Human Rights Act Part 4: Case example: Police powers and exclusion of evidence – DPP v Kaba [2014] VSC 52

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) <>.

[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].

Human Rights Act - Part 3: Case example: Bail – Gray v DPP [2008] VSC 4

Case example: Bail – Gray v DPP [2008] VSC 4

This is the third blog in our Human Rights Act series, looking at the decision of the Victorian Supreme Court in Gray v DPP regarding bail.

The Queensland Human Rights Act 2019 (HRA) and human rights legislation in other jurisdictions do not expressly contain a right to bail. Rather, the issue of bail is raised through the provisions dealing with the right to liberty, as contained in s 29 HRA (equivalent to s 21 of the Victorian Charter).

Section Right
s 29(1) Every person has the right to liberty and security
s 29(2) A person must not be subjected to arbitrary arrest or detention
s 29(3) A person may only be deprived of their liberty in accordance with legal procedures
s 29(4) A person who is arrested or detained must be informed at the time of the arrest/detention of the reason for arrest/detention, and promptly informed of any proceedings to be brought against them
s 29(5) A person who is arrested or detained on a criminal charge must be promptly brought before a court and/or to trial without reasonable delay
s 29(6) A person may not be automatically detained in custody when awaiting trial, but their release may be subject to guarantees to appear for trial or other stages of the judicial proceeding
s 29(7) If a person has been deprived of their liberty by arrest/detention they may apply to the court regarding the lawfulness of their arrest/detention, and the court must make a decision without delay and order the release of the person if detention was unlawful
s 29(8) A person must not be imprisoned only because they cannot perform a contractual obligation


Case law already indicates that time that a person will spend in custody awaiting the determination of a matter is an important consideration.[1] Where time in custody on remand will likely exceed any sentence of imprisonment imposed after conviction, time may be regarded as outweighing other relevant factors.[2] Human rights legislation is likely to take this argument further.

In Gray v DPP,[3] Kelly Gray was charged with numerous indictable offences, including aggravated burglary arising from assault. He was refused bail on the grounds that a person charged with aggravated burglary is to be remanded in custody unless the person can satisfy the court that detention is not justified.[4] On application to the Supreme Court that his continued detention was not justified, the argument was made that the trial was not likely to commence before 11-12 months after he was initially remanded in custody. Given the relative minor injuries to the victims, the applicant’s prior convictions and the seriousness of the offence, there was a significant risk that Gray would serve more time on remand than under any sentence.[5]

While the Victorian Charter was not explicitly mentioned by either party, Bongiorno J considered that sections 21(5)(c) (the equivalent of s 29(5) HRA – see above) and 25(2)(c) (the equivalent of s 32(2)(c) HRA) to be highly relevant.[6] His Honour found that those sections guaranteed the right to a timely trial, and the inability to provide this was relevant to whether bail should be granted.[7] His Honour stated that:[8]

The only remedy the Court can provide an accused for a failure by the Crown to meet its Charter obligations in this regard… is to release him on bail - at least the only remedy short of a permanent stay of proceeding.

Given the similarities between the Victorian Charter and HRA provisions in this regard, it is likely that the same right to a timely trial may be implied in Queensland.

[1] Williamson v DPP [2001] 1 Qd R 99 at 104 per Thomas JA.

[2] Lacey v DPP [2007] QCA 413 at [13].

[3] [2008] VSC 4. See also Human Rights Law Centre, ‘Relevance of Victorian Charter of Rights to Delay in Prosecution and Grant of Bail’, Human Rights Case Summaries (Casenote, 24 January 2008) <>.

[4] Bail Act 1977 (Vic) s 4(4)(c); Gray v DPP (n 3) [6].

[5] Gray v DPP (n 3) [7]-[8].

[6] Ibid [10]-[11].

[7] Ibid [12].

[8] Ibid [12].

Human Rights Act - Part 2: Case example: Unreasonable delay – R v Mills

This is the second blog in our Human Rights Act series, looking at the decision of the ACT Supreme Court in R v Mills in relation to unreasonable delay. For information on right to fair trial under human rights legislation, please see our earlier blog post entitled Human Rights Act 2019 (Qld): Right to Fair Hearing’.

Unreasonable delay is specifically enumerated as a right in the Human Rights Act (HRA), found in the same form in the ACT’s Human Rights Act. In R v Mills the ACT Supreme Court, in granting a permanent stay, considered what amounts to ‘unreasonable delay’ and the options available to the court to provide a suitable remedy in the context of section 22(2)(c) of the Human Rights Act 2004 (ACT). Unreasonable delay also goes to the fairness of trial.[1]

In October 2006, Kara Lesley Mills was charged with four offences including trafficking in a controlled drug, or alternatively, with possessing that drug, and receiving stolen property.  While Mills was committed to stand trial in September 2007, the trial commenced in July 2008 but was later aborted after an informant revealed during evidence that DNA analysis of bags containing the drugs had been tested. This contradicted the information provided to the defence, and was crucial to the defence’s arguments. A pre-arraignment conference was scheduled in June 2009 but this was twice adjourned for various reasons. The matter was eventually set down for trial in March 2011, four years after Mills was charged.[2]

Mills’ sole argument was unreasonable delay relying on s 22(2)(c) of the Human Rights Act 2004 (ACT).[3] The delay was duly acknowledged by the prosecution, but they argued that it would not be unfair to try Mills and that the appropriate response was not a permanent stay.[4]

The decision of the court was to grant a permanent stay. Higgins CJ commented that the right to trial without unreasonable delay was stronger under the Human Rights Act 2004 (ACT) than common law,[5] but that this did not necessarily indicate a right to stay.[6] Higgins CJ found that for a matter to take four years to come to trial after the decision to prosecute was unreasonable. His Honour found that ‘[t]he delay of two and a half years from the first trial, in a relatively simple case is...egregiously unreasonable, for whatever reason it might happen’.[7]

In relation to Mills’ particular circumstances, she had raised the issue of unreasonable delay at an early stage and had been subject to the anxiety and expense of two trials without positive reasons being advanced by the Prosecution for the delay and their failure to promptly test the drug bags (which caused further delay).[8] Higgins CJ further commented that though the lack of resources available to the courts may also have contributed to the delay, "the failure to provide adequate resources will, if unreasonable delay results, be a breach of human rights entitlements".[9]

In coming to His Honour’s decision, Higgins CJ referred to R v Upton[10] in relation to factors that go to the reasonableness of delay:[11]

  • Length of delay;
  • Waiver of time periods;
  • Reasons for delay, including:
    1. Inherent time requirements of the case
    2. Actions of the accused
    3. Limits on institutional resources, and
    4. Other reasons for delay; and
  • Prejudice to the accused

The relative seriousness of the case, issues of fact in the case and the likely future delay were also considered in R v Upton.[12]


[1] See Foote v Somes [2012] ACTSC 63; Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws (Interim Report No 127, July 2015) 279.

[2] See R v Mills [2011] ACTSC 109, [1]-[15] (‘Mills’).

[3] Ibid [14].

[4] Ibid [16]-[19].

[5] Ibid [21].

[6] Ibid [22].

[7] Ibid [39].

[8] Ibid [37]-[38].

[9] Ibid [44].

[10] [2005] ACTSC 52 (1 July 2005), [22], citing Martin v Tauranga District Court [1995] 2 NZLR 419 (Cooke P) and R v Morin (1992) 71 CCC (3d) 1..

[11] Mills (n 2) [25].

[12] Ibid [26].

Human Rights Act 2019 (Qld): Not just another 'Magna Carta argument'

On 24 October 2019, Dan Rogers presented at the annual Queensland Magistrates Conference.  He spoke about the recently enacted Human Rights Act 2019 (Qld) and the likely practical impacts on litigation, particularly in the criminal law jurisdiction of the Magistrates Court.  The conference paper titled, ‘Human Rights Act 2019 (Qld): Not just another ‘Magna Carta argument’ and other documents are available here.

The secret prosecution of Witness K and Bernard Collaery

The prosecution of Witness K and Bernard Collaery has sparked national debate on issues relating to national security, government accountability, freedom of speech, the rule of law and open access to justice.

With public discourse surrounding the prosecutions intensifying, this post serves to summarise and highlight key features of the background of the case ahead of the public forum to be held at Brisbane City Hall on 29 October 2019.


In 2004, Australia and Timor-Leste had commenced treaty negotiations in relation to oil and gas deposits in the Timor Sea.  It was during these negotiations that Australia’s Secret Intelligence Service (ASIS) bugged the walls of Timor-Leste’s cabinet offices under the guise of a foreign aid program. This action gave Australia’s negotiators an unfair advantage in relation to the overall negotiations of the treaty.

Witness K is a former ASIS operative who had firsthand knowledge of the spying operation on Timor-Leste’s treaty negotiations.  He later became aware that high Australian officials involved in the spying were lobbying for an Australian oil company with interest in the area. He complained through proper channels about the illegality of the bugging and obtained permission to speak to his ASIS-approved lawyer, Bernard Collaery.

After learning of the espionage, Timor-Leste initiated international arbitration proceedings against Australia, alleging that the bugging had rendered the treaty void as the negotiation was not made in good faith.  Collaery, representing Timor-Leste, was intending to call Witness K as a confidential witness in the proceedings.

In December 2013, the homes and office of both Witness K and Collaery were raided by ASIO and Australian Federal Police. Documents and data were seized, including Collaery’s legal advice to the Timor Leste Government relating to its strategy for arbitration, and Witness K’s passport was cancelled preventing him from testifying at The Hague.

Four and a half years later, the Commonwealth filed criminal charges against Witness K and Bernard Collaery.

The prosecutions

The charges against Witness K and Collaery are pursuant to Article 39 of the Intelligence Services Act which criminalises the unauthorised disclosure of certain information about ASIS.

Witness K announced in August of this year that he will plead guilty to the charge, with Collaery facing trial separately.

Collaery’s trial will be conducted in partial secrecy under the provisions of the National Security Information Act 2004 (NSI Act). The principle that judicial proceedings are open to the public is well established, however the NSI Act is designed to prevent prejudicing national security.  It is unclear just how much of Collaery’s trial will be kept secret from the public, and from Collaery himself.

This case touches on and challenges numerous long-standing principles grounding Australia’s legal system.  The public forum to be held on 29 October 2019 will involve a discussion of the prosecution of Witness K and Bernard Collaery through the lens of highly qualified speakers.

Robertson O’Gorman is hosting East Timor Prosecutions Public Forum: The secret prosecution of Witness K and Bernard Collaery for national security offences at Brisbane City Hall on 29 October 2019. Spaces are limited. Tickets are available here.