Magistrate Duncan Reynolds – Melbourne – July 2013:
“There is no common law power vested in police giving them the unfettered right to stop or detain a person and seek identification details. Nor, is s.59 of the (Road Safety) Act a statutory source of such power.”
While this is true to a certain extent, OPCA theorists seem to disregard the fact that Kaba was not the driver, and also that the decision was overturned on appeal regarding s. 59(1) of the Road Safety Act. 3 As affirmed in the Victorian Supreme Court decision of DPP v Kaba [2014] VSC 52 at 486: 4
“For the reasons given in this judgment, the ruling of the magistrate will 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. Contrary to his Honour’s interpretation, police do have a power of random stop and check under that provision.”
