This is the fourth blog in our Human Rights Act series, looking at the case of DPP v Kaba[1] regarding police powers and exclusion of evidence.

Courts have a discretion to exclude evidence that is unlawfully or improperly obtained.[2] While a breach of the Charter may not necessarily lead to the exclusion of evidence obtained as a consequence of that breach, it will supply the element of unlawfulness that enlivens judges’ discretion to exclude evidence.[3]

In DPP v Kaba, the Supreme Court held that police had acted incompatibly with the human rights of freedom of movement and privacy when they coercively questioned a person during a vehicle stop. These rights as expressed in the Victorian Charter[4] are essentially the same as their counterparts in the Queensland Human Rights Act 2019[5] (HRA).

Mr Kaba was a passenger in a car that was subject to a random stop and licence and registration check by uniformed police officers in 2012. Mr Kaba walked away from the car and the police who, without suspecting him of any wrongdoing, repeatedly pressed him for his name and address. Mr Kaba refused these requests using offensive language and protested about racial harassment. He was then arrested for using offensive language and failing to state his name and address.[6]

The Magistrate found that the police had no power under the relevant legislation[7] to carry out the random stop and licence and registration check, and had breached Mr Kaba’s rights by subjecting him to coercive questioning for his name and address. Consequently, the Magistrate exercise his discretion not to admit evidence on the grounds that it was the result of unlawful and improper police conduct.

On appeal, Bell J found that the Magistrate was correct in finding that there had been a breach of Mr Kaba’s rights to movement and privacy.[8] While there had been no physical interference with Mr Kaba and the interference itself was for a short duration, it was not simply a ‘brief and innocuous request for [his] name and address’.[9] Bell J stated that Mr Kaba had not been suspected of wrongdoing and the police ‘could easily have let Mr Kaba go on his way and they should have done so.[10] Whether he would give them his name and details was his private business but they pressed him well over the line of permissible questioning’.[11] Bell J stated that the relevant test in judging the limits of police interference is whether objectively it can be said that individuals are made to feel that they cannot chose to cease cooperating or leave in circumstances of police interaction.[12]

However, Bell J held that the police have the power of random stop and check under the relevant legislation.[13] Because the Magistrate’s decision not to admit the evidence was based on both findings, the decision was quashed and the matter was returned to the Magistrates Court.[14]

This decision clarifies that where police breach their obligation to act compatibly with and give proper consideration to human rights (under s 38(1) of the Victorian Charter or similar provisions in Queensland’s Act), courts will consider whether to exclude evidence on this basis. Further, it confirms that police conduct breaching Charter rights is conduct that is both improper, for being ‘inconsistent with the standards expected in our society of law enforcement officers’, and unlawful.[15] The gravity of the human rights violation will be relevant in assessing whether to admit the evidence.[16]

[1] [2014] VSC 52.

[2] Bunning v Cross (1978) 141 CLR 54; R v Swaffield (1998) 192 CLR 159; R v Thomas (2006) 14 VR 475.

[3] Alistair Pound and Kylie Evans, An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities (Thomson Lawbook Co, 2008), 525-53 citing Simon Evans and Carolyn Evans, ‘Legal Redress under the Victorian Charter of Human Rights and Responsibilities’ (2006) 17 Public Law Review 264, 272.

[4] Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 12, 13(a) (‘Victorian Charter’).

[5] Human Rights Act 2019 (Qld) ss 19, 25 (‘HRA’).

[6] DPP v Kaba [2014] VSC 52, [1]-[3]; see also ‘DPP v Kaba (Supreme Court) – December 2014’, Victorian Equal Opportunity & Human Rights Commission (Web Page) < https://www.humanrightscommission.vic.gov.au/index.php/human-rights/item/1098-dpp-v-kaba-supreme-court-december-2014>.

[7] Road Safety Act 1986 (Vic) s 59(1).

[8] DPP v Kaba [2014] VSC 52, [469]-[470].

[9] Ibid [478].

[10] Ibid [478].

[11] Ibid.

[12] Ibid [459].

[13] Ibid [458].

[14] Ibid [486]-[487].

[15] Ibid [333].

[16] Ibid [348], [479].