DPP v Kaba [2014] VSC 52

Supreme Court of Victoria|2014-12-18|Before: BELL J

ADMINSTRATIVE LAW - magistrate's decision that police had no statutory power of random traffic stop - exercise of discretion to exclude evidence of alleged street offences - whether judicially reviewable error - statutory interpretation - human rights - principle of consistency - principle of legality - principle of Charter-consistent interpretation - whether evidence improperly or unlawfully obtained - evidence, police powers and human rights - 'liberty', 'freedom of movement', 'privacy' - Road Safety Act 1986 (Vic) s 59(1), Evidence Act 2008 (Vic) s 138(1), (3), Charter of Human Rights and Responsibilities Act 2006 (Vic)

For Victorian Equal Opportunity and Human Rights Commission (intervening)

Victorian Equal Opportunity and Human Rights Commission

1 Two young black African men were minding their own business when driving in the streets of Flemington one afternoon. Two uniformed police officers on mobile patrol stopped the driver for a random check of his licence and the registration of the vehicle. They also obtained his permission to search the vehicle.

2 Magnus Kaba, the passenger, expressed indignant anger over the delay, left the vehicle and exercised the liberty, which we all take for granted, to walk along the footpath towards the nearby flats. While he was doing so and without suspicion of wrongdoing, the police repeatedly pressed him for his name and address, which he abusively refused to provide, protesting vehemently about racist harassment.

3 When Mr Kaba's abuse worsened considerably, one of the officers arrested him for using offensive language. Led handcuffed to the police vehicle, he allegedly assaulted that officer and committed other street offences for which he was charged.

4 On the hearing of the charges before Duncan Reynolds, Magistrate, counsel for Mr Kaba objected to the evidence of the police under s 138(1) of the Evidence Act 2008 (Vic) upon the ground that the criminal charges were the result of their unlawful and improper conduct in carrying out a random licence check for which they had no power under the Road Safety Act 1986 (Vic) or otherwise and which breached the driver's and Mr Kaba's right to freedom of movement under the Charter of Human Rights and Responsibilities Act 2006 (Vic). It was also submitted that demanding Mr Kaba's name and address was contrary to his right to privacy under the Charter.

5 His Honour heard and determined these objections at a preliminary hearing. Ruling against the police on both grounds, his Honour exercised his discretion to refuse to admit their evidence, causing the prosecution to collapse. The trial was adjourned part-heard so that the prosecution could consider its position. This application for judicial review of the magistrate's ruling, which raises important issues about police powers, exclusion of evidence and human rights, is the result.

6 By originating motion, the Director has made an application under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) seeking an order in the nature of certiorari quashing the ruling of the magistrate under s 138(1) of the Evidence Act not to admit the evidence of the police, an order in the nature of mandamus compelling his Honour to admit the excluded evidence, a declaration that s 59(1) of the Road Safety Act confers a power of stop and request upon members of the police force and certain procedural and other orders.

7 The grounds of the application are that, in making the ruling, his Honour committed jurisdictional errors and errors of law upon the face of the record.[1] On examination, these grounds raise two main legal issues.

8 The first legal issue is whether the magistrate erred in law upon the face of the record in concluding that the police had acted unlawfully and improperly because s 59(1) of the Road Safety Act did not confer any power on them to undertake random checks in respect of the licence status of drivers and motor vehicles. It was agreed between the parties that this is a question of pure law and is raised upon the face of the record, being the written ruling of the magistrate. For reasons which I will later give, I have concluded that the magistrate did so err.

9 The second legal issue is whether the magistrate erred in law upon the face of the record, or committed a jurisdictional error, by exercising his discretion not admit the evidence upon the basis that the police had acted unlawfully or improperly by breaching Mr Kaba's right to privacy under the Charter and the ICCPR. As I will later explain, his Honour did not so err in law or jurisdiction because his approach to the interpretation and application of the Charter (and the ICCPR) was correct.

10 Before giving reasons for these conclusions, it is necessary to consider the rules governing the making of orders by way of judicial review in relation to evidentiary rulings in part-heard criminal proceedings.

11 As submitted on behalf of Mr Kaba and acknowledged on behalf of the Director, it is highly unusual, and usually highly undesirable, for this court to intervene in part-heard criminal proceedings in another court. At common law there is a strong rule, subject only to limited exceptions, against the fragmentation of criminal proceedings by the grant of prerogative relief, such as prohibition or certiorari. Thus, in Sankey v Whitlam,[2] Gibbs ACJ criticised the practice of making declaratory orders as to matters of criminal evidence or procedure. His Honour said that 'the circumstances must be most exceptional to warrant the grant of relief'[3] and that '[o]nce criminal proceedings have begun they should be allowed to follow their ordinary course' unless 'for some special reason it is necessary in the interests of justice' to grant relief.[4]

12 In R v Judge Mullaly[5] the prosecution (through the Attorney-General) sought judicial review in respect of an evidentiary exclusion ruling made in the exercise of the discretion of a judge of the County Court. The same rule against fragmentation of criminal proceedings was applied. Brooking J said 'there is a good deal of weighty authority for the view that in general the erroneous reception or rejection of evidence is no ground for a prohibition'[6] and also referred to cases in which the same rule had been applied in relation to certiorari.[7] His Honour expressed the 'strong view' that such remedies were not available with respect to evidentiary rulings[8] and would in any event be refused on discretionary grounds,[9] even where the ruling was fatal to a party's case.[10] When refusing special leave to appeal in R v Iarlano,[11] Gibbs CJ, Murphy, Wilson, Brennan and Dawson JJ repeated the rule that

it is highly undesirable to interrupt the ordinary course of criminal proceedings by applications for leave to appeal or prerogative relief for the purpose of challenging rulings on questions of admissibility of evidence.[12]

Examples of the application of this well-established rule include R ex rel City of Fitzroy v Casey,[13] Ex parte Alldritt,[14] Ex parte Buzzacott; Re Burns,[15] Ex parte Ball; Re Tanner,[16] Ex parte Dowsett; Re Macauly,[17] Ex parte Crothers; Re Anderson v Commissioner for Motor Transport[18] and R v Tennant; Ex parte Woods.[19]

13 It was held in Kirk v Industrial Court of New South Wales[20] that, for the purposes of prerogative relief such as prohibition and certiorari, there is in Australia a distinction between jurisdictional and non-jurisdictional error. Prerogative relief is only available with respect to the former.[21] It was established in Craig v South Australia that an inferior court did not 'ordinarily' commit a jurisdictional error by deciding questions of law and fact which fell within its jurisdiction, including the 'identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence'.[22]

14 On the other hand, in Kirk French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that it was a jurisdictional error for the Industrial Court to permit the accused to be called as a voluntary witness for the prosecution.[23] Moreover, Craig established[24] and Kirk confirmed[25] that judicial review was available with respect to decisions of inferior courts vitiated by error of law on the face of the record.

in the absence of some statutory provision to the contrary, the record of an inferior court for the purposes of certiorari does not ordinarily include the transcript, the exhibits or the reasons for decision.[27]

No application to reconsider this decision was made in Kirk.[28] In Victoria, there is a relevant statutory provision. Section 10 of the Administrative Law Act 1978 (Vic) provides:

Any statement by a tribunal or inferior court whether made orally or in writing ... of its reasons for a decision shall be taken to form part of the decision and accordingly to be incorporated in the record.

As was held in Easwaralingam v Director of Public Prosecutions (Victoria),[29] the transcript of the hearing may be considered where this is necessary for the purpose of understanding the reasons in context. In the present case, it has been necessary to look at the transcript of the hearing before the magistrate in order to give context to and understand the written reasons. I refer to and set out the relevant passages below.

16 Of course, even where ground of error of law on the face of the record is established, relief might be refused in the exercise of the court's discretion because of the importance of the principle against fragmentation (see above).

17 An example of an exceptional case in which relief was granted in respect of the wrongful evidentiary ruling of a trial judge is Rozenes v Beljajev.[30] The ruling had the effect of excluding virtually all of the evidence of the prosecution. The application for judicial review was made by the Commonwealth and State Directors of Public Prosecution. The analogy with the present case will be obvious. Brooking, McDonald and Hansen JJ held that the way in which the trial judge exercised the discretion constituted an error of law. While not doubting the importance of the principle that 'fragmentation [of judicial proceedings] should be avoided unless there are exceptional or special circumstances',[31] their Honours held that such circumstances had been established. Those circumstances were that

the Crown wishes to call admissible evidence in a criminal trial and the judge has excluded it on the application of the defence, and in which no evidence has actually been heard and the impugned evidence may constitute the substantial body of evidence, if not the essence of the case, relied on by the Crown, with the effective result of denying to the Crown - and thereby the community - the trial which it requires.[32]

Distinguishing those circumstances from standard evidentiary rulings of the kind mentioned by Gibbs ACJ in Sankey, Brooking, McDonald and Hansen JJ said:

There is a significant difference between this situation and a ruling on a point of evidence along the way in a committal or a trial ... Such a ruling would be part of a trial conducted in accordance with established principles.[33]

Their Honours decided that relief would be granted because

the plaintiffs have been affected by a ruling given by a judge at a preliminary stage, without any evidence having been given and on a highly contentious basis in law and fact which could have serious future consequences, both in the instant case and in the administration of justice generally.[34]

The submission of counsel for the Director was that the present case falls into the same category. I agree.

18 Despite the importance of the principle against fragmentation, this is one of those exceptional cases in which judicial review should be granted upon the ground that the magistrate's ruling to exclude the evidence constituted an error of law on the face of the record and the discretion of the court should be exercised in favour of granting relief. The ruling of the magistrate, if upheld, will cause the complete collapse of the prosecution case.

19 As I have explained, my conclusion in relation to the two critical legal issues is that the Director has established that the magistrate's ruling was based upon an error of law on the face of the record in relation to the interpretation of s 59(1) of the Road Safety Act. However, the Director has not established that the magistrate committed any jurisdictional error in relation to his Honour's interpretation and application of the Charter.

20 If the magistrate's ruling in relation to the exercise of the discretion in s 138(1) of the Evidence Act not to admit the evidence had clearly been based independently upon each of these two legal grounds, it may have been appropriate to allow it to stand. However, that is not clear. The court should quash the ruling by reason of the error made with respect to the interpretation of s 59(1). His Honour should then be given the opportunity to reconsider the admission or exclusion of the evidence because the conduct of the Senior Constable Randall was unlawful or improper by reason of the breach of Mr Kaba's rights under the Charter (and the ICCPR) which occurred.

21 In the circumstances, the ruling should be quashed because his Honour committed an error of law upon the face of the record in relation to the interpretation of s 59(1) of the Road Safety Act and his Honour should reconsider the exercise of his discretion to exclude the evidence under s 138 of the Evidence Act upon the ground, which I have upheld, that Senior Constable Randall breached Mr Kaba's rights under the Charter (and the ICCPR). There will be orders to that effect.

22 I will begin by explaining in more detail the charges brought against Mr Kaba and the course of the hearing before his Honour.

23 Arising out of events that occurred at Flemington on 19 April 2012, eight charges[35] were brought against Mr Kaba. The facts allegedly giving rise to the charges all occurred after the driver of the car in which Mr Kaba was travelling had been stopped and questioned and police had sought Mr Kaba's name. The hearing of the charges commenced in the Magistrates' Court at Melbourne on 9 April 2013. Mr Kaba pleaded not guilty to all of the charges.

24 The prosecution proposed to call witnesses of whom only Senior Constable Randall and Constable Andrews could give evidence of the alleged events. The defence objected to the admissibility of their evidence under s 138 of the Evidence Act and a voir dire (preliminary hearing) was conducted for the purpose of ruling upon this objection. It was agreed that Senior Constable Randall and Constable Andrews would give their evidence in full but that counsel for Mr Kaba would cross-examine them only in relation to the objection to the admissibility of their evidence. Only the two officers gave evidence for the prosecution. No evidence was led on behalf of the defence.

25 At the conclusion of the voir dire, his Honour reserved his decision. After an exchange of written submissions, his Honour ruled on 20 June 2013 that the evidence of the two police officers would be excluded. The hearing was adjourned pending the determination of the application for judicial review which the prosecution now makes to this court.

26 It is clear that the factual foundation of the charges brought against Mr Kaba depends entirely upon the evidence of the two police witnesses. If their evidence was properly excluded, the prosecution will have to withdraw the charges or produce no evidence of the alleged facts in which case the charges will inevitably be dismissed.

27 In the ruling, his Honour found that, on the evidence of the two police officers, the case against Mr Kaba was that the officers were on patrol in their police vehicle on 19 April 2012. They were engaging in the routine and random interception of motor vehicles primarily to check the driver's licence of the driver, registration of the vehicle and whether the driver was the subject of any outstanding warrants.[36] They were not equipped with a mobile data terminal which disclosed information about a vehicle upon entering its registration number. Before requiring drivers to stop, the officers had no information about the status of the registration of the vehicle, whether the driver had a valid driver's licence and whether the occupants were associated with any breach of the road traffic laws. Their focus was upon intercepting an adequate quota of vehicles during their shift.

28 The Mazda in which Mr Kaba was a passenger was intercepted at about 1.50 pm in Portal Street, Flemington. Constable Andrews was driving the police vehicle. While Senior Constable Randall remained in the passenger seat, Constable Andrews approached the Mazda and explained to the driver that he was undertaking a routine licence and vehicle check. On that constable's request, the driver produced a current Victorian licence and he voluntarily remained in the vehicle while checks were carried out.

29 Constable Andrews walked to the front of the Mazda to check the expiry date of its registration label. Speaking through the open window of the front passenger door, Mr Kaba asked:

How long was this fucking going to take? I have somewhere to be.

30 Constable Andrews went back to the police vehicle. In doing so, he observed a laptop computer protruding from underneath the rear of the driver's seat and a pair of orange handled scissors on the back seat. A police radio inquiry revealed that at some time in the past marijuana had been found in the intercepted vehicle or in the possession of the then driver.

31 Constable Andrews returned to the Mazda. He asked the driver for consent to search the vehicle, which was given. The driver then got out of the vehicle. As it happened, the search was not undertaken.[37]

32 At this time, Senior Constable Randall was still in the passenger seat of the police vehicle. About the time when Constable Andrews asked the driver for permission to search the Mazda, Senior Constable Randall observed Mr Kaba leave the vehicle and walk towards some residential units in Portal Street. Constable Andrews asked Mr Kaba for his name or identification.[38] This is the first request. Mr Kaba's response was:

Constable Andrews again asked Mr Kaba for identification. This is the second request. His Honour's ruling does not refer to the response but the evidence reveals that it was abusively refused.

33 At about this point, Senior Constable Randall got out of the police vehicle and approached Mr Kaba. He said to him that he needed his name 'to say I spoke to you'. This is the third request. In response, Mr Kaba said to Senior Constable Randall:

Go and get fucked cunt, I've done nothing wrong.

34 Senior Constable Randall then informed Mr Kaba that he had committed the offence of using offensive language. Mr Kaba said:

That's fucking bullshit cunt, you are a racist.

Senior Constable Randall then asked Mr Kaba for his name and address. Mr Kaba said:

I don't have to tell you anything, I've done nothing wrong.

Senior Constable Randall told Mr Kaba that, if he did not state his name and address, he would be placed under arrest 'until I can confirm who you are'. Mr Kaba replied:

This is fucking bullshit, you're just harassing me because I am black.

Senior Constable Randall then told Mr Kaba that he was under arrest for failing to state his name and address.

35 Mr Kaba was then asked to turn out his pockets. In response, he removed his T-shirt, dropped his trousers and underpants and exposed and grabbed hold of his penis, saying:

36 After being cautioned, Mr Kaba was handcuffed with his hands behind his back. The two police officers walked him to the police sedan. As he was about to be placed in the back seat, from behind Mr Kaba grabbed and squeezed the testicles of Senior Constable Randall, who felt immense pain for 10-15 seconds.

37 His Honour said that it was on the basis of these alleged events that the eight charges were brought against Mr Kaba.

38 In ruling on the application for exclusion of the evidence under s 138(1) of the Evidence Act, his Honour said that he had to decide whether the evidence was obtained as a consequence of impropriety or illegality, as to which the onus lay on the defence, and whether the desirability of admission outweighed exclusion, as to which the onus was on the prosecution.

39 As to the first issue, his Honour determined that, in the circumstances, the police had no power to stop the Mazda or detain the driver or Mr Kaba to seek identification details. There was no such power at common law because neither were under suspicion of having committed an offence (until Mr Kaba allegedly used abusive language). There was no such power under s 59(1)(a) of the Road Safety Act because, properly interpreted, it imposed duties upon a driver to whom a lawful request had been made without actually authorising such a request.[39]

40 In relation to human rights, his Honour referred to s 38(1) of the Charter and the obligations of members of Victoria Police as public authorities to act consistently with human rights. He accepted Mr Kaba's submission that, in stopping the Mazda, the police officers had acted unlawfully. Without common law or statutory power, their 'conduct' had:

unjustifiably breached the right to freedom of movement of [Mr] Kaba and the driver [contrary to s 12 of the Charter] and subjected them to arbitrary detention, contrary to the provisions of s 21(2) of the Charter.

41 His Honour then referred to the obligations of police officers under s 38(1), when making decisions, to give proper consideration to relevant human rights. He found that the concentration of the focus of the two officers was upon achieving their vehicle interception quota.

42 Moving to Mr Kaba, his Honour found that his arrest had occurred after he had left the Mazda and started to move off. At this point, he was 'twice' (his Honour earlier identified three requests) asked by police for identification. On neither occasion were the police purporting to act under s 456AA of the Crimes Act. His Honour accepted the submission of the defence that these requests 'were unlawful and improper and contravened [Mr] Kaba's right, protected by the terms of s 13(a) of the Charter, not to have his privacy interfered with'.

43 His Honour found that Mr Kaba's ultimate arrest was lawful under s 456AA. By then, Senior Constable Randall reasonably believed that Mr Kaba had committed the offence of using offensive language and Mr Kaba and had refused the constable's lawful request to state his name and address.

44 As to the second issue, his Honour said that it was necessary to determine whether the evidence relating to the eight charges, including those charges connected with the lawful arrest, should be excluded under s 138(1) of the Evidence Act because it was evidence of Mr Kaba's conduct obtained in consequence of an impropriety or contravention of Australian law.[40] Assessing the evidence of that conduct, his Honour found:

Mr Kaba was 'angry that the vehicle had been stopped and detained while checks were undertaken by police';
his 'demeanour and attitude did not change when he moved away from the vehicle and was requested to provide identification details and it was maintained following his arrest'; and
his 'conduct ... from which the charges arise, was directly responsive to and a consequence of that police conduct prior to his arrest, which I have considered to be unlawful'.

45 In considering whether to admit or exclude the evidence, his Honour referred to the factors specified in s 138(3).[41] In balancing the desirability of admission against exclusion, his Honour said:

he was unaware whether there were other prosecution witnesses to Mr Kaba's alleged conduct (before me, it was clear that there was not) but found that the evidence of Senior Constable Randall and Constable Andrews had 'significant probative value and is important evidence in the proceeding';
while the alleged offences included indictable offences (which can be heard summarily), they were 'of modest seriousness'; and
referring to Bunning v Cross,[42] the conduct of the two police officers did not involve 'overt defiance of the will of the legislature or calculated disregard of the common law'.

46 On the side of the evidence being excluded, his Honour said:

the police had both engaged in 'stopping the vehicle without ... lawful justification, detaining the occupants' and in asking 'Kaba for his identification particulars [in] breach [of] rights recognised by the International Covenant on Civil and Political Rights';[43] and
the police had done so 'without giving proper consideration as to whether acting in the manner they did interfered with the relevant human rights' of Mr Kaba.

47 His Honour concluded that, in the exercise of his discretion under s 138, the evidence of Senior Constable Randall and Constable Andrews was 'inadmissible' and would be excluded.

48 We have just seen the decision of the magistrate and his Honour's findings and reasons. It is now necessary to determine the two legal issues that arise, namely whether the magistrate erred in law in deciding that, under s 59(1) of the Road Safety Act, police had no power randomly to stop the driver and whether his Honour properly exercised the discretion in s 138(1) of the Evidence Act to refuse to admit the police evidence.

49 In order to determine the first of these issues and address the submissions that were made on behalf of the parties, it is necessary to identify and apply the relevant principles of statutory interpretation. That will be done in the next section of this judgment. For reasons that will become clear, in my view, this involves consideration of the protection afforded to individual rights and freedoms under the common law, international law and the Charter. By way of foundation for the later analysis in this judgment, it is also convenient here to identify the scope of those human rights under the ICCPR and the Charter that are engaged and relevant to the issues of statutory interpretation that arise. It is also convenient to deal with the principles governing the limitation of human rights.

50 In order to determine the second of these issues and address the submissions of the parties, it is necessary to identify the scope of the human rights under the ICCPR and the Charter that are engaged and relevant to the issue of the exercise of the magistrate's discretion not to admit the police evidence. That too is done here.

52 Deep in the philosophical underpinning of the common law[44] lies the fundamental notion that rights and freedoms inhere naturally in all individuals as an attribute of their humanity. Blackstone declared that 'rights and liberties [are] our birthright to enjoy entire', unless constrained by law.[45] It is considered that these 'traditional civil and political liberties, like liberty of the person and freedom of speech' are not 'solely residual' but have 'independent and intrinsic weight'.[46] So, held Black CJ, French and Weinberg JJ in Minister for Immigration and Citizenship v Haneef,[47] '[f]reedom is not merely left over when the law is exhausted'. As I pointed out in Antunovic v Dawson,[48] it is because everybody's individual liberty is presumed and protected that the law of habeas corpus requires any restraint thereon to be lawfully established.

53 Certain early decisions of the English courts gave common law effect to these inherent rights and freedoms and helped to lay the foundation for human rights in the modern sense. Two may be mentioned. In Entick v Carrington,[49] Lord Camden held that the state could not, without positive lawful authority, invade the privacy of a person's property or papers. The principle thereby enforced finds expression in human rights charters, such as the Fourth Amendment of the Constitution of the United States of America, which provides that '[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated'. In Somerset v Stewart,[50] Lord Mansfield decided that English law would, by habeas corpus, vindicate the right to personal freedom of an enslaved person because his detention was not supported by positive law. The principle thereby enforced finds expression, for example, in s 21(1) of the Charter, which provides that '[e]very person has the right to liberty and security'. It might be thought that the underlying interest protected by the principles applied in Entick and Somerset, as in human rights, is universal human dignity.

54 The principle of inherency by which everybody naturally possesses rights and freedoms under the common law has a constitutional dimension. Dicey wrote that 'freedom of person is not a special privilege but the outcome of the ordinary law of the land enforced by the courts' and that individual rights constitute 'the basis, not the result, of the law of the constitution'.[51] According to Lord Goff in Attorney-General v Guardian Newspapers [No 2],[52] it follows that, under the common law, 'everybody is free to do anything, subject only to the provisions of the law'. Because liberty is valued so highly by the common law, it will be actionably violated by unlawful interferences of any kind. As was held by Black CJ, Sundberg and Weinberg JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri, '[e]ven apparently minor deprivations of liberty are viewed seriously by the common law'.[53] In that connection, their Honours referred to Watson v Marshall and Cade.[54] In that case, Walsh J awarded damages of $200 for the minor unauthorised detention of a mentally ill person, holding: 'An interference with personal liberty even for a short period is not a trivial wrong. The injury to the plaintiff's dignity and to his feelings can be taken into account.'[55]

55 As individual rights and freedoms constitute the basis of the constitution, the state can interfere therewith only to the extent permitted by law. This is explained in the current edition of Halsbury's Laws of England:

Under the ancient traditions of the English common law, the freedom of the individual has been protected against infringements by public officials under the twin doctrines that every citizen is free to carry on any activity not expressly limited or prohibited by law, and that public officials may only interfere with a citizen's personal liberty and property where authorised by the common law or by statute.[56]

Therefore, states De Smith's Judicial Review, the powers of the individual and the state cannot be exactly acquainted:

While central government must be able to carry out incidental functions that are not in conflict with its statutory powers, it is wrong to equate the principle pertaining to private individuals - that they may do everything which is not specifically forbidden - with the powers of ministers, where the opposite is true. Any action they take must be justified by a law ...[57]

56 As demonstrated by the judgment of Elias CJ in Hamed v The Queen,[58] the scope of police power is identified from this standpoint. The question was whether police had power to conduct video surveillance of private property. The Chief Justice commenced negatively answering that question by stating that '[p]ublic officials do not have freedom to act in any way they choose unless prohibited by law, as individual citizens do'.[59] Rather they 'must point to lawful authority for all actions undertaken'.[60] Her Honour went on to explain why this was important to the protection of individual liberty:

The lack of equivalence between the subject and public authorities is a necessary condition of the liberties of the subject: '[w]here public authorities are not authorised to interfere with the subject, he has liberties'.[61] Equivalent liberty for public authorities would destroy individual liberty.[62]

57 The same approach has been adopted in Australia since the earliest days of federation. The question in Clough v Leahy[63] was whether a royal commission could lawfully make enquiries. We shall come to the answer presently. Griffiths CJ (Barton and O'Connor JJ concurring) said this about the starting point:

We start, then, with the principle that every man is free to do any act that does not unlawfully interfere with the liberty or reputation of his neighbour or interfere with the course of justice. That is the general principle. The liberty of another can only be interfered with according to law ...[64]

58 Similarly, in Williams v The Queen[65] the court was concerned with the extent of police power to detain in custody for questioning someone who had been lawfully arrested. Mason and Brennan JJ referred to the statement of Fullagar J in Trobridge v Hardy[66] that personal liberty was 'the most elementary and important of all common law rights'. Citing Blackstone, their Honours said that '[p]ersonal liberty ... [is] an absolute right vested in the individual by the immutable laws of nature'.[67] They referred with approval[68] to the statement of Deane J in Cleland v The Queen[69] that:

It is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed.[70]

Mason and Brennan JJ concluded by emphasising that '[t]he right to personal liberty cannot be impaired or taken away without lawful authority but then only to the extent for the time which the law prescribes'.[71]

59 The present case concerns the existence, scope and exercise of the power of police to stop and ask questions of motorists, passengers and pedestrians. Consistently with the principles I have discussed, the starting point is the respect and protection that the common law affords to personal liberty. As Sedley LJ (Tuckey and Brooke LJJ agreeing) said in Chief Constable of Thames Valley Police v Hepburn,[72] '[i]t is a bedrock of our liberties that a citizen's freedom of person and of movement is inviolable except where the law unequivocally gives the state power to restrict it'.

60 At common law, without statutory authority police do not have power to stop a person riding a bicycle for the purpose of obtaining his or her name and address[73] nor to remain on private premises after being told to leave.[74] Police do have power to arrest on reasonable suspicion of offending.[75] Police do not have power to arrest for questioning or facilitating an investigation and such conduct is 'unlawful'.[76] Police are not acting in the course of their duties when executing, and a person may use reasonable force when resisting, such an arrest.[77] Statutory power to arrest a person on reasonable suspicion until taken without delay before a court must, like the equivalent common law power, be exercised strictly according to the condition and no power to engage in questioning is conferred.[78] It follows that the magistrate was right to conclude that, at common law, police had no authority to stop the vehicle or subject the driver or Mr Kaba to compulsory questioning. That authority had to be found in statute.

61 R v Eeet[79] is interesting because the underlying interest at stake was privacy in the context of identity. Following a traffic stop, the accused was subjected to a search solely directed at establishing his identity. He forcibly resisted and bit the thumb of a police officer. Judge Hewitt directed the jury to acquit the accused on a charge of assaulting police because there was no authority at common law to search him for the purposes of establishing identity (which could have been lawfully established by other readily available means) and he used no more than reasonable force to resist.[80]

62 On the other hand, as explained by Lord Parker CJ (Marshall and James JJ agreeing) in Rice v Connolly,[81] people may choose to assist police but are not obliged to answer their questions:

It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority, and to refuse to accompany those in authority to any particular place; short, of course, of arrest.[82]

63 The application of these principles is illustrated by the decision of Kaye J in Director of Public Prosecutions v Hamilton.[83] Police attended at a restaurant which the accused was suspected of leaving without paying the bill. When they sought to speak to him, he fled and was ultimately caught and arrested. A statutory charge of resisting arrest was brought on the sole basis of his action in fleeing from police. The magistrate acquitted the accused and Kaye J dismissed the prosecution appeal. After analysing the principal authorities, his Honour said:

The authorities to which I have just referred make it clear that, at common law, and in the absence of specific legislation to the contrary, the respondent in this case was not required to stop, when he was requested to do so by the police. I have no doubt that, in requesting the respondent to speak to them, the police were acting in the course of their duties as police constables. However, they were not, at that point, acting 'in the execution' of their duties as police members for the purpose of [the provision]. It follows that, in the absence of any specific legislative provision of imposing on the accused an obligation to remain and speak to the police, he would not be guilty of [the] offence ...[84]

64 The principles are also illustrated by the decision of Kourakis CJ, Blue and Stanley JJ in R v Nguyen.[85] Police were involved in surveillance of a private home. When the appellant drove his vehicle into the common driveway, they acted under an entrenched but mistaken view of their statutory powers to block his exit for the purpose of searching him and the vehicle. They did not act under road safety regulations. Drugs were found, leading to charges and a conviction.

65 Upholding the appeal and entering a verdict of acquittal, the court held the judge should have exercised the judicial discretion at common law to exclude the evidence.[86] The mistaken view of the police of their statutory powers was 'calculated to lead to widespread and arbitrary infringements on civil liberties'.[87] The evidence had to be excluded because it was of 'great importance that police officers entrusted with powers which abrogate fundamental liberties pay close attention to the conditions on which their lawful exercise depends'.[88] Moreover, it was 'necessary to censure the excesses of power by which the evidence was procured in order to better secure compliance with the statutory limitations'.[89]

66 It is not inconsistent with these principles for police to invite someone to accompany them to a police station for questioning and there is no deprivation of liberty if a person agrees to do so.[90] In Clough, Griffith CJ (Barton and O'Connor JJ concurring) held that a royal commission could make enquiries (without compelling an answer) because no deprivation of liberty was involved.[91] It has likewise been held that '[t]here is nothing unlawful in asking a person, even if he be in custody, to provide fingerprints and, with his agreement, taking those fingerprints'[92] or in taking a sample of breath for an alcohol test 'with the co-operation of a person willing without being required or commanded to take it'.[93] But a person who volunteers answers to questions is free to choose when to cease co-operating and, unless lawfully arrested, may leave when they please and must not be impeded.[94] For the police to detain someone for questioning past the point of voluntary co-operation is 'unlawful' and an actionable civil wrong, at least.[95]

67 This leads to an issue of critical importance that often arises in these situations, and does arise in relation to the questioning of Mr Kaba in the present case: whether police have sought to exercise a power of coercion not possessed. According to the principles applied by the court, there is a line beyond which police cannot go.

68 In drawing that line, the courts take into account the duties of police to protect the community and prevent crime. In Director of Public Prosecutions (Vic) v Zierk,[96] Warren CJ describes the duties of police in the following general terms:[97]

The 'duties' of a police officer are ancient[98] and include: the duty to preserve the peace;[99] the duty to protect life and property;[100] the duty to prevent crime;[101] the duty to detect crimes when they occur;[102] the duty to apprehend offenders;[103] the duty to prevent obstructions of highways;[104] and the duty to uphold the law.[105]

69 It is recognised that, in the performance of these duties and without reasonable grounds of suspicion, police might exercise their ordinary capacity to ask questions of and seek co-operation from persons in reliance upon every citizen's 'moral duty, or ... social duty to assist the police', to use the words of Lord Parker CJ in Rice.[106] As was held in R v Grant[107] by McLachlin CJ and Charron J, '[e]ffective law enforcement is highly dependent on the cooperation of members of the public. The police must be able to act in a manner that fosters this cooperation, not discourage it'.

70 Likewise, in R v Grafe,[108] which was approved in Grant,[109] it was held by Martin, Tarnopolsky and Krever JJA that the human rights in the Canadian Charter of Rights and Freedoms did 'not seek to insulate all members of society from all contact with constituted authority, no matter how trivial the contact may be'.[110] So, at common law, it is not a deprivation of liberty for police to attract a person's attention by touching him or her on the shoulder or arm.[111] But it is a deprivation of liberty for police to grab someone by the arm; that could only be legitimate for the purposes of a lawful arrest.[112]

71 It is not presumed that a person is coerced simply upon being questioned by a police officer in uniform. That is so even though, as was held by Robert Goff LJ and Mann J in Collins v Wilcock,[113] the 'advantage of authority' enjoyed by police is deliberately enhanced by 'the uniform which the state provides and requires' them to wear. But, as Le Dain J explained in R v Therens:

Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand.[114]

Therefore, when drawing the line between the voluntary and the coerced, it is necessary to take into account the imbalance of power between police, especially when in uniform, and ordinary members of the community, as well as the psychological impact of apparent police authority. Barwick CJ adverted to this consideration in Bunning where he held that, 'in deciding whether ... willingness was uncoerced, it is proper to remember the apparent authority' of police and the situation of the citizen.[115]

72 According to the test stated by Le Dain J in Therens, which I think is consistent with the common law here, a person is regarded as having submitted to psychological compulsion where, without the application or threat of application of physical restraint, he or she 'reasonably believes that the choice to do otherwise does not exist'.[116] In Grant, McLachlin CJ and Charron J held that, in applying this test, the following factors could be taken into account:

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.[117]

73 I will return to these considerations when I examine the magistrate's analysis of how Mr Kaba was treated by the police. As will become apparent, I think his Honour was right to conclude that, by crossing the line of permissible conduct, they acted unlawfully and in breach of his rights and freedoms under the common law.

74 As can be seen, the common law assumes the liberty of the individual and insists upon positive lawful authority for any governmental interference therewith. In the context of that general principle, certain particular rights and freedoms of relevance to the present case have been recognised. They are most especially relevant in relation to the application of the principle of legality. These rights and freedoms are liberty, freedom of movement and privacy (in a particular sense).

75 It is clear enough from the discussion so far that individual liberty is both a foundational principle of the common law and a recognised right and freedom in itself. After reference to the principal authorities, it was held in Al Masri that the right to personal liberty was one to which the principle of legality applied.[118]

76 That being so, the question is whether the provisions of s 59(1) of the Road Safety Act would, on the Director's interpretation, interfere with the common law right of personal liberty of a driver and passenger. On that interpretation, police would have a power to stop in respect of the vehicle and request in respect of the driver.

77 As we will see, in the United Kingdom, the right to liberty has been acknowledged in several cases concerning drivers and motor vehicles. For example, in R v Waterfield[119] police directed a driver not to remove a parked motor vehicle suspected of being used in the course of a criminal offence. Ashworth J said the direction represented 'prima facie an unlawful interference with a person's liberty or property'.[120] Lord Widgery CJ followed Waterfield in Hoffman v Thomas.[121] The question was whether police had a statutory power randomly to direct traffic into a census area. His Lordship approached that question of interpretation from the starting point that 'the constable's action ... did amount to an interference with the defendant's personal liberty or property'.[122]

78 On those authorities stopping a vehicle for a random check represents a general interference with the liberty of a driver (and potentially a passenger) at common law. But it is not in the nature of a detention and I think freedom of movement more accurately represents the precise nature of the liberty interest that is engaged. The cases under the Canadian Charter and the United States Constitution (see above) are to be distinguished in this regard.

79 The general right to liberty that is an elementary principle of the common law includes the right to personal freedom of movement. When Blackstone referred to certain rights and liberties that are 'our birthright to enjoy entire' unless restrained by law,[123] he included:

the power of loco-motion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct; without imprisonment or restraint, unless by due course of law.[124]

Freedom of movement is protected by habeas corpus.[125]

80 In R (Gillan) v Commissioner of Police of the Metropolis,[126] Lord Bingham referred to this right in the context of using the public streets. Without doubting that the right to freedom of movement was amenable to state regulation, his Lordship said:

It is an old and cherished tradition of our country that everyone should be free to go about their business in the streets of the land, confident that they will not be stopped and searched by the police unless reasonably suspected of having committed a criminal offence. So jealously has this tradition been guarded that it has almost become a constitutional principle.[127]

81 In Australia, s 92 of the Constitution provides (among other things) that 'intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free'. In Cole v Whitfield,[128] approving Gratwick v Johnson,[129] it was held that the constitutional guarantee 'extends to a guarantee of personal freedom "to pass to and fro among the States without burden, hindrance or restriction"'. The guarantee is not infringed by reasonable regulation[130] but leaves the means of carriage to the choice of the person.

82 Consistently with the general common law right to personal freedom of movement, there is a common law right to use of the public highway. That right was described in Melbourne Corporation v Barry[131] by Higgins J in the following terms:

the common law right of the King's subjects to pass through the highways, whether singly or in Indian file, or in groups, or four abreast or in processions cannot be forbidden, although the passage without such precautions as the by-law prescribes can be forbidden.[132]

In that case, a by-law prohibiting certain processions was held to be invalid. Higgins J applied the principle of legality to the interpretation of the enabling legislation.[133] The decision has never been doubted.

83 This right was acknowledged in Richards v Stange.[134] The court was required to interpret provisions very like those in issue here. I will go into the decision in more detail later. The driver was convicted of failing to stop when requested by police. On appeal against conviction, he challenged the authority of the police to make the request and supported his preferred interpretation by reference to the 'common law ... right to the unobstructed use of the highways for the purpose of legitimate travel'.[135]

84 Wallace, Brinsden and Smith JJ dismissed the appeal. However, referring to Melbourne Corporation, Wallace J accepted the 'common law right to free use of the highway'.[136] His Honour said the right was 'confined to its legitimate use and the driving of a vehicle mechanically unsound or without a licence, neither of which conditions prevailed herein, would not come within that definition'.[137] Brinsden J generally accepted the reasons of Wallace J. His Honour held that the right of a person to use a highway for driving a vehicle was now subject to licence.[138]

85 Therefore I do not accept the submissions made on behalf of the Director that there is no common law right to drive on the public roads. The authorities reveal that there is such a right. But it is not an absolute right and must be exercised according to law, including the licencing and road safety legislation. As an aspect of the common law right to freedom of movement, the right to drive a motor vehicle on the public roads is akin to the right to walk in public streets and navigate on public waters. It is not conferred by, but may be (and in Victoria is) qualified by and under legislation, to the interpretation of which the principle of legality applies on this basis.[139] That is consistent with the specific nature of the general right to liberty discussed in Waterfield and Hoffman.

86 It is uncertain whether there is a positive right to privacy that is independently enforceable at common law. As was pointed out in WBM v Chief Commissioner of Police (Vic)[140] by Warren CJ (Hansen JA agreeing), 'the question of whether such a right exists at common law, and if so, its scope, is yet to be settled by the High Court or a superior court of record'.[141]

87 However, the common law clearly recognises the right to privacy for particular purposes. As we have seen, Entick[142] held that positive lawful authority was required for any state intrusion into the privacy of a person's property or papers. The property aspect of the interests so protected has received much attention. Over time the focus of that attention has shifted towards privacy.[143] This is evident in such cases as George v Rockett[144] where, in a similar context, the importance of both privacy and property was recognised. Speaking of provisions governing the issue of search warrants, the court noted that

the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property.[145]

It went on to refer to a particular provision in which

the legislature has given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property.[146]

In Crowley v Murphy[147] Lockhart J (Northrop J agreeing) referred to the right to privacy and applied the principle of legality to the interpretation of legislation conferring warrant-issuing powers.

88 There have many other cases in which, under the principle of legality, the courts have taken into account the common law right to privacy when interpreting legislation. For example, in R v Secretary of State for the Home Department; Ex parte Phansopkar[148] Scarman LJ held that the principle of legality protected the right to family and private life recognised in art 8(1) of the Convention for the Protection of Human Rights and Freedoms.[149] Accordingly, 'it is the duty of the courts, so long as they do not defy or disregard clear, unequivocal provisions, to construe statutes in a manner which promotes, not endangers, those rights'.[150] Among the cases I referred to in this connection in WBM[151] were Marcel v Commissioner of Metropolitan Police,[152] R v Secretary of State for Home Department; Ex parte Leech[153] and Taciak v Commissioner of Australian Federal Police[154] (in which Sackville J collected and discussed other authorities). As I noted in PJB v Melbourne Health and State Trustees Ltd,[155] such authorities have been cited with approval by the High Court in the context of the principle of legality. It was on the basis of this acceptance of the right to privacy at common law that I said in WBM:

A fundamental civil right or liberty which we all possess under the common law is the right or liberty not to report to police and other officials and not to disclose personal and private information to them.[156]

In my view, the second element of this formulation applies to the request of the police for the driver's name and address (although the magistrate did not so find and it does not affect the result) and the demand of the police for Mr Kaba's name and address in the present case.

89 The present case concerns the interpretation of road traffic legislation and the exclusion of evidence unlawfully obtained in the administration thereof. The common law right to privacy has been recognised in both contexts. In Morris v Beardmore[157] the House of Lords refused to interpret the Road Traffic Act 1972 (UK) c 20 as authorising entry into someone's home to obtain a blood test. Lord Scarman said the case before it was

concerned exclusively with the suspect's right to the privacy of his home ... The appeal turns on the respect which Parliament must be understood, even in its desire to stamp out drunken driving, to pay to the fundamental right of privacy in one's own home, which has for centuries been recognised by the common law.[158]

We later examine Bunning[159] in which Stephen and Aickin JJ made a seminal statement about the discretionary rule for excluding unlawfully obtained evidence. In doing so, their Honours stated that the admission of such evidence

called in question ... society's right to insist that those who enforce the law themselves respect it, so that a citizen's precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired.[160]

90 I would conclude that, when police exercise a power to require a driver to give his or her name and address during a random vehicle stop, they intrude upon the common law right to privacy of the driver. Under the principle of legality, the right to privacy is taken into account when interpreting legislation conferring such a power. When police assert a compulsive power to demand the name and address of a person, say someone like Mr Kaba who is walking along a public street, they intrude upon his or her common law right to privacy.

91 Australia is a party to the ICCPR.[161] According to the Preamble, the ICCPR was made in accordance with the principles proclaimed in the Charter of the United Nations and recognises that 'the inherent dignity and ... the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world'. It was also made in accordance with the Universal Declaration of Human Rights[162] and recognises that

the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights.

92 As party to the ICCPR, Australia has undertaken by art 2(1) 'to respect and to ensure' to all individuals the specified rights without discrimination. Further, art 2(2) provides:

Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

By art 2(3), Australia has undertaken to ensure that individuals have access to a 'effective remedy', 'competent judicial, administrative and legislative authorities' and means of enforcement.

93 Australia's obligation to give effect to the ICCPR is expressed in the principle of 'pacta sunt servanda' that is enshrined in art 26 of the Vienna Convention on the Law of Treaties[163] to which Australia is also a party. Article 26 provides that '[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith'. This obligation of performance in good faith is a 'general principle of international law'.[164] Under art 34(1)(a) and (c) of the Statute of the International Court of Justice in the Charter of the United Nations, the jurisdiction of the court includes disputes in relations to international conventions and those general principles. As Australia is a federation, it is relevant to note that, by art 50 of the ICCPR, the obligation extends 'to all parts of federal States without any limitations or exceptions'. It therefore includes Victoria. Moreover, arts 27 and 46 of the Vienna Convention on the Law of Treaties provide that a state party may not invoke the provisions of its internal law as justification for its failure to perform a treaty, subject to qualifications that do not here apply. Article 29 provides that '[u]nless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory'.

94 Those being the obligations which Australia has assumed under international law by virtue of becoming a party to the ICCPR, it is now necessary to refer to the relevant rights. These are liberty (art 9(1)), freedom of movement (art 12(1)) and privacy (art 17(1)).

95 Article 9(1) provides that '[e]veryone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention'.

96 I set out the scope of this right below in my discussion of the equivalent right in the Charter.

97 In my view, the stopping of the vehicle interfered with the liberty of the driver and Mr Kaba (as a passenger) in a general way. But, with respect, the magistrate was wrong to treat this as a detention. I accept the submissions of the Director in this regard. In regard to both the vehicle stop and questioning of the driver and the stopping and questioning of Mr Kaba, the human rights engaged under the ICCPR (and the Charter) are more accurately characterised, and not less importantly, as freedom of movement (art 12(1)) and privacy (art 17(1)).

98 Under art 12(1), persons lawfully within the territory of a state 'have the right to liberty of movement' within that territory.

99 The scope of this right is also set out below in the discussion of the equivalent right in the Charter.

100 In Gerhardy v Brown[165] Mason J discussed the right of freedom of movement as specified in art 5(f)[166] of the International Convention on the Elimination of All Forms of Racial Discrimination.[167] His Honour made the following observations about the content of that right:

In broad terms the concept may be said to embrace a claim to immunity from unnecessary restrictions on one's freedom of movement and a claim to protection by law from unnecessary restrictions upon one's freedom of movement by the State or by other individuals. It extends, generally speaking, to movement without impediment throughout the State, but subject to compliance with regulations legitimately made in the public interest, such as traffic laws, and subject to the private and property rights of others. And it would include a right of access to facilities necessary for the enjoyment of freedom of movement, subject to legitimate regulation of those facilities. The concept would also ordinarily include a right of access to places and services used by members of the public - a matter explicitly dealt with in Art 5(f).[168]

These observations are equally applicable to the right to freedom of movement in the ICCPR and the Charter.

101 As I conclude below in relation to the Charter, the police traffic stop under s 59(1) of the Road Safety Act represented an interference with the right to freedom of movement of the driver and the passenger, Mr Kaba.

102 Article 17(1) provides that '[n]o one shall be subjected to arbitrary or unlawful interference with his privacy'.

103 Again, the scope of this rights is set out below in the discussion of the equivalent right in the Charter.

104 As I there conclude, the traffic stop and request of the driver's name and address interfered with his free enjoyment of the right to privacy. The persistent police demands for Mr Kaba's name went over the permissible line and interfered with his right to privacy.

105 The premise of the Charter is that human rights and freedoms are indispensable for all persons to function in democratic society. Reflecting the bedrock principle of universal human dignity, it specifies those rights and freedoms, thereby defining the boundaries of the protected arena within which, subject to law and respect for the rights of others, a person may exercise their natural capacity to choose how to live and develop individually and with others in that society. In determining whether a law authorises interference with these rights and freedoms, the starting point under the Charter is that, absent such law, the individual stands in that arena dignified and free. Identifying the scope of these rights and freedoms is therefore an important exercise.

106 Under the Charter, human rights are engaged 'when the act or decision of a public authority places limitations or restrictions on, or interferes with, the human rights of a person'.[169] In my view, it is an elementary first step in a human rights analysis to identify the scope of the right said to have been so limited or infringed.[170] The object of attention is the individual standing dignified and free in the civil arena protected by the specified rights.

107 Taking a case under s 38(1) as an example, the question is whether the act of a public authority is incompatible with those rights or that, when making a decision, such an authority has failed to give proper consideration to human rights. To determine that, it is first necessary to identify the scope of the right: what does the right protect that is allegedly restricted by the act or decision concerned? This is logically and schematically anterior to any consideration of breach, which may involve questions of justification under s 7(2). As Elias CJ held in R v Hansen[171] in relation to the New Zealand Bill of Rights Act 1990 (NZ), when so 'ascertaining the meaning [ie scope] of the right, the criteria for justification are not relevant'. The importance of this step should not be overlooked. The answer to some of the competing submissions in the present case about the application of human rights is provided by properly identifying the scope of the rights which are engaged.

108 It is established that, when identifying the scope of a human right, the focus must be upon its purpose and the underlying values and interests which it is designed to protect. Speaking of the Charter, Warren CJ said in Re Application under the Major Crimes (Investigative Powers) Act 2004 (Vic)[172] that human rights should be interpreted 'in the broadest possible way'. Hargrave J said in Director of Public Prosecutions v Ali (No 2)[173] that rights were interpreted 'broadly and in a non-technical sense'. In Hansen,[174] Elias CJ emphasised that the 'meaning of the right is to be ascertained from the "cardinal values" it embodies'. Of the Canadian Charter, Dickson J said in R v Big M Drug Mart Ltd[175] that the 'meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.' Reasonable and demonstrable limitation of the right is not taken into account when identifying its scope.[176]

109 Mr Kaba relied upon the human rights to liberty (art 21(1)), freedom of movement (art 12) and privacy (art 13(a)). To the scope of those rights I now turn.

110 Under the Charter, all persons possess the right to liberty as an attribute of their humanity, as they do under the common law (see above). Section 21(1) provides that '[e]very person has the right to liberty and security', reflecting art 9(1) of the ICCPR. In Re Kracke and Mental Health Review Board,[177] by reference to the authorities, especially Guzzardi v Italy,[178] I explained the scope of the right to liberty and security under s 21(1) of the Charter as follows:

The purpose of the right to liberty and security is to protect people from unlawful and arbitrary interference with their physical liberty, that is, deprivation of liberty in the classic sense. It is directed at all deprivations of liberty, but not mere restrictions on freedom of movement. It encompasses deprivations in criminal cases but also in cases of vagrancy, drug addiction, entry control, mental illness etc. The difference between a deprivation of liberty and a restriction on freedom movement is one of degree or intensity, not one of nature and substance.

The fundamental value which the right to liberty and security expresses is freedom, which is a prerequisite for individual and social actuation and for equal and effective participation in democracy.[179]

In the more recent decision of Austin v United Kingdom,[180] the European Court of Human Rights stressed that, when deciding whether someone had been deprived of liberty:

[T]he starting point must be [his or her] concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.[181]

It can be seen that the difference between a restriction on freedom of movement and the deprivation of liberty in the classic sense is one of fact and degree. In the words of Lord Bingham in Secretary of State for the Home Department v JJ,[182] '[t]here is no bright line separating the two'. The examination is necessarily fact intensive.

111 As we will see in more detail, s 9 of the Canadian Charter provides that '[e]veryone has the right not to be arbitrarily detained or imprisoned'. As there is no express right to freedom of movement as such, the concept of detention is broadly interpreted. Under that broad interpretation, random police stop-checks of motorists, even if brief in duration, have been held to amount to detention.[183] In the United States of America, the Fourth Amendment to the Constitution confers a right against 'unreasonable ... seizures'. There too no right to freedom of movement is specified. In Brendlin v California,[184] the Supreme Court decided that '[w]hen a police officer makes a traffic stop, the driver [and passenger] of the car is seized within the meaning of the Fourth Amendment'.[185] The approaches in these jurisdictions reflects the specific terms of the constitutional provisions in question. Closer to our law is the New Zealand Bill of Rights Act which separates freedom of movement (s 18(1)) from liberty of the person (s 22). Under that Act, briefly stopping a driver for a blood-alcohol test has been held to interfere with his freedom of movement, not liberty (see below).

112 In my view, under the Charter, a routine check which involves stopping a motor vehicle for a brief period, examining the licence of the driver and inspecting the vehicle from the kerbside does not amount to physical detention of the driver (or passenger) such as to engage the right to liberty. As no more than this occurred in the routine check the present case, this right was not engaged for the purposes of the Charter. It is possible to see how, in other facts and circumstances, it would be.

113 Under the Charter, all persons likewise possess the right to freedom of movement, as they do under the common law (see above). Section 12 provides that '[e]very person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live', reflecting art 12(1) of the ICCPR.

114 In Kracke,[186] by reference to the authorities, especially Baumann v France,[187] I explained the scope of this right as follows:

The purpose of the right to freedom of movement in s 12 is to protect the individual's right to liberty of movement within Victoria and their right to live where they wish. It is directed to restrictions on movements which fall short of physical detention coming within the right to liberty in s 21. The fundamental value which the right expresses is freedom, which is regarded as an indispensable condition for the free development of the person and society.[188]

115 Because 'mere' restrictions upon freedom of movement do not amount to detention, it is tempting to think of freedom of movement as inferior to the right to liberty. This way of thinking fails to appreciate the importance of freedom of movement as a human right. When we stop to think what we do every day, it is easy to see how critical freedom of movement is to us as individuals and our relationships with others. Like good health, the value of freedom of movement is not usually appreciated until it is compromised. As regards the analogous right to liberty of movement in art 12(1) of the ICCPR, the ability to move freely is regarded as 'an indispensable condition for the free development of a person'.[189] Antunovic[190] demonstrates how restrictions upon freedom of movement can have drastic consequences for the individual. Without lawful authority, the applicant was being denied the freedom to go home to live with her mother.

116 Kerr v Attorney-General[191] illustrates the operation of the right to freedom of movement in police traffic stop and questioning cases. Without lawful authority, police stopped the plaintiff at a road block and said he could not pass for 10 minutes. The plaintiff sought damages for breach of the right to freedom of movement in s 18(1) and the right to liberty of the person in s 22 of the New Zealand Bill of Rights Act. Awarding nominal damages, Judge Ryan held that the plaintiff had not been detained under s 22 but his freedom of movement under s 18(1) had been infringed.

117 In so holding, Judge Ryan discussed various legislative provisions enabling police to stop and question motorists. His Honour said the right to freedom of movement in s 18(1) did protect the free use of the road by motorists, although it was 'one of the most qualified rights' because it was subject to the licensing and transport legislation.[192] As no legislation permitted police to do what they did, the plaintiff's right to free use of the state highway had been breached.[193]

118 In my view, when police stop a vehicle to check on the licence of the driver and the registration of the vehicle, they interfere with the right to freedom of movement of the driver, and necessarily any passenger, under s 12 of the Charter.

119 In human rights terms we can generally understand the right to privacy as 'the right to be let alone by other people'[194] and 'the right of the individual to determine for himself when, how, and to what extent he will release personal information about himself'.[195] This general way of understanding this right is helpful as far as it goes but does not fully capture the personal interests that are protected, the nature of the injury that is done to dignity by a breach and the interaction between the right to privacy and other human rights.

120 In a recent report, the Australian Law Reform Commission emphasised that interaction. It said:

Privacy is important to enable individuals to live a dignified, fulfilling, safe and autonomous life. It is fundamental to our understanding and appreciation of personal identity and freedom.[196] Privacy underpins:

meaningful and satisfying interpersonal relationships, including intimate and family relationships;

• freedom of speech, thought and self-expression;

• freedom of movement and association;

• engagement in the democratic process;

• freedom to engage in secure financial transactions;

freedom to pursue intellectual, cultural, artistic, property and physical interests; and

• freedom from undue interference or harm by others.[197]

121 Speaking of s 21 (protection from unreasonable search and seizure) of the New Zealand Bill of Rights Act, Thomas J in R v Jeffries[198] also emphasised the interconnected values and interests that are protected by concept privacy, including

the protection of one's property against uninvited trespass; the security of one's person and property, particularly against the might and power of the state; the preservation of personal liberty; freedom of conscience; the right of self-determination and control over knowledge about oneself and when, how and to what extent it will be imparted; and recognition of the dignity and intrinsic importance of the individual.[199]

122 Reflecting art 12 of the UDHR,[200] the right to privacy is specified in the ICCPR in terms of a freedom and a right to protection of the law. Article 17 provides:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation.

2. Everyone has the right to protection of the law against such interference or attacks.

123 The ICCPR[201] and the United Nations Convention on the Rights of the Child[202] recognise the right of children to a name. As we are all children once, this in effect recognises the right of all persons to begin life with a name. That is not just for the obvious practical reasons but because there is something universal and personal about possession of a name and its connection with identity. It might be said that our name is one of our most important possessions and that, like other possessions, we have a private right to choose who to share it with or divulge it to.

124 Reflecting both the UDHR and the ICCPR, the right to privacy is specified as a human right in the Charter. Section 13 provides that '[a] person has the right -

(a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and

(b) not to have his or her reputation unlawfully attacked [emphasis added].

125 I discussed the scope of right to privacy in s 13(a) of the Charter in Kracke[203] and Director of Housing v Sudi (Residential Tenancies).[204] In those decisions, I drew attention to the protection which the right affords to 'personal and social individuality'[205] and emphasised the importance of that protection for a person's capacity for 'effective participation in democratic society'.[206] In Kracke, I gave this description of the fundamental values expressed by the right:

The fundamental values which the right to privacy expresses are the physical and psychological integrity, the individual and social identity and the autonomy and inherent dignity of the person.[207]

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