Sam Kerr Criminal Trial : Reflections & Relevance to Australian Law

19 March 2025 in Criminal Law | 5 min read | skip to FAQs

Sam Kerr’s recent criminal trial, in which she was found not guilty of racially aggravated harassment of a police offer, has sparked a flurry of discussion worldwide. While the trial took place in London and concerned the criminal law of England and Wales, this article will analyse Ms Kerr’s charges in an Australian context, as well as how proceedings concerning racism are informed by considerably more than the law.

The case raises some interesting legal, social and philosophical issues regarding, among other things, race, gender and the conduct of the police.

Offences Committed Against Police Officers

Section 60 (1AA) of the Crimes Act imposes a maximum penalty of imprisonment for 12 months and or a fine of 20 penalty units for a person found guilty of hindering or resisting a police officer, or inciting another person to do so, whilst that officer is executing their duties. Ms Kerr’s actions occurred whilst she was being questioned at a police station, and was directed towards the officer questioning her, and thus would be considered hindering an officer from executing their duties if the incident had taken place in Sydney.

The rest of section 60 (1AA) imposes longer sentences for the violent hindrance or resistance of a police officer, or for other offences, such as intimidating a police officer. A person who is found to have intimidated a police officer is liable to receive a 5 year prison sentence under section 60 (1) of the Crimes Act.

The Racial Discrimination Act

Racial abuse of a police officer could constitute intimidation. Whilst the Crimes Act or other legislation focused on attacks on police do not address racism, the Racial Discrimination Act does make it unlawful to act in an offensive way on the basis of race or ethnic origin, under section 18C.

For behaviour to be unlawful in this context:

1. (18C (1)) it needs to occur in a public place; and
2. (18C (2)(a)) be reasonably likely, in all circumstances, to offend, insult, humiliate or intimidate a person or group; and
3. (18C (2)(b)) to have been done on the basis of the race, national, or ethnic origin of the victim(s).

If Ms Kerr’s conduct had occurred in Australia, it could have been caught under section 18C, given that a police station would constitute a public place for the purposes of the Act, Ms Kerr’s remark to the officer that he was “stupid and white” potentially being reasonably offensive and insulting, and the fact that the remark was made on the basis of the officer’s race.

However, the language of the Act makes it clear that any offence or hurt would be immediately felt – a crucial element of the defence mounted by Ms Kerr was that the officer did not record feeling offended at Ms Kerr’s remark when making his first statement on the incident, instead noting that he felt “shocked, upset, and humiliated” in a second report made 11 months after the initial incident.

Is it racist to call someone white?

It should be noted, much like anti-racism legislation in England and Wales, and indeed elsewhere, the Racial Discrimination Act is agnostic towards the history of race relations. Despite Ms Kerr being a woman of colour, and the police officer being white, the law considers both parties equally capable of being offenders and victims when it comes to racism. Historians and sociologists may dispute such an equivalency in the law and may have a reasonable basis to do so.

Indeed, a man recently received an eight month sentence in Armidale for racist attacks against a white police officer, demonstrating the race neutral position of the legal system. In that case, the defendant had used a range of expletives, threatened to spit at the police officer, and had a lengthy criminal history. Given the highly charged contexts against which proceedings for these kinds of matters are undertaken, it is inevitable that judges and magistrates will consider the wider circumstances surrounding a defendant.

In a country such as England with a historically and currently large white population it appears debatable that the use of the adjective ‘white’ could possibly offend, insult, humiliate or intimidate a person, which is an essential element of the charge in Australia. This remains an interesting legal, social and philosophical topic.

Recent Update in Victoria as a result of Sam Kerr’s Criminal Trial

It should be noted that Victoria has recently updated their hate speech legislation, with a requirement in place now for the police and the courts to consider social, historical and cultural factors when deciding whether or not to charge or convict an individual with an offence relating to hate speech or racial vilification. This development represents a shift away from the agnostic approach of earlier legislation and towards one that is more conscious of historical and sociological facts as they stand today.

The Context of Sam Kerr’s Criminal Trial

While Ms Kerr’s criminal record is comparatively unblemished (which would have certainly been a factor in the jury’s determination of a not guilty verdict), some have argued that her status as an internationally renowned sportswoman, in comparison to the officer’s comparative lack of wealth or fame, would have made any confronting remark addressed to the officer more intimidating due to the imbalances in income and status between the parties.

Conversely in the immediate circumstances, particularly in the confines of the police station, the police officer certainly has considerable powers. In contrast Ms Kerr was at risk of losing her liberty and it could be argued that Ms Kerr had been held against her wishes while driven in the taxi to the police station. Even a successful, internationally renowned sportswoman may feel anxious and intimidated in such circumstances, as any other member of the community may.

This aspect of the case certainly highlights the need for police to exercise their considerable powers impartially and cautiously. Such caution is required in the immediacy of the situation and subsequently when deciding to charge Ms Kerr.

The London based jury determining guilt in Sam Kerr’s criminal trial would have also likely considered factors, such as the conduct and powers of the police, the Metropolitan Police’s problematic record on racism and sexism, evidenced by numerous reports, such as the Baroness Casey Review, as well as tragic events such as the murder of Sarah Everard. The above may have been important elements of the context of the interactions between Ms Kerr and the officer. The jury was also shown a video recording of the full interaction, during which the officer referred to Ms Kerr as “little Missy”.

Concluding Reflections

Sam Kerr’s criminal trial serves as a reminder that any criminal trial before a jury, and especially one where racism is at the heart of the allegations, will inevitably be contextualised within the societies in which they take place. More than many other kinds of proceedings, these trials demonstrate that the law does not operate in a vacuum and is influenced by the realities of a society and the experiences of those who live in it.

The case also raises issues regarding the conduct of police particularly when making a decision to prosecute any member of the public for offences against police.

How can BSM Sydney Lawyers assist you?

Perhaps the least contested part of the trial was that no particular party covered themselves in glory regarding what happened. However, if you are unlucky enough to find yourself in a similar position, the expert criminal lawyers at Brander Smith McKnight Lawyers Sydney are highly experienced in helping you navigate all types of criminal offences. Our criminal lawyers regularly appear in the Local, District, Supreme and Children’s Courts and achieve excellent results for our clients. The criminal legal team at BSM Sydney Lawyers listen to you carefully to determine the best possible defence strategies. We will usually represent you without a barrister to save you expense. The criminal lawyers at BSM law firm Sydney offer a free 20 minute consultation.

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