Ejueyitsi v Commissioner of Police (Western Australia)
[2013] FMCA 120
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EJUEYITSI v COMMISSIONER OF POLICE (WESTERN AUSTRALIA) | [2013] FMCA 120 |
| HUMAN RIGHTS – Alleged unlawful racial discrimination – African man – alleged traffic offences – twice allegedly driving under suspension – vehicles impounded – arrest and search of person – conduct of police. PRACTICE AND PROCEDURE – Summary judgment – whether reasonable prospects of success – principles. CRIMINAL LAW – Driving offences – driving under suspension – sentencing patterns – impounding of vehicles – arrest and search of person. |
| Australian Human Rights Commission Act 1986 (Cth), ss.46PO(1) and (3), 46PR Federal Court of Australia Act 1976 (Cth), s.31A Federal Magistrates Act 1999 (Cth), s.17A Federal Magistrates Court Rules 2001 (Cth), rr.4.05, 13.10, 41.02A Human Rights and Equal Opportunity Commission Act 1986 (Cth) International Convention on the Elimination of All Forms of Racial Discrimination, Article 5(b) and (d)(i) and (v) Interpretation Act 1984 (WA), s.56(1) Racial Discrimination Act 1975 (Cth), ss.3(1), 9(1) and (2), 13, 18, 18A, 18C Road Traffic Act 1974 (WA), ss.49(1)(a) & (c) and (3)(c), 53, 78, 78A, 79A, 79BA, 104I, 106(4) Road Traffic Code 2000 (WA), r.50(2)(a) Sentencing Act 1995 (WA), ss.6(4), 39(3) |
| Campbell v Kirstenfeldt [2008] FMCA 1356 Ho v Regulator Australia Pty Ltd& Anor [2004] FMCA 62 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors (2008) 167 FCR 372; [2008] FCAFC 60 Portuguese Cultural & Welfare Centre Inc v Australian Communications and Media Authority [2011] FMCA 144 Sheiner v Roberts [2009] WASC 281 White Industries Aust Ltd & Anor v Federal Commissioner of Taxation & Anor (2007) 160 FCR 298; [2007] FCA 511 |
| Applicant: | VINCENT BARBATUNDE EJUEYITSI |
| Respondent: | COMMISSIONER OF POLICE (WESTERN AUSTRALIA) |
| File Number: | MLG 243 of 2012 |
| Judgment of: | Lucev FM |
| Hearing date: | 19 February 2013 |
| Date of Last Submission: | 19 February 2013 |
| Delivered at: | Perth |
| Delivered on: | 5 March 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Monisse |
| Solicitors for the Applicant: | Sabelberg Morcos Lawyers |
| Counsel for the Respondent: | Ms S Teoh |
| Solicitors for the Respondent: | State Solicitor for Western Australia |
ORDERS
The respondent’s application in a case, as amended, be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
MLG 243 of 2012
| VINCENT BARBATUNDE EJUEYITSI |
Applicant
And
| COMMISSIONER OF POLICE (WESTERN AUSTRALIA) |
Respondent
REASONS FOR JUDGMENT
Application and amended application in a case
The applicant is an African man who brings an action alleging racial discrimination and racially offensive behaviour by the respondent.
The application, as it emerged at the hearing of the respondent’s amended application in a case, relies upon:
a)alleged unlawful racial discrimination contrary to s.9(1) of the Racial Discrimination Act 1975 (Cth);[1] and
b)alleged unlawful racially offensive behaviour contrary to s.18C of the RD Act.
[1] “RD Act”.
No reliance is placed on s.13 of the RD Act which deals with the refusal or failure to supply, relevantly, services, by reason of a person’s race, colour or national or ethnic origin. The applicant eschewed reliance upon s.13 of the RD Act at the hearing of the respondent’s amended application is a case.[2]
[2] Transcript, page 9. Tasks undertaken by police may be characterised in more than one way, but police officers involved in pursuing, stopping, arresting and maintaining custody of, which includes searching of clothes, a person suspected of having acted unlawfully would not generally be engaged in the provision of a service to the person whom they are arresting: see Robinson & Anor v Commissioner of Police, NSW Police Force (2012) 292 ALR 702 at 730-732 per Yates J; [2012] FCA 770 at paras.166-169 and 178 per Yates J.
The respondent is vicariously liable under s.18A of the RD Act for any act or omission of any employee or agent of the respondent contrary to the RD Act, unless the respondent shows that all reasonable steps were taken to prevent the employee or agent from doing the relevant act.[3]
[3] The Court notes that the police officers who are alleged to have carried out the conduct concerned are not separately named respondents in the proceedings.
Presently before the Court for judgment is the respondent’s amended application in a case filed 9 November 2012 whereby the respondent seeks to have the application dismissed summarily pursuant to s.17A of the Federal Magistrates Act 1999 (Cth)[4] and r.13.10 of the Federal Magistrates Court Rules 2001 (Cth)[5] on the basis that there are no reasonable prospects of successfully prosecuting the application.
[4] “FM Act”.
[5] “FMC Rules”.
The application – some procedural issues
The application form is not in the nature of a pleading or an originating process,[6] and even though it has been said that it is unlikely to “have utility in defining or resolving the controversy raised”[7] the Court, having regard to s.46PR of the Australian Human Rights Commission Act 1986 (Cth)[8] and Oorloff & Anor v Lee & Ors[9] has considered its content in trying to assess whether the application has a reasonable prospect of success.
[6] Reynolds v JP Morgan Administrative Services Australia Ltd & Ors (No. 2) (2011) 193 FCR 507 at 513 per Rares J; [2011] FCA 489 at paras.23-24 per Rares J (“Reynolds”); Reading v Partnership of Western Diagnostic Pathology [2008] FCA 1381 at para.42 per McKerracher J.
[7] Reynolds FCR at 513 per Rares J; FCA at para.22 per Rares J.
[8] “AHRC Act”.
[9] [2004] FMCA 893 at para.49 per Walters FM (“Oorloff”).
Section 46PR of the AHRC Act provides that proceedings in the Court “are not bound by technicalities or legal forms”. The capacity to act informally and without regard to legal technicalities is not, however, the provision of a licence to disregard legal principles.[10] The Court must still exercise its powers judicially.[11]
[10] Corcoran & Ors v Bansley Pty Ltd (2011) 250 FLR 323 at 330 per Lucev FM; [2011] FMCA 440 at para.17 per Lucev FM, citing Zoological Board of Victoria v Australian Liquor, Hospitality and Miscellaneous Workers Union (1993) 49 IR 41 at 48 per Moore VP.
[11] Walker v State of Victoria [2012] FCAFC 38 at para.81 per Gray J.
The applicant has not filed any affidavit in these proceedings. He is not required to do so in this case because the obligation to do so on filing an application ordinarily arises under r.4.05 of the FMC Rules, which does not apply to human rights applications.[12] In cases in which there are no pleadings in this Court, the function of affidavits has been to give factual context to the application, and the allegations made, so as to enable the other party or parties to understand the case which is put against them.[13] The failure to file an affidavit leaves the Court with the allegations made in the:
a)application form;
b)applicant’s undated Australian Human Rights Commission[14] Complaint, as amended;[15] and
c)document filed on 6 March 2012 purporting to be a statement of questions raised as an outline of the applicant’s case.
[12] FMC Rules, r.41.02A
[13] Kurniadi & Ors v Loh & Ors [2003] FMCA 24 at para.39 per McInnis FM.
[14] “AHRC”.
[15] “AHRC Complaint”.
Factual outline
The application is set against a series of alleged traffic offences by the applicant, which developed as follows:
a)on 8 March 2009 the applicant was charged under r.50(2)(a) of the Road Traffic Code 2000 (WA)[16] with failing to stop at a stop sign or line;[17]
b)near the end of June 2009 the applicant received a summary report of his demerit point accumulation indicating that he was not in excess of 12 points;
c)on 15 September 2009 the Failing to Stop Charge was heard, seemingly without the applicant’s knowledge, and he was convicted in the Magistrates Court of Western Australia. Under s.104I of the Road Traffic Act 1974 (WA)[18] the applicant’s driver’s licence was disqualified for three months 28 days after being served with an Excessive Demerit Notice on 6 November 2009.[19] The disqualification commenced on 5 December 2009 and expired on 4 March 2010;
d)on 27 January 2010 the applicant was pulled over in a Hyundai Sonata (registration 1CNU 435) by the police and charged with driving whilst disqualified under s.49(1)(a) and (3)(c) of the RT Act, and his vehicle was impounded under s.79A of the RT Act;[20]
e)the applicant was subsequently convicted, fined $1500 and his licence was disqualified for nine months cumulative in relation to the 27 January 2010 Incident;
f)on 20 April 2010 the applicant was pulled over in a Mercedes Benz (registration 8LJ 283) by the police and charged with driving whilst disqualified under s.49(1)(a) and (3)(c) of the RT Act, and once again his vehicle was impounded under s.79A of the RT Act, but on this occasion the applicant was arrested, handcuffed and searched;[21] and
g)on 26 October 2010 the original Failing to Stop Charge was dismissed and the conviction was overturned in the Magistrates Court of Western Australia. Consequently, on 27 October 2010 the charges relating to the 27 January 2010 Incident and the 20 April 2010 Incident were also dismissed in the Magistrates Court of Western Australia.
[16] “RT Code”.
[17] “Failing to Stop Charge”.
[18] “RT Act”.
[19] “2009 Excessive Demerit Notice”.
[20] “27 January 2010 Incident”.
[21] “20 April 2010 Incident”.
The AHRC Complaint
In the AHRC Complaint the applicant complained about the “Western Australian police” and said that he had been discriminated against because of his race.[22] The detail of the AHRC Complaint was as follows:
[22] AHRC Complaint, Part B.
a)that the applicant was stopped on 27 January 2010 by the police for driving whilst under suspension;
b)his Hyundai Sonata vehicle was impounded;
c)the police officers did not realise that the demerit points which they claimed formed the basis of the suspension were to be the subject of a court hearing, “and the matter had not been heard and the plaintiff had not been proved guilty”;
d)despite repeated appeals to the police officers to conduct a proper investigation they did not do so;
e)the applicant went to the head office of the Western Australian Police Traffic Branch to lodge a complaint of false suspension, and was advised that an accused is presumed innocent until he is proven guilty, and on the above basis, the applicant’s suspension was not in effect and as a result the demerit points had not been lost;
f)on the basis of advice from the head of the West Australian Police Traffic Branch the applicant drove his other car (a Mercedes) and was again stopped for driving under suspension, “was arrested unlawfully handcuffed and detained and his clothes were stripped off. The plaintiff was humiliated, intimidated in the public place”;
g)the applicant pleaded with the officers concerned to check their records and told them the matter of the demerit points was in contest and a court hearing was pending;
h)the charges were heard on 26 and 27 October 2010, and the charges were dismissed and the applicant was acquitted;
i)the applicant’s treatment resulted from his race; and
j)the applicant’s treatment resulted in the applicant being injured in his reputation, suffering physical trouble and inconvenience, anxiety and expense, and thereby loss and damage.[23]
[23] AHRC Complaint, Part B.
On 19 December 2011 in an explanation of part of the AHRC Complaint, seemingly at or about the conciliation phase, the applicant wrote, somewhat floridly, to the AHRC in the following terms:
…
… It is surprising, a circumstances where a police officers will stop somebody on the way and asked them what country are they from? I am from Africa and i am going to deal with you constitute a worry in the eyes of the government! A circumstances where two cars were impounded and the applicant got arrested and detained and further stripped off in a police station constitute a bitter angony in the eyes of the nation!
…
A circumstances where a police officers told a person i am going to deal with you, you bloody African, may considered evil conduct to the public.
I am a PhD holder studied and lectured in Australia University. I am stripped off in the police station and later found out to be innocent deserve an examination in the light of torture and damage that i experienced from those people[24]
For reasons set out below, the above matters constitute part of the AHRC Complaint.[25]
[24] Email from the applicant to Hien Le, Senior Investigations/Conciliation Office, AHRC (transcribed without amendment) (“19 December 2011 Email”).
[25] See para.16 and fnn.31 and 33 below.
Jurisdiction of the Court
The AHRC Act provides an exclusive regime for remedying contraventions of the RD Act.[26]
[26] Re East; Ex parte Nguyen (1998) 196 CLR 354 at 365-366 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; [1998] HCA 73 at paras.26 and 31-32 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Perry v Howard [2005] FCA 1702 at para.37 per Siopis J.
Section 46PO(1) and (3) of the AHRC Act provides as follows:
(1) If:
(a) a complaint has been terminated by the President under section 46PE or 46PH; and
(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
(3) The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
Only an “affected person” can make an application to this Court.[27] The applicant as a complainant whose AHRC Complaint has been terminated, and a person allegedly discriminated against, is an “affected person” under s.46PO(1) of the AHRC Act.
[27] Oorloff at para.55 per Walters FM. In Oorloff, where a wife sought to be party to an application to this Court when the complaint to the AHRC’s predecessor, the Human Rights and Equal Opportunity Commission, was made only by the husband, the wife’s complaint was dismissed for want of jurisdiction: Oorloff at paras.54-56 per Walters FM.
In Campbell v Kirstenfeldt[28] this Court observed that the scope of the application made to this Court is limited by s.46PO(3) of the AHRC Act.[29]
[28] [2008] FMCA 1356 (“Campbell”).
[29] Then the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
By reason of s.46PO(3)(b) the applicant is permitted to allege in this Court facts different to those alleged in the AHRC Complaint, provided that the newly alleged facts are not different in substance from the formerly alleged facts.[30] These provisions do not limit this Court to considering the AHRC Complaint as initially filed with the AHRC. Rather, the limitation applies to the AHRC Complaint as ultimately considered by the AHRC.[31] No doubt difficulties may arise with a complaint generally expressed or lacking details.[32] Given that complaints will often not be prepared by lawyers, and ought not be construed as if they were pleadings, it will be for the Court to determine whether the evidence arises out of the same, or substantially the same, acts, omissions or practices that were the subject of the terminated complaint.[33]
[30] Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at 580-581 per Katz J; [2000] FCA 1531 at para.39 per Katz J.
[31] Travers v State of New South Wales [2000] FCA 1565 at para.8 per Lehane J (“Travers”); Ho v Regulator Australia Pty Ltd & Anor [2004] FMCA 62 at para.4 per Driver FM; Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721 at para.10 per Driver FM.
[32] Gama v Qantas Airways Ltd (2006) 195 FLR 475 at 480 per Raphael FM; [2006] FMCA 11 at para.9 per Raphael FM (“Gama”). This Court’s judgment in Gama was appealed, but not this aspect of the judgment: Qantas Airways Limited v Gama (2008) 167 FCR 537; [2008] FCAFC 69.
[33] Travers at para.8 per Lehane J; Gama FLR at 480 per Raphael FM; FMCA at para.9 per Raphael FM; Campbell at paras.14-15 per Lucev FM. See also Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at paras.43-48 per Marshall, Rares and Flick JJ, and especially at para.48 where it was said, in the context of a pleading amendment application, that it “is not appropriate for a court considering an application for leave to amend to preclude an amendment that raises an arguable claim for relief, especially where the terms of s.46PO(3)(b) (in particular) permit of some flexibility…the terms of a complaint made to the Commission should not be read with the same strictures as apply to a pleading in a Court.”
In this case, although the respondent to the AHRC Complaint appears to have been the Western Australia Police and the respondent to these proceedings is the Commissioner of Police (Western Australia), no issue has been made of that by the respondent, quite properly, and the respondency to both the AHRC Complaint and the application and amended application in a case should be considered to be the present respondent, the Commissioner of Police (Western Australia). Otherwise, the relevant factual matrix is the same in both the AHRC Complaint and in these proceedings.
Summary dismissal – power and principles
Section 17A of the FM Act, which is in equivalent terms to s.31A of the Federal Court of Australia Act 1976 (Cth),[34] relevantly provides as follows:
[34] “FC Act”.
(2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
Rule 13.10 of the FMC Rules provides as follows:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
In dealing with applications for summary judgment under s.17A of the FM Act it is appropriate for this Court to adopt a similar approach to that taken by the Federal Court in cases under s.31A of the FC Act.[35]
[35] George v Fletcher (Trustee) [2010] FCAFC 53 at para.75 per Ryan and Logan JJ and para.105 per Marshall J (“George”); Ejueyitsi v Bond University [2012] FMCA 872 at para.24 per Jarrett FM.
In Spencer v The Commonwealth of Australia[36] the majority of the High Court observed that:
a)the power under s.31A of the FC Act (here s.17A of the FM Act) may only be exercised if the Court is satisfied that the application has no reasonable prospect of success;
b)the power to dismiss an action summarily is not to be exercised lightly;
c)the legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes;[37]
d)it is not necessary to demonstrate certainty of failure (in the sense of the application being hopeless or bound to fail) in order to show that the application has no reasonable prospect of success, and in that respect there is now a less demanding assessment of the lack of merit of an application;[38] and
e)the Court should nevertheless proceed with caution on an application for summary dismissal.[39]
[36] (2010) 241 CLR 118; [2010] HCA 28 (“Spencer”).
[37] Spencer CLR at 141 per Hayne, Crennan, Kiefel and Bell JJ; HCA at para.60 per Hayne, Crennan, Kiefel and Bell JJ.
[38] Spencer CLR at 140 per Hayne, Crennan, Kiefel and Bell JJ; HCA at para.56 per Hayne, Crennan, Kiefel and Bell JJ.
[39] Spencer CLR at 131-132 per French CJ and Gummow J; HCA at para.24 per French CJ and Gummow J.
In relation to s.31A of the FC Act the Federal Court has observed that:
a)a court must be satisfied that the applicant has no reasonable prospect of success;
b)a court need not be satisfied that the proceeding is hopeless or bound to fail;
c)the Parliament’s intention in introducing the provisions concerning summary dismissal was to lower the bar for obtaining summary judgment (including summary dismissal) below the level previously fixed by authorities like Dey v Victorian Railways Commissioners[40] and General Steel Industries Inc v Commissioner for Railways (NSW) & Ors[41] which required that the allegations be so clearly untenable that they could not possibly succeed;
d)there was not an intention on Parliament’s part to remove the bar completely, and a court must be very cautious not to do a party an injustice by summarily dismissing proceedings;
e)evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects, and in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, a court should be more reluctant to dismiss a proceeding on the face of a pleading;
f)it was not Parliament’s intention to require a court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial;
g)if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said, where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds, that there is “no reasonable prospect of success”;
h)in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party;
i)a summary dismissal proceeding ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;
j)the mere presence of a trifling, implausible, tenuous or tangentially relevant factual controversy is not a bar to the exercise of the summary dismissal power; and
k)what is required is a prediction of the outcome of a trial on the merits but not an actual adjudication of those merits such that a court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed.[42]
[40] (1949) 78 CLR 62 at 91-92 per Dixon J.
[41] (1964) 112 CLR 125 at 129-130 per Barwick CJ.
[42] George at para.75 per Ryan and Logan JJ; White Industries Aust Ltd & Anor v Federal Commissioner of Taxation & Anor (2007) 160 FCR 298 at 310 per Lindgren J; [2007] FCA 511 at paras.50-54 per Lindgren J; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors (2008) 167 FCR 372 at 387-388 per Rares J; [2008] FCAFC 60 at para.45 per Rares J; Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 at para.15 per Heerey J; Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at para.6 per Gilmour J (“Dandaven”).
In Oorloff this Court observed that in unlawful discrimination cases the power to summarily dismiss ought be exercised with exceptional caution, and be sparingly invoked, especially where the applicant is unrepresented, and that there was an onus on the respondent in a summary dismissal application to establish to a high measure of satisfaction that the proceedings ought to be dismissed. Further, the Court observed that in summary dismissal applications the Court was not limited to the arguments put before it, but may look at all of the material to assess independently whether an arguable case based on the material might be made out.[43]
[43] Oorloff at para.49 per Walters FM.
Unlawful racial discrimination
Section 9(1) and (2) of the RD Act provides as follows:
(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.
The Convention referred to is the International Convention on the Elimination of All Forms of Racial Discrimination that was opened for signature on 21 December 1965 and entered into force on 2 January 1969, being the Convention a copy of the English text of which is set out in the Schedule to the RD Act.[44]
[44] RD Act, s.3(1) definition of “Convention” (“Convention”).
In order to establish a contravention of s.9(1) of the RD Act the applicant must establish that:
a)the respondent did an act;
b)the act involved a distinction, exclusion, restriction or preference;
c)the act was based on race, colour, descent or national or ethnic origin; and
d)the act had the effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.[45]
[45] Portuguese Cultural & Welfare Centre Inc v Australian Communications and Media Authority [2011] FMCA 144 at para.20 per Lucev FM.
The following rights, amongst others, are set out in Article 5 of the Convention:
a)the right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by an individual, group or institution;[46]
b)the right to freedom of movement within the border of the State;[47] and
c)the right to own property alone as well as in association with others.[48]
[46] Convention, Article 5(b).
[47] Convention, Article 5(d)(i).
[48] Convention, Article 5(d)(v).
Racially offensive behaviour
Section 18C of the RD Act provides as follows:
(1)It is unlawful for a person to do an act, otherwise than in private, if:
(a)the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b)the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.[49]
[49] But not descent: contrast RD Act, s.9(1).
(2)For the purposes of subsection (1), an act is taken not to be done in private if it:
(a)causes words, sounds, images or writing to be communicated to the public; or
(b)is done in a public place; or
(c)is done in the sight or hearing of people who are in a public place.
(3)In this section:
public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.
The civil wrong established by s.18C of the RD Act has four elements, as follows:
a)an act performed otherwise than in private;
b)an act by a person;
c)an act reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or group of people; and
d)an act done because of the race, colour or national or ethnic origin of the other person or group of people,
and the applicant must prove each of the above four elements for the Court to be satisfied that the unlawful conduct has occurred as alleged.[50]
Whether reasonable prospects of success
[50] Campbell at paras.17-18 per Lucev FM.
Generally
Were the applicant’s application based on the AHRC Complaint as filed there would be nothing but the barest assertion that the respondent’s actions were based on the applicant’s race. The 19 December 2011 Email, which is part of the AHRC Complaint as ultimately considered by the AHRC, however, takes the matter further because, stripped down, the allegations there made assert that:
a)a police officer asked the applicant what country he was from;
b)the applicant told the police officer that he was “from Africa”; and
c)at some point, the police officer allegedly said to him “I am going to deal with you, you bloody African” or words to that effect.
It is not apparent whether the above incidents occurred on 27 January 2010 or 20 April 2010 or, in whole or at least in part, on both occasions.
The fact that the applicant was allegedly asked what country he was from, and was allegedly told that he was going to be dealt with at the same time as being described as a “bloody African” is, at least for the purposes of resisting a summary dismissal application, a sufficient basis to infer possible racial discrimination or racially offensive behaviour on the basis of at least colour and descent for racial discrimination. The Court notes the suggestion that it may be possible that the applicant was asked where he was from as part of “standard police protocol to ask a person who has committed an offence for their … place of birth and whether they are of Aboriginal or Torres Strait Islander descent.”[51] The Court makes the following observations about that suggestion:
a)that the “what country are you from” question is directed to where a person is “from” and not the place of birth, and the two may not be the same; and
b)asking a person where they are from is not a question likely to elicit a response that they are an Aboriginal or a Torres Strait Islander, a fact which might be far more easily ascertained by asking them whether they are an Aboriginal or a Torres Strait Islander.
[51] Affidavit of James Edward Robinson, sworn 17 October 2012, para.12 (“Robinson Affidavit”).
Because the alleged statement “I am going to deal with you, you bloody African” is so general and broad-based, its potential effect, in terms of the extent of any discrimination or racially offensive behaviour, ought not, at this stage, be limited, and each of the alleged specific incidents needs to be considered with this alleged broad statement as part of the underlying fabric of any alleged racial discrimination or racially offensive behaviour by the respondent’s officers.
Stopping the applicant
The applicant asserts that he was stopped on 27 January 2010 and 20 April 2010 based on his race.
The evidence filed by the police officers involved in stopping the applicant on 27 January 2010 and 20 April 2010 indicates that the applicant was stopped on each occasion because the in-vehicle computer system used by police officers (known as the TARDIS System) showed, correctly at the time, that the applicant’s driver’s licence was subject to a court-imposed suspension under s.49(1)(c) of the RT Act. The officers say they ascertained this by checking the driver’s licence details of the owner of the vehicle.[52] It almost goes without saying that a police officer would stop a vehicle which was being driven where police records indicated that the owner of that vehicle was a person whose driver’s licence had been suspended. Police officers are entitled to stop a vehicle under the RT Act.[53]
[52] Affidavit of Sonia Marie Wilson, affirmed 15 October 2012, paras.4 and 6, and Annexure A, paras.5-6; Robinson Affidavit, paras.6-7.
[53] RT Act, s.53.
There is nothing in any of the material filed on behalf of the applicant or the respondent which directly suggests that the applicant being stopped on 27 January 2010 and 20 April 2010 had any link to issues of race. Although not the subject of any specific evidence at this stage, it emerged in response to questions from the Court at the hearing, and was properly conceded by Counsel for the respondent, that police officers in police vehicles may have access to information about a person’s race, nationality or ethnic origin via a “different screen” on the TARDIS System.[54] The possibility thus emerges that a police officer who has ascertained the owner of a vehicle, might also be able to ascertain that person’s race or national or ethnic origin, and to do so without even having seen the driver of the vehicle.
[54] Transcript, p.7.
Impounding the applicant’s vehicle
Section 79A(1) of the RT Act provides as follows:
(1) If a member of the Police Force reasonably suspects that, while driving a vehicle, the driver has committed an impounding offence (driver’s licence), the member must, unless in the circumstances it is impracticable to do so, impound the vehicle within a period of 28 days after the day of the offence.
Driving while under a licence suspension is an offence which requires a police officer to impound the vehicle where the police officer reasonably suspects that an impounding offence has occurred.[55] Under s.79A(1) of the RT Act the police officer must, unless in the circumstances it is impracticable to do so, impound the vehicle within a period of 28 days after the day of the offence.[56] The respondent submitted that this meant that a police officer must impound the vehicle once the police officer reasonably suspected that an impounding offence had occurred, and in the circumstances of this case, that that meant immediate impounding of the applicant’s vehicle on each of 27 January 2010 and 20 April 2010.
[55] RT Act, ss.49(1)(a) and (3)(c), 78, 78A and 79A(1).
[56] RT Act, s.79A(1).
On a plain reading of s.79A(1) of the RT Act it is mandatory for a police officer to impound the vehicle of a driver whom the police officer reasonably suspects has committed an impounding offence whilst driving the vehicle. The time within which the vehicle must be impounded is a period of 28 days after the day of the offence, “unless in the circumstances it is impracticable to do so”. Thus, if it is impracticable to impound the vehicle within a period of 28 days, it may be impounded at another time. There is nothing on a plain reading of s.79A of the RT Act which means that a member of the police force must impound the vehicle in question immediately even where the police officer reasonably suspects that the driver had committed an impounding offence. That said, one can readily imagine that it would be entirely appropriate, in normal circumstances, to immediately impound the vehicle of a driver who had been caught driving that vehicle whilst the driver’s licence was suspended.
The respondent referred to s.79BA of the RT Act, which, relevantly, provides as follows:
(1) This section applies if —
(a) a member of the Police Force (the member ) suspects that the driver of a vehicle (the vehicle ) has committed an offence (the offence ); and
(b) the member —
(i) would have been required by section 79(1) or 79A(1) (the impounding provision ) to impound the vehicle if it had been practicable to do so but, because it was impracticable, the vehicle was not impounded; or
(ii) is required by section 79(1) or 79A(1) (the impounding provision ) to impound the vehicle but by the time the member forms the necessary suspicion the impounding can most conveniently be achieved by giving a notice under this section.
(2) If this section applies the member may give to a responsible person for the vehicle, personally or by registered post, a notice in accordance with this section (a surrender notice).
The respondent submitted that s.79BA(1) and (2) of the RT Act meant that the applicant’s vehicles had to be impounded at the time of each of the 27 January 2010 Incident and 20 April 2010 Incident because that was the time at which the respondent’s officers formed the requisite suspicion, and it was practicable to impound the vehicles.[57] This argument is, on the face of s.79BA of the RT Act, read with s.79A of the RT Act, a plausible one. It does not, however, alter the arguably plain meaning of s.79A which allows a period of 28 days after the alleged offences in which to impound the vehicles, unless it is impracticable to do so. Further, in this case, there may be an interesting question of fact to be tested as to when the requisite suspicion was, or was not, formed, especially in circumstances where the applicant was protesting that the Failing to Stop Charge was the subject of forthcoming court proceedings. In the circumstances, there are disputed or arguable questions of law and fact which militate against summary dismissal of the application.
[57] RT Act, s.79BA(1).
On the applicant’s version of events this case was, in any event, different, because the applicant protested, at the time of both the 27 January 2010 Incident and the 20 April 2010 Incident, that the circumstances were such that he was not driving whilst his driver’s licence was suspended.
The Court is not aware, on the present state of the evidence, as to how difficult it is for police officers on traffic patrol to check the kind of information inherent in the applicant’s protest that the Failing to Stop Charge was being challenged in court, and, therefore, that he was not driving whilst his licence was suspended because he had not yet lost the requisite demerit points. By the time, however, the applicant made that argument, seemingly face-to-face with the police officers concerned, at the time of both the 17 January 2010 Incident and the 20 April 2010 Incident, it would have been obvious that the applicant was:
a)a “coloured” person for the purposes of ss.9(1) and 18C of the RD Act; and
b)most likely of African descent and, therefore, of an African race or ethnic or national origin.
The possibility that the applicant’s vehicles were impounded by reason of the applicant’s colour, descent, race or national or ethnic origin, cannot be excluded, when regard is had to the fact that the officers concerned, prior to impounding the vehicles, saw the applicant, and seemingly heard the applicant’s protests, and when those circumstances are considered in conjunction with other available evidence, including the alleged “bloody African” comment.
In the circumstances, it is not immediately apparent why it was necessary to immediately impound the applicant’s vehicles, especially in view of the applicant’s protests. The officers arguably had a discretion under the RT Act as to whether or not to immediately impound the vehicle. The respondent contends that there was no such discretion. At this stage, given that the law may be uncertain, and the evidence disputed, it is an arguable proposition that the act of impounding the applicant’s vehicles, on one or both occasions, was based upon the applicant’s colour, descent, race or national or ethnic origin.
Arresting the applicant
When the applicant was stopped by police on 27 January 2010 he was charged on summons. When the applicant was stopped by police officers on 20 April 2010 he was charged, arrested, handcuffed, taken into custody and searched.
The reason for the arrest was said to be because police records “indicated” that the applicant “had previously been convicted of driving without authority and … was still driving whilst under a court imposed suspension.”[58]
[58] Robinson Affidavit, para.9.
There is no doubt that a person driving a motor vehicle whilst their licence is suspended,[59] “may” be arrested by a police officer, without a warrant.[60] Whether the person is, or is not, arrested is a matter of police discretion, as is evident from the phrase “may, without a warrant, arrest the person” in s.49(3) of the RT Act.[61] The necessity to arrest a person, even one who would at the time have appeared to the police officers concerned to have been stopped whilst driving under suspension for a second time, must be considered against the available sentencing options for the offence of driving a motor vehicle whilst under suspension. The sentencing options include:
a)some form of community based order, including an intensive supervision order;[62]
b)a fine;[63] or
c)imprisonment,[64] including a sentence of suspended imprisonment.
[59] RT Act, s.49(1)(a).
[60] RT Act, s.49(3).
[61] Interpretation Act 1984 (WA), s.56(1).
[62] RT Act, s.106(4)(a); Gable v Nardini & Anor (2010) 56 MVR 551 at 560 per EM Heenan J; [2010] WASC 321 at para.27 per EM Heenan J (“Gable”).
[63] RT Act, s.49(1).
[64] RT Act, s.49(1).
In Western Australia sentences of imprisonment are not to be imposed unless a court is satisfied that it is not appropriate to use a less serious option.[65] A sentence of imprisonment, including a suspended sentence of imprisonment, must not be imposed unless a court decides that the seriousness of the offence is such that only imprisonment could be justified, or the protection of the community requires the sentence of imprisonment.[66]
[65] Sentencing Act 1995 (WA), s.39(3) (“Sentencing Act”); Gable MVR at 560 per EM Heenan J; WASC at para.26 per EM Heenan J.
[66] Sentencing Act, s.6(4); Gable MVR at 560 per EM Heenan J; WASC at para.26 per EM Heenan J.
An extensive examination of cases decided in the West Australian courts in relation to driving a motor vehicle whilst under suspension was undertaken in Gable,[67] endorsing earlier observations in Mears v Holleman & Anor[68] that:
… sentences for convictions for driving while under suspension involving fourth, fifth, sixth, seventh or eighth such offences resulted in terms of imprisonment, after appeal, being fixed at between four months and nine months with eligibility for parole.[69]
[67] Gable MVR at 560-562 per EM Heenan J; WASC at para.28 per EM Heenan J.
[68] (2010) 55 MVR 164; [2010] WASC 39 (“Mears”).
[69] Mears MVR at 171 per EM Heenan J; WASC at para.24 per EM Heenan J.
In Sheiner v Roberts[70] five convictions for driving under suspension with a prior record of ten offences for driving under suspension saw a sentence of eight months imprisonment imposed on appeal, reduced from 18 months at first instance.[71] In Style v Rudrum[72] the appellant had been sentenced to nine months imprisonment on a charge of driving whilst suspended, it being the fifth such offence committed by the appellant in about 16 months.[73] Having referred to Sheiner, Gable, and to the passage extracted above from Mears, the Western Australian Supreme Court went on to observe that in many of those cases the driving had occurred in the context of the commission of other offences such as speeding, driving under the influence of alcohol or reckless driving.[74] Having regard to that fact, and the fact that the appellant in Style was a young man who had never received a sentence greater than a fine, the Western Australian Supreme Court came to the view that a sentence of imprisonment was not warranted but rather a community based order of six months with a supervision requirement and community service requirement of ten hours.[75]
[70] [2009] WASC 281 (“Sheiner”).
[71] See Sheiner at paras.1, 11-13 and 24-26 per McKechnie J.
[72] [2012] WASC 385 (“Style”).
[73] Style at paras.1 and 5 per Hall J.
[74] Style at paras.13 and 15 per Hall J.
[75] Style at paras.15-21 per Hall J.
The applicant had previous minor traffic offences, including one for driving a motor vehicle whilst under suspension in 2005. None of those earlier minor traffic offences had incurred a fine of more than $400.[76] Even if the 20 April 2010 Incident were truly a case of a fourth driving under suspension offence, which it is not, there seems to be considerable doubt, especially in the absence of aggravating circumstances, that the applicant would ultimately have been imprisoned. It is difficult in the circumstances to understand why the applicant was arrested, as opposed to being charged on summons, as he had been for the earlier alleged offence of driving whilst under suspension in the 27 January 2010 Incident.
[76] See the applicant’s “Court Outcomes History – Criminal and Traffic” which is Annexure A to the affidavit of Natalie Kaye Morris, affirmed 18 October 2012.
Although the police are entitled to arrest a person for driving under suspension the necessity to do so in this case is not immediately apparent. This is especially so where:
a)the 20 April 2010 Incident was only the fourth such charge against the applicant; and
b)there is no evidence that the circumstances were attended by anything other than the applicant’s protestations that the Failing to Stop Charge was subject to court proceedings, and that as a consequence, he had not lost sufficient demerit points to be disqualified. Even if the applicant was vocal, or upset, there is no evidence that there were any associated circumstances of aggravation, such as the applicant assaulting, or threatening to assault, the police officers concerned, or attempting to flee the scene, either on foot or in the impounded vehicle, which might have warranted his arrest.
In the circumstances, the necessity to arrest the applicant not being apparent in the circumstances, it does leave open the inference that he may have been arrested by reason of his colour, descent, race or national or ethnic origin.
Searching the applicant
There is no dispute that the applicant, having been taken into custody, was searched. Understandably, persons taken into custody are searched as a matter of course for safety and security reasons.[77] There is, however, a factual dispute about the extent of the search of the applicant’s person on 20 April 2010. The applicant says he was subject to a full strip search. The respondent says that the applicant was subject to a basic search, and had to be told not to remove his clothes, which he had commenced to do voluntarily.[78] This is a factual dispute which will only be resolved by an assessment of the evidence of the applicant and the police officers concerned, together with an examination of any documentation, or audio or video evidence, in relation to the applicant’s time in custody.
[77] Robinson Affidavit, para.10.
[78] Robinson Affidavit, para.11.
For the purposes of a summary dismissal application the applicant’s evidence must be taken at its highest.[79] Given the nature of the offence for which the applicant was arrested, the fact of a strip search, if that be the case, might leave open an inference that a strip search, rather than a basic search, was conducted by reason of the applicant’s colour, descent, race or national or ethnic origin. A debatable question also appears to arise as to whether, for the purposes of s.18C of the RD Act, the search occurred otherwise than in private.
[79] See para.22(h) above.
The application of policy
It was also put by the respondent that what was done was within the confines of Western Australian Police policy. That may be so, and may give rise to further argument about the scope and nature of the policy, and its interaction with the relevant laws, especially, in the context of police officers whose duty is to apply the law, and to apply the law rather than policy when the two conflict, if they do.
Further and final consideration
A cautious approach to summary dismissal must be adopted by the Court.
An outline of the evidence at trial is sufficient for present purposes in considering whether or not there is sufficient evidence to allow the matter to proceed.[80] This is a case where the evidence may give colour and context to the application, and the allegations in the application, and in particular the allegation relating to a police officer allegedly describing the applicant as a “bloody African” who “must be dealt with”. Although the evidence, such as it is, in the materials is of a very general character, that ought not preclude the Court, exercising caution, from making a finding that the respondent has not established that this is a case without a reasonable prospect of success at trial.
[80] Dandaven at para.6 per Gilmour J.
The Court also notes that there are a number of factual areas of dispute, which if established in favour of the applicant, might be sufficient to enable an argument that inferences ought to be drawn from the conduct of the police officers, that that conduct constituted racial discrimination or racially offensive behaviour. There are also the interesting legal and factual questions arising from the respondent’s assertion that what was done with respect to the applicant’s alleged traffic offences was entirely lawful under State traffic and criminal investigation laws at the time at which it was done, which appears to be the case, but underlying which is the question of whether why it was done had some element of unlawful conduct under the RD Act. The fact that the police officers concerned may have acted within the scope of their legal discretion is therefore, not necessarily a complete answer to the alleged unlawful conduct under the RD Act, for an act done for two or more reasons may still be unlawful under the RD Act, if one of those reasons is the race, colour, descent or national or ethnic origin of a person.[81]
[81] RD Act, s.18.
In this case the police officers concerned:
a)may have had access to details of the applicant’s race and nationality or ethnic origin, whilst on traffic patrol;
b)arguably had a discretion not to immediately impound the applicant’s vehicles;
c)arguably did not have to arrest and search, or strip search, the applicant on 20 April 2010, when the option was available to charge the applicant on summons; and
d)would have known at the time of impounding the applicant’s vehicles, and arresting and searching the applicant, that the applicant was a coloured person,
and when those circumstances are considered in conjunction with the alleged statement of one police officer that the officer would “deal with” the “bloody African”, there is sufficient evidence, albeit mainly circumstantial, to preclude summary dismissal of the application on the basis that there is no reasonable prospect of success.
In all of the circumstances the Court is of the view that the application cannot be dismissed on the basis that it does not have reasonable prospects of success.
Conclusion and orders
The Court has concluded that the respondent’s application in a case, as amended, ought to be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs, and further directions.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 5 March 2013
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