Racial Stereotyping of Suspects

Greg Walsh OAM[1]

October 2022

The racial stereotyping of persons within our community, is a matter of some considerable concern. Such involves a fixed over generalisation belief about a particular group of people based on their race. It involves discrimination or prejudice of a person or a group of people based on their skin colour, language, religion, customs and or beliefs. It has, as demonstrated in the United States of America for instance, that it can have an enormous negative impact upon our society.

1. In Hage-Ali v State of New South Wales [2009] NSWDC 266,[2] the Plaintiff, a young member of the Lebanese community, was arrested with three others as part of a police operation in respect of the supply of cocaine. There was evidence that she had purchased small amounts of cocaine from a supplier. After she was arrested, and as a result of significant threats against her, she nominated her drug supplier and agreed to co-operate in their investigation. At the police station, she was interviewed and provided a statement to police. After police obtained her agreement to give evidence against her supplier, she was released without charge.
    
2. One of the features of the police conduct, was taking her down to the cells and placing her in a position adjacent to a cell where one of the other male persons were situated. Threats were made by police to the effect that is she did not co-operate then she would be put in cell with the other male offenders. Police were also aware that she had been a recent recipient of a major community award from the Prime Minister of Australia and worked for the Attorney Generals Department in NSW. Police threatened her that is she did not co-operate they would ensure that “your name will be splashed on all the newspapers.” She assisted police and after being released, police made good their threat about ensuring her name was publicised to the media.
    
3. Elkaim DCJ[3] was not satisfied that the arrest was justified by s.99(3). His reasons were:
    
   “(a) I do not accept that [the arresting officers] gave individual consideration to the justification for the arrest against the background of [written operational orders] and the plain direction from [a senior officer]…
    
   (b) There was no consideration of matters personal to the Plaintiff as opposed to a general conclusion to this effect: if she has been supplying drugs then there must be a risk of flight, reoffending or destruction of evidence…
    
   (c) In any event there were not reasonable grounds to suspect any of the purposes in s.99(3) needed to be achieved.” 
    
4. His Honour said (at para 202):
    
   “There must be, in my view, a deliberate addressing of the purposes in s.99(3) by the police officer concerning the particular person to be arrested. This is not to say that a ‘ticking off of a checklist’ exercise must be undertaken but rather that the facts personal to the person to be arrested must be considered.” 
    
5. The Plaintiff also submitted that her arrest was for a collateral purpose, namely to obtain evidence against her supplier. However, His Honour held (at para 213):
    
   “Although there is a strong flavour of the arrest being made for the purpose of obtaining evidence against Mr B I do not think there is enough evidence to make a positive finding to this effect.” 
    
6. In Shalhoub v State of NSW [2017] NSW DC 363, Taylor DCJ at [65] said:
    
   “No explanation was proffered as to why the officers gave no evidence about the necessity for arrest. Since this question concerned an officer’s thoughts, only the officer could give relevant evidence. That Officer Love, for example, intended to arrest the front-seated passenger does not, by itself, persuade me that he was “satisfied that the arrest [was] reasonably necessary”, less still that it was reasonably necessary for one of the reasons specified in s 99(1)(b) of LEPRA”. 
     
   His Honour at [66] found that:
    
   “no officer gave evidence of a belief that an arrest was reasonably necessary to prevent the continuation, repetition or commission of any offence. The State referred to a repetition of stalking, but as the off-duty female police officer was long gone, the possibility of a continuation of stalking her would be fanciful and was not submitted. No other person who might be stalked was identified.” 
    
7. These cases of Hage-Ali v State of New South Wales [2009] NSWDC 266 and Shalhoub v State of NSW [2017] NSW DC 363, provide powerful illustration of the risk of approaching an arrest on the basis of stereotypes about offences or offenders. This can also extend to a classification of particular offences in the context of directions by for instance, a local area commander to arrest all suspects for domestic violence offences.[4]
    
   [1] Greg Walsh: Legal Practitioner, Oatley, Sydney
   [2] Greg Walsh acted for the Plaintiff
   [3] Now Justice Elkaim of the ACT Supreme Court
   [4] See the Excellent Paper by Jane Sanders, Principal Solicitor, The Shopfront Youth Legal Centre, November 2018, Police Powers and Arrest and Detention