The Flemington & Kensington Community Legal Centre acts on behalf of Mr Magnus Kaba.
Magnus Kaba, an Australian man born on the Ivory Coast, was a passenger in a car stopped by police in Ascot Vale in April 2012 as part of a random “routine intercept.” Mr Kaba was charged with a number of offences including assault after one of the police officers asked to search the car and repeatedly requested Magnus’ name and details “[refusing] to take no for an answer.”
The original Kaba v Watson ruling 2013
The Magistrate, Duncan Reynolds, ruled in June 2013, that neither the common law nor section 59 of the Road Safety Act (Vic) vested in police ‘‘an unfettered right to stop or detain a person and seek identification details”.
Victoria Police have previously interpreted that section of the Road Safety Act as providing a broad power to stop motorists at random and claim it assists in crime detection.
Magistrate Reynolds ruled that the evidence of the police officers was inadmissible because it had been unlawful to stop the car without cause. ”Their conduct, in my opinion, unjustifiably breached the right to freedom of movement for Kaba and the driver,” he said and that Police had also arbitrarily detained the men contrary to the Victorian Charter of Human Rights.
At common law, and pursuant to the Crimes Act and other Victorian legislation, police already have specific powers to police people in order to uphold the law and ensure safety on our roads.
The original Ruling on Voir Dire (2).
The Appeal 2014
The Victorian Director of Public Prosecutions (DPP) sought to overturn this ruling.
An appeal decision By Judge Bell was handed down in the Victorian Supreme Court on Thursday 18 December 2014 which overturned magistrate Duncan Reynolds’ 2013 ruling that police do not have an “unfettered” right to randomly stop and check vehicles.
Judge Bell, quashed the decision of Magistrate Reynolds ruling that he committed an error of law when he decided in June last year, that section 59(1) of the road safety act did not give police an unfettered right to stop motorists.
Judge Bell did, however, agree with Magistrate Reynolds that coercive questioning by police in an effort to request name and address of a person who is stopped, can constitute a breach of the common law and Charter rights to freedom of movement and privacy (and in the Kaba v Watson case, did constitute breaches of Mr Kaba’s rights and was unlawful).
“[Magnus Kaba] was not suspected of wrongdoing. He was free to go and he sought to go. He was then coercively asked for his name and details. Police could see that he was angry. They were trained to deal with such situations and made professional choices. Police could easily have let Mr Kaba go on his way and they should have done so. Whether he would give them his name and details was his private business but they pressed him well over the line of permissible questioning.” Justice Bell 
The case will now be remitted back to the Magistrates’ Court, for reconsideration, subject to any appeal.
Commentary from the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) on the Charter implications of the case can be found here>
Solicitor for Mr Kaba, Sophie Ellis, said of Judge Bell’s decision: “No one benefits from the police having unchecked power to stop vehicles. The global experience shows that broad powers are too often abused by police and can lead to prejudice impacting upon how some police members carry out their work; rather than policing individuals for fair and just reasons.”
Concern about this decision is that it empowers racial profiling and human rights violating behaviour by police. Such broad statutory power to stop and request without suspicion of wrong doing has great potential to be abused or exercised unlawfully in breach of people’s rights under the Charter, for example, where exercised in a racially discriminatory manner.
Ms Ellis points out that “some members of our community are more susceptible to being victims of discriminatory and unlawful application of broad powers such as this – eg, drivers targeted because of their race, the age of their vehicle, or the neighbourhood they are driving in; and unlawful profiling can be incredibly difficult to prove. This is the experience of minorities, including people of colour, in our community that is frequently communicated to us.”
We know from the race discrimination case that young African Australian men are 2.5 times more likely to be stopped arbitrarily and have field contacts with police than others in the North Melbourne/Flemington area, even though they commit statistically less crime.
A statutory power to randomly stop motor vehicles under section 59(1) of the RSA where there is no suspicion of wrong doing has real potential to undermine police’s efforts to stamp out racial profiling.
Tamar Hopkins, of the Flemington & Kensington Community Legal Centre, has stated ”Many people from African backgrounds, for example, have reported to us that they have been subject to routine intercepts by police where there is no underlying basis for the stop.
”As well as interfering with rights, routine intercepts are a practice that is open to abuse.”
The Appeal Court decision (DPP v Kaba & The Magistrates Court) DPP v Kaba  VSC 52
Commentary from the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) on the Charter implications of the case here>
Flemington legal centre chief calls for police to record motorists’ ethnicity during vehicle checks, Moonee Valley Leader, Linh Ly, January 14, 2015
POLICE should record motorists’ ethnicity when performing vehicle checks to ensure racial profiling is not occurring, a legal centre chief executive says…
Police excceeded powers and breached human rights of African man, Judge says, The Age, Stever Butcher and Jane Lee, 18 December 2014
Police power to stop cars under threat, The Age, Vince Chadwick, 21 June, 2013
DPP in push to overturn random checks rulling, The Age, Steve Butcher, Vince Chadwick, 24 June, 2013