FEDERAL COURT OF AUSTRALIA

Robinson v Commissioner of Police, New South Wales Police Force [2013] FCAFC 64

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants pay the costs of the respondent, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1        This is an appeal from a dismissal of a variety of claims based on alleged contraventions of discrimination legislation: Robinson v Commissioner of Police, NSW Police Force (2012) 292 ALR 702. The appellants are self represented. The first appellant (Mr Robinson) who argued most of the appeal suffers from a mental disability. Both of the appellants, notwithstanding painstaking efforts by the primary judge, have experienced substantial difficulty in grappling with relevant legislation and procedural provisions and the rules of the Court. In very large measure their complaints and appeal grounds assert procedural unfairness to their case. For that reason it is necessary in this instance to focus more than usual on the progress of the litigation and the steps taken by the primary judge. The complaints of the appellants are unfounded.

2        In March 2009, while investigating alleged offences said to involve the use of valueless cheques, members of the New South Wales Police Force intercepted a vehicle driven by Mr Robinson about 100 metres from his home address and arrested him. Mr Robinson asked the police to be returned to his house as he needed medication. When he was questioned further, he dropped to the ground, closed his eyes and started shaking. Police at the scene formed the view that he had feigned a seizure but nevertheless called an ambulance.

3        The second appellant (Ms El Masri) is Mr Robinson’s de-facto partner. She resides in the same house as Mr Robinson and, shortly after these events, arrived at the arrest scene. She gave medication to Mr Robinson. Mr Robinson was taken to hospital under police supervision while the house was searched by other members of the New South Wales Police Force.

4        Hospital notes during his stay recorded a variety of symptoms and medical history but made no reference to the apparent seizure. There was a conflict of evidence as to whether the police prevented Ms El Masri from following Mr Robinson to hospital or, rather, offered her a choice of going to the hospital or staying to watch the search.

5        After Mr Robinson was discharged from hospital, he was taken to the police station. A decision was taken not to interview him in light of his condition. Ms El Masri later arrived at the police station and was permitted to speak with Mr Robinson but she was unable to ‘get any sense out of him’. During this time, police prepared a ‘Facts Sheet’ and other documents.

6        The police were concerned about Mr Robinson’s health they returned him to hospital for further assessment. After being given a dose of Seraquel, Mr Robinson was returned to the police station where he was bailed. He left the police station with Ms El Masri.

7        In the Facts Sheet prepared by the senior attending police officer, it was stated that he strongly believed that Mr Robinson had ‘feigned illness in an attempt to utilise the benefits of the Mental Health Act’ (such belief being reiterated in the reasons for bail decision and affecting the bail conditions imposed upon Mr Robinson). The appellants asserted in their amended points of claim that:

    the police officer had used New South Wales Police Force computer equipment to note, create, publish and distribute the Facts Sheet;

    a second police officer gave false or misleading information to the medical staff at the hospital about Mr Robinson’s medical condition and criminal history without Mr Robinson’s consent;

    the second police officer interfered in Mr Robinson’s medical treatment; and

    the second police officer failed to contact or allow Ms El Masri inside the ambulance as Mr Robinson’s support person.

8        The appellants also complained that at the hospital, a police officer travelled with Mr Robinson and was present when he was medically treated without Mr Robinson’s consent, laughed at Mr Robinson and told him to ‘stop faking it’ and ‘provoked, intimidated, insulted and inflicted inhuman and degrading treatment directly towards Mr Robinson’s disability at Liverpool Hospital’. The appellants complained that the police failed to treat him as a vulnerable person in accordance with cl 24(1)(b) of the Law Enforcement (Powers and Responsibilities) Regulations 2005 (NSW) (LERs) and failed to make arrangements for Ms El Masri to be present as a support person under cl 26(b)(i) of the LERs. The appellants claimed that these failures breached s 24(1) of the Disability Discrimination Act 1992 (Cth) (the DDA), prohibiting discrimination in relation to the provision of goods, services and facilities on the grounds of disability.

9        Following a hearing, the primary judge dismissed the application in a detailed decision. His Honour held that while s 24 of the DDA extended by operation of s 12(8)(e) of the DDA to Mr Robinson, it did not extend to Ms El Masri as it did not purport to apply to discrimination against a person on the basis of association ([136]–[137]).

10        The primary judge also held (at [168], [178] and [181]) that the police officers were not providing services to either of the appellants for the purposes of s 24(1) of the DDA. The performance of the particular public duties in issue did not constitute the ‘provision of services’.

11        In addition, his Honour held (at [203] and [206]) that even if Mr Robinson had been provided with services, he was not treated less favourably in relation to those services compared with a person without his disability in the same or not materially different circumstances. The perceptions held by the police would have been the same whether Mr Robinson suffered mental illness or epilepsy or not. Even absent those perceptions, the primary judge was not convinced the police would have granted unconditional bail or bail on different, let alone materially different, conditions.

12        The primary judge also concluded (at [217]) that the appellants did not identify in specific terms how the LERs were said to be breached nor was the primary judge able to deduce a breach from the evidence (at [219]). The application was dismissed.

13        It was common ground that Mr Robinson suffers and suffered from mental illness. Indeed that illness is the foundation to his disability claim. It was also common ground that Mr Robinson had been known to police for previous offences but none of the past criminal record were relevant to the matters under consideration in the appellants’ claims.

PROCEDURAL BACKGROUND

14        Ms El Masri lodged a complaint with the Australian Human Rights Commission (the Commission) on 24 May 2010. The Commission terminated that complaint on 1 September 2010 under s 46PH of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act). In the next month on 15 October 2010, the appellants filed their application in this Court pursuant to s 46PO of the AHRC Act.

15        In light of some preliminary applications made prior to the hearing of the appeal as well as various submissions made at the appeal, it is necessary to recount a little of the interlocutory history of the proceeding prior to the hearing at first instance.

16        On 9 February 2011, orders were made requiring the Police Commissioner to file and serve his defence to the appellants’ points of claim on or before 21 February 2011, the appellants to file and serve all witness statements by 21 March 2011, and the Police Commissioner to file and serve witness statements in response by 18 April 2011. The appellants were to file a statement identifying all medical reports on which they intended to rely and to serve a copy of such statements and copies of all such medical reports on the Police Commissioner by 21 March 2011. The matter was stood over for a case management conference before the primary judge on 28 April 2011 following what should have been compliance with the procedural orders.

17        Extensions of time were sought by and granted to the appellants. The Police Commissioner filed three affidavits. There was a case management conference on 13 May 2011.

18        An interlocutory hearing occurred on 15 September 2011 concerning the admissibility of the appellants’ proposed evidence. On 23 September 2011, orders were made ruling various paragraphs to be inadmissible. The primary judge gave leave for the appellants to file amended points of claim limited to the alleged unlawful discrimination.

19        In addition, the primary judge issued a referral certificate for legal assistance under r 4.12 of the Federal Court Rules 2011 (Cth) (the FCRs). That rule provides as follows:

Referral for legal assistance

(1)    The Court may refer a party to a lawyer for legal assistance by issuing a referral certificate, in accordance with Form 9.

(2)    When making a referral under subrule (1), the Court may take the following matters into account:

(a)    the means of the party;

(b)    the capacity of the party to otherwise obtain legal assistance;

(c)    the nature and complexity of the proceeding;

(d)    any other matters the Court considers appropriate.

(3)    The referral certificate may state the kind of legal assistance for which the party has been referred.

(4)    The Registrar will attempt to arrange for the provision of legal assistance in accordance with the referral certificate to a Pro Bono lawyer.

20        In November, advice was received that the appellants would be represented by counsel.

21        On 21 November, the appellants filed an application seeking leave to issue subpoenas on Detective Senior Constable Paul Mangan (DSC Mangan), Detective Constable Damien Johnson (DC Johnson), Senior Constable Zoran Taseski (SC Taseski) and various employees of Liverpool Hospital.

22        On 24 November 2011, notification was given that the legal representatives were filing an application to cease to act for the appellants.

23        On the same date, a second complaint to the Commission was terminated pursuant to s 46PH(1)(i) of the AHRC Act.

24        The Court refused leave to issue subpoenas to the three individuals from the Liverpool Hospital. The appellants wrote to the Police Commissioner’s solicitors requesting that the three police officers be subpoenaed to give evidence presumably because they had been informed by the primary judge that if they subpoenaed those officers themselves, they would be unable to cross-examine them. On 9 December 2011 the Police Commissioner’s solicitors wrote to the appellants reminding them that they had been directed by the primary judge on 30 November to serve on the Police Commissioner a copy of the Liverpool Hospital record by 5 December 2011 and also seeking an indication as to whether they would serve subpoenas on the police officers. No response was received but the appellants filed their amended points of claim and an affidavit of Ms El Masri on 14 December 2011.

25        Two days later, Ms El Masri was informed by the Police Commissioner’s solicitors that DSC Mangan would be called as a witness and could be cross-examined by Ms El Masri without a subpoena. There was no intention at that stage to call SC Taseski or DC Johnson or Inspector Wallace and if the appellants wanted them to give evidence they would need to subpoena them. They were also reminded that leave to subpoena them had been given by the primary judge.

26        The hearing took place on 19, 20 and 21 December 2011.

27        At the end of January 2012, a legal practitioner informed the associate of the primary judge that he had been requested to prepare written submissions for the appellants. He requested an extension to 1 February 2012 to do so. His Honour granted that extension.

28        The appellants’ submissions which were in fact submissions in reply were duly filed.

29        By an administrative listing on 3 February 2012, an order was also made that leave be granted to the Police Commissioner to file a response to the appellants’ written submissions on 10 February 2012. That response was filed.

30        Judgment was given on 20 July 2012.

INTERLOCUTORY JUDGMENT

31        His Honour also dealt with rulings on admissibility of evidence in advance of the hearing in Robinson v NSW Police Service [2011] FCA 1081. That interlocutory decision is relevant to some of the arguments advanced on the appeal.

32        In the interlocutory decision, the primary judge recounted the fact that Ms El Masri was the manager of Mr Robinson’s estate pursuant to an order by the Supreme Court of New South Wales under the Protected Estates Act 1983 (NSW).

33        His Honour noted (at [9]) that her complaint was expressed in the following terms:

I wish to complain on behalf of Mr Robinson about his treatment at the hands of NSW Police, and the NSW Police Force’s failure to follow requirements for dealing with people with intellectual impairment and to seek the orders [identified in another part of the complaint].

In that complaint Ms El Masri also said:

As Mr Robinson’s Manager and Guardian, I complain that the events outlined above constitute discrimination against Mr Robinson by ignoring and denying his disability, and discrimination and harassment of me as Mr Robinson’s manager and prevention of my fulfilling my role as Mr Robinson’s manager.

34        His Honour also referred to the Commission’s notice under 46PH(2) of the AHRC Act terminating the complaint under s 46PH(1)(i) of the AHRC Act.

35        The primary judge noted (at [15]) that the Commission summarised the Police Commissioner’s response in the following terms:

NSW Police advises that Mr Robinson has come into contact with police on numerous occasions since 1992. NSW Police says that on 21 March 2009 Mr Robinson was placed under arrest, conveyed to Liverpool hospital for treatment because he had a seizure and subsequently taken to Liverpool police station. NSW Police says that while Mr Robinson was in police custody on 21 March 2009, reasonable attempts were made to have a support person present and adjustments were provided to him.

NSW Police advises that on 23 March 2009 [Ms El Masri] and Mr Robinson attended Green Valley police station to inform police of his disability and to state that the reporting conditions were unreasonable due to his health situation. NSW Police advises that it is now on official police record that [Ms El Masri], as Mr Robinson’s support person, should be contacted any time there is interaction between the police and him.

NSW Police advises that the opinion expressed by the police officer that Mr Robinson feigns to have a disability, as alleged in the complaint, was ignored by other police officers because they recognised Mr Robinson as a vulnerable person.

36        In relation to the wide ranging evidence the appellants had foreshadowed adducing at the forthcoming hearing before his Honour, the Police Commissioner had submitted that:

1.    The ‘clock stops’ on the date that a complaint is lodged: Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 (at [35]-[36]). As a consequence, the Commission was permitted to look at the alleged conduct on 24 May 2010, being the date in which the written complaint was made by Ms El Masri on behalf of Mr Robinson, but not after that date.

2.    Section 46PO(3) of the AHRC Act does not provide a general statutory cause of action available to anyone who may have at any time been affected by the alleged unlawful discrimination. The action lies only in respect of the subject matter of the complaint to the Commission such that the Commission is to act as a ‘filter’ for claims of unlawful discrimination before they are brought to the Court: Grigor-Scott v Jones (2008) 168 FCR 450 (at [18]-[19]) per Emmett, Lander and Tracey JJ.

3.    The terminated complaints should not be used to launch an application to the Court which effectively bypasses the processes as provided by the AHRC Act. Alleging discrimination other than that in respect of which a complaint has been made or covering a course of conduct substantially wider or beginning substantially earlier than that initially complained of is not open despite the fact that the terms of s 46PO(3) of the AHRC Act do suggest a degree of flexibility in the application of the provision by use of the words ‘or the same in substance’ and by the use of the words ‘or substantially the same’.

37        The primary judge accepted those principles which were not contested by the appellants. As a consequence, a significant amount of material was disallowed from their affidavits. Material was also removed from two affidavits sworn on 8 April 2011 and 17 May 2011 by another witness. Those affidavits were disallowed as being based almost entirely on hearsay material or inadmissible opinion evidence. Other portions of the appellants’ affidavit were identified by his Honour as constituting argument or submission based on asserted facts. That material was treated as being submission only.

38        His Honour granted the appellants leave to file amended points of claim which limited the claim to the subject of the terminated complaint.

39        Significantly, the primary judge noted that the appellants had expressly declined to obtain legal representation in the proceeding despite his recommendations that they should do so. His Honour issued the certificate under r 4.12 of the FCRs referred to above (at [19]).

STATUTORY FRAMEWORK

40        As at 21 March 2009, prior to subsequent amendments, s 24(1) of the DDA provided as follows:

24    Goods, services and facilities

(1)    It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s disability or a disability of any of that other person’s associates:

(a)    by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or

(b)    in the terms or conditions on which the firs mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c)    in the manner in which the first mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

(emphasis added)

41        Section 5 of the DDA provided at the relevant time:

5    Disability discrimination

(1)    For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

(2)    For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.

(emphasis added)

THE SUBSTANTIVE DECISION BELOW

42        The evidence in chief given by Mr Robinson was incomplete due to his medical condition at the time of being apprehended. The primary judge therefore considered his review of the evidence by reference to the evidence of DSC Mangan, the sole witness for the Police Commissioner.

DSC Mangan - investigations

43         His Honour noted that DSC Mangan, a police officer of some 10 years experience, had in the previous month investigated a transaction which appeared to him to be suspicious. He believed that Omar El Masri and Mahmoud El Masri had attempted to sell a Mercedes Benz motor vehicle for a sum that appeared to be significantly less than its real value. The registration of that vehicle had been transferred to Mahmoud El Masri on the same day. It was ascertained by DSC Mangan that the vehicle had been reported as stolen the previous day.

44        Attempts had been made by those persons together with an Adam Rayan to transfer the registration of the vehicle to Mahmoud El Masri.

45        The police records revealed to DSC Mangan that Adam Rayan had at the time a number of aliases including Ali Kassar and David Robinson, the first appellant. DSC Mangan ascertained from police records information suggesting that Ali Kassar should be approached as follows:

APPROACH WITH CAUTION, EXTREMELY HOSTILE AND VIOLENT WHEN INFORMED HE IS UNDER ARREST WHICH APPEARS TO BE A CATALYST FOR SELF-INDUCED PANIC ATTACK IN ORDER TO AVOID ARREST.

(original formatting)

That entry was dated 18 March 2006.

Attendance at the house by DSC Mangan

46        DSC Mangan also ascertained that Ms El Masri was Mr Robinson’s de facto partner. He attended their residential address at about 9.30 am on 21 March 2009 accompanied by DC Johnson. DSC Mangan identified a vehicle parked in the front yard of the premises as being one apparently purchased in the name of Mr Robinson using a valueless cheque. At this point DSC Mangan considered there was sufficient evidence to issue a search warrant for the premises. Accordingly, he made a phone call in which he gave instructions for a search warrant to be processed. The two police officers remained in the unmarked police vehicle, waiting for the search warrant to be processed.

47        About two hours after first attending the premises DSC Mangan saw Mr Robinson leave the premises in the vehicle, turning left into a dead end street. The police officers followed and pulled the vehicle over after using a police siren. Mr Robinson alighted from the vehicle and was approached by DSC Mangan who asked for his name. Mr Robinson said his name was Adam Rayan and showed DSC Mangan a driver’s licence in that name. The evidence given by DSC Mangan was that this confirmed to him that Mr Robinson was the person concerned in the two alleged offences involving the use of valueless cheques. He therefore proceeded to arrest Mr Robinson and to caution him. The following exchange transpired:

Mangan:    Adam Rayan, you are under arrest for fraud offences involving valueless cheques. Do you understand that?

Robinson:        Fraud?

Mangan:        Yes. I am going to ask you some questions in relation to the matters. You don’t have to say or do anything if you do not wish to. Do you understand that?    

Robinson:    Yeah. Can I just go down and get my medication I am feeling faint?

Mangan:        Okay. I will record what you say and do and this recording may be used as evidence in court. Do you understand?

Robinson:        Yes. I am feeling ill. I need my meds.

Mangan:            Okay. Why are you driving then? Why did you turn up this way?

Robinson:        I just wanted to have a look at this house. It is for sale.

48        Evidence from DSC Mangan was that there were no houses for sale at the location indicated by Mr Robinson.

Mr Robinson’s fall to the ground

49        At this point, Mr Robinson fell to the ground, closed his eyes and began shaking. DSC Mangan said he then proceeded to ‘hit his head against the road’. This apparent seizure lasted for about 15 seconds and DSC Mangan instructed DC Johnson to call an ambulance. DSC Mangan was sceptical as to whether there was a seizure, explaining this in the following terms:

I have witnessed a few involuntary seizures and at the time of the seizure it just simply did not seem quite right. Mr Rayan appeared to be controlling his head and had control of his faculties. Mr Rayan appeared to be making intentional movements and was not foaming at the mouth.

I do not have medical qualifications. I am not qualified to make a medical judgment as to whether a person is undergoing an involuntary seizure or whether they may be seeking to imitate the effect of a seizure. Based on my observation of Mr Rayan, it seemed to me that Mr Rayan was gathering himself each time before his head had struck the ground, he did not seem to suffer any injury and I thought he may have been pulling back and controlling his actions.

50        Before the ambulance arrived but by the time the seizure had stopped, two other police officers arrived with a caged police vehicle and Mr Robinson was left with those officers while DSC Mangan and DC Johnson walked to Ms El Masri’s house to inform her of the arrest.

Discussion with Ms El Masri

51        DSC Mangan gave evidence that he had a conversation with Ms El Masri at the front door of the house informing her that Mr Robinson appeared to have had a seizure and that prior to the seizure he had asked for Ms El Masri because she had his medication. The evidence of DSC Mangan was that he informed her that an ambulance had been called and asked if she would follow him to Mr Robinson with his medication to which she agreed. DSC Mangan’s evidence was that he and DC Johnson then left the house and returned to the scene of the arrest.

52        Shortly after, Ms El Masri arrived at the scene and by this time ambulance officers were present and assessing Mr Robinson. DSC Mangan noticed that Ms El Masri placed what seemed to be a pill in Mr Robinson’s mouth and told DSC Mangan that he had had an accident in which he had hit his head and that he had fits from time to time. She also gave DSC Mangan a certified copy of the order made by the Supreme Court of New South Wales appointing her the manager of Mr Robinson’s estate. DSC Mangan’s evidence was that at that point he said to Ms El Masri, ‘Look, I’m sorry but despite this order the police will still have to continue with [Mr Robinson’s] arrest’.

At Liverpool Hospital

53        Mr Robinson was then taken to Liverpool Hospital in the ambulance accompanied by DC Johnson in the ambulance. The evidence of DSC Mangan was that while waiting for the vehicle to be towed and stored, Ms El Masri showed him newspapers articles about Mr Robinson, explaining amongst other things that Mr Robinson was mentally ill and that he took the drug Seraquel. The evidence of DSC Mangan was that the following exchange occurred with Ms El Masri:

Mangan:    A search warrant has been processed for your place. You can either stay here while the search is being conducted or you may collect a few of your essential items and go the hospital be with Mr [Robinson]?

Ms El Masri:    No, I want to stay here.

54        The evidence of DSC Mangan was that he later received a telephone call from DC Johnson who informed him that Mr Robinson ‘had an outburst that the hospital and he had allegedly kicked in and smashed a window’. He said that in consequence of that he suggested to Ms El Masri that she should probably go to the hospital to be with Mr Robinson (although throughout this exchange the name Mr Rayan was used). DSC Mangan’s evidence was that Ms El Masri wanted to retrieve some baby things from the house to which he responded that he did not want her to hinder the investigation by destroying any potential evidence within the house. To this she said, ‘No I should wait at home until the search warrant is complete’.

At Liverpool Police Station

55        DCS Mangan said the next time he saw Mr Robinson was at the Liverpool Police Station around 6.00 pm and he appeared to be drowsy, dazed and not lucid. DSC Mangan therefore decided not to interview him at that stage. He took his photograph and fingerprints but did not question Mr Robinson about the allegations against him. He was granted bail by a custody officer who also gave Mr Robinson some documents which included the Facts Sheet prepared by DSC Mangan.

56        This is a document to which the appellants attribute significance in their case. It is necessary, therefore, to extract its terms which, at least in part, are as follows. It included a lengthy statement of events relating to the offences in respect of which Mr Robinson was subsequently charged and bailed on 21 March 2009 and also a section headed ‘ANTECEDENT’ (the antecedent section) which read as follows:

The accused has a lengthy criminal history and has committed numerous identical offences to these for which he will be charged at a later stage. The accused appears to suffer from a mental illness but police strongly believe that this is a feigned (sic) illness in an attempt to utilise the benefits of the Mental Health Act in the judicial process. The offences that he has committed are calculating and cunning enough to fool average victims into believing that he is a genuiene (sic) buyer of the property that they are selling. The accused is being medically treated and cared for by his carer Sonia EL MASRI. Should bail be granted in this case it is requested that the strictest of conditions be imposed to ensure the accused presentation at court and to deter him from committing any further offences. As suggested there are further investigations involving the accused for which he will be charged and are not being dealt with at this time due to his mental presentation. Strict conditions would ensure that the accused (sic) whereabouts are known by police at all times. He has shown that he is capable of incredible deception.

(emphasis added)

57        DSC Mangan explained that the emphasised part of the statement was based on his own observations of Mr Robinson on 21 March 2009 and on the police record concerning Ali Kassar which, as noted above, was one of Mr Robinson’s aliases. DSC Mangan gave evidence that the antecedent section is a facts sheet and is intended to assist the Court when dealing with the matter in relation to bail or sentencing. He explained it was usual for police officers to prepare facts sheets to include the occupation of the accused, whether the accused had been charged with any other offences, whether the accused has failed to appear on a previous occasion, and whether or not bail should be refused. It is also the usual practice for police officers to include their own opinion on the accused as it may assist custody managers in their decision to grant bail or not. DSC Mangan gave evidence that in his almost 10 years of experience as a police officer, he has always felt comfortable including his opinion about an accused in the antecedent section if he believed it would assist the Court or the custody manager when dealing with the accused.

58        In addition to these observations, DSC Mangan gave evidence about Mr Robinson’s presentation when he was arrested originally on 21 March 2009 saying:

In my opinion Mr Rayan had control of his faculties. His actions during his seizure seemed to me, to be intentional rather than involuntary. From my earlier investigations, I had also formed the view that Mr Rayan was capable of participating in a very involved process to facilitate and encourage members of the public to accept valueless cheques on the guise that he was a genuine purchaser. I formed the view that Mr Rayan was able to ‘put it on’ when he was required to and was extremely calculated in his interactions with other people.

59        DSC Mangan’s account of the events was somewhat different from the account given by Ms El Masri on various matters. He did accept, however, in cross-examination that he warned Ms El Masri not to interfere with the investigation which was taking place, being concerned that she might remove property from the house. He said that he had no objection to Ms El Masri collecting essential baby items for her young child in order to follow Mr Robinson to the hospital. DSC Mangan said that Ms El Masri changed her mind and stayed at the house saying that she wanted to stay there while the search warrant was being executed. DSC Mangan’s evidence was that he waited outside the house until other police officers arrived to execute the search warrant.

60        The primary judge did not accept all his evidence without scrutiny. His Honour noted two apparent inconsistencies between DSC Mangan’s evidence in cross-examination and his affidavit evidence. First, in his affidavit DSC Mangan gave evidence of conversations with Ms El Masri at the scene of the arrest in which she had initially stated that she wanted to remain while the search warrant was being executed at the house. Later, on DSC Mangan’s urgings, she indicated that she would go to the hospital but changed her mind. However, in cross-examination he said that it was his understanding that Ms El Masri wanted to go to the hospital but changed her mind at the house. The other matter which DSC Mangan accepted in cross-examination by Ms El Masri was that Mr Robinson did not have a support person when DSC Mangan arrived at Liverpool Police Station early on the evening of 21 March 2009. In his affidavit he expressed this slightly differently.

61        It is apparent that despite these minor discrepancies, the primary judge had no substantial doubts as to the evidence given by DSC Mangan. Indeed, as his Honour observed, ultimately the key facts were relatively uncontentious.

Evidence from Mr Robinson

62        As noted, Mr Robinson was not in a position to give comprehensive evidence due to his condition at the time. For the purpose of preparation of his evidence at the hearing, Ms El Masri prepared an affidavit for him. He spoke about being placed in ‘the padded room’ at Liverpool Hospital on his arrival on 21 March 2009. He gave evidence of a conversation with Ms El Masri. He said that a police officer laughed at him and told him to ‘stop faking it’ which made him feel ‘so angry’. He also said that the hospital staff held him down and gave him an injection.

63        Mr Robinson said that he was released into DC Johnson’s custody while ‘under the influence of anti-psychotic drugs injected into my body by Liverpool Hospital medical staff and no support person present’. Again, at the Liverpool Police Station, Mr Robinson said that DSC Mangan said to him, while taking his photograph in a custody cell, words to the effect of:

Stop faking it … Put your head up … the hospital staff didn’t want anything to do with you, so get over it … it would have been much easier if you didn’t fake it from the start.

64        Mr Robinson said that DSC Mangan and other police officers laughed at him. However, in cross-examination he said he had no memory of the events beyond what he could ascertain from reading documents or from what he had been told by Ms El Masri. He had no memory of what medication he was taking, what car he was driving or even that he was able to drive. He had no memory that he had held a driver’s licence in the name of Adam Rayan, although he accepted he did use that name at the time.

65        Mr Robinson had very little independent recollection of the events of the day at all. While he referred to refreshing his memory from notes in his diary, it emerged later on that he did not keep a diary as such but would just make notes on pieces of paper or in his telephone.

Ms El Masri’s evidence

66        The evidence of Ms El Masri was also provided by an affidavit sworn on 4 April 2011 on which she was cross-examined. Her evidence was that Mr Robinson was ‘sick on the floor on the side of the road (approximately 100 mtrs) from our home’. Her evidence was that DSC Mangan said in relation to this: ‘Who cares? He’s … not sick, he’s going to gaol’.

67        Her evidence was that DSC Mangan stood in front of her and blocked her from leaving the scene and did not at any time say she was under arrest or give her any reason at all as to why he would not let her leave the scene. All of this was denied by DSC Mangan. The primary judge recorded her cross-examination at some detail. In particular, she did not agree that it was open to her to decide to go in the ambulance with Mr Robinson. She said she was scared and thought she was going to be arrested. At the house she said that she was told by DSC Mangan that she could not take anything out of the home.

Documentary records

68        The ambulance arrived at Liverpool Hospital some time before 12.25 pm at which time Mr Robinson was seen by a nurse. Notes by hospital staff recorded that Mr Robinson was ‘under police custody after allegedly using fake cheques’. The notes recorded that when approached by police Mr Robinson became short of breath. The notes also regarded that his medical history included ‘bi-polar, brain injury, schizophrenia’ and a history of non-compliance with his medications. The notes further recorded that Mr Robinson was ‘alert, aggressive, pacing around isolation room, wanting to leave and swearing’. The primary judge accepted that the notes accurately described Mr Robinson’s behaviour at the time. His Honour concluded that the medical history was given to hospital staff by Mr Robinson, not by DC Johnson.

69        There are other indicators of aggressive conduct at the time including the fact that Mr Robinson had kicked a window in the observation room and shattered it. However, by 1.45 pm, Mr Robinson was settled and ‘talking about suing everyone’. At 1.50 pm he requested ‘camera footage’ and wanted the hospital to ring his ‘carer’ as well as the St George Acute Care Unit ‘as they treat him better’.

70        The primary judge also recorded the observations made by Senior Constable Tomasic (SC Tomasic), the custody officer in charge when Mr Robinson arrived at Liverpool Police Station, whose account was generally consistent with the observations of DSC Mangan and with the hospital notes. SC Taseski recorded the following concerning Mr Robinson:

the prisoner does display all signs of been a vulnerable person. He is slow in his movement, shakes uncontrollable. Commenced to swing backwards and forwards whilst waiting in custody. He has dry wretched a number of times. In presence of support person part 9 not administered. Realy concerns exist as to his health. to be taken to liverpool hospital again.

(as in original)

71        He also subsequently recorded the following in relation to the reasons for bail decision:

The accused is charge with a serious offence. He has been treated under the mental health act previously but Police believe this is an act by the accused to utilise the system. Reporting conditions are to apply to monitor

(as in original)

Main evidentiary conflict

72        The primary judge noted that a number of the conflicts were trifling but the main area of conflict was whether at the scene of the arrest or later at Ms El Masri’s house DSC Mangan prevented Ms El Masri from following Mr Robinson to Liverpool Hospital, as Ms El Masri had said, or whether he told her that she could collect a few essential items and go to the hospital with Mr Robinson or remain while a search was conducted at her house.

73        His Honour found it unnecessary to resolve that conflict but recorded that should a contrary view be taken, he was not satisfied that the appellants had established, on the balance of probabilities, that DSC Mangan had prevented Ms El Masri from following Mr Robinson to hospital. In that regard, his Honour set out his reasons at some length (at [105] –[108]) as follows:

105    First, Mr Robinson, plainly, could not give evidence about that matter. He was not a party to it. The only witness on behalf of the applicants who could give evidence about that matter was Ms El Masri. However, I have doubts about the reliability of Ms El Masri’s evidence. Generally, her account of events, as given in her affidavit, which stood as her evidence in chief, was far from complete. Indeed, her account was minimal, to say the least. It dealt only with the matters I have identified in [65] to [67] above. The balance of her evidence arose from answers she gave in cross-examination. Her evidence in this regard was not always consistent. For example, she said that she walked to the scene of the arrest. Later, she said that she drove to the scene. In general, her answers in cross-examination were difficult to follow because they were not necessarily related, chronologically, to the specific event referred to in the question she was asked. On occasion her answers were given in a somewhat combative way. I have no doubt that she feels that Mr Robinson has been treated unfairly by the police, not just on this occasion but on other occasions. As Mr Robinson’s carer she has taken particular umbrage at the antecedents statement made by DSC Mangan in the Facts Sheet he prepared, which stated his belief that Mr Robinson had feigned a mental illness. I have no doubt that her concerns for Mr Robinson are real and genuine. However, I am also cautious of the possibility, which I believe to be a real possibility, that she has a heightened sense of what she regards as the unfairness of Mr Robinson being involved with the police in the criminal justice system, which has affected her own perception of events as they concern Mr Robinson and her ability to recount them reliably. For example, in her cross-examination of DSC Mangan, Ms El Masri showed a propensity to link propositions of fact when a linkage did not exist except on the basis of assumption.

106    Secondly, nothing has been advanced by the applicants as to why, objectively, DSC Mangan would want to prevent Ms El Masri from following Mr Robinson to Liverpool Hospital. Certainly nothing was put to DSC Mangan in that regard. Whatever personal views DSC Mangan had at the time about the genuineness of Mr Robinson’s seizure following his arrest on that day, or more generally about the state of his mental health, DSC Mangan was obviously of the view that an ambulance should be called so that Mr Robinson could be taken to hospital to receive whatever treatment was deemed necessary by trained medical staff. There does not seem to be any reason why, in relation to the offences for which Mr Robinson was being investigated, Ms El Masri should not have been present with him at the hospital. Indeed, in light of Mr Robinson’s subsequent aggressive behaviour at the hospital, which resulted in him smashing a window, one could well understand that, on being informed of this, DSC Mangan would suggest to Ms El Masri that she go to the hospital to be with Mr Robinson. One would have thought that, from the perspective of the police, Ms El Masri’s presence at the hospital would have been desirable because, as Mr Robinson’s carer, she might have been able to exert a calming influence on him in what must have been difficult circumstances for the police and the hospital’s staff.

107    Thirdly, I was able to closely observe DSC Mangan in the course of his cross examination by Ms El Masri. He was attentive to her questions and gave his answers in a calm and considered way. He rejected the suggestions that he forbade Ms El Masri from travelling to the hospital or impeded her from doing so. He remained firm in his evidence. Indeed he made clear that, at one point, he even encouraged Ms El Masri to go to the hospital. I have no reason to doubt the general effect of his evidence, but for the contrary evidence given by Ms El Masri. However, for the reasons I have expressed, I have doubts about the reliability of her evidence.

108    I do not leave out of account the contradictory evidence given by DSC Mangan about Ms El Masri’s stated intentions either to follow Mr Robinson to Liverpool Hospital or to remain at the house. This casts some doubt on the reliability of that part of his evidence. I accept, however, the general tenor of his evidence that he did not prevent Ms El Masri from following Mr Robinson to Liverpool Hospital. The effect of DSC Mangan’s evidence was that he was concerned to ensure that Ms El Masri did not remove items from the house that might interfere with his investigation of Mr Robinson. He agreed that he had warned Ms El Masri not to interfere with the investigation. I am satisfied that DSC Mangan must have exerted some control over the manner in which Ms El Masri sought to have access to the house and its contents prior to the search warrant being executed. It is entirely possible that, in her own way, Ms El Masri understood this as a constraint on her following Mr Robinson to the hospital. I am not satisfied, however, that DSC Mangan positively prevented her from doing so. If there was any misunderstanding about that matter, it was Ms El Masri’s mistake.

74        His Honour also observed (at [109]) that Mr Robinson’s complete absence of recollection stood in stark contrast to the detailed affidavit he had sworn and which had been prepared by Ms El Masri. His Honour understandably placed little weight on his affidavit evidence and rejected, as an example, the assertion that DC Johnson had goaded Mr Robinson at Liverpool Hospital as Mr Robinson purported to recount in his affidavit.

The claims at trial

75        There were eleven key claims advanced before his Honour. They were summarised by the primary judge (at [110]) as follows:

1.    DSC Mangan made the following statement concerning Mr Robinson: ‘The accused appears to suffer from a mental illness but Police strongly believe that this is a feigned illness in an attempt to utilise the benefits of the Mental Health Act in the judicial process’.

2.    DSC Mangan used New South Wales Police Force computer equipment to note, create, publish and distribute the Facts Sheet in which he made the quoted statement.

3.    DC Johnson gave false or misleading information to medical staff at Liverpool Hospital about Mr Robinson’s medical condition and criminal history, without Mr Robinson’s consent.

4.    DC Johnson interfered in the way in which Mr Robinson should have been medically treated at Liverpool Hospital.

5.    DC Johnson failed to contact and allow Ms El Masri to be Mr Robinson’s support person (i) inside the ambulance which conveyed Mr Robinson to Liverpool Hospital, and (ii) at Liverpool Hospital.

6.    DC Johnson volunteered to travel with Mr Robinson and was present while Mr Robinson was being medically treated at Liverpool Hospital, without Mr Robinson’s permission or consent.

7.    DC Johnson laughed at Mr Robinson and said: ‘Stop faking it’.

8.    DC Johnson ‘provoked, intimidated, insulted and inflicted inhuman and degrading treatment directly towards [Mr Robinson’s] disability at Liverpool Hospital, Emergency Department, at the Mental Health Ward inside ‘the padded room’.

9.    Senior Constable Taseski ‘accepted’ DSC Mangan’s quoted statement.

10.    Senior Constable Taseski made the following statement in the Reasons for Bail Decision: ‘He has been treated under the Mental Health Act previously. Police believe this is an act by the accused to utilise the system. Reporting conditions are to apply to monitor’.

11.    Senior Constable Taseski made the following statements in Mr Robinson’s bail undertaking: ‘The grant of bail is subject to the following conditions’ and ‘I agree to observe as a condition of my bail the following requirements as to my conduct’.

76        In amended claims, certain other matters were added. His Honour noted that the findings of fact which he had reached required rejection of the unlawful discrimination in relation to DC Johnson in respect of the acts alleged in subpara 3, 4, 5 and 8 which failed at the outset for want of proof. Subparagraph 5 was an aspect of the allegation that DC Johnson breached the LERs.

Residual legal and factual issues for determination

77        It followed that the issues for his Honour’s determination, as his Honour perceived them (at [114]), were:

1.    Does s 24 of the DDA extend, by operation of s 12, to the claims made by the [appellants]?

2.    If so, was the respondent providing ‘services’ to each of the [appellants], respectively, for the purposes of s 24(1)?

3.    If Mr Robinson was provided with services, was he treated less favourably in relation to those services compared to a person without his disability, in the same circumstances or in circumstances that are not materially different?

4.    If so, was Mr Robinson’s disability a reason for that less favourable treatment?

Application of s 24 of the DDA

78        His Honour noted (at [116]) that the DDA applies throughout Australia but that s 24 is one of a number of defined ‘limited application provisions’, such provisions only having effect to the extent they are supported by reference to certain heads of Commonwealth legislative power. Beyond that, they do not have effect: see s 12(4).

79        After referring to s 12(8) of the DDA, his Honour noted that the sub-section draws on s 51(xxix) of the Constitution for its authority, particularly s 12(8)(b) and s 12(8)(e). Insofar as the International Covenant on Civil and Political Rights (the ICCPR) is concerned, the English text of that is now set out in Sch 2 of the AHRC Act.

80        The primary judge then set out various extracts from the Preamble and Arts 2, 9 and 10 of the ICCPR.

81        The appellants contended before the primary judge that by reason of the Preamble and cited articles of the ICCPR, the granting of bail to a person arrested and charged with offences is one of the procedures contemplated by the ICCPR in respect of which there must be no discrimination on the grounds of disability.

82        In relation to Ms El Masri’s claims, the primary judge noted (at [127]) that it was submitted that Mr Robinson was a vulnerable person within the meaning of cl 24 of the LERs by reason of his ‘impaired intellectual functioning’. As such he was entitled under cl 27 to contact his support person and have his support person present during any investigative procedure.

The role of the provision of services

83        The appellants’ submission was that Art 9 of the ICCPR prohibits the detention of any person other than in accordance with the procedures established by law. After noting (at [128]) that s 24 is not directed in terms to the detention of persons and the rights of individuals in relation to detention, the primary judge observed that it concerns the provision of services and, more specifically, refusing to provide services, the terms or conditions on which services, as the primary judge noted (at [128]), are provided, and the manner in which such services are provided. It follows that as a preliminary matter, s 24 of the DDA can only give effect to the ICCPR if the articles on which the appellants then relied concern the provision of ‘services’ as understood by s 24. As his Honour reasoned, this requires an assessment of the meaning of the word ‘services’ in s 24. If the alleged acts of discrimination relied upon by the appellants do not concern the provision of services as understood by s 24, then s 24 will not be engaged and the jurisdictional question raised by s 12(8)(b) will become otiose.

84        In favour of Mr Robinson, his Honour concluded (at [136]–[137]) that while s 12(8)(e) extended s 24 to Mr Robinson’s claim (making further consideration of the effect of s 12(8)(b) unnecessary), it did not extend the section to Ms El Masri’s claim. That is because s 12(8)(e) only provides that s 24 only applies in relation to discrimination against a person with a disability. It does not purport to apply s 24 to discrimination against a person on the basis of association. The same conclusion followed with respect to Ms El Masri’s reliance on s 12(8)(b). That connection, the operation of s 12(8) can be contrasted with the operation of other subsections in s 12 which are not, in turn, so confined. Section 12(4) provides that the limited application provisions had effect as provided by s 12 ‘and not otherwise’.

85        It followed that Ms El Masri’s claim was dismissed.

Services were not provided

86        As to Mr Robinson, a key issue was whether ‘services’ were provided. His Honour cited IW v The City of Perth (1997) 191 CLR 1 (at 16-17) where Brennan CJ and McHugh J, in considering provisions materially similar to s 24 of the DDA (namely, s 66K(1) of the Equal Opportunity Act 1984 (WA)) noted that it was necessary to identify with precision what service has allegedly been refused or provided. Similar comments were also made by McHugh J in Waters v Public Transport Corporation (1991) 173 CLR 349 (at 404 – 405).

87        As the primary judge noted (at [142]), the appellants defined ‘services’ as being those ‘dealing with’ Mr Robinson’s application for bail. Prior to the written submissions, the appellants’ claim had been directed to the police conduct concerning the arrest and the decision to convey him to hospital and DSC Mangan’s preparation of the Facts Sheet. The complaint about the bail was a significant departure but nevertheless the primary judge was satisfied (at [144]) that the shift in focus still found a basis in the amended points of claim.

88        His Honour went on to consider s 4 and s 24 of the DDA which defines services in the following way:

services includes:

(a)    services relating to banking, insurance, superannuation and the provision of grants, loans, credit or finance; or

(b)    services relating to entertainment, recreation or refreshment; or

(c)    services relating to transport or travel; or

(d)    services relating to telecommunications; or

(e)    services of the kind provided by the members of any profession or trade; or

(f)    services of the kind provided by a government, a government authority or a local government body.

(emphasis added)

89        The primary submission for the Police Commissioner was that ‘services’ was a term apt to cover ‘any helpful activity’ by inter alia a government authority for the purpose of s 4 of the DDA.

90        His Honour considered the High Court’s analysis in IW. The question in that case was whether or not the City of Perth was providing a service in granting or refusing a planning application: see Dawson and Gaudron JJ (at 23), Toohey J (at 27 - 28), Gummow J at 44 (at 74-75) and Brennan CJ and McHugh J (at 15). The primary judge summarised the outcome of IW in this way:

157    [Brennan CJ and McHugh J] rejected the contention that the City of Perth provided ‘any service of giving planning approval’ or ‘any service of refusing approvals’: see at 16-17. Their Honours found that the Council, acting on behalf of the City, merely had a duty to consider applications and a discretionary power to refuse or approve those applications unconditionally or on conditions. Their Honours thus held (at 17):

… the granting or refusal of an application was the end product of a deliberative process. Approval of an application no doubt conferred a benefit on an applicant. But it misdescribes the process to say that the Council provided a service of giving approvals. Certainly the process was not an ‘exercise of a discretion to give planning approval to allow the use of premises for a particular purpose in a specific locality’ (emphasis added) as the Tribunal held. …

91        After consideration of Rainsford v Victoria (2005) 144 FCR 279, the primary judge proceeded to examine the nature of the New South Wales Police Force which was established by s 4 of the Police Act 1990 (NSW) (the PA). As his Honour observed, the PA provides that the New South Wales Police Force has a number of functions, one of which is to provide police services for New South Wales. Those services are defined in s 6(3) of the PA in a non-exhaustive manner, as follows:

‘police services’ includes:

(a)    services by way of prevention and detection of crime, and

(b)    the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and

(c)    the provision of essential services in emergencies, and

(d)    any other service prescribed by the regulations.

92        His Honour acknowledged, therefore, that it was apt to refer to the New South Wales Police Force as providing services in appropriate cases.

93        His Honour concluded (at [167]) that it was necessary to focus on the position of the person alleging discrimination to identify whether services were being provided or refused to that particular person and to others in the same circumstances or in circumstances that are not materially different. Citing IW (at 16), the primary judge held that it does not follow from the fact that the public or a section of the public benefits from an activity that, in a given case of alleged discrimination, a service is relevantly involved.

94        His Honour concluded (at [168]) that DSC Mangan and DC Johnson were not providing services to Mr Robinson for the purposes of s 24 of the DDA when pursuing and arresting him on 21 March 2009. Similarly, the primary judge concluded (at [168]) that DC Johnson was not providing services to Mr Robinson in maintaining custody over him in the ambulance and at the hospital. His Honour concluded that it followed, therefore, that none of the complaints made by the appellants in relation to Mr Robinson’s treatment on the way to and while at Liverpool Hospital could fall within the purview of s 24 of the DDA even if, contrary to his findings, those components in the case of DC Johnson could be made out as matters of fact.

95        Similarly, his Honour was not persuaded that either DSC Mangan or DC Johnson were providing services to Ms El Masri on 21 March 2009 at the scene of the arrest, nor that DSC Mangan was providing services to Ms El Masri while waiting for other police officers to arrive to execute the search warrant at her house, even if he had been satisfied that s 12(8) of the DDA was capable of extending s 24 to the claim by Ms El Masri as an ‘associate’ (which he was not).

Granting bail is not a service

96        The remaining issue raised by the reply submissions at first instance was the question of whether ‘dealing with’ Mr Robinson’s bail application constituted a service. That meant, according to the appellants’ submissions, ‘considering and disposing of’ that application or ‘considering whether to exercise the discretion to grant or refuse bail’.

97        His Honour examined the provisions of the Bail Act 1978 (NSW) (the BA) and, in particular, the consequences of granting bail under s 7(1), the authority conferred on police officers to grant bail under s 17, the manner in which that function should be discharged under s 18 and the giving of undertakings in accordance with s 34 of the BA. His Honour also gave specific attention to s 37 of the BA. While he accepted that the word ‘services’ is a word of generality to be given a broad meaning, he was unable to accept the submission that an authorised officer acting pursuant to duties imposed by s 18 of the BA and its related provisions can amount to ‘providing services’ to accused persons. His Honour gave the following reasons (at [180]):

When granting police bail an authorised officer is granting authorisation to an accused person to be at liberty instead of remaining in custody. However, that liberty is not unregulated. It is liberty under the Bail Act: see the definition of ‘bail’ in s 4(1). The granting of bail is not so much the provision by a government authority of services to accused persons, but the exercise of government authority, in the operation of the criminal justice system, to control such persons and to regulate their liberty. It is a modification of the state of liberty that is enjoyed by others. Aspects of activity within the exercise of that control, such as the deliberative process of an authorised officer determining whether to grant bail and, if so, on what conditions, and the provision of information to be used for the purposes of that deliberative process, do not take on any different character so as to become, separately, services provided to accused persons. All of these activities are inseparable from the mechanism of control that is exercised over accused persons, whose liberty is only that which the Bail Act itself provides for. As Buxton LJ observed in Gichura v Home Office [2008] ICR 1287 at [17], ‘…it would be a rather strange application of the concept of providing a service to say that one is providing a service to somebody when one is in fact restricting them from doing what they want to do’. See also Rainsford 167 FCR 1 at [78].

98        As a consequence, the various interactions between the appellants and the members of the New South Wales Police Force on 21 March 2009 were held not to involve ‘services’ for the purpose of s 24 of the DDA.

Mr Robinson was not given less favourable treatment

99        His Honour went on to consider, lest a different view be taken about the scope of the word ‘services’ in s 24 and contrary to his own conclusion that ‘dealing with’ Mr Robinson’s bail application did not involve the provision of ‘services’, the assertion of ‘less favourable treatment’. His Honour referred to s 5(1) of the DDA by which a person discriminates against another if that person treats or proposes to treat the person with a disability less favourably than someone without that disability – in the same circumstances or in circumstances that are not materially different – and the reason for the less favourable treatment is the person’s disability. The appellants did not invoke s 6 of the DDA which concerns indirect disability discrimination.

100        Mr Robinson relied for his contention on a contribution of factors. The first was the suffering of epilepsy. The second was the requirement to consider a person who is not suffering an epileptic fit at the time of arrest on 21 March 2009 and who had not feigned a seizure. The appellants submitted that had Mr Robinson not suffered an epileptic fit, he would simply have been conveyed from the scene of his arrest to the Liverpool Police Station and suspicion as to his feigning a seizure would not have been aroused. In those circumstances, it was argued that DCS Mangan would not have recorded in the antecedent section of the Fact Sheets that:

Mr Robinson appears to suffer from mental illness but police strongly believe that this is a feigned illness in an attempt to utilise the benefits of the Mental Health Act and the judicial process.

101        It was also argued that it would also not be recorded that Mr Robinson had shown that ‘he is capable of incredible deception’. Had DSC Mangan not made those statements, it was argued, SC Taseski as relevant custody manager would not have recorded that Mr  Robinson had engaged in an ‘act’ to ‘utilise the system’. The appellants contended in counsel’s written submissions after the hearing that the making, recording and communicating of these statements by DSC Mangan to SC Taseski satisfied the requirement of less favourable treatment of Mr Robinson because of his disability. Absent these statements, SC Taseski would have granted unconditional bail to Mr Robinson which he was obliged to do unless the circumstances required conditions to be imposed to promote specified purposes. The imposition of ‘the strictest’ bail conditions was also less favourable treatment of Mr Robinson because of his disability.

102        These written submissions were the first occasion, however, in which Mr Robinson had contended that he was suffering from epilepsy as distinct from mental illness. This was a complete change in direction according to the primary judge. The focus of the appellants’ case until that point had been that Mr Robinson suffered a brain injury that could have been frontal lobe damage. Various psychiatric diagnoses had been made including Bipolar Disorder, Schizoaffective Disorder and Acquired Brain Injury. He had been treated with anti-psychotic and mood stabilizing medications. There had been references to occasional epilepsy but no diagnosis was made at Liverpool Hospital of an epileptic fit earlier that day. Nevertheless, his Honour was of the view that Mr Robinson must have conveyed to SC Taseski that Mr Robinson had suffered epilepsy in the past as that had been recorded by SC Taseski.

103        On this topic the primary judge took an approach which differed from the Police Commissioner’s submission. That submission was to the effect that the relevant query was how members of the New South Wales Police Force would have treated a person who did not have a disability but collapsed when an arrest was conducted. In other words, would the attending police officers have called for an ambulance? The primary judge took the view, however, that focusing on whether or not an ambulance would have been called for a person without Mr Robinson’s disability did not address the issue of discrimination raised in the appellants’ written reply submissions. That was not directed to the service provided or refused on the occasion of Mr Robinson’s apparent seizure at the time of his arrest but rather to the asserted services of dealing with Mr Robinson’s bail application.

104        The question was not whether DSC Mangan would have treated a person without Mr Robinson’s disability differently at the time of the apparent seizure but whether SC Taseski would have treated a person without Mr Robinson’s disability differently when ‘dealing with’ a bail application for the offences for which Mr Robinson was charged and in the particular circumstances in which Mr Robinson found himself at the time. Those circumstances included the fact that DSC Mangan believed that Mr Robinson feigned a seizure at the time of the arrest. This was based on the observations by DSC Mangan and on the information he obtained from the police file which was, in turn, carried forward to form part of SC Taseski’s consideration as to Mr Robinson’s bail application.

105        After considering Purvis v New South Wales (2003) 217 CLR 92 (at [222]–[224]), his Honour noted that DSC Mangan’s belief that the seizure had been feigned was part of the circumstances in which Mr Robinson found himself at the time. Ultimately, his Honour concluded (at [203]) that DSC Mangan’s belief was carried forward into the reasons for SC Taseski’s bail decision but that did not constitute ‘less favourable treatment’ within the statutory meaning. Rather, they were simply notations of perceptions considered to be relevant to the determination of the application. They would have been made the same regardless of whether or not Mr Robinson had suffered a mental illness or from epilepsy. Accordingly, his Honour rejected (at [204]) the contention (there being no evidence) that ‘the strictest of conditions’ were imposed by reason of that distinction. This particularly having regard to the fact that Mr Robinson was under investigation for serious offences involving deception. He had been charged with one such offence on 21 March 2009, he had a lengthy criminal history and further investigations were being carried out.

106        In those circumstances, strict bail conditions would not be unreasonable and would not suggest a treatment less favourable for a person with a disability than a person without a disability in similar circumstances. His Honour also accepted the Police Commissioner’s submission that even if Mr Robinson was treated less favourably, the treatment was not because of his disability. There were other factors, notably, his record.

Dismissal of vulnerable person claims

107        In relation to a number of remaining allegations that members of the New South Wales Police Force failed to treat Mr Robinson as a vulnerable person, his Honour examined cll 24, 25, 26 of the LERs, noting that cl 25 refers to Pt 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (the LEA). His Honour concluded that the appellants’ focus on cl 24(1)(b) and cl 26(b)(i) LERs did not articulate any specific breach of the LERs as those clauses only identify who is a vulnerable person and who may be a support person. The appellants also made reference to cl 27 in their written submissions which is directed to the responsibilities of custody managers, as is cl 25. The only custody managers relevant to Mr Robinson were SC Tomasic and SC Taseski. The primary judge noted (at [216]) that Ms El Masri was recorded in the custody management record at the Liverpool Police Station as being a support person present for Mr Robinson on the day. There was no specific identification by the appellants as to how they say the LERs were breached in respect of Mr Robinson on 21 March 2009 and no evidence to support such contentions. His Honour said that he was ‘unable to divine’ from the evidence before him how there were any breaches of the LERs. Further, he could not ascertain (at [219]) how any such unidentified breaches could separately constitute unlawful discrimination in breach of s 24 of the DDA.

PRELIMINARY APPLICATIONS BEFORE APPEAL HEARING

Preparation of appeal books and access to transcript

108        Prior to the hearing of this appeal Ms El Masri raised complaints about Registry staff in connection with her requesting assistance in relation to appeal books and contact details for Registry staff. Registry informed Ms El Masri of the requirement for preparation of the indices to Parts A and B of the appeal book. Ms El Masri and Mr Robinson requested access to the hearing transcripts. They were informed that access to electronic records only of the transcript would be permitted.

109        There was no admissible evidence whatsoever that the materials provided in Part C of the appeal book contained any defect or error, let alone deliberately so as the appellants contended. Following judgment, a notice of appeal and a supporting affidavit of Ms El Masri were filed on 3 August 2012 but not served on the Police Commissioner. The Police Commissioner’s solicitors were alerted to the filing of the notice of appeal and lodged an application to inspect the Court file which was initially declined and then subsequently granted. On 12 November 2012, the Police Commissioner wrote to Ms El Masri noting that the notice of appeal had not been served and the appeal books had not been filed or served. The solicitors enclosed a proposed appeal book index. On 19 November 2012, the matter was listed for a hearing on 28 February 2012. On the same day a Registrar of the New South Wales District Registry issued a taxation of costs estimate.

110        Complaints were raised in December that the Police Commissioner’s solicitors had still not been served with the notice of appeal or appeal books. The Court wrote to the appellants setting out proposed orders with respect to the filing and serving of the appeal books.

111        On 20 December 2012 on an administrative listing, orders were made to the effect that:

1.    The appellants submit a draft index to Parts A and B of the appeal book to the Registrar by 4.00 pm on 8 January 2013.

2.    On failure to comply with order 1 of those orders and in the absence of any other order to the contrary having been made, the appeal stand dismissed pursuant to s 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth) (FCA).

3.    Within 14 days after being notified of the Registrar’s approval of the draft index to Parts A and B of the appeal books, the appellants file and serve Part A including all documents indexed and tabbed, a copy of the Part B index.

4.    If the appellants fail to comply with order 3 of these orders, the matter stand dismissed again pursuant to s 25(2B)(bb)(i) of the FCA.

112        Shortly prior to the hearing, the appellants complained on a number of occasions about their lack of access to transcripts, particularly of interlocutory hearings.

113        There was another complaint from the appellants to the effect that the transcript ‘had been fraudulently tampered with’ and that it was necessary to vacate the hearing of the appeal to permit the appellants an opportunity to study the transcript which they had only recently received and, additionally, to make sure that, to the extent it had been allegedly tampered with, the appellants could draw this to the attention of the Court.

114        The appellants made an application to vacate the hearing date for the appeal and to adjourn it. This application was refused.

115        It is evident through the examination of the history of the proceeding below, and in the conduct of the appeal and the communications which have been made by the appellants with the Court, that substantial indulgences have been granted to the appellants not simply because they were litigants in person but also because of the acknowledged disability of Mr Robinson.

116        Nevertheless, the appellants had the task of preparing the appeal and demonstrating the appellable error. The Police Commissioner granted all reasonable assistance and indulgence to the appellants in this regard. In those circumstances, further delaying the hearing of the appeal could not be in the interests of any party or in the interests of justice including the public interest.

117        Ms El Masri emailed the presiding judge seeking various orders including orders that the Registry assist the appellants in settling the appeal books. On 8 January 2013, the appellants filed draft indices to the appeal book. There continued to be numerous exchanges concerning the content of the appeal books and the indices. Further complaints were raised against the Registry staff.

118        On 21 January 2013, the appellants sought review of the Registrar’s decision concerning the settlement of the appeal book indices.

119        On 23 January 2013 a, Deputy District Registrar of the Court wrote to the appellants rejecting orders sought in their email for production of hard copy transcripts of all directions and interlocutory hearings and regarding orders proposed by the Court.

120        Two days later, Ms El Masri wrote to the Registry seeking an extension of time to file and serve written submissions regarding the orders proposed by the Court.

121        On the same day the Court wrote to the parties notifying that it declined the extension of time sought by the appellants. On 30 January 2013, there was an administrative listing in which orders were made as follows (in the form of those proposed on 23 January 2013):

1.    Subject to the following conditions, the appellants are not precluded from referring to a document at the hearing of the appeal by reasons only that the document is not referred to in the Part B Index:

(a)    The document is relevant to the appeal and is otherwise admissible.

(b)    The document is referred to in the appellants’ written submissions filed in advance of the hearing in a manner which shows clearly the purpose for which the appellants seek to rely on the document.

(c)    The document is included within a supplementary book of documents filed and served at the same time as the service of Part C of the appeal book.

(d)    The question of whether any document in the supplementary book of documents sought to be relied upon by the appellants is relevant and otherwise admissible on the appeal, will be determined by the Full Court at the hearing of the appeal.

122        By the end of January 2013, the appellants had still not served a notice of appeal but they filed an interlocutory application and affidavit seeking various orders. Again, this was apparently not served on the Police Commissioner. At the same time a notice of listing issued by the Court for an interlocutory hearing to be held on 4 February 2013 by telephone and an administrative order was made that the time for compliance with order 3 made by the Full Court on 20 January 2013 was extended to 4.00 pm on 5 February 2013.

123        On 4 February 2013, the interlocutory application filed by Ms El Masri and Mr Robinson on 31 January 2013 was heard by the Full Bench. The Court made orders that:

1.    By 4.00 pm on 11 February 2013 the appellants are to file and serve any written submissions in support of the appeal. The appellants are relieved of the obligation to file and serve any chronology.

2.    Within 7 days of receipt of the appellants’ submissions the respondent is to file and serve his submissions.

3.    Insofar as the appellants seek to rely, at the appeal hearing, upon any matter which occurred in any directions or interlocutory hearing in respect of which no transcript is available, the appellants, are by 4.00 pm on 22 February 2013, to file and serve any affidavit deposing to those matters, in anticipation of them making an application at the hearing of the appeal to rely upon that affidavit.

124        On 6 February 2013, the Police Commissioner filed and served Parts A and B of the appeal book and on 11 February 2013, the appellants filed a further interlocutory application to amend the notice of appeal and extend the time for filing their submissions. Again, this was not served on the Police Commissioner. The Court informed the parties on 12 February 2013 that the interlocutory application to amend the notice of appeal would be heard at the hearing of the appeal and granted the appellants an extension of time to file submissions until 15 February 2013. Those submissions were filed.

125        At the commencement of the hearing of the appeal, Mr Robinson moved to amend the grounds of appeal by adding 20 proposed new grounds. Senior counsel submitted that there was nothing in the 20 proposed amendments that identified any properly arguable grounds of appeal. It was submitted that if we were of the view that the proposed new grounds were futile, then leave should be refused. Notwithstanding this it was observed for the Commissioner that the appellants were unrepresented and if the Court took a generous view as to the grounds of appeal, then the respondent would be willing to address them. We resolved to request the appellants to identify their main complaints, and then perhaps reserve on the question of whether to grant leave to amend. We simply permitted the appellants to advance all the arguments that they wished to raise, thus implicitly embracing the proposed amendments as well as the unamended grounds of appeal. Helpfully the appellants advanced all their arguments by reference to a more succinct group of headings than both sets of appeal ground might have suggested. Those are the arguments to be addressed.

GROUNDS OF APPEAL

126        The grounds of appeal do not identify any specific complaint with clarity. This difficulty appears to have been experienced through most of the trial although the written submission in reply prepared by counsel gave a clearer indication of the appellants’ case.

127        As it is not easy to extract a single theme from the grounds of appeal, they will repeated verbatim from the Notice of Appeal filed on 3 August 2012:

1.    Judgment was unfair, biased and prejudice (sic) with the reasons and final decision.

2.    Appellant’s (sic) were both denied meaningful access to justice with procedural fairness, processes fairness and evidentiary fairness.

3.    Error of Law.

4.    False and Misleading evidence relied upon by the [Police Commissioner].

5.    Discrimination on the grounds of disability was unlawfully committed by the [Police Commissioner].

6.    Appellant’s (sic) human rights were seriously violated by the [Police Commissioner] and continue to be violated in the judgment.

7.    In the interest of natural justice.

8.    This case is a matter of public and international interest in the administration of justice.

9.    The Bail Application for [Mr Robinson] is a service.

10.    Australia has an obligation under article 7 of the ICCPR29 to proscribe the use of evidence obtained.

11.    Appellant’s (sic) were both denied the right to be heard.

12.    This case is politically motivated.

Orders Sought

13.    Dismiss/Reverse/Revoke Judgment and Cost Order given on 20 July 2012.

14.    Appeal to be heard in the Full Court of the Federal Court of Australia for a fair re-trial.

15.    Appellant’s (sic) must both have legal representation throughout the court proceedings and all hearing dates in the interest of natural justice and procedural fairness.

16.    Costs.

(original formatting)

128        While the grounds of appeal are not expressed succinctly they appear to assert in summary that:

1.    the primary judge’s judgment was unfair, biased and prejudiced and the appellants were denied meaningful access to justice (procedural processes and evidentiary fairness);

2.    there were errors of law and reliance on false or misleading evidence by the Police Commissioner; and

3.    there was discrimination on the grounds of disability unlawfully committed by the Police Commissioner such that the appellants’ human rights were violated and by the judgment itself.

CONSIDERATION

129        It is necessary for completeness to consider first the written materials filed by the appellants in support of the appeal. The appellants also made extensive oral submissions. The oral submissions collected much of the written content. While the written material is noted below to the extent it can be understood, the argument on each of the points raised orally at the hearing of the appeal is also addressed – again to the extent that the arguments can be understood.

130        It is specifically worth reinforcing that at the heart of the issue for determination was whether there was disability discrimination in the provision of a service. Insofar as the original complaint was concerned, it was specifically directed to a remark made by DCS Mangan to the effect that Mr Robinson had feigned a mental illness when he was arrested earlier in the day on 21 March 2009.

Appellants’ submissions

131        A recurring theme for the appellants in the submissions made by Ms El Masri on behalf of the appellants is that they are self-represented litigants. There was a complaint that Mr Robinson suffers a disability that prevents him from preparing his own court documents and that he lacks the ability to fully understand how the legislation applies. It is said the judgment of the primary judge has had a ‘devastating effect’ on his mental and physical health and that he suffers hurt, humiliation and depression directly as a result of the events the subject of complaint and, in particular, the ‘offensive and degrading statement’ made by DSC Mangan on 21 March 2009 that Mr Robinson ‘appears to suffer from a mental illness to utilise the benefits of the Mental Health Act in the judicial process’. The appellants also argue that the remarks made on 21 March 2009 to the effect that ‘he’s been treated under the Mental Health Act previously but Police believe this is an act by the accused to utilise the system’ has had similar consequences.

132        In further submissions cataloguing the alleged procedural errors made at first instance, the appellants state that the primary judge:

1.    denied the appellants the opportunity to subpoena evidentiary material in early 2011;

2.    denied the appellants use of documents and evidence which formed part of the original complaint to the Commission;

3.    denied the appellants the opportunity to have evidence produced relevant to the case during the hearing;

4.    did not grant leave for the appellants to subpoena witnesses from the Liverpool Hospital in relation to the incident on 21 March 2009 prior to the hearing;

5.    failed to allow the appellants the opportunity to object to the Police Commissioner’s evidence as requested by Ms El Masri prior to determining the Police Commissioner’s objection to the appellants’ evidence;

6.    did not allow the appellants to raise objections to the Police Commissioner’s evidence prior and during the hearing;

7.    granted the Police Commissioner’s interlocutory hearing without a formal interlocutory application filed in Court; and

8.    allowed the Police Commissioner to be heard on his objections to admissibility of the appellants’ evidence.

133        There was a further complaint that the appellants raised concerns and pointed to ‘problems’ with the Police Commissioner’s evidence well before the hearing relating to alleged false and misleading information produced by the Police Commissioner’s witnesses.

134        There was a further complaint that the appellants were not made aware at any point during the case management of the first instance proceeding that it was the Police Commissioner’s ‘plan’ to dispute the medical evidence and dispute the type of disability that Mr Robinson suffers ‘as they did very sneaky’ (sic) in his final written submissions.

135        There was also a complaint that the primary judge and the Police Commissioner’s solicitors failed to address or challenge the appellants directly about the issues concerning Mr Robinson’s disability and the medical evidence produced.

136        The appellants also complained that the primary judge failed to allow the appellants the ‘right to be heard during cross-examinations’.

137        There was a complaint that the appellants were denied the opportunity to produce ‘crucial evidence relevant to the medical and criminal arguments’ raised in the reasons for judgment.

138        The appellants’ contentions are supported by an affidavit sworn by Mr Robinson reiterating, as he was given leave to do, complaints ventilated during the preliminary stages of this appeal concerning the following matters:

1.    the appellants are on a pension and cannot afford to pay for all transcripts for the case;

2.    they were denied access to independent legal advice; and

3.    they were denied access to have the audio recordings for their appeal;

139        Although the appellants have been offered the opportunity to examine the transcripts on a computer in the Australian Capital Territory District Registry of the Court, they complain that they have sustained prejudice as they are unable to refer to physical copies of transcripts to obtain independent legal advice.

140        The appellants say that they have made numerous written requests to the Registry and by way of an interlocutory application for the transcripts to be prepared, produced, ordered, made available and to be served but have been denied on each occasion.

141        The affidavit sets out Mr Robinson’s contention that the appellants strongly believe that the transcripts will reveal ‘undisputable evidence’ that the first instance proceedings, from the first directions to the final hearing, were not case managed with fairness and in the interests of justice to allow the appellants to represent and prove their case using all the relevant material evidence that was available to file in Court.

142        There are, in addition, scandalous and totally unfounded allegations that the primary judge, in the manner he conducted the hearing, was ‘racist in every form and shape towards Mr Robinson’.

Oral argument

143        At the hearing of the appeal, Mr Robinson, at his request, spoke primarily on behalf of the appellants, although his arguments were supplemented by Ms El Masri on a number of occasions.

144        Mr Robinson raises a series of complaints which in a number of respects mirrored those set out in the grounds of appeal and written submissions but to some extent expanded upon them.

145        However, it is to be noted that there was no oral argument specifically directed to the two key legal issues, namely, the question of whether or not there was a specific provision of ‘services’ for the purposes of s 24 of the DDA and, secondly, whether or not there was, in any event, ‘discrimination’ as defined under the legislation. On these central issues we have considered the reasons of the primary judge and find no reason to doubt their correctness.

No legal representation

146        The first complaint is that at no time did the appellants have legal representation and they were disadvantaged as a result.

147        This complaint cannot be upheld and cannot constitute appellable error. Rule 4.13 of the FCRs provides that a party is not entitled to apply to the Court for a referral for legal assistance under r 4.12. The referral power in r 4.12 is discretionary – that is, the Court may refer a party to a lawyer for legal assistance, not must. There is not the slightest doubt that the appellants were disadvantaged in a number of ways in their conduct of the hearing before the primary judge and of the appeal. Their own lack of understanding of the legal process and the sophisticated concepts being argued was abundantly evident. There is little doubt that legal representation throughout would have been of assistance to them. But such an entitlement cannot be guaranteed or provided by the Court. There is no doubt not only in the appeal but on examining the transcript below, that every reasonable indulgence was granted to the appellants by the Court and by opposing counsel in light of the considerable difficulties that they experienced as self-represented litigants.

148        Moreover, at an early stage in the proceeding the primary judge issued a referral certificate to the appellants such that they had advice from the Redfern Legal Centre and advice from counsel. His Honour noted that up until that point, the appellants had steadfastly rejected his suggestions that they should have legal representation but on their ultimate acceptance prior to the hearing that they should have representation, a certificate was issued and they received advice.

149        Additionally, the appellants also had the benefit of the input of counsel for the purpose of the drafting of closing submissions, who undoubtedly gave substantially clearer direction to the appellants’ case. While it is true the appellants did not have the advantage of senior counsel, they nevertheless had legal representation at times. At other times they had declined to accept legal representation despite the strong recommendations of the primary judge that it be obtained. In any event, the absence of legal representation in advancing their own claim does not constitute appellable error.

No opportunity for Mr Robinson to speak

150        The second complaint was that Mr Robinson had no opportunity to speak for himself. The difficulty with this complaint was that Ms El Masri, as guardian for Mr Robinson, raised the complaint on his behalf and was advancing the complaint and pursuing submissions at considerable length before the primary judge on Mr Robinson’s behalf. In those circumstances, there was no further need for Mr Robinson to make additional submissions. Importantly, there is no indication whatsoever from the transcript that he was denied any opportunity from doing so.

151        There were some occasions where the submissions made on behalf of the appellants were advanced by Ms El Masri but it was not evident that the primary judge precluded Mr Robinson from saying anything as he suggested. It was unsurprising that Ms El Masri presented arguments on behalf of Mr Robinson in view of the fact that she was charged with the responsibility of advancing and protecting his interests. The Supreme Court of New South Wales declared that Mr Robinson was incapable of managing his affairs. The scope of authority conferred on Ms El Masri by the Supreme Court was to act as the manager of Mr Robinson’s estate. This included power to retain a lawyer when appropriate to carry out necessary legal work in connection with the management of his estate. This is what she did. We have been taken to no occasion in the first instance when Mr Robinson sought the opportunity but was refused the opportunity to speak on his own behalf. In the conduct of the appeal, much of the argument was advanced by Mr Robinson, albeit with support from Ms El Masri.

Refusal to accept video evidence

152        The fourth complaint at the hearing of the appeal was that the primary judge wrongly rejected the tender of a video recording captured by Ms El Masri concerning the circumstances surrounding the execution of the search warrant. The video evidence was said to have recorded a police officer sitting in the police vehicle. Ms El Masri explained at the hearing what was included in the video recording and made submissions as to why it should be accepted into evidence. She accepted that all it showed was a view from the window of her house where she was recording.

153        At first instance Ms El Masri was unable to explain what further relevance at all the video recording may have in relation to the appellants’ case.

154        In the absence of any plausible explanation his Honour declined to receive the video into evidence on the basis that there was not sufficient probative value in receipt of the video.

155        On appeal, the point was made by Mr Robinson that the search warrant video recording ‘indicates … what time [the police] started the investigation, what time they started searching the house … what time they gave [Ms El Masri] her car keys back and what time they’re saying she arrived at the police station’. Mr Robinson says this video recording is evidence which contradicts the evidence given by the police witnesses. However, it is clear from the transcript that this was not the explanation given to the primary judge. To the extent that the explanation could be understood it was said to be a video of the police while they were sitting outside in the car. The primary judge cannot be criticised for rejecting receipt of the video when no cogent explanation for its probative value or relevance was made to him.

Rejection of disability evidence

156        The third complaint advanced by Mr Robinson was that the primary judge erred by rejecting Mr Robinson’s evidence as to his disability. This submission is manifestly incorrect, as will be evident from the examination of the judgment as summarised above. Not only did the primary judge but also the Police Commissioner fully accept at all times the disability experienced by Mr Robinson. As noted, there was an apparent shift in focus from a mental disability to epilepsy but, for the purposes of his Honour’s analysis, this change in focus did not affect the result and his Honour was prepared to accept both or either conditions were disabling Mr Robinson at the material time. This was a concession which favoured Mr Robinson. The primary judge expressly noted in the transcript, as is perfectly evident from his judgment, that the disability of Mr Robinson was not in dispute. (However, based on the lack of diagnosis made at Liverpool Hospital on 21 March 2009, and the lack of expert medical evidence adduced by the appellants in relation to that day, his Honour was perfectly entitled to conclude, as he did, on balance (at [195]) that he was not prepared to find that Mr Robinson had suffered an epileptic fit on 29 March 2009.)

157        The respondents also confirmed in filed submissions that there was no dispute that Ms El Masri was an associate within the meaning of s 4 of the DDA and that there was no dispute that Mr Robinson had a mental illness as of 21 March 2009. The respondents went on to say that the medical evidence did not paint a clear picture of the type of symptoms but this was of no significance at all in relation to the concession as to the disability.

158        Further, contrary to the submission made by Mr Robinson on the appeal, his Honour did accept that Mr Robinson suffered from epilepsy but simply noted that the submissions in that regard made at the end of the trial were a departure from the nature of the condition previously described. There was no finding anywhere in his Honour’s reasons to the effect that Mr Robinson did not suffer from epilepsy. It was clear from the reasons that he was prepared to accept that Mr Robinson had epilepsy at the relevant time. None of the medical evidence was rejected on the grounds of relevance as the appellants contended.

Missing medical evidence

159        The fifth matter raised on appeal is that there was a document missing in exhibit A which was Mr Robinson’s medical records.

160        The difficulty with this submission is that it was the appellants’ own exhibit which they tendered in evidence. There is some suggestion that a document was omitted from inclusion in the tender. The primary judge cannot be held to have erred for failing to include in a tender a document which was not tendered. Further, the first occasion on which the issue was raised was on 4 February 2013 shortly before the hearing of the appeal.

161        A similar complaint is made about a document in that tender bundle which was illegible. This point was identified by the primary judge in the course of the tender of the document. The appellants now complain that the document was taken into evidence, although part of it could not be read.

162        Once again, the difficulty for the appellants with this complaint is that it was the appellants’ own tender. Again, there was nothing in the tender at trial to suggest that there were any documents missing. Indeed Ms El Masri described the tender as being of ‘the complete file’.

163        Further, it would appear that the portion which his Honour identified as being illegible and which Ms El Masri had sought to tender was not material to any issue that his Honour had to decide. Having raised the possibility of the existence of a better document of Ms El Masri and Mr Robinson, his Honour was informed that they did not have a better copy so his Honour did the best he could with the document that they tendered.

164        This ground cannot be made out.

Too narrow an interpretation

165        The next point advanced on appeal was the complaint by the appellants before the primary judge was not confined to the concept of provision of a service. A repeated theme in the general complaints of the appellants is that the primary judge narrowed the scope of the case too much. In fact, his Honour confined the scope of the case to the scope of the complaint before the Commission or to matters substantially similar. This is entirely in accordance with the provisions of the AHRC Act and the DDA. The difficulty for the appellants is that discrimination is not an open ended complaint at large but has to be linked to certain circumstances. In this instance, the circumstances were said to be those of the provision of a service within the meaning discussed in s 24 of the DDA.

166        There is no doubt that the primary judge considered this question in detail, fairly and entirely accurately. For a complaint of discrimination to succeed, the complainant must identify that the complaint falls within one of the relevant areas of direct and indirect discrimination in certain fields of public life. The area identified by the appellants had been with respect to ‘provision of services’.

167        The appellants have argued that the primary judge should have considered a broader ranging form of discrimination than that on which they expressed or relied. That was not a course open to his Honour in the way the complaint before him was conducted. As is made clear on the appeal by senior counsel for the Police Commissioner, the DDA is not a law which looks at discrimination at large. The DDA is specific to the circumstances which fall for consideration. Moreover, s 42PO(3) of the AHRC Act provides that a Federal Court action arising out of a terminated complaint to the Commission must be the same unlawful discrimination (or the same in substance) as that which was the subject of the terminated complaint. On these central issues we have considered the reasons of the primary judge and find no reason to doubt their correctness.

168        This ground cannot be made out.

No opportunity to object to respondent’s evidence

169        The next complaint raised as a ground of appeal is that the appellants were not permitted an opportunity to object to the evidence adduced by the Police Commissioner. This complaint is raised particularly in the context of an interlocutory hearing at which the appellants’ evidence had been adduced and purported to raise a very wide ranging complaint of a general nature of discrimination at large against the Police Force. Again, in the interests of conducting a hearing which accorded with the legislative requirements and the jurisdiction conferred on the Court, the primary judge assessed the evidence and reduced it to the particular complaint or matters similar to the particular complaint which had been terminated by the Commission. This interlocutory hearing was listed at the instance of the Police Commissioner who sought to object to those parts of the affidavits and other material provided by the appellants which exceeded the legitimate scope of the Court’s review.

170        As senior counsel for the Police Commissioner pointed out on the appeal, there was no occasion in this hearing for the appellants to object to the evidence adduced by the Police Commissioner for the simple reason that the Police Commissioner had adduced no evidence until a ruling had been given by the primary judge in connection with the objections to the appellants’ evidence.

171        On the hearing of the appeal, the appellants pointed to no instance nor was it evident on the papers when they had purported to raise objections to the evidence to be adduced for the Police Commissioner but were not permitted to do so. No appellable error is demonstrated.

172        This ground cannot be made out.

Not a criminal proceeding

173        The next complaint is that the primary judge erred in making clear that it was not a criminal proceeding yet, at the same time, recording details about the criminal record of Mr Robinson. Mr Robinson complains that he was denied natural justice because he was not given an opportunity to comment on the details of that criminal record. This complaint, like a number of his complaints, is somewhat difficult to understand.

174        There is no doubt that his Honour was correct in observing that this was not a criminal trial. It was not a question of determining the guilt or innocence of Mr Robinson but there were aspects of the evidence which did include reference to his criminal record. Indeed, it was clear that the appellants themselves sought to raise this evidence to make clear the fact that he had been the target of alleged discriminatory action by the Police Commissioner because of his criminal record.

175        Nothing in the hearing turned on the fact that Mr Robinson had a criminal record. The information was background only but information legitimately included by both the appellants and the Police Commissioner in the hearing.

176        There was no determination of guilt or innocence of Mr Robinson and, in particular, no determination of any guilt or innocence concerning the matters being investigated at the time of the alleged discrimination. At no time during the course of the hearing were any questions to do with guilt or innocence in relation to those matters ever put to Mr Robinson in cross-examination.

177        This ground cannot be made out.

No opportunity to disprove criminal record

178        Next there was an associated complaint that Mr Robinson was not given an opportunity to disprove the criminal record concerned. The same response applies to this complaint as well. Nothing arose in the proceedings requiring the primary judge to make any finding about Mr Robinson’s criminal record or lack of record. The only matter in which it arose by way of background was by DSC Mangan explaining the circumstances in which the Police had reason to visit Mr Robinson’s house on 21 March 2009.

179        Not only was the criminal record not an issue, nothing turned on it in His Honour’s reasoning.

180        Further, the appellants have pointed to no occasion on which Mr Robinson sought to challenge or disprove the criminal record but was declined the opportunity to do so. This ground of complaint or ground of appeal as orally developed must also fail.

No opportunity to cross-examine Ms El Masri

181        Mr Robinson complained that no opportunity was given to cross-examine Ms El Masri. It is true that Mr Robinson was not afforded an opportunity to cross-examine Ms El Masri. She did give evidence in his case as an applicant with the two cases, hers and Mr  Robinson’s, being treated together.

182        Further, Mr Robinson never sought at any time to cross-examine Ms El Masri and there was no refusal to permit him to do so. The first occasion on which the complaint was raised was on the hearing of the appeal.

183        In any event, it is quite unclear what Mr Robinson would have achieved by examining or cross-examining Ms El Masri. She had already given whatever evidence each of them sought to be adduced in the case which was jointly presented. Mr Robinson being permitted to cross-examine his own guardian who was jointly preparing a complaint with him would be quite unexpected. It is unclear what he would have sought to achieve from such a process, even if he had applied for it. No appellable error is demonstrated.

184        This ground cannot be made out.

Medical chart

185        A document constituting a medical chart was received after the hearing. The transcript reveals that his Honour requested a chart that would summarise the respective medical evidence concerning Mr Robinson. Ms El Masri contended in the course of the hearing of the appeal that on no occasion did she see that chart before it was referred to in submissions made in response by the Police Commissioner at the trial. Senior counsel for the Police Commissioner recalled that she had given the chart to Ms El Masri in the course of the hearing. In any event, even if this did not occur, it was clear that by the time counsel for the appellants who was engaged for the purpose of reply submissions was examining those documents that he identified the need to examine that chart and informed Ms El Masri who, in turn, informed the solicitors for the Police Commissioner.

186        There is no doubt that the document was available for the purpose of closing submissions. It was not evidence, but a submission in the form of a convenient chart. It is entirely unclear, in any event, given that the disability of Mr Robinson was accepted by both the Police Commissioner and the primary judge, what aspect of this chart which has now been in possession of the appellants for several months is said to have caused any procedural unfairness. None was pointed to in the appeal.

187        This ground cannot be made out.

188        Had there been any difficulty occasioned at the close of the hearing, counsel engaged for the purposes of the reply submission had ample opportunity to raise the issue with the primary judge. It is not at all clear that any difficulty was sustained whatsoever as a result of receipt of the chart when it was received. In any event, the issue appears not to have been raised at any point with the primary judge but was raised for the first time on the hearing of the appeal. No appellable error is demonstrated.

Misconstruction of the scope of the complaint

189        There is a general complaint as to misconstruction of the scope of the complaint which was reinforced repeatedly through the appellants’ submissions. It is quite clear that the scope of the complaint that was before the Court was properly confined to the issue which had been terminated before the Commission or matters similar to those issues. No appellable error is shown.

Intimidation

190        Ms El Masri raised a general complaint about feeling intimidated by the cross-examination of senior counsel. There is no indication from the transcript that there is any substance to the complaint that Ms El Masri was intimidated by senior counsel.

191        The conduct of the hearing generally reveals extreme patience and latitude afforded by the primary judge to the appellants at the hearing. The appellants were treated with the utmost tolerance by the primary judge. There was no indication at any time that his Honour felt the need to intervene to deal with overbearing intimidation by counsel for the Police Commissioner.

192        It is to be recalled, in any event, that, as his Honour observed, there was very little factual evidence in dispute in the end. To the extent that on a limited aspect of the evidence Ms El Masri’s evidence was not preferred, it had no bearing on the outcome of the case. Additionally, demeanour issues aside, His Honour gave sound reasoning as to the probabilities which would support the conclusion he reached on that limited issue.

CONCLUSION

193        None of the grounds of appeal or other complaints and arguments having succeeded, the appeal must be dismissed. The respondent by their written submissions have sought costs. A costs order is appropriate.

1.    The appeal is dismissed.

2.    The appellants pay the costs of the respondent, to be taxed if not agreed.

Associate:

Dated:    20 June 2013