Introduction

(The following is adapted from Chapters 3 and 4 of Tamar Hopkins’ PhD ‘Understanding Racial Profiling in Australia, 2022)

When we think about the source of police stop, question and search street powers in Victoria, we generally consider the powers set out in legislation. For example:

• Section 456AA Crimes Act 1958 - power to require name and address;

• Section 82 Drugs Poisons and Controlled Substances Act 1981 - search without out warrant powers;

• Section 10 Control of Weapons Act 1990 - search without warrant powers;

• Section 13 Graffiti Prevention Act 2007 - search without warrant powers;

• Section 149 Firearms Act 1996 - search without warrant powers;

• Section 264 Victoria Police Act 2013 - entry and search with consent;

• Section 190 Public Health and Wellbeing Act 2008 - power to require name and address and other information.

• (In addition to these statutory sources of power, the case of Tupper and DPP (Cth) v Sherani & Sherani (Ruling No 1) [2023] VSC 407 (14 July 2023) [192-196] indicate that the police have a common law power to conduct a ‘safety and evidence search’ after arrest. This is not however, a ‘right to search’ under the common law.)

The common law establishes important qualifications on the use of all police powers. The common law, now supported in Victoria by the Charter of Human Rights and Responsibility Act 2006, requires practitioners to consider whether the use of any police power, whether arising from statute or the common law, is lawful, proportionate, justified, non-discriminatory and non-arbitrary. ‘The human rights and freedoms set out in the Charter incorporate or enhance rights and freedoms at common law.’ Nigro v Secretary Dept. Justice [2013] VSCA 213 [85]

There are a number of key common law concepts that can assist us examining the lawfulness of any particular stop, question and/or search factual scenario:

1. Reasonable grounds for suspicion

2. Pretext Stops

3. Investigative Questioning

4. Psychological Detention

5. Racial Profiling

These concepts are not uniformly established in Australian common law. Consequently in developing the Australian common law to be more rights protective, there are times when practitioners will need to draw on common law developments from other jurisdictions.

In their development of the common law, Canadian courts have identified four key principles important to rights protection when police interact with civilians in street settings. These are Pretext Stops; Investigative Questioning, Psychological Detention; and Racial Profiling. Because these principles arise in the judicial interpretation of the common law shared by Australia and Canada, Canadian cases provide a useful template for the evolution of the Australian common law.  These common law developments arise in the context of, but not necessarily in reliance on, the Canadian Charter of Human Rights and Responsibilities. They arise as a consequence of a legal system that is generally more attentive to the rights and experience of policed people than in Australia. Due to its status as a multicultural settler/colonial society, Canada is reasonably analogous to Australia, making these common law strategies readily transferable.

1.  Objectively reasonable grounds for suspicion

Aside from searches that take place in designated areas under the Control of Weapons Act 1990, by consent, or under s112R of the Firearms Act 1996 when the person is the subject of a firearms order, the police power to search is contingent on the police possessing a reasonable and objective suspicion that a person is in possession of weapons, drugs, or a graffiti item.

While not uniformly recognised in Australia, the police power to stop a vehicle or pedestrian to ask the driver or pedestrian investigative questions is similarly contingent on the police possessing reasonable grounds to suspect the person has committed an offence. In Victoria, the police have legislative power to stop a vehicle for three reasons.  Firstly, to conduct a drug and alcohol check (under s 53 and 54 of the Road Safety Act 1986), secondly, to conduct a registration and licence check (s59(1)(a) of the Road Safety Act 1986- a Kaba stop) and thirdly, if they reasonably believe an offence has occurred.  There is no legislative basis to stop a pedestrian in Victoria unless the police believe on reasonable grounds that the person has committed an offence or is a witness to one.  In Victoria, in recognition that police questioning risks breaching a person’s human rights, police policy limits the investigative questioning of individuals to situations that fall under its definition of ‘targeted interventions’. Police policy requires that police have objective justification before questions such as ‘where are you going?’ or ‘what are you up to?’ are asked.  The policy specifies that the interaction must be based on ‘intelligence, behaviour or reasonable suspicion’.

I will return to the topic of investigative questioning shortly, but first, what does the law say about ‘reasonable suspicion’?

We don’t need to turn to Canadian law to understand the meaning of reasonable grounds for suspicion.  In George v Rockett [1990] HCA 26 the High Court of Australia identified a gradient of subjective mental states and objective factual circumstances that combine to create legal thresholds that decision-makers must meet before a power can be exercised. The test of reasonable suspicion contains two elements.  First of all, a police officer must form an actual suspicion about the existence of the object or the state of affairs relevant to use of the power.  Secondly, this suspicion must formed by reference to objective circumstances that would be ‘sufficient to induce that state of mind in a reasonable person.’ Prior v Mole [2017] HCA 10, [24]. The suspicion and objectively assessed circumstances on which it is based, requires less basis than that required to support the formation of a reasonable belief. Nonetheless, reasonable suspicion cannot be arbitrary, and requires considerably more substance than the facts that would lead to speculation, curiosity, idle wondering or conjecture.

Australian courts are generally consistent about the precise circumstances that will be sufficient for police to reach the reasonable suspicion standard. However, while no two factual scenarios are directly comparable, there are some potentially contradictory findings. For example, in R v Davidson (1991) 54 SASR 580, the court found that a sighting of a syringe in a car was not sufficient to create reasonable grounds to suspect the presence of drugs. But in R v Fuentes [2012] QSC 288, a court found reasonable suspicion could be formed through observing a person trying to hide a backpack while appearing nervous.

Problematically, in The Queen v Gehan [1991] NTSC 91, the court found that it was reasonable for police to suspect an Aboriginal man who arrived late at night to an airport from a flight and was in car driving away of possessing drugs. Applying Prior v Mole, the Court found that the man’s nervousness and appearance in conjunction with time and location could be used through the lens of police training and experience to arrive at a conclusion of reasonable suspicion. The use of police training and experience by courts as a basis for forming reasonable grounds for suspicion is highly problematic. (See also Julian Murphy in this article.) Police are trained to use stereotypes to determine who is suspicious. Furthermore, if their work has involved policing particular groups, the nature of their work, may lead them to form negative opinions of those groups. This was observed in evidence provided to the Stephen Lawrence Inquiry [p6.82]: ‘Given the fact that these predominantly white officers only meet members of the black community in confrontational situations, they tend to stereotype black people in general.’ Stereotypes form about race, but they also form in relation to particular classes of individuals such as ‘hire car drivers’ or ‘concession card holders’.

Courts should not permit police to use stereotypes as a basis for forming a reasonable suspicion. For example, in R v Watson [2017] QSC 4, the Supreme Court found that being a hire car driver, was sufficient to amount to reasonable suspicion. This however sets a dangerous precedent that all car hire drivers are suspicious. In other cases, Courts have been more guarded about finding particular classes of people reasonably suspicious. For example, in Le v The State of NSW [2017] DCNSW the District Court (prior to appeal on a different point) found that being a category of person such as a concession card holder and being evasive were not reasonable grounds for suspicion.

Courts need to be clear that it is not being a class of person, or being evasive that generates reasonable suspicion. Instead, to ground objectively reasonable suspicion, police require evidence of criminal offending. For example, in Streat v Bauer (unreported, Supreme Court of NSW, Smart J, 16 March 1998) the Supreme Court found that police speculation that a vehicle driven at 1am, containing three young men, who asserted their right to silence, where there was police intelligence that the car ‘may be used for break and enter offences’ was not reasonable grounds to stop or search. Similarly in R v Rondo (2001) NSWCCA 540, the Court of Criminal Appeal did not find the police to have reasonable grounds to search when they encountered a young man in sports car who was not the registered owner. Similarly in R v Nguyen (2013) 117 SASR 432 at [29]-[30], the South Australian Supreme Court found that it was not reasonable to search a person who emerged from a house believed to be the location of drug dealing or to be driving a car which six months earlier, driven by different individuals had contained drugs. In contrast, in Murray v R [2017] VSCA 236 the Court of Appeal would have ruled as reasonable grounds to suspect drug possession the presence of three young men in a BMW attempting to evade police, had it needed to determine that issue.

Courts have decided on numerous occasions that being nervous is not grounds for suspicion. In R v Al-Samawy [2019] SADC 42, the District Court found that a person crouching in a car and appearing nervous outside a house where police have a warrant to search did not provide the police with reasonable grounds to search the car. In Varty v Director of Public Prosecutions (NSW) [2015] NSWSC 304 the Supreme Court found that a driver, known to police, driving erratically, with shaking hands was not searched on reasonable grounds.  In R v Yana Orm [2011] NSWDC 26, a driver smoked a cigarette after being stopped and did not look directly at the police.  The District Court found that this did not provide reasonable grounds to search. In Nguyen v Elliot (Unreported, Supreme Court of Victoria, Hedigan J, 9 February 1995) the Supreme Court found that an Asian youth swearing at the police and appearing nervous in a high crime area did not create reasonable grounds for the police to search him.

Being in a high crime area is not sufficient to justify a search: in Darby v Director of Public Prosecutions [2004] NSWCA 431the Court of Appeal found that a police dog sniffed a person (this is treated as being a search) in a high crime area before the police had formed reasonable suspicion. In Attalla v State of NSW [2018] NSWDC 190, the District Court found that staring ‘wide-eyed’ at an oncoming police vehicle in a high crime area in the early hours of the morning did not amount to reasonable suspicion. Furthermore, in Shaw v Keyte & Ors (Unreported, County Court of Victoria, Ravech J, 15 April 1997) the County Court found that making an assumption that a person is a sex worker in a high crime area did not equate to reasonable grounds to suspect drug possession. A Victorian County Court found that being in a car at 2am in an industrial estate in Footscray was not reasonable grounds to search. In contrast in Victoria, being in a high crime area, being out late at night, appearing to have glazed eyes and sighting a clear part of a zip-lock bag were reasonable grounds for suspicion: Duran v R [2023] VSCA 314.

The District Court in R v Mihajlovic (No 2) [2019] NSWDC 141, found that lack of knowledge by a tradesman of the vehicle owner’s name did not amount to circumstances that could be give rise to a reasonable suspicion. Nor in Filip Black v Regina [2017] NSWDC 326 did the District Court find that it was reasonable to search someone in a hoodie and backpack who refused to assist and swore at the police. Furthermore a history of property and street offences does not justify a search: O’Connor v R (Unreported, District Court of New South Wales, 12 August 2010), nor does a history of drug offences: DPP v Bernath [2012] Victorian County Court A11527667 Judge Mullaly (29/6/2012).

Examples of what is not considered to be reasonable grounds to search by Australia Courts (click on case to access).

These cases indicate that when Australian courts apply a reasonable suspicion standard in straightforward cases, the evidence required is more than speculation and conjecture. Despite police practices and training to the contrary, the courts do not usually find decisions to search based on prior criminal record, location, nervousness, confrontational behaviour, clothing or evasiveness to be reasonable. However, when cases became complex, such as in Fuentes (2012), Watson (2017), Murray (2017) and Duran (2023) something was missing in the court analysis. Through attending to the motivation for the stop, the precise moment in the evidential sequence at which the reasonable grounds standard should have been applied comes into sharp focus. A close analysis of the stop power and police purpose in using it, assists courts to ensure that police powers are used for the purpose for which they have been legally authorised. This analysis requires an understanding of ‘pretext’ stops.

2.           Pretext stops

The first time in Australia that the term ‘pretext stop’ was used in a judicial context was the 2018 South Australian District Court decision in R v Arthur [2018] SADC 116. In this case, her Honour Judge McIntyre decided that a vehicle stop for the purpose of a drug investigation, using the Road Traffic Act 1961 (SA) as its legal basis, was an unlawful pretext stop.

What is a pretext stop? 

A pretext stop is one in which police claim a lawful reason to stop a person as a way of masking their real, but unlawful motive. Courts must determine whether the intention of the officer in conducting a stop was to pursue the lawfully articulated basis for the stop, or whether the intention was to conduct a criminal investigation for which there are no reasonable grounds. Complications arise where an officer stops a person for both reasons. In Canada, the courts attempt to identify the true intention of the officer.

2.1  Intention of police  (examining Canadian decisions)

The 1998 Ontario Court of Justice decision in Brown v Regional Municipality of Durham Police Service Board, 1998 CanLII 7198 (ON CA) clarified that a lawful traffic safety stop cannot be used to validate what is actually a discriminatory stop. The Canadian Supreme Court emphasised this point in 2019 in R v Dudhi, 2019 ONCA 665, if race was a factor in the stop, it does not matter whether it was otherwise legitimate. In my view, the clearest analysis of a pretext stops in Canada is contained in Duncan J’s 2015 decision in the Ontario Court of Justice in R v Gayle 2015 ONCJ 575. In this case, the Court concluded that while police had legal grounds to stop Mr Gayle for a traffic offence, their questioning indicated that they had another purpose in stopping him: to investigate his compliance with bail conditions.

In Gayle, the court noted that while dual purpose stops are legal [12] (other than where race is one of those purposes) and that it is not appropriate to assess which of the purposes is dominant and which is subordinate,[12] ‘the use of the legal stopping authority cannot be a mere pretext or ruse employed in order to further the other investigative purpose’.[13]

In assessing whether the true intention of an officer was to perform a criminal investigation rather than engage with a traffic offence (such as speeding) or a registration check, a court must engage in a piece-by-piece examination of the facts involved in a stop. Police intentions can be inferred from their immediate actions and questions after a stop takes place (e.g., questions to the passenger, questions about what the person is doing) and whether the alleged purpose of the stop is abandoned almost immediately. (Gayle, [18]) The type of work that police have been doing before a stop takes place can also be important. The fact that a traffic offence is actually charged does not mean the traffic offence is not a ruse for another purpose. (Gayle [16]-[18]).

While the South Australian case of R v Arthur [2018] SADC 116 does not reference Canadian cases, it is certainly compatible with them. In the NSW District Court decision R v Buddee [2016] NSWDC 422,  McClintock DCJ, did not use the term ‘pretext stop’ but undertook a similar analysis. He examined whether the police power to conduct random breath-testing (RBT) could be used for the purpose of a ‘random crime check’. McClintock DCJ found that using an RBT stop power as ruse to conduct a criminal investigation was unlawful. Buddee has been followed in subsequent cases: R v Cook [2017] NSWLC 24 and R v Large [2019] NSWDC 627.  Similarly in The Queen v Gehan [2019] NTSC 91, Grant CJ stated at [11] that ‘The use of the power to conduct a random breath test for the ulterior purpose of general criminal investigation would be both improper and in contravention of the law which confers the power’ . He found however that the police did have reasonable grounds to suspect drug possession and that the search was lawful. In the Queensland case of R v Hinds-Ravet [2022] QSC 66, the court found that it was unlawful for the police to use traffic stop powers to for the purpose of a drug investigation where they did not have reasonable grounds to suspect drug possession at the time of the stop. For further information see these slides by Razi and Chipkin. These cases are important as they start a process, still relatively new in Australia, but in line with Canadian cases, of identifying and differentiating between the source and purpose of police stop powers and their exploitation for proactive, investigative purposes. In the next section I will explore five cases where the concept of pretext stop should have been applied but was not.

Applying the concept of pretext stops to Australian cases

In the 2012 Queensland criminal exclusion of evidence case R v Fuentes [2012] QSC 288 uniformed police from the tactical crime squad, targeting drug offences (note, a proactive, non-traffic police operation) pulled over an Hispanic youth with a passenger in an expensive-looking convertible BMW under legislation that permits police to stop drivers for the purpose of checking to see if they are complying with licensing and registration requirements. Harold Fuentes appeared nervous and tried to hide a backpack that was in the car. The police decided on this basis they had grounds to conduct a search of the vehicle for drugs. The court decided that Fuentes’ nervousness and attempt to hide his backpack after he was stopped gave the police reasonable grounds for suspicion. A step-by-step analysis adopted by the Canadian courts, however, permits us to reframe this case as a racially based pretext stop. It is likely that the police interest in stopping this vehicle was not traffic safety related given that the police were conducting an operation expressly targeting drug offences. If, following R v Brown (2003) Canlii (52142 ON CA), the court had taken the social context of racism into account, it could have concluded that the only plausible reason why the police decided to conduct a drug check in this case was the sight of an Hispanic youth in an expensive car. Because the traffic check reason was effectively a pretext to engage in a criminal investigation, it should have been ruled as an illegal pretext stop. Furthermore, it is likely that this stop could have satisfied the R v Brown test for racial profiling (described in this section): a young man, from a racial minority, stopped while driving a luxury car for an investigatory purpose without objective justification. By shifting our focus to the purpose of the stop, not the consequently obtained grounds for the search, the concept of ‘pretext stop’ permits a much finer step-by-step analysis of the use of police powers.

In the criminal exclusion of evidence case R v Westcott [2014] QDC 278 a plainclothes police officer pulled over a driver he knew was driving without a licence. In its reasoning, the court did not consider whether this was a pretext stop. However the court heard considerable evidence that would have made it possible to conclude that it was a pretext stop. The police officer was not on traffic duties when he stopped Mr Westcott for a traffic offence. The officer had knowledge that Westcott had previously been involved in drug offences. Furthermore, the officer’s statement to Wescott, ‘You were always going to be searched mate’, indicates that the traffic offence was a mere ruse. The officer found drugs during the search. In my analysis, it would have been open to the court to view this as an unlawful pretext stop and exclude the evidence on this basis.

In the 2017 Queensland case of R v Watson [2017] QSC 4 another criminal case where the defence applied to exclude evidence, Justice Henry accepted that it was reasonable for police to suspect a person of possessing drugs on, inter alia, the basis that he was driving a hire car. There were no signs of intoxication or drug paraphernalia. Watson’s counsel noted that equating ‘hire cars users’ with ‘drug dealers/traffickers’ is not sufficiently individualised to create a reasonable suspicion. While the court found that the search was reasonable, a better characterisation of this case is that it involves a pretext stop, where the police were using their traffic safety powers for the illegitimate purpose of proactively investigating a speculative hunch.

More recently, Queensland Courts are now starting to adopt the pretext reasoning see: R v Hinds-Ravet [2022] QSC 66 and R v Davis [2023] QSC 112 . In R v Davis, the Court found that the a stop for the purposes of drug law enforcement could not be carried out under the authority of traffic law enforcement. The court excluded the evidence obtained from the search.

In DPP (Vic) v Kaba [2014] VSC 52 (18 December 2015). the Victorian Supreme Court explored the legality of a routine traffic stop of a car containing two African-Australian youths under section 59(1) of the Road Safety Act 1986 (Vic). The court found that police were free to engage in routine stops for the purpose of licence and registration checks provided these stops were not racially discriminatory. (Kaba [162]). The court, however, did not explore whether this stop was racially discriminatory, nor – importantly in the context of a discussion on pretext stops – whether it was a pretext for a criminal investigation. The Court focused on the issue of whether routine stops were arbitrary and unlawful under the ICCPR and the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic). It found that routine stops for traffic purposes were not arbitrary under the law in Victoria. In my analysis, the court went to lengths to interpret the law to validate longstanding police practices. It also deferred to police training and experience without an evidentiary basis to do so.

There was circumstantial evidence that the police engaged in racial discrimination when they stopped the car in which Magnus Kaba was a passenger. An attempt to lay foundational evidence of a racial motive through questioning was ruled inadmissible by the magistrate at the initial hearing. Nonetheless, circumstantial evidence that could have led to an inference that the stop was based on race existed. Firstly, while not a finding of the court, there was some evidence that the police conducted a U-turn and crossed a line of traffic on noticing the occupants of the car in order to stop the car.  It is unlikely the police would have gone to such lengths if the stop was truly random. Secondly, the police requested the driver’s consent to search the car after viewing a computer and scissors on a seat and receiving radio information that marijuana had previously been discovered in this car or on the driver. (Kaba [30-31]) This is strongly indicative of a stop for criminal investigation purposes rather than road safety. Furthermore, the request to search by ‘consent’ indicates the police knew they did not have grounds to search under legislation. Thirdly, the police repeatedly asked the passenger for his name. (Kaba [32-33])This, again, is a line of investigation not consistent with purpose of the stop being for traffic safety purposes. Furthermore, this stop occurred in the social context of a history of complaints by African youth in Victoria about racial profiling.  In my analysis this was a racially discriminatory pretext stop.

Murray v R [2017] VSCA 236 is a Victorian case that examined a vehicle search under section 82 of the Drugs Poisons and Controlled Substances Act 1981(Vic). In this case, police gave chase to a BMW containing three young men that appeared to be evading them. As per DPP (Vic) v Kaba [2014] VSC 52 (18 December 2015), the police have a power to stop vehicles under section 59(1) of the Road Safety Act 1986 (Vic) in order to conduct road safety and licence registration checks. However, in Murray the purpose of the chase was not to undertake a licence registration check, or even to charge the driver with careless driving. From the facts disclosed, the true police interest in the vehicle was to investigate the occupants for drug offences. Unfortunately, the lawfulness of the stop was not an issue raised in this case. Rather than the lawfulness of the stop, the court focused on whether there were reasonable grounds for the police to suspect that the car’s occupants were in possession of drugs after the stop and following their interaction with police. However, had the court been directed to thinking about the legality of the stop, the question it would have had to consider was whether there were reasonable grounds to suspect the driver of drug possession before the stop. If they did not have reasonable grounds for suspicion at this stage, the police were using their traffic registration check powers as a ruse for a criminal investigation.

It is also possible to argue that the legal analysis of the police engagement with the suspect in R v Duran [2023] VSCA 314 would have been improved by exploring whether the stop itself was a pretext stop. While the vehicle was stopped at the time the police pulled up behind it, their engagement at this point should have have been subject to a pretext stop analysis: ie did the police at this point have reasonable grounds to believe an offence have occurred or were they using their Kaba stop licence and registration check powers or doing a drug/alcohol test. The fact that the police immediatedly commenced a preliminary search indicates that this was in fact a pretext stop to do a drug investigation.

The failure of the Victorian Courts to consider the legality of the stop points to the need for it to consider adopting the more granular analysis of the Canadian courts on pretext stops. To date, in Australia, pretext stop decisions now appear in SA, NT, Qld and NSW. Victorian court decision making is out of step with other Australian jurisdictions.

Articulating a clear understanding of a pretext stop sends a clear message that pro-active police stops are not lawful. This is a critical step toward prevention of racial profiling and other forms of biased policing.

3. Investigative Questioning

At critically important common law principle, yet to be applied fully in Australia, is a restriction on investigative questioning.  According to the New Zealand Supreme Court police, unlike ordinary citizens, ‘must point to lawful authority for all actions undertaken’. [2011] NZSC 101; [2012] 2 NZLR 305 (‘Hamed’) 123 [24]. The notion that police must draw on power to act, while ordinary citizens are free to act unless legally prohibited from doing so, is a neat distinction that, at law, is not uniformly accepted. The older English construction of police as ‘ordinary citizens in uniform’ saw police, like ordinary citizens, as being free to act unless prohibited. Gradually, however, with the rise of criminal defence work and tort cases challenging the legitimacy of the exercise of police powers and how they impacted on fundamental rights and freedoms, and in some jurisdictions, through the enactment of rights protecting legislation like the Police and Criminal Evidence Act 1984 (England and Wales) the police have been more frequently required to justify their actions. (Graham Smith, ‘Reasonable Suspicion: Time for a Re-Evaluation?’ (2002) 30 International Journal of the Sociology of Law). While the origin of these fundamental rights is the common law, these rights are now frequently contained in legislation, charters and international conventions. In many jurisdictions police now require a lawful justification to intervene on a person’s rights. This is called the ‘intervention threshold’. Intervention thresholds apply to arrests, searches, and as we will explore next, in some jurisdictions, to investigative questioning.  

In both Australia and Canada there is, in general, no positive legislative authority that permits (or prohibits) police to question a person absent a reasonable belief in an offence.  However, questioning a person can create limitations on a person’s right to privacy, freedom of movement and freedom from arbitrary detention. Where, then, is the authority police can draw on to limit these rights? To fill the gap in legislative power, and drawing on the 1963 English decision in R v Waterfield, [1963] 3 All ER 659, courts in Canada have derived an ‘auxiliary powers’ doctrine in the common law that permits police to engage in activities such as pedestrian stops and questioning. Furthermore, and importantly, this common law power also places limits on the use of those powers. Because these powers and limits are not well understood in Australia, it is worth taking time to explore their basis.

The facts of R v Waterfield were as follows. Two officers, investigating damage to a wall, attempted to prevent a car, suspected of being involved, from leaving a carpark. The driver drove at one of the officers in order to leave the carpark. The officer managed to jump out the way. Both driver and passenger were charged with assaulting a police officer in the execution of duty. The court found that the officer had no power to prevent the removal of the car and therefore was not acting in the execution of his duty in attempting to stop the car. Consequently, the driver and passenger were acquitted.

In coming to this conclusion, the Court held that

such conduct [by the officer] was a prima facie interference with a person’s liberty or property. If so then it is relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty …. [Where] the execution of those general duties involves the inference with the person or property of a private person, those powers are not unlimited.

In Australia, we have used this case as precedent that citizens are entitled to defend their freedom from unlawful interference: Coles v Ahmed (2009) Unreported decision of Melbourne Magistrates Court, Sunshine Magistrates Court Y00573399.  In Canada, however, it has been developed as the precedent that identifies a confined common law power for police to perform duties that impact on rights. This difference is illuminating, and points to a potential direction for the future development of the Australian common law.  The first case in Canada that cited this case as recognising that police have common law powers in confined circumstances to pursue rights-infringing duties was R v Stenning [1970] SCR 63.  Stenning was considerably refined in the Canadian Supreme Court decisions of R v Simpson [1993] OJ No 308 and R v Mann (2004) SCC 52, [59] in which the common law auxiliary power was moulded into the ‘investigatory detention’ or R v Mann power, as it is known today. R v Mann holds that while R v Waterfield provides police with a common law power to infringe rights through stopping and questioning a person, this power is restricted to situations where police have grounds to reasonably suspect that a crime has occurred and that the stopped person has a connection (a nexus) to it: see also R v Le (2019) SCC 34 [131]. Police cannot question an individual to determine if he/she is ‘up to no good’: R v Yeh, 2009 SKCA 112 [75].

R v Mann stops are similar to Terry v Ohio, 392 US 1 (1968) stops in the USA. They are authorised when the police have reasonable suspicion that a person is involved in a particular criminal enterprise. They go further than authorising stop and questioning, however. When the police also have a reasonable suspicion that the police are in danger, these stops authorise the police to conduct officer safety searches or weapons frisks. They do not, however, authorise searches for drugs.

Both R v Mann and Terry stop powers have been subject to criticism as being unnecessary judicial activism that expands police powers. Quigley argues that it should be up to the legislature, not courts, to extend police powers (Tim Quigley, ‘Brief Investigatory Detentions: A Critique of R v Simpson’ (2004) 41(4) Alberta Law Review 935). From an Australian perspective, however, it is arguable that, at least as far as they apply to police questioning, these common law powers offer an important way of limiting a daily police practice that currently occurs without restrictions anyway.

To develop an understanding of the limits of the R v Mann or ‘investigative detention’ power, it is worth discussing some of the key Canadian decisions that use it. In R v Grant 2009 SCC 32, the Supreme Court of Canada analysed a case where an 18-year-old black youth ‘stared’ at police officers driving past and then ‘fidgeted’ with his jacket and pants. The police stopped their car and asked for his name and address. During this exchange he ‘adjusted’ his jacket again. The police then got out of their car, flashed their police badges at him, surrounded him and asked him if he had ‘anything on him he shouldn’t’. They also asked him to hold out his hands. In answering police questions, Mr Grant admitted to having a firearm and a small bag of weed. The Court held that at the point he was ‘singled out as the object of particularized suspicion’(Grant [49]) he was subject to an investigative detention. The Court found that the police did not have a reasonable suspicion when they questioned Mr Grant and were acting unlawfully. Despite finding these breaches, the Court admitted the evidence of the firearm through the balancing test in s 24(2) of the Charter, which is very similar to the test in Australia in s138 of the Uniform Evidence Act. This compares to R v Harrison, 2009 SCC 34, in which the Canadian Supreme Court held that admitting evidence of drug possession following a flagrant and wilful breach of Charter rights would undermine the long-term repute of the administration of justice. R v Harrison states that ‘[p]olice officers are expected to adhere to higher standards than alleged criminals’. While R v Grant is an important case about the balancing of factors in the Charter, of critical importance at this point in this discussion is the important way that R v Grant continues the development of common law to refine police questioning powers. This development is continued in further cases.

In R v Yeh, 2009 SKCA 112 the Saskatchewan Court of Appeal said:

This idea of the particularity of a suspicion is easily illustrated … the police could not detain an individual for investigative purposes simply because he was walking in a downtown alley at 2:00 a.m. and they had a hunch he might be doing something illegal. On the other hand, if the police were in possession of information warranting a reasonable suspicion that the individual in the alley had just committed a robbery, he could be detained. (Yeh, [76])

In R v Digiacomo, 2008 ONCJ 105 the Ontario Court of Justice found that a simple question, ‘What have you got in your pocket’(Digiacomo [13]), was enough to create an investigative detention. Likewise, ‘Show me your hands’ was held to be evidence of an investigative detention in R v Allison, 2011 ONSC 1459.

These cases are important. They prohibit police questioning on the basis of a hunch by creating an intervention threshold for police investigative stops: reasonable suspicion of a particularised offence. They arise not from legislative limit but from common law protections of fundamental freedoms.

At this point it is worth pointing out that these cases place legal limits on officer behaviour that is a standard and institutionalised police practice.  In accordance with their working rules, patrol officers are expected to stop and talk to people all the time. They see it as their job to casually approach groups of kids in a park, talk to them, find out what they are doing and where they are from. Suspicion builds or falls during the interaction. If they are from the area, it’s just a ‘social chat’, if not, an officer might have a look in a bag. (David Dixon et al, ‘Rules and Reality in the Construction and Regulation of Police Suspicion’ (1989) 17 International Journal of the Sociology of Law 185, 188.)

While stopping as many people as possible to find out what they are doing and where they are from may be institutionalised procedure, it is also a form of investigative questioning that interferes with rights to privacy and freedom of movement and can amount to a detention. Once questioning begins, any evasiveness will increase the suspicion of the officer. Compliance and docility are expected, particularly of racialised people, (Abbott v Toronto Police Services Board, 2009 HRTO 1909 [45], [46]) or the unstated, potentially illegal, but nonetheless compulsory nature of the police demands will become visible and explicit through the use of threats, force and arrest. Because of the escalating nature of the police response, it is necessary to recognise that from the very first investigative question, compliance is obligatory and the person is no longer free to leave.

The ability of the Canadian courts to look at police civilian interactions from the perspective of the person who is being policed does not arise out of human rights legislation or the Canadian Charter. The UK has a Human Rights Act 1998, but courts have yet to interpret the law in this way. Victoria, the Australian Capital Territory (ACT) and Queensland also have human rights legislation, and all Australian states are subject (to some extent) to the rights set out in the International Covenant on Civil and Political Rights (‘ICCPR’). While there are exceptions, Canadian court demonstrate a capacity to understand the power dynamics of the police–citizen interaction and place themselves in the shoes of the policed person. This critical perspective shapes the way they have evolved the common law to restrain police power.

Applying the concept of Investigative Questioning in Australia

While Australian courts are starting to recognise the limits of police powers to stop and question people during vehicle stops (Buddee, Arthur), the legality of investigative questioning of pedestrians has not been subject to regular consideration. At this stage, I have discovered one exception. (However Westell discussed below, suggests a similar direction).

In Le v The State of NSW [2017] DCNSW the District Court of NSW made an important start in establishing precedent for police to have reasonable suspicion before detaining a person for the purpose of exploring whether they might have committed an offence. While this case was overturned on appeal, State of New South Wales v Le [2017] NSWCA 290 (16 November 2017) the appeal’s reasoning should be confined to cases involving the investigation of public transport ticketing offences under NSW legislation.  The case is otherwise an excellent precedent that police must have a reasonable and objective basis for suspicion before they commence an investigative inquiry of a person on the street.

In Le v The State of NSW [2017] DCNSW the NSW District Court examined the formation of police suspicion that 24-year-old Hoang Le had stolen the pension concession card he was using to travel by train. In this case, the police stopped Mr Le and demanded to see his Opal card (proof of payment card) and concession card. Mr Le provided these cards to the police. Constable Willey then demanded to see identification to prove Le’s pension card was his. The police then checked his birth date details over police radio, detaining Mr Le for just over four minutes.

Mr Le bought a false imprisonment claim against the State of NSW. Mr Le argued that the police must have had reasonable grounds to suspect he had committed an offence before they could detain him on the street. This is analogous to arguing that the police must demonstrate an investigative detention power similar to the Canadian precedent in R v Mann.

In his defence, Constable Willey claimed that he reasonably suspected that Mr Le’s concession card was stolen. The first set of reasons Willey gave for this suspicion was that Le was ‘evasive’. The Court found that the Mr Le had the right to avoid answering police questions and that refusing to answer could not form the basis for a reasonable suspicion of an offence. The second set of reasons given by the police was that Le was effectively in the wrong place at the wrong time (not many other passengers were on the platform). The Court found that this could not be a basis for forming a reasonable suspicion either. The third set of excuses was that people with Opal concession cards do not always carry their own pension card and therefore need to be checked. The Court found that this meant that all pensioners were suspects and that this basis for detaining the plaintiff was not sufficiently individualised. Finally, the police argued that Le was too young and healthy to carry a pension card. The Court found that there are huge range of reasons people carry pension cards that are not immediately obvious and that this did not justify a reasonable suspicion either. The District Court ultimately found that Hoang Le was falsely detained and awarded him nominal damages ($3000). This is critically important decision that provides a precedent for the adoption of R v Mann powers and limits in Australia.  While it was overturned on appeal and has not been followed in subsequent cases, an opening exists.

The other precedent for the existence of restrictions on investigative questioning in Australia is the Victoria Police Manual Policy on ‘Interactions with the Public’.  In this policy, Victoria Police members are restricted from asking people about their name and address, or where they are going (these are considered ‘Targeted Interactions’) unless they have clear grounds to do so based on ‘intelligence, the person’s behaviour or reasonable suspicion’.

There is another Canadian concept that will assist us in introducing the concept of ‘investigative questioning’ into Australian common law.  This is the concept of ‘psychological detention.’

3. Psychological detention

Canadian case law discloses a deep understanding of the impact of police questioning on the psychology of the members of the public, and particularly racialised people. The concept of psychological detention arises first in the dissenting decision of Le Dain in R v Therens [1985] 1 SCR 613 [56].  It was later defined in R v Grant 2009 SCC 32  and has recently been taken to new heights in the Supreme Court decision of R v Le (2019) SCC 34.   As I discuss shortly, as there is no case law on the topic in Australia, Canadian jurisprudence is particularly instructive.

Members of the public are at a distinct psychological disadvantage when being questioned by police. Stops and the questioning that follows carry with them an implicit threat of arrest or force for failure to comply and police are under no obligation to dissuade people of this assumption. Indeed, as former prosecutor Paul Butler advises African-Americans his book Paul Butler, Chokehold [Policing Black Men] (The New Press, 2017):

‘A stop is a masculinity contest between you and the police. You must let the cops win. It’s all about machismo, regardless of whether the cops are male or female. They are stopping you to demonstrate their dominance of the street … This is not a time for civil liberties. This is a time for being dominated by the state, and acting like you like it.’

In Canada, questions that have been found to induce a state of psychological detention include, ‘Have you got anything you shouldn’t?’ R v Digiacomo, 2008 ONCJ 105 and ‘What have you got in your pocket?’ R v Allison, 2011 ONSC 1459. In R v Le (2019) SCC 34, preventing a person from leaving and asking a person to keep his hands visible, in conjunction with age, minority status and smallness of stature, was held to create a psychological detention. In R v Fountain, 2015 ONCA 354 [17], from the moment a police officer called out to someone to come over and talk to them, that person was held to be detained. In R v Grant 2009 SCC 32, Deschamps J finds that a detention occurs once a person feels ‘singled out’ or ‘cornered’. ‘A single forceful act or word may be enough to cause a reasonable person to conclude that his or her right to choose how to respond has been removed’(Grant [42]).

R v Allison, 2011 ONSC 1459 provides a useful summary of the issues to be considered when determining whether a person can reasonably be viewed as having been psychologically detained: ‘a) the circumstances giving rise to the encounter as they would reasonably be perceived by the individual … b) the nature of the police conduct … [and] c) the particular characteristics or circumstances of the individual’. R v Le (2019) SCC 34 contains a sophisticated analysis of the particular disadvantage racialised individuals face when questioned by the police. A psychological detention arises when ‘the reasonable person in the subject’s position would feel so obligated’. (Le [25]) The social context of racism in policing means that courts can assume that the ordinary racialised youth will feel ‘compelled to remain, answer and comply’. (Le [95]) The concept of psychological detention also exists in the USA. US courts have found that psychological detention can occur when the police ask an individual a second time ‘hang on a second’ and, in another case, ‘Are you stupid? Come here I want to talk to you.’ Ligon v City of New York, SDNY 12 Civ 2274 (Feb 14, 2013) at 36 (citing United States v Simmons, 560 F.3d 98, 101, 105–06 (2d Cir. 2009); Brown v City of Oneonta, ISCA, 2nd Cir (Aug 8 2000) at 340

The concept of psychological detention has clear implications for the capacity of individuals to ‘consent’ to police searches. If a reasonable person with the characteristics of the person who has been singled out by officer for investigative questioning would feel under an obligation to comply with a police officer, they are not free to refuse an officer’s request to search. While racialised youth are particularly vulnerable, Canadian courts acknowledge that:

[m]ost citizens, after all, will not precisely know the limits of police authority and may, depending on the circumstances, perceive even a routine interaction with the police as demanding a sense of obligation to comply with every request. R v Le (2019) SCC 34 [26].

To summarise, Canadian courts have developed the common law to authorise the police to engage in ‘investigative questioning’ of individuals. However to single out an individual for questioning, police must possess a reasonable suspicion that a particular person is connected to a particular offence. This reasonable suspicion is required because questioning interferes with fundamental rights (R v Mann (2004) SCC 52) and can place a person in a state of psychological detention (R v Le (2019) SCC 34). Without a reasonable suspicion, police stops (including street checks) are illegal: McDonald, Michael and Jennifer Taylor, Independent Legal Opinion on Street Checks: For the Nova Scotia Human Rights Commission (Stewart McKelvey, 2019).

Applying the concept of psychological detention in Australia

In Australia, the courts are yet to formulate a clear threshold for police to meet before they initiate individualised questioning or seek consent to search. (Though Arthur, Buddee and Le are starting points). There is, however, a protection that exists for people who are psychologically detained. Section 139(5) of the Uniform Evidence Act, requires that police caution an individual before questioning them in cases where the police officer has ‘given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so’. Failure to caution in these circumstances is grounds to exclude evidence under section 138(1) of the Uniform Evidence Act. It is worth noting that case law on this provision is spectacularly lacking: Stephen Odges, Uniform Evidence Law, Thirteenth Edition (Law Book Co, 2018) 1309–10.

How might we start to apply the concept of psychological detention in Australia?  In this section, I will apply the concepts investigative questioning and psychological to existing cases to explore how they might work.

In Forrester v Mattson [2016] NTSC 16, if Barr J of the NT Supreme Court had applied the concepts of investigative questioning and psychological detention to the facts he may have achieved a different result.  Aboriginal man Tristram Forrester was stopped in a park at 2am and was subsequently searched for drugs. Police had been called out to the area for an unrelated issue. On appeal, the Northern Territory Supreme Court found that the man’s evasiveness and appearance of being affected by an intoxicating substance, in conjunction with the fact that it was a high crime area, were sufficient to enable the police to form a ‘reasonable suspicion’ that Mr Forrester was in possession of dangerous drugs.  He ‘appeared to be hiding as he moved from tree to tree’. It is important to recall at this point that evading police is not, in itself, evidence of criminality. It was not until after they stopped him, flashed their police identification and requested his name, address and proof of his details that that they suspected he might be intoxicated and in possession of drugs.

Recall from R v Mann, that an investigative detention is a stop that occurs when a person is singled out for investigation rather than a mere chat. Furthermore, it requires police to have a specific crime in mind with information that links that crime to the individual they stop.

In Forrester v Mattson, when the police stopped Mr Forrester they told him to stop where he was and flashed their badges at him. They then asked for his name and address, and then for proof of identity. This sequence indicates they were not having a casual conversation with him. As soon as he was stopped, he was being treated as suspicious. However, at this stage their suspicion is not particularised. The police gave evidence that it was not until he tried to hide his wallet from them that they suspected he might be in possession of something. During the conversation, the police described Mr Forrester as being unsteady on his feet and having slurred speech. However, as in the NSW District Court decision in Le, described above for the police to ask for proof of his identity without engaging in false imprisonment, they must have reasonably believed he had committed an offence. During the stop Mr Forrester was psychologically detained and not free to leave. As an Aboriginal man, he would have been well aware of the over-policing of Aboriginal people and continuation of colonial violence and dispossession (Elliott Johnston, Royal Commission into Aboriginal Deaths in Custody: National Reports [Vol 1–5], and Regional Reports (AGPS, 1991) http://www.austlii.edu.au/au/other/IndigLRes/rciadic/) as well as the expectations on him to comply with police demands. If it had been in force at that time, he should have been given a caution under s139(5) of the Evidence Act 2016 (NT). A Canadian court, applying the law on investigative detentions in R v Mann and law on psychological detention – particularly as it applies to targeted minorities as set out in R v Le – to these facts may well have concluded Mr Forrester was being unlawfully questioned and was psychologically detained.

In R v Fortescue [2010] NSWDC 272, the police stopped a man who was seated on a bench in laneway outside a night club, ‘chatted’ with him and subsequently formed a reasonable suspicion to search him and found drugs. The District Court judge in this case said:

A chat, simply for social purposes or during which observations are being made or even as a trick to further investigation does not constitute a stopping ‘if the accused is free to quit the conversation/observation/investigation and depart at any time’. R v Fortescue [2010] NSWDC 272, [9].

While no specific questions about criminality were asked of the accused, I question whether the accused was truly free to depart and whether the court has correctly assessed the issue of psychological detention. It is quite probable that upon viewing two officers flashing their police badges at him, Mr Fortescue felt singled out, cornered and unable to leave.

The application of psychological detention to consent search cases

The issue of psychological detention arises squarely in consent search cases. A consent search occurs in situations where the police suspect, without reasonable grounds that a person is in possession of drugs or weapons and yet determine to single out a person for scrutiny and search them on the basis that the person ‘agrees’ to being searched.

In accepting the legality of consent searches, Australian courts interpret the law to authorise existing police practice rather than protect rights. However, it is precisely these cases where the concepts of investigative stops and psychological detention are applicable. According to R v Mann, unless police have reasonable grounds for suspicion it is unlawful for them to detain (stop) an individual for questioning. The leading Australian consent search case is DPP (NSW) v Leonard [2001] NSWSC 797.  In this case, the NSW Supreme Court found that consent could be valid even if a person did not know they had the right to refuse a search. The court’s concern was whether consent was coerced. [240]. The court should however have focused on whether the police had reasonable grounds to investigate Mr Leonard, not whether he was willing to assist police. The court also misunderstood why a person may appear willing to assist police. People can appear willing where they feel obliged to assist police in order to reduce antagonising the police. Unless he felt he had no choice, Mr Leonard, who had drugs in his car, would not have agreed to a police search. Coercion does not only occur when a threat is made. Police work involves implicit threat. On the occasions where members of the public attempt to assert their legal right to refuse, police treat their assertion of rights as reason for suspicion:

Reluctance to answer questions and evasiveness were generally cited as indicators [by Victoria police respondents to a 2013 study] that people are likely to be involved in illegal activity. (Cultural and Indigenous Research Centre Australia, Victoria Police: Review of Field Contact Policy and Processes, Final Report, November 2013 (Cultural and Indigenous Research Centre Australia, 2013) 40).

This research shows that attempts to assert legal rights results increases police suspicion. Refusal to answer police is seen as contempt and increases a person’s risk of being physical assaulted. Consequently, as Le Dain J in R v Therens [1985] 1 SCR 613 [56] acknowledges, while there might be a legal distinction between a police stop where a person is free to leave and a lawful detention where they are not, there is little practical distinction in the individual’s experience of these two events.

Consent searches are banned in England: 2015 PACE Code A [1.5]. This ban is an acknowledgement of the vulnerability of civilians when faced with requests from police, and the ease at which police use consent searches to circumvent the statutory limits placed on their powers.

DPP v Leonard was followed in the case of R v Bossley [2012] QSC 292. This Queensland case concerns the consent of a young man at a music festival who later stated that he thought he ‘had’ to hand over his bag to police. The court made much of Mr Bossley’s desire to be as helpful to police as possible in determining that he willingly assisted police despite his lack of knowledge that he had the right to say no.

Not only do Australian courts accept the capacity of individuals to consent to police, they also show signs of being unwilling to draw inferences against the police despite the evidence. In the Queensland case of R v Cahill [2016] QSC 275 the court accepted the evidence of a police officer that her search of a car, the driver and a passenger had been conducted by consent. However, both driver and passenger denied being asked for consent to the search. Furthermore, the police officer’s body worn camera was switched on, then off, then on again. The period when it was switched off happened to be the period when police allege consent was sought by the police officer and given by the civilians.

In contrast to these Queensland and NSW decisions, South Australia shows some promising signs of recognising the vulnerability of people facing police requests. In Westell v R [2004] SASC 330 a man was stopped by police and asked to ‘come back for a chat’ and for his bag. Judge Anderson found that Mr Westell handed his bag over to police in circumstances in which he believed he was ‘obliged to cooperate with the police’. (Westell, [12]) The judge recognised that once a person is in a state of psychological detention, police must possess a search power to conduct a lawful search. This is analogous to R v Mann. This case (like the NSW District Court case of Le (2017)) offers a foundation for the creation of common law investigative detention powers and limits in Australia.

Western Australia has not, to date, taken the direction of the South Australian courts. In Wineburg v Stafford (Unreported judgement Supreme Court of Western Australia, White J, 22 July 1997), Mr Wineburg agreed to allow Officer Stafford to search his vehicle after he was stopped for speeding. Stafford agreed that Wineburg was in custody for speeding at the time the consent search was conducted. White J found that the search was by consent and therefore lawful.

In the 2015 Victorian case DPP (Vic) v Pringle [2015] VCC 702 the court found that Mr Pringle, who had been arrested for driving unlicensed, agreed to let an officer assist him remove his valuables from the car, but not to search them. Consequently, the search conducted by police was without consent or legislative basis and was unlawful. The court did not, however, consider whether it was possible that Pringle may not have been able to give consent, given that he was under arrest at the time the search took place.

Additional cases on ‘inadvertent’ search finds can be found in this extract from Tronc, Crawford and Smith (1996)

Summary of Discussion

The police power to stop and question pedestrians is contingent on their possession of reasonable grounds to believe the person has committed an offence or is a witness to one. (Le v The State of NSW [2017] DCNSW, , R v Mann (2004) SCC 52).  Once police make a person feel cornered or singled out, the person is in a state of psychological detention.  Furthermore, racialised people and others regularly targeted by police are more likely to experience psychological detention. (Westell v R [2004] SASC 330, R v Le (2019) SCC 34).

The police power to stop vehicles is contingent on their possession of a lawful stop power and their underlying intention. Their underlying intention can be identified through a step by step analysis of the facts in the case.  If the police intention in stopping a person is to perform a breathalyser or licence and registration check or to investigate an offence they have reasonable grounds to believe has occurred, then their stop is lawful.  However, if their intention is to investigate a crime on which they have not reasonable basis to suspect has occurred, this is an unlawful pretext stop.  The lawful stop reason cannot be a mere ruse to conduct the unlawful investigation. (R v Arthur [2018] SADC 116, R v Buddee [2016] NSWDC 422, R v Gayle, 2015 ONCJ 575)

Consent searches are not lawful in cases where the searched person is in a state of psychological detention. (Westell v R [2004] SASC 330, R v Le (2019) SCC 34). Furthermore, evidence obtained while a person is in state of psychological detention, and has not been cautioned, is inadmissible: Section 139(5) of the Uniform Evidence Act.

Finally, stops, questioning and searched that are based on racial profiling are unlawful.  This point will be covered in the Racial Profiling section of this manual.