Contrary to his Honour’s interpretation, police do have a power of random stop and check under that provision.

His Honour correctly determined that police exceeded their common law powers and breached Mr Kaba’s human rights under the Charter (and the ICCPR) by subjecting him to coercive questioning for his name and address. The proceeding will be remitted to his Honour for reconsideration, upon that basis, of the exercise of his discretion to exclude the evidence under s 138(1) of the Evidence Act.

There will be orders accordingly.

---

What’s happened at that time?---While Tyrone was speaking to the driver I noticed the front passenger of the vehicle, that we hadn’t had any contact with at that point, exit the vehicle and start walking off towards the residential high-rise in Portal Street.

Where was Constable Andrews at that point?---Constable Andrews was still speaking to the driver at the driver’s side window.

What have you done at this stage?---As I say the passenger started walking off. I’ve approached him and I stated to him “Mate, I need your name to say I spoke to you”.

What reason did you have to speak with the passenger?---I had no real reason to speak to him, I just wanted to know his details.

Why would you want to know his details?---He’s in the vehicle, there’s an allegation of some scissors on the back seat and a laptop under there. I wanted to know everyone’s details before we cut anyone loose.

What conversation did you have with the accused?---I said to him, “Mate, I need your details to say I spoke to you”. That’s when he turned around and told me to get fucked.

What’s happened at that point?---I told him that he’d committed the offence of offensive language and that I required his name and address.

This was his evidence under cross-examination:

[Y]ou said that my client, Magnus … was attempting to walk off at one point?---That’s correct.

Is that right?---Yes.

That was before you’d said that he’d committed an offence?---That’s correct.

So you then pursued him and said you required his name. Is that right?---Yes. I didn’t require his name. I asked him for his name, as I would of any person on the street. He had the right not to give me his name at that point.

All right.I might come back to that. What if he’d just ignored you and kept walking?---Then he was free to go.

So you say that, even though he was trying to walk off and you said, “Mate, I need your name…”?---To say I spoke to you.

“… to say I spoke to you”?---Yep.

“I need your name”. Did you say that?---“I need your name to say I spoke to you”.

Were you in uniform?---That’s correct, yes.

So do you really think in those circumstances that he would understand he’s free to go? He’s trying to leave and you’re chasing him, asking for his name?---I wasn’t chasing him at all. I walked after him and asked his name, which I’d do to any person on the street, whether or not I think they’ve committed an offence or not. Every person I speak to, my bosses want to know whether or not we’ve chatted to someone at any particular time.

But this wasn’t about chatting to someone, was it? Because you saw him walking off. Do you agree you could have just let him go at that stage?---Yeah, sure, he could have walked away.

No, you could have just let him go without saying, “I need your name”. Do you agree with that?---I suppose so, but I’m in the business of gathering intelligence and, yeah …

[2014] VSC 52

18 DECEMBER 2014 (revised 13 January 2015)