Ejueyitsi v Commissioner of Police (Western Australia) (No.2)
[2015] FCCA 494
•9 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EJUEYITSI v COMMISSIONER OF POLICE (WESTERN AUSTRALIA) (No.2) | [2015] FCCA 494 |
| Catchwords: CRIMINAL LAW – Driving offences – driving under suspension – impounding of vehicles – arrest and search of person. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth) Criminal Investigation Act 2006 (WA) |
| Bropho v Human Rights and Equal Opportunity Commission & Anor (2004) 135 FCR 105; [2004] FCAFC 16 Bropho v Western Australia & Ors (2008) 169 FCR 59; [2008] FCAFC 100 Campbell v Kirstenfeldt [2008] FMCA 1356 Ejueyitsi v Commissioner of Police (Western Australia) [2013] FMCA 120 Ejueyitsi v Maloney [No. 2] [2007] WASCA 227 Ejueyitsi v Maloney [2009] HCATrans 174 Gerhardy v Brown (1985) 159 CLR 70 Hagan v Trustees of The Toowoomba Sports Ground Trust (2001) 105 FCR 56; [2001] FCA 123 Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission & Anor (1998) 91 FCR 8 Portuguese Cultural & Welfare Centre Inc v Australian Communications and Media Authority [2011] FMCA 144 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Others (1992) 110 ALR 449 Qantas Airways Ltd v Gama (2008) 167 FCR 537; [2008] FCAFC 69 |
| Applicant: | VINCENT BABATUNDE EJUEYITSI |
| Respondent: | COMMISSIONER OF POLICE (WESTERN AUSTRALIA) |
| File Number: | MLG 243 of 2012 |
| Judgment of: | Judge Lucev |
| Hearing dates: | 16-17 October 2013 |
| Date of Last Submission: | 17 October 2013 |
| Delivered at: | Perth |
| Delivered on: | 9 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Kristopher |
| Solicitors for the Applicant: | Lumlan & Associates Pty Ltd |
| Counsel for the Respondent: | Mr T C Russell with Ms S Teoh |
| Solicitors for the Respondent: | State Solicitors Office |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
MLG 243 of 2012
| VINCENT BABATUNDE EJUEYITSI |
Applicant
And
| COMMISSIONER OF POLICE (WESTERN AUSTRALIA) |
Respondent
REASONS FOR JUDGMENT
Application
The applicant, Vincent Babatunde Ejueyitsi,[1] is an African man who makes an application alleging direct racial discrimination and racially offensive behaviour by police officers appointed by the respondent, the Commissioner of Police (Western Australia).[2] There is no dispute that Mr Ejueyitsi is a 52 year old dark skinned male of African descent.[3]
[1] “Mr Ejueyitsi”.
[2] “Commissioner”. Under s.7(1) of the Police Act 1892 (WA) the Commissioner may appoint so many non-commissioned officers and constables of different grades as the Commissioner deems necessary for preservation of peace and order throughout the State of Western Australia, subject, however, to the approval of the Governor.
[3] Points of Claim, para.1; Points of Defence, para.1; Affidavit of Vincent Babatunde Ejueyitsi, sworn 30 April 2013, para.2 (“Mr Ejueyitsi’s Affidavit”).
Mr Ejueyitsi’s application relies upon:
a)section 9(1) of the Racial Discrimination Act 1975 (Cth);[4] and
b)section 18C of the RD Act,
in alleging direct racial discrimination and racially offensive behaviour by the Commissioner. The Commissioner is vicariously liable under s.18A of the RD Act for any act or omission of any employee or agent of the Commissioner contrary to the RD Act, unless the Commissioner shows that all reasonable steps were taken to prevent the employee or agent from doing the relevant act.[5]
[4] “RD Act”.
[5] 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.
Factual outline – traffic incidents and charges
The application is set against a series of alleged traffic offences by Mr Ejueyitsi, which developed as follows:
a)on 8 March 2009 Mr Ejueyitsi was charged under r.50(2)(a) of the Road Traffic Code 2000 (WA)[6] with failing to stop at a stop sign or line;[7]
b)near the end of June 2009 Mr Ejueyitsi 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 Mr Ejueyitsi’s knowledge, and he was convicted in the Magistrates Court of Western Australia;[8]
d)on 6 November 2009 Mr Ejueyitsi was served with an Excessive Demerit Points Notice,[9] which he refused to sign;
e)under s.104I of the Road Traffic Act 1974 (WA)[10] Mr Ejueyitsi’s driver’s licence was disqualified for three months, 28 days after being served with the 2009 Excessive Demerit Points Notice. The disqualification commenced on 5 December 2009 and expired on 4 March 2010;
f)on 15 January 2010 Mr Ejueyitsi was in a Hyundai Sonata (registration 1CNU 435)[11] when he was stopped by the police. Mr Ejueyitsi was not charged, but was advised that he had a demerit point licence disqualification according to police records and that he should not drive the Hyundai Sonata;
g)on 27 January 2010 Mr Ejueyitsi was pulled over in the Hyundai Sonata by the police and charged with driving whilst disqualified under s.49(1)(a) and (3)(c) of the RT Act, and the Hyundai Sonata was impounded under s.79A of the RT Act;[12]
h)Mr Ejueyitsi was subsequently convicted, fined $1500 and his licence was disqualified for nine months cumulative in relation to the 27 January 2010 Incident;
i)on 20 April 2010 Mr Ejueyitsi was pulled over in a Mercedes Benz (registration 8LJ 283)[13] by the police and charged with driving whilst disqualified under s.49(1)(a) and (3)(c) of the RT Act, and the Mercedes Benz was impounded under s.79A of the RT Act, but on this occasion Mr Ejueyitsi was arrested and searched;[14] and
j)on 26 October 2010 the original Failing to Stop Charge was dismissed and the conviction was overturned in the Magistrates Court. 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.
[6] “RT Code”.
[7] “Failing to Stop Charge”.
[8] “Magistrates Court”.
[9] “2009 Excessive Demerit Points Notice”.
[10] “RT Act”.
[11] “Hyundai Sonata”.
[12] “27 January 2010 Incident”.
[13] “Mercedes Benz”.
[14] “20 April 2010 Incident”.
Traffic offences are recorded in a police computer system known by the acronym TADIS. Police officers are able to access the police computer system from screens in police vehicles whilst undertaking patrols.
Evidence – 27 January 2010 Incident
In relation to the 27 January 2010 Incident Mr Ejueyitsi alleges that the incident, and subsequent decisions flowing from it were “harsh, racially motivated and with the deliberate abuse of discretional power for the reason of his ethnicity in contravention of the … [RD Act].”[15] Mr Ejueyitsi alleges that:
a)his Hyundai Sonata “was impounded without fair determination on discretion otherwise”;
b)the police officers concerned “refused to consider his grievances in respect of the believed status of his driver’s licence”; and
c)he was “humiliated, made by the [police] officers to take his belongings from the vehicle and was left to find his own way home.”[16]
[15] Points of Claim, para.8.
[16] Points of Claim, para.9.
Mr Ejueyitsi alleges that he was driving the Hyundai Sonata along Guildford Road in the Perth suburb of Mount Lawley, and that his facial appearance could be clearly seen from outside the vehicle.[17] Mr Ejueyitsi gave evidence that:
a)to the best of his knowledge he was not doing anything illegal, and that without prior notice an unmarked police car turned on its siren and indicated for him to pull over, a request with which he complied by pulling the Hyundai Sonata to the side of the road, followed by the police car behind him;[18]
b)two plain clothes police officers emerged from the unmarked police car, one male and one female, that they approached him in his vehicle and that the male officer said his licence was suspended and he was not supposed to be driving;[19]
c)he protested that he honestly believed that his licence was not suspended, and he asked the police officers to check their records to verify that that was the case;
d)he was not aggressive in his mannerisms, gestures or movements, and that he offered his grievances in a pleading manner;[20]
e)after about five or ten minutes “without any evident consideration” of what he had said he was told by a police officer that he was going to have his vehicle impounded,[21] and was ordered to take all of his personal belongings out of the vehicle;[22]
f)he then waited for approximately an hour until a tow truck came and took the vehicle away, and was then left by the police officers and made to take his belongings and find his own way home;[23] and
g)the Hyundai Sonata was impounded for about 12 months.[24]
[17] Mr Ejueyitsi’s Affidavit, paras.3-4.
[18] Mr Ejueyitsi’s Affidavit, paras.5-7.
[19] Mr Ejueyitsi’s Affidavit, paras.8-9.
[20] Mr Ejueyitsi’s Affidavit, paras.10-11.
[21] Mr Ejueyitsi’s Affidavit, para.12.
[22] Mr Ejueyitsi’s Affidavit, para.13.
[23] Mr Ejueyitsi’s Affidavit, paras.14 and 15.
[24] Mr Ejueyitsi’s Affidavit, para.16.
In cross-examination Mr Ejueyitsi denied that he:
a)was argumentative or hostile or yelling and making a scene during the 27 January 2010 Incident; or
b)said he had been “picked on because he is black.[25]
[25] Transcript 16 October 2013, page 21.
Mr Ejueyitsi was not re-examined.
The Commissioner denies any contravention of the RD Act in relation to the 27 January 2010 Incident, and save to admit that the Hyundai Sonata was pulled over by an unmarked police car, and subsequently impounded under s.79B of the RT Act, denies the alleged contravention of the RD Act.
For the Commissioner evidence was given in relation to the 27 January 2010 Incident by Detective Investigator First Class Constable Sonia Marie Wilson[26] who at the time of the 27 January 2010 Incident was attached to the East Metropolitan District Crime Team as a Patrol Inquiry Officer/Uniformed Investigator,[27] and Detective Senior Constable Loki Diel Psaila-Borrie,[28] who was also attached to the East Metropolitan District Crime Team at the time of the 27 January 2010 Incident.[29]
[26] “Detective Wilson”.
[27] Affidavit of Sonia Marie Wilson, affirmed 6 July 2013, paras.3-4 (“Detective Wilson’s July 2013 Affidavit”).
[28] “Detective Psaila-Borrie”.
[29] Affidavit of Loki Diel Psaila-Borrie, sworn 1 July 2013, para.3 (“Detective Psaila-Borrie’s Affidavit”).
Detective Wilson’s evidence was that:
a)she was on duty with Detective Psaila-Borrie, who was driving the unmarked police vehicle, and they were conducting vehicle registration checks on the police computer system on surrounding vehicles;[30]
[30] Detective Wilson’s July 2013 Affidavit, paras.5-6.
b)when travelling in a northerly direction on East Parade in Mount Lawley toward the intersection of East Parade and Guildford Road at about 11.15am on 27 January 2010 she observed the Hyundai Sonata in front of the unmarked police vehicle and ran a check on the police computer system on the Hyundai Sonata;[31]
[31] Detective Wilson’s July 2013 Affidavit, paras.7-8.
c)an alert came up on the police computer system saying that the owner of the Hyundai Sonata did not have a current driver’s licence as it was under suspension;[32]
d)the Hyundai Sonata was pulled over and both police officers got out to speak to the driver, who also got out of the Hyundai Sonata, and this was the first time that she had seen the driver;[33]
e)she does not recall the exact words that she said to Mr Ejueyitsi, but she does recall him being “very argumentative and hostile”;[34]
f)it was explained to Mr Ejueyitsi that his driver’s licence was under suspension, and he responded by saying that that was not true and he did not know that he could not drive;[35]
g)Mr Ejueyitsi said something like “you’re picking on me because I’m black” and she responded by saying that the police officers were just going on what the police computer system said;[36]
h)she conducted further enquiries and ascertained that the 2009 Excessive Demerit Points Notice was served on Mr Ejueyitsi on 6 November 2009 but that he had refused to sign it;[37]
i)because Mr Ejueyitsi had, in her view, been driving under suspension and fell within provisions of the RT Act which allowed for the seizing of the Hyundai Sonata, authority was sought and obtained from an Inspector through the Police Operations Centre to seize the Hyundai Sonata, and it was seized for 28 days and Mr Ejueyitsi was given a Seizure Notice;[38]
j)Mr Ejueyitsi was advised that he would receive a summons to attend Court for driving whilst under suspension, and she confirmed his home address with him;[39]
k)the vehicle was towed away once a tow truck arrived, and whilst it was her normal practise to inquire whether a person whose vehicle had been seized needed a lift or could get home, and if they could not, to try and drop them somewhere, in this case Mr Ejueyitsi departed in a taxi;[40] and
l)she and Detective Psaila-Borrie were professional and polite and explained the situation to Mr Ejueyitsi who was not under any physical restraint at any point during the 27 January 2010 Incident.[41]
[32] Detective Wilson’s July 2013 Affidavit, para.8.
[33] Detective Wilson’s July 2013 Affidavit, paras.8-9.
[34] Detective Wilson’s July 2013 Affidavit, para.10.
[35] Detective Wilson’s July 2013 Affidavit, para.11.
[36] Detective Wilson’s July 2013 Affidavit, para.12.
[37] Detective Wilson’s July 2013 Affidavit, para.13.
[38] Detective Wilson’s July 2013 Affidavit, paras.14-16.
[39] Detective Wilson’s July 2013 Affidavit, para.17.
[40] Detective Wilson’s July 2013 Affidavit, para.19.
[41] Detective Wilson’s July 2013 Affidavit, paras.20-21.
The manner of the cross-examination of Detective Wilson was such that in cross-examination she essentially reiterated her evidence-in-chief on affidavit. Detective Wilson’s cross-examination confirmed however that:
a)she identified Mr Ejueyitsi either from his driver’s licence or because he told her his name;[42]
b)Mr Ejueyitsi did protest that he was not under a demerit point suspension, but she responded that the police computer system stated that he was under a demerit point suspension and that it was the police computer system that police officers worked off;[43]
c)Mr Ejueyitsi was “very argumentative” and “very hostile”;[44]
d)Mr Ejueyitsi was summonsed for driving whilst under demerit point suspension;[45] and
e)police officers did not obtain information on the number of demerit points through the police computer system, and all that was on the police computer system was that Mr Ejueyitsi was under demerit point suspension.[46]
[42] Transcript 16 October 2013, page 75.
[43] Transcript 16 October 2013, page 76.
[44] Transcript 16 October 2013, page 76.
[45] Transcript 16 October 2013, page 76.
[46] Transcript 16 October 2013, page 77.
Detective Wilson was not re-examined.
Detective Psaila-Borrie gave evidence that:
a)he was on duty with Detective Wilson at around 11.15am on 27 January 2010 travelling in an unmarked police vehicle in a northerly direction on East Parade approaching the intersection of Guildford Road in Mount Lawley and that Detective Wilson was entering vehicle registration numbers for vehicles around them into the police computer system;[47]
b)Detective Wilson advised him that there was something wrong with the driver’s licence of the owner of a Hyundai Sonata vehicle on which she had conducted a vehicle check, and as a result Detective Psaila-Borrie put the lights on on the unmarked police vehicle and pulled the Hyundai Sonata over into a small car park;[48]
c)both he and Detective Wilson got out of the unmarked police vehicle to speak with the driver, who also got out of the Hyundai Sonata, and until this point, Detective Psaila-Borrie had no idea what Mr Ejueyitsi looked like;[49]
d)Detective Psaila-Borrie cannot recall exactly what Mr Ejueyitsi said, but remembered that he “started yelling and making a big scene … [which] was excessive for the kind of matter” and that he and Detective Wilson “were trying to calm him down but he could not be reasoned with”;[50]
e)Mr Ejueyitsi was arguing that his licence was not suspended, but the police computer system showed a demerit point suspension for three months from 3 December 2009 until 4 March 2010, and it is the information on the police computer system on which he acts regardless of what anyone says or whether anything is in the process of changing, and in this case according to the police computer system Mr Ejueyitsi’s driver’s licence was under demerit point suspension;[51]
f)the provisions of s.79A(1) of the RT Act and policy required seizure of the Hyundai Sonata and there were no special circumstances which might warrant non-seizure of the Hyundai Sonata and the issuance of a Surrender Notice (as there might be, for example, with a late-night female driver with children), as in this case it was daylight, the area was inner-city, Mr Ejueyitsi had a mobile phone and was more than capable of finding his way home;[52]
g)the Hyundai Sonata was impounded for 28 days as required under the RT Act, and authorisation to impound the vehicle was obtained from an Inspector;[53]
h)Mr Ejueyitsi was told to get what he wanted out of the vehicle and when the tow truck arrived relevant paperwork was exchanged and the Hyundai Sonata was taken away;[54]
i)he does not remember how Mr Ejueyitsi got home once the Hyundai Sonata had been impounded;[55] and
j)at no stage was Mr Ejueyitsi physically restrained, and at no stage did either he or Detective Wilson act in an antagonising way toward Mr Ejueyitsi.[56]
[47] Detective Psaila-Borrie’s Affidavit, paras.4-6.
[48] Detective Psaila-Borrie’s Affidavit, paras.7-8.
[49] Detective Psaila-Borrie’s Affidavit, paras.9-10.
[50] Detective Psaila-Borrie’s Affidavit, para.11.
[51] Detective Psaila-Borrie’s Affidavit, paras.12-13.
[52] Detective Psaila-Borrie’s Affidavit, para.16.
[53] Detective Psaila-Borrie’s Affidavit, para.15.
[54] Detective Psaila-Borrie’s Affidavit, paras.17-18.
[55] Detective Psaila-Borrie’s Affidavit, para.19.
[56] Detective Psaila-Borrie’s Affidavit, paras.20-21.
Detective Psaila-Borrie was cross-examined, but as with Detective Wilson the cross-examination generally resulted in a recapitulation of his evidence-in-chief. Relevantly, however, in cross-examination Detective Psaila-Borrie said that:
a)in determining whether to pull a vehicle over police officers act on the information that is on the police computer system;[57]
b)once an identification of a driver is made and there is information that the driver is under demerit point suspension the police officers take action from there, and in this case that action was to impound the Hyundai Sonata;[58]
c)Mr Ejueyitsi was hostile, abusive and yelling at the police officers, such that Detective Psaila-Borrie “really couldn’t get a word in sideways with him”[59] and such that Detective Psaila-Borrie said to Mr Ejueyitsi that “he needs to calm down otherwise he will be arrested for disorderly [conduct]”;[60]
d)Mr Ejueyitsi did say something about trying to sort his licence out;[61]
e)Mr Ejueyitsi took his possessions out of the car and put them on the ground in the carpark;[62] and
f)he believed that Mr Ejueyitsi was able to make his own way to where he wanted to go, because if he had not he would have been given assistance.[63]
[57] Transcript 16 October 2013, page 79.
[58] Transcript 16 October 2013, page 80.
[59] Transcript 16 October 2013, page 80.
[60] Transcript 16 October 2013, page 81.
[61] Transcript 16 October 2013, page 80.
[62] Transcript 16 October 2013, page 82.
[63] Transcript 16 October 2013, page 82.
The fact that Detective Psaila-Borrie told Mr Ejueyitsi to calm down otherwise he would be arrested for disorderly conduct needs to be viewed in the context of other evidence by Detective Psaila-Borrie’s that:
… I had a job to do. I’ve been in this – doing this job for a long time. People abuse us. They yell. They’re upset. They’re not happy about what’s going on. We just don’t really take much notice of it.[64]
[64] Transcript 16 October 2013, page 82.
Detective Psaila-Borrie was re-examined briefly, but not on any matters which are ultimately material to the disposition of these proceedings.
Evidence – 20 April 2010 Incident
In relation to the 20 April 2010 Incident Mr Ejueyitsi again asserts that the incident and subsequent actions of the Commissioner were “harsh, racially motivated and was a deliberate abuse of discretional power for the reason of his ethnicity in contravention of the … [RD Act].”[65] In particular, Mr Ejueyitsi says that:
a)when stopped the police officers “aggressively communicated” with him, questioning what part of the world he was from and indicating that they were going to impound the Mercedes Benz;
b)the police officer who spoke to him made clear and repeated references to him as a “bloody African”, and said that he would have to “deal” with him;
c)the police officers did not give him the opportunity to take anything from the Mercedes Benz before it was towed away, and after it was towed away he was ordered to go with the police officers, and as he did, he was pushed aggressively toward a police vehicle and both officers followed behind him until he arrived at the police vehicle, where he was subsequently detained;
d)he was driven to his residence, and the police officers further referred to him as a “bloody African”;
e)he was taken to the police station, handcuffed and humiliated and taken inside under arrest, ordered to remove his shirt without explanation or reason, and ordered to strip by the two police officers who had pulled over the Mercedes Benz who stood around intimidatingly, and when he made reasonable protest he was aggressively approached by one of the police officers and “his shirt was forcibly stripped from his body without his consent”; and
f)Mr Ejueyitsi was detained at the police station against his will for between one and two hours, and at no point during the entire 28 April 2010 Incident was Mr Ejueyitsi aggressive or otherwise physically threatening.[66]
[65] Points of Claim, para.10.
[66] Points of Claim, paras.11-12.
In relation to the 20 April 2010 Incident Mr Ejueyitsi says that:
a)he was driving his Mercedes Benz along Guildford Road in Maylands, and his face and appearance could clearly be seen from outside the vehicle, but he was not doing anything illegal at the time;[67]
[67] Mr Ejueyitsi’s Affidavit, paras.17-19.
b)without prior notice an unmarked police car turned on its siren and indicated for him to pull over, a request with which he complied immediately parking his Mercedes Benz on the roadside with the police car behind him;[68]
[68] Mr Ejueyitsi’s Affidavit, paras.20-21.
c)two plain clothed police officers emerged from the unmarked police car, both male, and approached at either side of the vehicle, and one of the police officers “aggressively communicated” with him:
i)questioning what part of the world he was from;
ii)saying that his driver’s licence was suspended and that he was not allowed to be driving; and
iii)saying that the Mercedes Benz was going to be impounded;[69]
[69] Mr Ejueyitsi’s Affidavit, paras.22-24.
d)the police officer who spoke to him referred to him as a “bloody African” and mentioned that he would have to “deal” with him;[70]
[70] Mr Ejueyitsi’s Affidavit, para.25.
e)he expressed his belief that his licence was not suspended and urged the police officer to re-check the records, and that he could provide documents to indicate that his driver’s licence was not suspended, and in so doing was not aggressive in his mannerisms, gestures or movements, and offered his grievances in a pleading manner;[71]
f)he was “immensely offended”, “in great fear of harm” from the “verbal abuse” and “greatly intimidated by the dealings”;[72]
g)the Mercedes Benz was towed away to be impounded, and the police officers “ordered” Mr Ejueyitsi to go with them, and as they did so shoved him aggressively toward their vehicle and followed him until he got to the vehicle, and he “fearfully complied” and got into the police vehicle as directed;[73]
h)he had not been given the opportunity to lock his Mercedes Benz or take anything from it;[74]
i)one of the police officers said that he wanted to know where Mr Ejueyitsi lived, and that this statement made him “fear greatly for my wellbeing”;[75]
j)the police officers drove to his residence, which was about three minutes’ drive from where he had been pulled over, and he was allowed to enter his house and search for documents evidencing that he was not on a suspended licence;[76]
k)one of the police officers remained in the police vehicle and the other followed him and waited at the front gate, and after about five minutes when he had not found anything the officer at the gate indicated that he was getting impatient and began to bang on his unlocked security screen door “screaming for me to come back out” and again referred to him as “bloody African”;[77]
l)he was ordered back into the police vehicle, cooperated fully, and was taken to the local police station where he was handcuffed and taken inside, and once inside the handcuffs were removed and he was ordered to remove his shirt whilst the two police officers who had pulled the Mercedes Benz over were present and standing around him;[78]
m)he refused to remove his shirt and questioned why he had to do so and was then “aggressively approached” by one of the police officers and had his shirt forcibly removed without his consent, to which he offered little resistance for fear of physical violation and harm from the police officers;[79] and
n)he provided fingerprints, personal details and was then detained for between one to two hours whilst waiting for his bail to be attended to and processed.[80]
[71] Mr Ejueyitsi’s Affidavit, paras.26-27.
[72] Mr Ejueyitsi’s Affidavit, para.28.
[73] Mr Ejueyitsi’s Affidavit, paras.29-31.
[74] Mr Ejueyitsi’s Affidavit, para.32.
[75] Mr Ejueyitsi’s Affidavit, paras.33-34.
[76] Mr Ejueyitsi’s Affidavit, paras.35-36.
[77] Mr Ejueyitsi’s Affidavit, paras.37-40.
[78] Mr Ejueyitsi’s Affidavit, paras.41-44.
[79] Mr Ejueyitsi’s Affidavit, paras.45-48.
[80] Mr Ejueyitsi’s Affidavit, paras.48-49.
In cross-examination on the 20 April 2010 Incident Mr Ejueyitsi:
a)asserted that he was shoved aggressively and that physical force was used putting him in the police car,[81] but agreed that he “didn’t mention” that matter in the AHRC Complaint;[82]
b)denied that he was asked for identifying particulars by the police officers concerned;[83]
c)said that a police officer told him that he had lost his driver’s licence, a fact which he disputed;[84]
d)agreed that he was told by a police officer that the Mercedes Benz would be impounded;[85]
e)reiterated that he was not given an opportunity to remove his belongings from the Mercedes Benz;[86] and
f)said that he was taken to his home because the police officers wanted to know where he lived.[87]
[81] Transcript 16 October 2013, page 24.
[82] Transcript 16 October 2013, page 33.
[83] Transcript 16 October 2013, page 23.
[84] Transcript 16 October 2013, page 22.
[85] Transcript 16 October 2013, page 23.
[86] Transcript 16 October 2013, page 23.
[87] Transcript 16 October 2013, page 25.
Mr Ejueyitsi was also cross-examined as to his alleged handcuffing by the police officers. A summary of the answers follows:
a)when asked when he was “first handcuffed” responded “Inside the police station”;[88]
b)when asked “So you had no handcuffs on before you went inside the police station?” he responded by initially saying “Yes” but by then saying that “I was handcuffed at the entrance” and then “Immediately, … the car stop at the police station.”;[89]
c)said “They handcuffed me and took me inside is what they did”;[90]
d)when asked whether his evidence was that he was “Handcuffed when you went inside” responded that “When they stop at the police station, before entering, they handcuffed me. There’s a gate. Then outside the gate. Later when they get in the gate and they pull in the – handcuff again”;[91] and
e)later said “When they got to the gate, they handcuffed me”;[92]
[88] Transcript 16 October 2013, page 26.
[89] Transcript 16 October 2013, page 26.
[90] Transcript 16 October 2013, page 26.
[91] Transcript 16 October 2013, page 26.
[92] Transcript 16 October 2013, page 26.
Cross-examined on the amount of time which he spent in the police station Mr Ejueyitsi said it was more than an hour, and that the fingerprint process alone took more than an hour.[93]
[93] Transcript 16 October 2013, page 26.
In relation to the search at the police station Mr Ejueyitsi said in cross-examination that he was subject to a strip search, that the police officers “stripped him off”, and he denied that he was told by the police officers to stop taking his clothes off and that they did not forcibly remove his shirt, but rather did a pat-down search.[94]
[94] Transcript 16 October 2013, page 27.
Counsel for the Commissioner referred in cross-examination to the complaint made by Mr Ejueyitsi to the Australian Human Rights Commission.[95] It was conceded by Mr Ejueyitsi that the AHRC Complaint was made on or about 7 November 2011.[96]
[95] “AHRC Complaint” and “AHRC” respectively. The AHRC Complaint was Exhibit 2 in the proceedings.
[96] Transcript 16 October 2013, page 29.
It was put to Mr Ejueyitsi in cross-examination that if the words “bloody African” had been used by the police officers as he asserted then that was something that would be significant to him and that he would not forget. Mr Ejueyitsi agreed that it would be significant to anybody, and that it was not the sort of thing that would be forgotten because:
It’s an insulting word. It’s an offensive words. So people don’t forget those kind of words.[97]
[97] Transcript 16 October 2013, page 29.
After argumentatively endeavouring to avoid answering questions concerning these issues, Mr Ejueyitsi was forced to concede that he did not refer to being called a “bloody African”, or being asked what part of the world he came from, or being told that he would be dealt with, in the AHRC Complaint.[98] Mr Ejueyitsi denied that the words were never said to him, and that the allegation that the words were said to him was false.[99]
[98] Transcript 16 October 2013, pages 30-31.
[99] Transcript 16 October 2013, page 31.
Mr Ejueyitsi was also cross-examined concerning a medical certificate attached to Mr Ejueyitsi’s Affidavit. That certificate (in the form of a letter) is dated February 2011. Mr Ejueyitsi accepted that the medical practitioner (Dr Pluta) had recorded what he had been told had happened to Mr Ejueyitsi by Mr Ejueyitsi. Relevantly, the medical certificate provides as follows:
… He has related to me that he was arrested, detained and handcuffed by police in April 2010, as he was accused of driving under suspension. This matter proceeded to court. It was apparently found that he was not under suspension, and the accusation of being under suspension was false. Apparently, at trial, the matter was dismissed.
Since then he has lived with considerable fear and anxiety about being embarrassed and of being publicly humiliated. He has at times appeared depressed and in my medical opinion was diagnosed with depression. I treated him with an anti-depressant at the time.[100]
[100] Exhibit 3.
The Commissioner denies the claims made with respect to the 20 April 2010 Incident, save that:
a)it is admitted that:
i)the Mercedes Benz was pulled over in Guildford Road, Maylands by an unmarked police vehicle; and
ii)Mr Ejueyitsi was informed that his Mercedes Benz would be impounded under s.79B of the RT Act;
b)it is said that Mr Ejueyitsi was given an opportunity to remove items from the Mercedes Benz between the time it was pulled over and the tow truck arriving;
c)Mr Ejueyitsi was taken in an unmarked police vehicle to Bayswater Police Station to be charged and released on bail, and was placed under arrest, but was not restrained by the police officers and was not handcuffed whilst being taken inside the Bayswater Police Station;
d)the police officers attempted to conduct a basic search of Mr Ejueyitsi within the Bayswater Police Station comprising a search of his pockets and a pat-down of his clothes as a strip search was not required and not attempted, but Mr Ejueyitsi started to remove his shirt and clothes and was told that he did not need to do so; and
e)Mr Ejueyitsi was received at the Bayswater Police Station at around 3.10pm and released on bail at around 4.04pm.[101]
[101] Points of Claim, paras.10-12.
For the Commissioner evidence was given in relation to the 20 April 2010 Incident by:
a)Senior Constable James Edward Robinson[102] who at the time of the 20 April 2010 Incident was part of a plain clothes team within the Traffic Enforcement Group whose job was to target and find suspended recidivist drivers still driving whilst not authorised to do so.[103] In addition to Senior Constable Robinson’s July 2013 Affidavit reliance was also placed on an affidavit sworn by him on 17 October 2012[104] for the purposes of the earlier strike-out application in these proceedings;[105] and
b)Mr Mark Philip Raine,[106] who was a police officer at the time of the 20 April 2010 Incident.[107]
[102] “Senior Constable Robinson”.
[103] Affidavit of James Edward Robinson, sworn 2 July 2013, paras.3 and 5 (“Senior Constable Robinson’s July 2013 Affidavit”).
[104] “Senior Constable Robinson’s October 2012 Affidavit”.
[105] The earlier strike-out proceedings were Ejueyitsi v Commissioner of Police (Western Australia) [2013] FMCA 120.
[106] “Mr Raine”.
[107] Transcript 16 October 2013, page 58.
Senior Constable Robinson’s evidence was that:
a)on 20 April 2010 he was on patrol duty with the then Constable Raine in an unmarked police vehicle, with Constable Raine checking licence registrations of vehicles travelling past the unmarked police vehicle;[108]
b)they encountered the Mercedes Benz and Constable Raine looked up the registration number on the police computer system which revealed that the owner of the vehicle was not authorised to drive that class of motor vehicle due to his driver’s licence being under suspension;[109]
c)Senior Constable Robinson caused the vehicle to stop for a licence check, and did so solely because the police computer system indicated that Mr Ejueyitsi was not authorised to drive because his licence was under suspension, and that he did not stop the Mercedes Benz because of Mr Ejueyitsi’s race or nationality, and that he was unaware of Mr Ejueyitsi’s race or nationality prior to stopping the Mercedes Benz;[110]
d)the Mercedes Benz was impounded under s.79A(1) of the RT Act because Senior Constable Robinson reasonably suspected that an offence of driving whilst under licence suspension had occurred, and it was practical to impound the vehicle because it had been stopped in Maylands which was within the Perth metropolitan area in the middle of the afternoon. The vehicle was impounded solely because Senior Constable Robinson considered he was required to do so under the RT Act;[111]
e)Mr Ejueyitsi was arrested because police computer system records indicated that he had been previously convicted of driving without authority and, according to the police computer system, was still driving whilst under a court imposed suspension;[112]
f)it is police protocol to search all arrested persons in custody for safety and security reasons, and such a search is carried out regardless of race or nationality, and Mr Ejueyitsi was asked to empty his pockets and advised that Senior Constable Robinson would be carrying out a search;[113]
g)Mr Ejueyitsi did not seem happy about the search and began removing his clothes, but was told that it was not necessary for him to do that as Senior Constable Robinson only wanted to conduct a basic, not a strip, search;[114] and
h)Senior Constable Robinson cannot recall whether he asked Mr Ejueyitsi where he was from, however, he may have done so because it is standard police protocol to ask a person who has committed an offence for their name, address, date of birth, place of birth and whether they are of Aboriginal or Torres Strait Island descent. That information did not however form the basis of his actions which he says were carried out in accordance with his powers as a police officer under the RT Act and the Criminal Investigation Act 2006 (WA).[115]
[108] Senior Constable Robinson’s October 2012 Affidavit, para.5.
[109] Senior Constable Robinson’s October 2012 Affidavit, para.6.
[110] Senior Constable Robinson’s October 2012 Affidavit, para.7.
[111] Senior Constable Robinson’s October 2012 Affidavit, para.8.
[112] Senior Constable Robinson’s October 2012 Affidavit, para.8.
[113] Senior Constable Robinson’s October 2012 Affidavit, paras.10-11.
[114] Senior Constable Robinson’s October 2012 Affidavit, para.11.
[115] Senior Constable Robinson’s October 2012 Affidavit, para.12.
Senior Constable Robinson’s July 2013 Affidavit provides evidence that:
a)Mr Ejueyitsi was not a targeted recidivist driver, but rather a driver that Senior Constable Robinson and the then Constable Raine came across as he was travelling in front of them at the time;[116]
[116] Senior Constable Robinson’s July 2013 Affidavit, paras.6-7.
b)because Mr Ejueyitsi was travelling in front of the unmarked police car Senior Constable Robinson was unable to see who was driving;[117]
[117] Senior Constable Robinson’s July 2013 Affidavit, para.8.
c)the first time that Senior Constable Robinson saw Mr Ejueyitsi was when he got out of the unmarked police car and provided his driver’s licence as identification;[118]
[118] Senior Constable Robinson’s July 2013 Affidavit, para.13.
d)Mr Ejueyitsi was speaking quickly and saying that his licence was not suspended, that he was challenging the suspension, and that he should never have been suspended and that he had the right to drive, but Senior Constable Robinson’s experience is that most people say that, and that according to the police records he had a person with a court suspended driver’s licence in front of him;[119]
[119] Senior Constable Robinson’s July 2013 Affidavit, paras.14 and 15.
e)he explained to Mr Ejueyitsi that his licence had been suspended by the court, that this did not give him an entitlement to drive, that the Mercedes Benz was going to be seized, that he was going to be arrested, that they would be taking some identifying particulars from him, and that the matter would then go before the Magistrates Court where he could plead;[120]
[120] Senior Constable Robinson’s July 2013 Affidavit, para.15.
f)he obtained authorisation, which was required, from an Inspector to seize the Mercedes Benz;[121]
g)Mr Ejueyitsi was not handcuffed, and no physical force or restraint was necessary as Mr Ejueyitsi was being compliant;[122]
h)Mr Ejueyitsi was arrested on this occasion by reason of the fact that there was an instruction from the police officers’ Officer-in-Charge to arrest recidivist drivers who were still driving while under court imposed suspensions, and to obtain their identifying particulars and photographs, and as the penalty for driving under suspension in contravention of a court order was a term of imprisonment, that allowed police officers to take identifying particulars, and in this case DNA and a photograph were taken;[123]
i)Mr Ejueyitsi was not under any physical restraint when they arrived at the Bayswater Police Station, and when they did so a basic search of Mr Ejueyitsi was conducted, which involved a pat-down of the outer clothing and a request to empty his pockets;[124]
j)Senior Constable Robinson always conducts searches with rubber gloves as a safety precaution, and as he was putting on his gloves Mr Ejueyitsi began to take his clothes off and was told by Senior Constable Robinson that he did not need to do that and to put his clothes back on;[125]
k)a custody record was created for Mr Ejueyitsi, and the custody record records whether any force was used, for example handcuffs. In this case the custody record records no use of force, that a basic search was undertaken, and records an incident of “Removed Clothing/Consumables”;[126]
l)the custody record shows that the process, which according to the custody record involved Mr Ejueyitsi being registered in custody, custody admission, a basic search, the removed clothing/consumables referred to above, the collection of a DNA sample and taking a photograph before the grant of bail and final release, taking 54 minutes from 3.10pm to 4.04pm;[127]
m)Senior Constable Robinson does not recall how the applicant got home;
n)Senior Constable Robinson does not recall having discussions about Mr Ejueyitsi’s race, ethnicity, colour or origin, but says that he would have asked at some point where Mr Ejueyitsi was from in order to fill in the custody episode and the information required on the police brief case prosecution system;[128] and
o)Senior Constable Robinson has been a police officer for 25 years in both the United Kingdom and Australia, and in the United Kingdom was qualified as a national trainer in diversity training, and made presentations on dealing with persons from diverse backgrounds in custody which he delivered to the police force in the United Kingdom, the focus of which was on how to treat people from diverse backgrounds with respect in light of cultural sensitivities.[129]
[121] Senior Constable Robinson’s July 2013 Affidavit, para.17.
[122] Senior Constable Robinson’s July 2013 Affidavit, para.19.
[123] Senior Constable Robinson’s July 2013 Affidavit, para.20 and Annexures JER1 and JER 2.
[124] Senior Constable Robinson’s July 2013 Affidavit, paras.22-23.
[125] Senior Constable Robinson’s July 2013 Affidavit, para.25.
[126] Senior Constable Robinson’s July 2013 Affidavit, Annexure JER 3.
[127] Senior Constable Robinson’s July 2013 Affidavit, para.29 and Annexure JER 3.
[128] Senior Constable Robinson’s July 2013 Affidavit, para.32.
[129] Senior Constable Robinson’s July 2013 Affidavit, para.36.
Senior Constable Robinson’s cross-examination largely elicited a reiteration of what was said in his affidavit evidence. Relevantly, however, Senior Constable Robinson said that:
a)he was advised that the Mercedes Benz owner had a suspended licence;[130]
b)when he was driving behind the Mercedes Benz he was not aware that it was Mr Ejueyitsi who was driving the car;
c)he had arrested several hundred people for this type of offence;[131]
d)when Mr Ejueyitsi was asked to empty his pockets as part of a basic search he stripped off his clothes down to his underwear, but Senior Constable Robinson told him that there was no need to do that;[132]
e)it is a normal part of creating the police court file when a person is going to be charged to ask them their place of birth, and that this might be introduced by asking them where they are from;[133]
f)it was standard practice to ask a person where they were born, and had nothing to do with their race;[134]
g)the police computer system does not show a person’s demerit points, but rather the driving licence status of the owner of the vehicle, that is whether or not they are under suspension and if so why;[135]
h)he expressly denied calling Mr Ejueyitsi a “bloody African” or saying that he was going to “deal with him”;[136] and
i)he could not remember whether he went to Mr Ejueyitsi’s house, and if he did, whether that was before or after Mr Ejueyitsi had been taken into custody at Bayswater Police Station.[137]
[130] Transcript 16 October 2013, page 43.
[131] Transcript 16 October 2013, page 45.
[132] Transcript 16 October 2013, page 46.
[133] Transcript 16 October 2013, pages 48, 49, 53 and 56-57.
[134] Transcript 16 October 2013, pages 53.
[135] Transcript 16 October 2013, pages 50 and 52.
[136] Transcript 16 October 2013, pages 53 and 57.
[137] Transcript 16 October 2013, pages 55 and 57.
In re-examination Senior Constable Robinson said that:
a)the enquiry as to a person’s place of birth was a question asked of all people in custody regardless of their race;[138]
b)the police computer system would show the type of licence revocation, and dates for finalisation of the revocation and actual court outcomes;[139] and
c)he had not heard anyone else use the words “bloody African” at the roadside or when he may have been at Mr Ejueyitsi’s house.[140]
[138] Transcript 16 October 2013, page 57.
[139] Transcript 16 October 2013, page 57.
[140] Transcript 16 October 2013, page 58.
Mr Raine gave evidence that:
a)in April 2010 he was a police officer;[141]
[141] Transcript 16 October 2013, page 58.
b)on 20 April 2010 he was working with Senior Constable Robinson, who was driving an unmarked police vehicle;
c)he was putting registrations of vehicle into the police computer system, and a Mercedes Benz car for which that had been done “came up as a suspended driver”;[142]
[142] Transcript 16 October 2013, page 59.
d)he and Senior Constable Robinson “did a routine traffic stop” because they “didn’t know whether the driver of the … [Mercedes Benz] was the actual registered owner of that vehicle”;[143]
[143] Transcript 16 October 2013, page 59.
e)he did not notice Mr Ejueyitsi’s appearance until such time as the Mercedes Benz had been pulled over;[144]
[144] Transcript 16 October 2013, page 59.
f)having ascertained that Mr Ejueyitsi had a WA driver’s licence, the officers explained to Mr Ejueyitsi that the police computer system indicated that he was under a court suspension and that as a consequence they were going to have to arrest him and impound the Mercedes Benz;[145]
g)Mr Ejueyitsi was told that he could take various possessions and documents in the Mercedes Benz out of the Mercedes Benz before it was towed away;[146]
h)as a courtesy the police officers went to Mr Ejueyitsi’s house which was not far from where he had been pulled over so that he could put his property inside the house;[147]
i)he had no physical contact with Mr Ejueyitsi;[148]
j)the police officers did not go into Mr Ejueyitsi’s house but remained at the front door as Mr Ejueyitsi put his possessions in the corridor;[149]
k)Mr Ejueyitsi was then taken to the Bayswater Police Station and to the custody area, and at no stage was he handcuffed;[150]
l)the police officers mentioned that a search had to be done, and having done that Mr Ejueyitsi’s “pants dropped pretty quickly to the ground with his undies still on. And we said we’re not doing a strip search here, this is just a mandatory basic search that we do … meaning we don’t remove any clothing but we just check pockets and items ... to make sure there’s nothing to harm him or us”;[151]
m)Mr Ejueyitsi was told that he did not need to remove his clothes and to pull his pants back up;[152]
n)Mr Ejueyitsi was subsequently charged with driving whilst under suspension and was required to appear at court at a later date;[153] and
o)at no time, either by the roadside or at Mr Ejueyitsi’s house, did the then Constable Raine make any comment about Mr Ejueyitsi’s skin colour or his race or his ethnicity, and he did not hear Senior Constable Robinson do so.[154]
[145] Transcript 16 October 2013, page 60.
[146] Transcript 16 October 2013, page 60.
[147] Transcript 16 October 2013, page 60.
[148] Transcript 16 October 2013, page 60.
[149] Transcript 16 October 2013, page 60.
[150] Transcript 16 October 2013, pages 61-62.
[151] Transcript 16 October 2013, page 62.
[152] Transcript 16 October 2013, page 62.
[153] Transcript 16 October 2013, page 62.
[154] Transcript 16 October 2013, pages 62-63.
Mr Raine was cross-examined, with the cross-examination principally resulting in a reiteration of his evidence-in-chief, but the Court notes that Mr Raine said that:
a)the routine patrol was in an unmarked police vehicle;[155]
b)once arrested the officers maintained a reasonably close proximity to Mr Ejueyitsi at the place where the Mercedes Benz had been pulled over, because he had, at that stage, been arrested;[156]
c)Senior Constable Robinson as the senior officer did most of the talking;[157]
d)he recalls that Mr Ejueyitsi was talking about going to the Magistrates Court on another traffic matter and he was not sure whether it was the traffic matter related to the suspension on the police computer system, and he does not recollect any mention of any other vehicle being impounded;[158]
e)Mr Ejueyitsi’s belongings were taken from the boot of the Mercedes Benz, and there may have been something in the car as well, and placed in the boot of the police vehicle;[159]
f)he does not recall any conversation with Mr Ejueyitsi as to where he was from, calling him a “bloody African” or indicating that he was going to be dealt with;[160]
g)they were at Mr Ejueyitsi’s house for probably two to three minutes while he put his possessions in the house;[161]
h)there was no mention of “bloody African” while at the house;[162]
i)people who are arrested are only handcuffed when they are aggressive and violent and Mr Ejueyitsi whilst animated and talking very fast was not aggressive or violent;[163] and
j)neither he nor Senior Constable Robinson, ever said the words “bloody African” to Mr Ejueyitsi, or indicated that he was going to “deal with” Mr Ejueyitsi.[164]
[155] Transcript 16 October 2013, page 63.
[156] Transcript 16 October 2013, page 64.
[157] Transcript 16 October 2013, page 64.
[158] Transcript 16 October 2013, page 64.
[159] Transcript 16 October 2013, page 65.
[160] Transcript 16 October 2013, page 65.
[161] Transcript 16 October 2013, page 66.
[162] Transcript 16 October 2013, page 66.
[163] Transcript 16 October 2013, page 66.
[164] Transcript 16 October 2013, page 68.
Mr Raine was not re-examined.
Other evidence
Service of the 2009 Excessive Demerits Points Notice
The affidavit of Karen Wendy Dewar, sworn 5 July 2013[165] indicates that the 2009 Excessive Demerit Points Notice was served on Mr Ejueyitsi on 6 November 2009, and that he refused to sign for that notice. The 2009 Excessive Demerit Points Notice therefore took effect 28 days from the date of service, that is 4 December 2009. The three month disqualification period started on that date and ended on midnight 3 March 2010.[166] Ms Dewar was not required to be called, and was therefore not cross-examined, and the Court accepts her evidence, and prefers her evidence that Mr Ejueyitsi refused to sign for service of the 2009 Excessive Demerit Points Notice over the evidence of Mr Ejueyitsi that he was not served with such a notice.[167]
[165] “Ms Dewar’s Affidavit”.
[166] Ms Dewar’s Affidavit, paras.10-13.
[167] Transcript 16 October 2013, pages 13-14.
15 January 2010
Darryal Colin Kemp swore an affidavit dated 24 June 2013.[168] In January 2010 Mr Kemp was a Constable in the Western Australian Police Force stationed at the Peel Traffic Unit as a traffic patrol officer.[169] On the evening of 15 January 2010 he was on patrol with another officer when that other officer told him to stop a vehicle, which was the Hyundai Sonata, because the police computer system showed that the owner of the vehicle was under demerit point suspension.[170]
[168] “Mr Kemp’s Affidavit”.
[169] Mr Kemp’s Affidavit, para.3.
[170] Mr Kemp’s Affidavit, paras.4-6.
The officers identified themselves, and the then Constable Kemp informed Mr Ejueyitsi that the police computer system records showed that his driver’s licence was under a demerit point suspension and asked him if he was aware that his licence was under suspension. Mr Kemp says that Mr Ejueyitsi says that he was not aware. Mr Ejueyitsi was told that the police would need to seize the Hyundai Sonata. Upon calling the Duty Inspector for seizure authorisation the Duty Inspector indicated that Mr Ejueyitsi should be given the benefit of the doubt and the Hyundai Sonata should not be seized.[171] Mr Kemp says that he then informed Mr Ejueyitsi of the demerit point suspension and directed him not to drive until the matter had been sorted out, and that he would place a notice on the police computer system stating that Mr Ejueyitsi had been informed of the demerit point suspension and that if he was observed driving again the Hyundai Sonata would be seized.[172] An alert to that effect was subsequently placed in the police computer system.[173]
[171] Mr Kemp’s Affidavit, para.10.
[172] Mr Kemp’s Affidavit, para.11.
[173] Mr Kemp’s Affidavit, para.12.
Mr Kemp was cross-examined, but the cross-examination elicited little more than a re-affirmation of the evidence-in-chief, save for the following:
a)Mr Ejueyitsi was pulled over because his vehicle was one identified by the police computer system as being owned by a person who had a demerit point suspension;[174]
b)Mr Ejueyitsi claimed that he was not under a demerit point suspension, and was consequently shown by Constable Kemp what the records on the police computer system actually indicated;[175]
c)Mr Ejueyitsi informed the then Constable Kemp that he had actually received a letter about the demerit point suspension but had refused to sign that letter;[176] and
d)the Hyundai Sonata was not under any kind of particular police surveillance or attention prior to the time at which it was pulled over.[177]
Legislative provisions
[174] Transcript 17 October 2013, page 3.
[175] Transcript 17 October 2013, page 4.
[176] Transcript 17 October 2013, page 4.
[177] Transcript 17 October 2013, page 4.
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.
In order to establish a contravention of s.9(1) of the RD Act Mr Ejueyitsi 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.[178]
[178] Gerhardy v Brown (1985) 159 CLR 70 at 81-82 per Gibbs CJ and 146 per Deane J; Portuguese Cultural & Welfare Centre Inc v Australian Communications and Media Authority [2011] FMCA 144 at para.20 per Lucev FM.
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.[179]
[179] 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 which Mr Ejueyitsi must prove, 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.[180]
[180] Bropho v Human Rights and Equal Opportunity Commission & Anor (2004) 135 FCR 105 at 122 per French J; [2004] FCAFC 16 at para.63 per French J; Campbell v Kirstenfeldt [2008] FMCA 1356 at paras.17-18 per Lucev FM.
In this case it is only necessary to consider one of the four elements of each of s.9(1) and 18C of the RD Act, namely, whether any act alleged was:
a)based on race, colour, descent, national or ethnic origin for the purposes of s.9(1) of the RD Act; or
b)an act done because of the race, colour or national or ethnic origin of Mr Ejueyitsi for the purposes of s.18C(1)(b) of the RD Act.
Although the phrases “based on” in s.9(1) of the RD Act and “because of” in s.18C(1)(b) of the RD Act have different requirements, the former requiring “sufficient connection” and the latter a “causal nexus”[181] both require factual consideration and determination in relation to the same factors, save that descent is an additional factor in s.9(1) of the RD Act. In what follows it is, therefore, convenient to consider the issues in an omnibus way having regard to whether any relevant act or conduct is based on, or because of, Mr Ejueyitsi’s race or national or ethnic origin, or colour or descent.
[181] Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission & Anor (1998) 91 FCR 8 at 33 per Weinberg J (“based on” requires sufficient connection not a causal nexus), approved in Bropho v Western Australia & Ors (2008) 169 FCR 59 at 79 per Ryan, Moore and Tamberlin JJ; [2008] FCAFC 100 at para.68 per Ryan, Moore and Tamberlin JJ; Hagan v Trustees of The Toowoomba Sports Ground Trust (2001) 105 FCR 56 at 60 per Ryan, Dowsett and Hely JJ; [2001] FCA 123 at paras.21 and 23 per Ryan, Dowsett and Hely JJ (the condition s.18(1)(b) of the RD Act requires consideration of the reason or reasons for which the relevant act was done).
RT Act
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.
Section 79BA of the RT Act 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).
Consideration
Credibility
Mr Ejueyitsi’s credibility was damaged by his response to the issue of whether he had been truthful when required to be so by law. When asked whether he had always been truthful when required to be so by law he said “Yes”.[182] Mr Ejueyitsi was then asked about a conviction on account of making a false statement to a migration officer in 2001, which went on appeal to the Supreme Court of Western Australia, Court of Appeal in Ejueyitsi v Maloney [No. 2].[183] He gave evidence that he:
was exonerated by the full court of the Supreme Court. Made it clearly that I was – didn’t make the false statement by Pullin J. They didn’t make any false statement.[184]
[182] Transcript 16 October 2013, page 37.
[183] [2007] WASCA 227 (“Maloney [No. 2]”), from which special leave to appeal to the High Court was refused in Ejueyitsi v Maloney [2009] HCATrans 174.
[184] Transcript 16 October 2013, page 37.
Cross-examined further Mr Ejueyitsi was forced to acknowledge that Justice Pullin’s judgment was in dissent,[185] that the appeal was dismissed and that the conviction on one count of making a false statement to a migration officer stood.[186] It is not the previous conviction which is of concern so much as Mr Ejueyitsi’s false evidence to this Court that he had been exonerated by the Full Court of the Supreme Court in Maloney [No. 2].
[185] See Maloney [No. 2] at paras.2-41 per Pullin J A.
[186] Transcript 16 October 2013, pages 37-38. See Maloney [No. 2] at paras.42-72 per Buss JA, with whom McLure JA agreed at para.1.
In relation to Mr Ejueyitsi’s credibility the Court otherwise considers that it is relevant to note that:
a)he was not a calm witness, and exhibited a marked tendency not to listen to the question which he was being asked, and consequently either did not answer the questions being asked or went off on a tangent of his own. On a number of occasions in what was not a long cross-examination Mr Ejueyitsi had to be stopped and told, both by the Court and Counsel for the Commissioner, to listen to the question that was being asked and to answer that question;[187]
b)he was argumentative, particularly in response to simple questions concerning the AHRC Complaint, which were questions which admitted of only one answer, being an answer possibly adverse to his case;[188]
c)he was prone to express himself in an exaggerated manner, as he did, for example, when dealing with the conduct of the police in relation to an earlier driving charge, when he said that the police “ran away from the court”;[189]
d)he gave several inconsistent answers in relation to the simple matter of when he alleged he was handcuffed;[190] and
e)he failed to raise, or refer to, the allegations now raised when he discussed these matters with Dr Pluta in February 2011 and, more significantly, when he made the AHRC Complaint in November 2011, bearing in mind his evidence that “… people don’t forget those kind of words.”[191]
[187] Transcript 16 October 2013, pages 13-14, 18 and 23 (by the Court) and 15, 18 and 31 (by Counsel for the Commissioner).
[188] Transcript 16 October 2013, pages 30-31.
[189] Transcript 16 October 2013, page 13.
[190] Transcript 16 October 2013, page 26.
[191] Transcript 16 October 2013, page 29.
In assessing Mr Ejueyitsi’s credibility the Court has taken account of his evident difficulty in understanding, and making himself understood, in the English language, and for the very rapid manner of his speech. Notwithstanding this it is evident that his evidence was not, in the Court’s view, reliable in relation to critical issues and it is fair to observe that critical parts of his evidence were most likely crafted to fit the requirements of his case.
The current and former police officers who gave evidence gave that evidence in a straightforward and methodical manner. This, of course, is to be expected where it is apparent that, in their view, the events the subject of this application were, save for some of the conduct of Mr Ejueyitsi, routine traffic matters. Counsel for Mr Ejueyitsi endeavoured to criticise the officers involved with the 27 January 2010 Incident and the 20 April 2010 Incident because they had not made complete notes of everything that had occurred at the time. That, however, is explicable by reason of the fact that they were dealing with routine traffic offences, not an expectation that they would be involved in rather more complex civil racial discrimination proceedings. Furthermore, and in any event, the accounts of the police officers involved in the 27 January 2010 Incident and the 20 April 2010 Incident seemed to the Court to be entirely straightforward accounts of what for the police officers concerned would have been routine and straightforward events. Cross-examination of the police officers revealed no inconsistencies in their evidence, either individually or collectively. That might be a matter for further observation, but for the fact that, once again, these were routine and straightforward traffic matters in which they were engaged. There were some minor details which the officers were not able to recount, but those details did not affect the veracity of the evidence of each of them, in the Court’s view.
In the above circumstances, where there is a conflict in the evidence in these proceedings, the Court prefers the evidence of the current or former police officers to that of Mr Ejueyitsi.
Onus of proof
In Qantas Airways Ltd v Gama[192] it was observed that:
The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises, adopting the language of the High Court in Neat Holdings … that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved — and, I would add, the circumstances in which it is sought to be proved.[193]
[192] (2008) 167 FCR 537; [2008] FCAFC 69 (“Gama”).
[193] Gama FCR at 577 per Branson J; FCAFC at para.139 per Branson J.
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors[194] a majority of the High Court observed that:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.[195]
27 January 2010 Incident
[194] (1992) 110 ALR 449 (“Neat Holdings”).
[195] Neat Holdings at 449-450 per Mascon CJ, Brennan, Deane and Gaudron JJ.
Stopping the Hyundai Sonata
Mr Ejueyitsi asserts that he was stopped on 27 January 2010 based on his ethnicity.
The evidence of Detectives Wilson and Psaila-Borrie who were involved in stopping Mr Ejueyitsi on 27 January 2010 was that Mr Ejueyitsi was stopped because police computer system records showed, correctly at the time, that Mr Ejueyitsi’s driver’s licence was subject to a court-imposed suspension under s.49(1)(c) of the RT Act. Detective Wilson says she ascertained this by checking the driver’s licence details of the owner of the Hyundai Sonata, and she told Detective Psaila-Borrie.[196] Police officers are entitled to stop a vehicle under the RT Act,[197] and it is almost inevitable 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.
[196] Detective Wilson’s July 2013 Affidavit, paras.7-8.
[197] RT Act, s.53.
There is no evidence that Mr Ejueyitsi being stopped on 27 January 2010 had any link to issues of race or national or ethnic origin, or colour or descent. The Court accepts that Detectives Wilson and Psaila-Borrie stopped the Hyundai Sonata that Mr Ejueyitsi was driving because police computer system records showed that Mr Ejueyitsi’s driver’s licence was subject to a court imposed suspension under s.49(1)(c) of the RT Act. Detective Wilson did say that Mr Ejueyitsi said something like “you’re picking on me because I’m black” and that she responded by saying that the police officers were just going on what the police computer system records said, but Mr Ejueyitsi denied saying this in cross-examination. For reasons set out above, the Court prefers the evidence of Detective Wilson, but in the end it makes no difference, because it is plainly the case that Detectives Wilson and Psaila-Borrie did not act on the basis of Mr Ejueyitsi’s race or national or ethnic origin, or colour or descent. It is plain on the evidence that Detectives Wilson and Psaila-Borrie stopped Mr Ejueyitsi and dealt with him on the basis that he was a person subject to a court imposed suspension of his driver’s licence.
The Court accepts the evidence of Detectives Wilson and Psaila-Borrie that they were unaware of Mr Ejueyitsi’s race or national or ethnic origin, or colour or descent, until they approached the Hyundai Sonata after stopping it. The Court does so based on the evidence of Detectives Wilson and Psaila-Borrie, and also has regard to the fact that it was not put to them in cross-examination that they pulled Mr Ejueyitsi over on the basis of, or because of, his race or national or ethnic origin, or colour or descent. The failure to put this was conceded by Counsel for Mr Ejueyitsi in final oral submissions.[198] The possibility 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 or colour or descent, and to do so without even having seen the driver of the vehicle, was not put in cross-examination to any of the police officers concerned. It was also not put to Detectives Wilson and Psaila-Borrie that they could see Mr Ejueyitsi in his Hyundai Sonata, and were therefore able to ascertain that he was a person of colour, and therefore might be of a particular race or national or ethnic origin, colour or descent. The failure to cross-examine on this issue reinforces the Court’s view that in stopping the Hyundai Sonata Detectives Wilson and Psaila-Borrie were not acting in a racially discriminatory or offensive manner.
[198] Transcript 17 October 2013, page 21. It was conceded both in relation to the 27 January 2010 Incident and the 20 April 2010 Incident.
Thus, in stopping the Hyundai Sonata and speaking to Mr Ejueyitsi in the immediate aftermath of stopping the Hyundai Sonata, the Court does not consider that there was any act or conduct of Detectives Wilson or Psaila-Borrie based on, or because of, Mr Ejueyitsi’s race or national or ethnic origin, or colour or descent.
Impounding the Hyundai Sonata
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.[199] 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.[200]
[199] RT Act, ss.49(1)(a) and (3)(c), 78, 78A and 79A(1).
[200] 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 a 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.
The argument that s.79BA(1) and (2) of the RT Act meant that the Hyundai Sonata had to be impounded at the time of the 27 January 2010 Incident because that was the time at which the police officers formed the requisite suspicion, and it was practicable to impound the vehicles,[201] 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 of the RT Act which allows a period of 28 days after the alleged offences in which to impound the vehicles, unless it is impracticable to do so.
[201] RT Act, s.79BA(1).
In the Court’s view it would be appropriate and a proper exercise of a police officer’s discretion, in normal circumstances, to immediately impound the vehicle of a driver who had been caught driving a vehicle whilst the driver’s licence was suspended. The practical consequences of not impounding a vehicle immediately in normal circumstances might be such, for example, where a vehicle was subsequently hidden or driven inter-state, as to make it wholly impracticable to subsequently impound the vehicle. The circumstances in which Mr Ejueyitsi was stopped, including the time of day and the place at which he was stopped, in Maylands an inner suburban area of Perth, disclose no reason for Detectives Wilson and Psaila-Borrie not to exercise their discretion to impound the Hyundai Sonata. The only qualification in relation to that is what Mr Ejueyitsi had to say with respect to whether or not he was driving under suspension.
The evidence establishes that Detectives Wilson and Psaila-Borrie acted on the basis of the police computer system records in forming a view, and therefore reasonably suspecting, that Mr Ejueyitsi had committed an impounding offence for the purposes of s.79A(1) of the RT Act. Although Mr Ejueyitsi protested that his licence was not, or ought not to have been, suspended, Detectives Wilson and Psaila-Borrie were entitled to act on the basis of the police computer system records, as they did. Although they acted differently to the manner in which the police officers had acted when Mr Ejueyitsi was pulled over at Mandurah on 15 January 2010, there was nothing in the exercise of their discretion with respect to impounding Mr Ejueyitsi’s vehicle which was not open to them, and nothing in their so acting which can be said to be an act because of, or based upon, Mr Ejueyitsi’s race or national or ethnic origin or colour or descent. Indeed, there is nothing in Mr Ejueyitsi’s own evidence which would suggest that this was the case, and the evidence of Detectives Wilson and Psaila-Borrie indicates that this was a routine vehicle identification, stop and impounding.
The fact that Mr Ejueyitsi was left by the roadside after the Hyundai Sonata was towed away, and not given a lift home or to some other place, is explained by the evidence of Detective Psaila-Borrie to the effect that he was satisfied that Mr Ejueyitsi had the capacity and means to arrange his own transport, and Detective Wilson’s evidence that he caught a taxi. Had this not been the case, and as is evident from other evidence, Mr Ejueyitsi might, as others have from time to time, been transported home or to another place, but there is nothing which obliges the Western Australian Police Service, particularly in the circumstances of this case where Mr Ejueyitsi was not far from home, and in an inner-city suburb in daylight hours, to act as a free public transport service.
The Court does not consider that there was any act or conduct based on, or because of, Mr Ejueyitsi’s race or national or ethnic origin, or colour or descent, in relation to the impounding of the Hyundai Sonata or the leaving of Mr Ejueyitsi by the roadside after the Hyundai Sonata had been towed away.
20 April 2010 Incident
Stopping the Mercedes Benz
Mr Ejueyitsi asserts that he was stopped on 20 April 2010, again based on his ethnicity.
Although different detectives, on a different day, and at a different place, stopped the Mercedes Benz driven by Mr Ejueyitsi, the relevant circumstances in relation to the stopping of the Mercedes Benz are, for practical purposes, identical to those in relation to the stopping of the Hyundai Sonata on 27 January 2010. And although on this occasion the officers concerned were part of a traffic unit looking for recidivist suspended drivers, the Court accepts that Mr Ejueyitsi was not a specific target of that operation. The Mercedes Benz was stopped because the police computer system records showed that the owner of the Mercedes Benz was a person whose driver’s licence was suspended. The Court accepts the evidence of Senior Constable Robinson and Mr Raine to that effect. Likewise, the Court accepts the evidence of Senior Constable Robinson and Mr Raine that they were unaware of Mr Ejueyitsi’s race or national or ethnic origin, or colour or descent, until they approached the Mercedes Benz after stopping it. Again, it was not put to Senior Constable Robinson or Mr Raine in cross-examination that they were able to see Mr Ejueyitsi in the Mercedes Benz, and thus to ascertain the colour of his skin, and the possibility that he was of a particular race or national or ethnic origin, colour or descent. Thus, up to the point of stopping the Mercedes Benz and approaching Mr Ejueyitsi in the Mercedes Benz the Court does not consider that there was any act or conduct of Senior Constable Robinson and the then Constable Raine based on, or because of, Mr Ejueyitsi’s race or national or ethnic origin, or colour or descent.
Impounding the Mercedes Benz
As with the impounding of the Hyundai Sonata on 27 January 2010 the Court considers that Senior Constable Robinson and the then Constable Raine had the power to do so, and in the circumstances, involving a stopping of the Mercedes Benz in an inner-city suburb of Perth in daylight hours, that there were no abnormal circumstances which made it inappropriate to exercise the discretion to impound the Mercedes Benz. Otherwise, for all practical purposes, Senior Constable Robinson and the then Constable Raine were entitled to impound the Mercedes Benz on 20 April 2010 for the same reasons that Detectives Wilson and Psaila-Borrie were entitled to impound the Hyundai Sonata on 27 January 2010. Further, the Court does not consider that the impounding of the Mercedes Benz was based upon any act or conduct, or because of, Mr Ejueyitsi’s race or national or ethnic origin, or his colour of descent.
Arresting Mr Ejueyitsi
Mr Ejueyitsi alleges that the police officer who spoke to him (which on the evidence was Senior Constable Robinson) referred to him as a “bloody African” and said that he would have to deal with him. For reasons set out above, the Court prefers the evidence of Senior Constable Robinson and Mr Raine to that of Mr Ejueyitsi in relation to the 20 April 2010 Incident. Both Senior Constable Robinson and Mr Raine deny that Mr Ejueyitsi was called or described as a “bloody African” or was told that he would have to be dealt with. Further to the observations on credibility set out above, the Court observes that this was, as the then Constable Raine described it, a “routine” traffic patrol and stop. Although Mr Ejueyitsi was evidently animated, and protesting that he was not in fact under a driver’s licence suspension, he was shown the police computer system records which said to the contrary. In the circumstances, there is nothing which would have provoked or incited Senior Constable Robinson to have said the words alleged by Mr Ejueyitsi. The Court also bears in mind that Senior Constable Robinson was an experienced police officer, both in the United Kingdom and Western Australia, who was both trained, and had acted as a trainer, in relation to cultural diversity whilst a police officer in the United Kingdom. The Court also observes that the then Constable Raine was a relatively junior officer, and accepts his evidence that he was simply following the lead of the more senior officer, Senior Constable Robinson, and that the then Constable Raine did not say the words alleged either, and did not hear Senior Constable Robinson say those words.
In all of the above circumstances, the allegations that Senior Constable Robinson (or the then Constable Raine) used the words “bloody African” or said that he would “deal with” Mr Ejueyitsi, are rejected by the Court. The Court does not therefore consider that there was any act or conduct based on, or because of, Mr Ejueyitsi’s race or national or ethnic origin, or colour or descent, at or about the time that the Mercedes Benz had been stopped and approached by Senior Constable Robinson and the then Constable Raine.
When Mr Ejueyitsi was stopped by police officers on 27 January 2010 he was charged on summons. When Mr Ejueyitsi was stopped by police officers on 20 April 2010 he was charged, arrested, taken into custody and searched. There is no doubt that a person driving a motor vehicle whilst their licence is suspended,[202] “may” be arrested by a police officer, without a warrant.[203] 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.[204]
[202] RT Act, s.49(1)(a).
[203] RT Act, s.49(3).
[204] Interpretation Act 1984 (WA), s.56(1).
In this case, the reason for the arrest of Mr Ejueyitsi on 20 April 2010 is relatively straightforward. The evidence established that there had been a direction given to officers involved in the operation to target recidivist suspended drivers to arrest and bring into custody and bail drivers stopped whilst driving under suspension. Although not a target of the operation in relation to recidivist suspended drivers, Mr Ejueyitsi was, when he was stopped and it was discovered that he was driving whilst his driver’s licence was suspended, arrested in accordance with the directive that had been given. Thus, Mr Ejueyitsi’s arrest on 20 April 2010 was not based on, or because of, Mr Ejueyitsi’s race or ethnic or national origin, or colour or descent, but because the police officers concerned had been directed to arrest anybody caught driving whilst under a licence suspension.
In the circumstances, the Court finds that Mr Ejueyitsi’s arrest on 20 April 2010 was not based upon, or because of, his race or ethnic or national origin, or colour or descent.
Taking Mr Ejueyitsi home
There is no doubt that, on the evidence, Mr Ejueyitsi was taken to his home (described as a house, but in reality a flat) either for the purposes of enabling him to look for documentation with respect to his suspended driver’s licence or to allow him to drop off those documents and possessions that he was able to take from the Mercedes Benz. The Court prefers the evidence of Mr Raine in this regard and finds that Mr Ejueyitsi was taken home, as a favour, to enable him to drop off documents and possessions which he had taken out of the Mercedes Benz. For reasons otherwise set out above, the Court also prefers the evidence of Senior Constable Robinson and Mr Raine with respect to whether or not, whilst at Mr Ejueyitsi’s home, Mr Ejueyitsi was called a “bloody African” or told that he would be “dealt with”. The Court is reinforced in that view by reason of the fact, as it has found, that Mr Ejueyitsi was taken home as a favour, and that the visit was of a short duration, just long enough to allow the dropping off of Mr Ejueyitsi’s documents and possessions. If, as asserted by Mr Ejueyitsi, Senior Constable Robinson or the then Constable Raine were calling him a “bloody African” and indicating that he was going to be “dealt with”, it is hardly likely that they would take him home as a favour and allow him to drop off documents or possessions. Likewise, even if they were taking him home to allow him to look for documents related to his suspended driver’s licence, that conduct would be inconsistent with aggressive and racially based conduct and remarks directed towards Mr Ejueyitsi.
In the circumstances, the Court is of the view that there was nothing said or done by Senior Constable Robinson or the then Constable Raine during, or in or around, the visit to Mr Ejueyitsi’s home, which was based on, or because of, Mr Ejueyitsi’s race or ethnic or national origin, or colour or descent.
Searching Mr Ejueyitsi
There is no dispute that Mr Ejueyitsi, having been taken into custody, was searched. Understandably, persons taken into custody are searched as a matter of course for safety and security reasons.[205] There is, however, a factual dispute about the extent of the search of Mr Ejueyitsi on 20 April 2010. Mr Ejueyitsi says he was subjected to a full strip search. The police officers say that Mr Ejueyitsi was subjected to a basic search (or pat-down), and had to be told not to remove his clothes, which he had commenced to do voluntarily.[206] The evidence of the police officers was that in Mr Ejueyitsi’s circumstances a pat-down search was all that was required.
[205] Robinson Affidavit, para.10.
[206] Robinson Affidavit, para.11.
The evidence of the police officers is to be preferred for reasons set out above and because there was no reason to do a strip search.
In the circumstances, the Court finds that there was a basic search of Mr Ejueyitsi conducted at the Bayswater Police Station on 20 April 2010, and not a strip search as he alleges. Nothing in the circumstances surrounding the search indicates that it was based on, or because of Mr Ejueyitsi’s race or national or ethnic origin, or colour or descent.
The Court also accepts Senior Constable Robinson’s evidence that asking a person where they are from, or for their place of birth, is a standard police protocol when people are charged. In those circumstances, there is nothing to indicate that questions of that type directed to Mr Ejueyitsi were based on, or because of, Mr Ejueyitsi’s race or national or ethnic origin, or colour or descent
Alleged racial profiling
In relation to the allegation of racial profiling contrary to s.9 of the RD Act, the Commissioner denies that allegation, and further says that:
a)the Hyundai Sonata and the Mercedes Benz were stopped on each occasion because the recorded information available to the police officers showed that Mr Ejueyitsi was driving whilst under suspension; and
b)the police officers who were involved in the 20 April 2010 Incident were members of a task force which was targeting drivers whilst under court-imposed suspension, and were instructed to arrest drivers suspected of driving whilst under a court-imposed suspension for the purposes of putting the drivers before the courts and taking identifying particulars.[207]
[207] Points of Claim, paras.13-15.
There is no evidence to sustain an allegation of racial profiling. The evidence simply indicates that on both the occasion of the 27 January 2010 Incident and the 20 April 2010 Incident the police officers concerned pulled over the Hyundai Sonata and the Mercedes Benz respectively because the police computer system records indicated that they were owned by a person whose driver’s licence was suspended. There is no factual foundation for concluding, in those circumstances, that the acts of the police officers concerned were based upon, or because of, Mr Ejueyitsi’s race or national or ethnic origin, or colour or descent. It follows that the allegation of racial profiling contrary to s.9 of the RD Act was not made out.
Conclusions and orders
The Court has concluded that Mr Ejueyitsi has failed to make out to the required standard of proof his claim of alleged racial discrimination and alleged racially offensive behaviour by the Commissioner. In the circumstances, there will be an order dismissing the application.
The Court will hear the parties as to costs.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 9 March 2015
0
14
8