FEDERAL COURT OF AUSTRALIA
Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770
IN THE FEDERAL COURT OF AUSTRALIA | |
| First Applicant SONIA EL MASRI Second Applicant | |
AND: | COMMISSIONER OF POLICE, NSW POLICE FORCE Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The application be dismissed, with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
NEW SOUTH WALES DISTRICT REGISTRY | |
GENERAL DIVISION | NSD 1363 of 2010 |
BETWEEN: | DAVID ROBINSON First Applicant SONIA EL MASRI Second Applicant
|
AND: | COMMISSIONER OF POLICE, NSW POLICE FORCE Respondent
|
JUDGE: | YATES J |
DATE: | 20 JULY 2012 |
PLACE: | SYDNEY |
REASONS FOR JUDGMENT
1 The applicants’ claims have been commenced under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act). They allege unlawful discrimination based on s 24(1) of the Disability Discrimination Act 1992 (Cth) (the Act).
2 The second applicant, Ms El Masri, is the manager of the estate of the first applicant, Mr Robinson, under the Protected Estates Act 1983 (NSW) pursuant to an order made by the Supreme Court of New South Wales.
3 On 24 May 2010 Ms El Masri made a written complaint to the Australian Human Rights Commission (the Commission) on behalf of Mr Robinson. The complaint concerned the manner in which Mr Robinson was treated by members of the NSW Police Force in the course of, and following upon, his arrest on 21 March 2009 in relation to certain alleged offences under the Crimes Act 1900 (NSW). Ms El Masri complained that members of the NSW Police Force treated Mr Robinson as having feigned a mental illness. She also complained that members of the NSW Police Force had failed to treat Mr Robinson as a “vulnerable person” and to offer him a support person.
4 The written complaint to the Commission included a Custody Management Record, Reasons for Bail Decision, a Court Attendance Notice (CAN) and a Facts Sheet. These documents were created by members of the NSW Police Force on 21 March 2009. I will refer more specifically to them later in these reasons.
5 On 1 September 2010 the Commission gave notice under s 46PH(2) of the AHRC Act terminating the complaint under s 46PH(1)(i) on the ground that there was no reasonable prospect of the matter being settled by conciliation. Thereafter the applicants commenced this proceeding.
6 The respondent, as Commissioner, is responsible for the management and control of the NSW Police Force.
Legislative background
7 As the impugned conduct concerns events on 21 March 2009, the provisions of relevance to this matter are those that were in force immediately before the amendments to the Act that were introduced by the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth).
8 At the relevant time s 24(1) of the Act provided:
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 first-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.
9 There is no dispute that, as at 21 March 2009, Ms El Masri was an “associate” of Mr Robinson and that Mr Robinson suffered a mental illness which was a “disability” for the purposes of the Act.
10 Section 5 of the Act provided:
(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.
the conduct of the hearing
11 It is necessary for me to say something at the outset about the conduct of the hearing.
12 On 23 September 2011 I issued a certificate under r 4.12 of the Federal Court Rules 2011 so that the applicants might obtain legal assistance for the hearing of their claims. At the time I noted that, although I had suggested to the applicants on a number of earlier occasions that they endeavour to obtain legal representation, they had expressly declined to adopt that course. As a consequence of the referral certificate being issued, legal representation for the applicants was apparently obtained. However, for whatever reason, the applicants appeared at the hearing without legal representation.
13 In the course of the hearing the applicants made an opening address to me and conducted cross-examination of the respondent’s only witness, Detective Senior Constable (DSC) Mangan. In the course of the hearing they dealt with objections raised by the respondent and themselves made objections to questions raised in the respondent’s cross-examinations of them as well as to certain oral submissions made by the respondent. The applicants also made closing submissions by way of oral argument. The carriage of the applicants’ case was undertaken principally by Ms El Masri, with assistance from Mr Robinson. Each addressed me at various times during the course of the hearing.
14 At the conclusion of the second day of the hearing, Mr Robinson foreshadowed the possibility that the applicants might seek to obtain legal representation in relation to the balance of the hearing of their claim. On the morning of the third day of the hearing, during the course of the respondent’s closing submissions, the applicants made an application for an adjournment on the basis that they had been offered legal assistance “to put together your final submissions”. I decided that application by finding that the just resolution of the matter required the applicants to have a proper opportunity to reply to the written and oral submissions that the respondent was in the course of advancing. To that end I decided to hear the respondent’s closing submissions and then order that, in addition to any oral submissions in reply that they might then wish to make, the applicants be permitted to file and serve, by no later than 31 January 2012, any written submissions in reply they wished to make. At the time I stressed that the written submissions were to be strictly in reply. I was not prepared to grant an adjournment for the purpose of enabling the applicants to reformulate their case.
15 The applicants availed themselves of this opportunity. They were fortunate enough to obtain the assistance of counsel to prepare written submissions. These submissions were in fact filed on 1 February 2012. Without intending any criticism of counsel who prepared those submissions – whose assistance in that task has been of considerable assistance to my consideration of this matter – it is fair to say that the focus of the applicants’ claim changed markedly from the way in which it was presented by them at the hearing.
16 The respondent raised an objection to the written submissions. The respondent argued that, at least in part, the written submissions raised an entirely new claim, which was that members of the NSW Police Force had unlawfully discriminated against Mr Robinson on the ground of his disability in “dealing with” his application for unconditional bail on 21 March 2009.
17 The respondent sought and was granted the opportunity to file further written submissions. In those submissions the respondent submitted that the applicants should not be permitted to expand their claims beyond the scope of the terminated complaint and the claims that had been pleaded in amended points of claim that had been filed on 14 December 2011. The respondent also submitted that, in substance, the applicant’s written submissions were not in reply but represented new submissions in chief.
18 I will deal with the respondent’s objections in this regard, to the extent that I consider necessary, later in these reasons. I should make clear, however, that I have considered and taken into account all the submissions, both written and oral, that have been made by the applicants and the respondent.
The evidence of the witnesses
General comments
19 The evidence given at the hearing concerned the circumstances of Mr Robinson’s arrest on 21 March 2009, his conveyance to Liverpool Hospital, and his subsequent conveyance to Liverpool Police Station where he was charged and bailed. The applicants’ evidence in chief did not give a complete account of those events. In order to more fully understand the course of events on 21 March 2009, it is convenient to commence with a consideration of the respondent’s evidence given through DSC Mangan.
20 I should also record that the applicants’ evidence in chief was given subject to a number of rulings made on 23 September 2011, in advance of the hearing: Robinson v NSW Police Service [2011] FCA 1081. This was because the respondent had raised a number of objections to the affidavits on which the applicants proposed to rely as their evidence in chief, including an affidavit sworn by Mr Robinson on 2 June 2011. Apart from matters of form, those affidavits, and Mr Robinson’s affidavit in particular, purported to deal with facts, matters and circumstances that, on their face, travelled beyond the subject matter of the terminated complaint. Those rulings rejected a number of the affidavits, or parts of them, on the ground of relevance. The rulings also provided that some paragraphs of some affidavits would be admitted subject to limitations.
21 In the account of DSC Mangan’s evidence which follows I will refer to Mr Robinson as the first applicant. I do so for ease of exposition because, as at 21 March 2009, Mr Robinson used three aliases.
DSC Mangan
22 DSC Mangan has been employed by the NSW Police Force for almost 10 years. He was involved in the first applicant’s arrest on 21 March 2009. He gave the following evidence concerning the background to and circumstances of that arrest. This evidence was given by an affidavit sworn on 6 May 2011.
23 On 27 February 2009 DSC Mangan received information about an incident that had occurred at a car dealership on Victoria Road at Rozelle, New South Wales. The incident concerned the attempted sale of a Mercedes Benz motor vehicle by Omar El Masri and Mahmoud El Masri. The registration of the motor vehicle had been transferred to Mahmoud El Masri that morning. The transaction appeared to the dealer to be suspicious because the two gentlemen were seeking to sell the motor vehicle for a sum that appeared to be significantly less than its real value.
24 DSC Mangan ascertained that the vehicle had been reported the previous day as having been stolen. Further inquiries undertaken by DSC Mangan revealed that Omar El Masri, Mahmoud El Masri and Adam Rayan had attended the Wetherill Park office of the NSW RTA on 27 February 2009 to transfer the registration of the vehicle to Mahmoud El Masri. Police records revealed to DSC Mangan that Adam Rayan had, at that time, a number of aliases, including Ali Kassar and David Robinson. It is not in dispute that the first applicant is the person referred to in those records.
25 In an interview conducted by DSC Mangan on 27 February 2009, Mahmoud El Masri identified the first applicant, under the name Ali Kassar, as his son-in-law. DSC Mangan understood Omar El Masri to be the first applicant’s brother-in-law.
26 DSC Mangan consulted police records (referred to as a COPS profile) in respect of Ali Kassar. The last entry in those records, dated 18 March 2006, was 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.
27 DSC Mangan also consulted the COPS profile in respect of Adam Rayan. A number of incidents were revealed involving the use by Mr Rayan of valueless cheques to purchase goods.
28 Subsequent investigations by DSC Mangan revealed that Ms El Masri was described as the first applicant’s de facto partner. DSC Mangan obtained Ms El Masri’s address. He believed that the first applicant might be residing at that address as Adam Rayan.
29 DSC Mangan attended the address at around 9.30 am on 21 March 2009. He was accompanied by Detective Constable (DC) Damien Johnson. DSC Mangan was the senior officer. From an unmarked police car in which he was sitting with DC Johnson, he observed a dark red Toyota Hilux vehicle parked in the front yard of the premises. He identified the vehicle as one apparently purchased in the name of Adam Rayan, apparently using a valueless cheque. DSC Mangan said that, at this point, he felt that there was sufficient evidence to issue a search warrant for the premises. He made a telephone call in which he gave instructions for a search warrant to be processed. DSC Mangan and DC Johnson remained in the unmarked police car. They were waiting for the search warrant to be processed.
30 At around 11.35 am DSC Mangan observed the person he identified as Adam Ryan enter the red Toyota Hilux vehicle and leave the premises, turning left into a dead-end street. DSC Mangan and DC Johnson followed in their car. They pulled over the Toyota Hilux vehicle in the dead-end street, using a police siren. The first applicant got out of the Toyota Hilux vehicle. DSC Mangan approached him. DSC Mangan asked him for his name. The first applicant said his name was Adam Rayan. The first applicant showed DSC Mangan his driver’s licence. The licence was in the name of Adam Rayan. DSC Mangan said that this confirmed to him that the first applicant was the person concerned in two alleged offences involving the use of valueless cheques.
31 DSC Mangan said that he proceeded to arrest the first applicant and to caution him as follows:
Mangan: “Adam Rayan, you are under arrest for fraud offences involving valueless cheques. Do you understand that?”
First applicant: “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?”
First applicant: “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?”
First applicant: “Yes. I am feeling ill. I need my meds.”
Mangan: “Okay. Why are you driving then? Why did you turn up this way?”
First applicant: “I just wanted to have a look at this house. It is for sale.”
32 DSC Mangan said that he is now aware that there was no house for sale at the location indicated by the first applicant. There was no evidence led by the applicants to suggest that there was any house for sale at that location. They did not seek to challenge DSC Mangan on that matter.
33 DSC Mangan then said that the first applicant fell to the ground, closed his eyes and began shaking. He said that the first applicant then proceeded to “hit his head against the road”. The apparent seizure lasted for “roughly 15 seconds”. DSC Mangan says that he instructed DC Johnson to call an ambulance.
34 DSC Mangan gave this evidence:
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.
35 DSC Mangan said that by the time the seizure had stopped, two other police officers had arrived with a caged police vehicle. The first applicant was left with these officers while he and DC Johnson walked to Ms El Masri’s house to inform her of the arrest. DSC Mangan said that he had a conversation with Ms El Masri at the front door of the house. He said that he informed Ms El Masri that the first applicant had appeared to have had a seizure and that, prior to that seizure, he had asked for Ms El Masri because she had his medication. DSC Mangan said that he informed Ms El Masri that an ambulance had been called. He said that he asked Ms El Masri if she would follow him to the first applicant with his medication. He said that she agreed to follow him. DSC Mangan said that he and DC Johnson then left the house and returned to the scene of the arrest.
36 DSC Mangan’s evidence was that, shortly thereafter, Ms El Masri arrived at the scene of the arrest. At that time ambulance officers were present and assessing the first applicant. DSC Mangan observed Ms El Masri place what seemed to be a pill in the first applicant’s mouth. Ms El Masri told DSC Mangan that the first applicant had had an accident in which he had hit his head and that he had fits from time to time. She gave DSC Mangan a certified copy of the order made by the Supreme Court of New South Wales appointing her manager of the first applicant’s estate. DSC Mangan’s evidence is that, at that point, he said the following to Ms El Masri:
Look, I’m sorry, but, despite this order the police will still have to continue with Mr Rayan’s arrest.
37 The first applicant was then taken to Liverpool Hospital in the ambulance. DC Johnson accompanied him in the ambulance.
38 DSC Mangan said that while waiting for the Toyota Hilux vehicle to be towed and stored, Ms El Masri showed him newspaper articles about the first applicant. She told him that the first applicant used to be involved with the daughter of a sheik in Melbourne, that he was mentally ill and that he takes Seroquel.
39 DSC Mangan said that his conversation with Ms El Masri continued as follows:
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 Rayan?”
Ms El Masri: “No, I want to stay here.”
[As in original]
40 DSC Mangan said that he later received a telephone call from DC Johnson who informed him that the first applicant “had an outburst at the hospital and he had allegedly kicked in and smashed a window”. It seems that this call was received by DSC Mangan while he was still at the scene of the arrest with Ms El Masri waiting for the Toyota Hilux vehicle to be towed away.
41 DSC Mangan said that he then had the following conversation with Ms El Masri:
Mangan: “You should probably go to the hospital to be with Mr Rayan. You might be able to provide assistance. You do not need to be present during the search.”
Ms El Masri: “I want to retrieve some nappies and [baby?] things from the house.”
Mangan: “I don’t want you to hinder the investigation by destroying any potential evidence within the house.”
Ms El Masri: “No, I should wait at home until the search warrant is complete.”
42 According to DSC Mangan’s evidence in chief, the next event in which he was involved was his arrival at Liverpool Police Station at around 6.00 pm. It was his intention to interview the first applicant. He said that when he arrived at the station he saw Ms El Masri with the first applicant. He observed the first applicant to be “drowsy, dazed and not lucid”. He decided that, in those circumstances, he would not interview him. He said that he informed Ms El Masri of this fact and that she agreed that the first applicant should not be interviewed at that time. DSC Mangan said that he took the first applicant’s photograph and his fingerprints. He did not question the first applicant about the allegations against him. A custody officer granted the first applicant bail and gave the first applicant some documents which included a Facts Sheet that DSC Mangan had prepared. The Facts Sheet is a significant document in the applicants’ case.
43 The Facts Sheet included a lengthy statement of events relating to the offences in respect of which the first applicant was subsequently charged and bailed on 21 March 2009. It also included a section headed “ANTECEDENT”, which was in the following terms (the antecedents statement):
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 fiegned 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 beleiving that he is a genuiene buyer of the proerty that they are selling. . The accused is being medically treated and cared for by his carer Sonia ELMASRI. . 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 condictions would ensure that the accused whereabouts are known by police at all times. He has shown that heis capable of incredible decepti on.
[Emphasis added; otherwise, as in original]
44 The applicants have placed considerable reliance on that part of the antecedents statement which I have emphasised in the quotation. DSC Mangan said that he had based that part of the statement on his observation of the first applicant on 21 March 2009 and on the COPS profile with respect to Ali Kassar.
45 DSC Mangan said that the antecedents section in a facts sheet is intended to assist the court when dealing with a matter in relation to bail or sentencing. He said that it is usual for police officers who prepare facts sheets to include the occupation of the accused, whether the accused has 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. He said that it is also the usual practice for police officers to include their opinion on the accused as it may assist custody managers in their decision to grant bail or not. He said 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 antecedents section, if he believed it would assist the court or the custody manager when dealing with the accused.
46 DSC Mangan also gave this evidence about the first applicant’s presentation at the time of his arrest on 21 March 2009:
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.
47 DSC Mangan was cross-examined by Ms El Masri on a range of matters. He had, in his affidavit, already disputed some matters which Ms El Masri had advanced in her affidavit, to which I will refer in more detail below. For present purposes I merely note that he denied saying certain things to Ms El Masri that she had recorded in her affidavit. He also denied stopping Ms El Masri from following the first applicant to Liverpool Hospital.
48 In cross-examination DSC Mangan accepted that he returned with Ms El Masri to her house from the scene of the arrest. This was after a period of time while waiting for the Toyota Hilux vehicle to be secured and towed away. He accepted that, at the house, he had warned Ms El Masri not to interfere with the investigation that was taking place. He said that he was concerned that she might seek to remove property from the house. He said, however, that he had no objection to Ms El Masri “collecting essential baby items and things of that nature” in order to follow the first applicant to the hospital. He said that, although he had understood it to be Ms El Masri’s intention to follow the first applicant to the hospital, she changed her mind when at the house, and said she wanted to stay there while the search warrant was being executed. He said that he then waited outside the house until other police officers arrived to execute the search warrant.
49 This evidence contradicted DSC Mangan’s affidavit evidence. In his affidavit he gave evidence of conversations with Ms El Masri at the scene of the arrest in which she initially said she wanted to stay while the search warrant was being executed at the house and then, later, on DSC Mangan’s urgings, indicated that she would go to Liverpool Hospital, but then changed her mind. As I have noted, in cross-examination he said that it was his understanding that Ms El Masri wanted to go the hospital but changed her mind at the house.
50 I also note that, in cross-examination, DSC Mangan accepted that the first applicant did not have a support person when DSC Mangan arrived at Liverpool Police Station early in the evening of 21 March 2009. This was contrary to what he had said in his affidavit. His evidence in cross-examination was that Ms El Masri arrived later in the evening, at which time DSC Mangan discussed with her his decision not to interview the first applicant at that time.
51 It also emerged in the course of DSC Mangan’s cross-examination that, later in the evening, the first applicant had been taken from Liverpool Police Station to Liverpool Hospital for medication, and then returned. DSC Mangan was unaware of this fact. He was not at that time the officer in charge of the first applicant’s custody. The fact that the first applicant was taken to Liverpool Hospital later that evening emerges from notes to that effect made on the hospital records in evidence.
Mr Robinson
52 As I have noted, Mr Robinson’s evidence in chief was provided by an affidavit sworn on 2 June 2011. This affidavit was prepared by Ms El Masri. Mr Robinson said he had been assisted by Ms El Masri “helping me remember previous incidents that I have complained to her which happened to me with NSW Police Service in the past”. The affidavit was read subject to the rulings I made on 23 September 2011.
53 In relation to the events on 21 March 2009, Mr Robinson said that, when at Liverpool Hospital, he was placed in “the padded room”. He then gave evidence of a conversation with Ms El Masri. The time and place of this conversation is not stated. It would seem, however, that the conversation took place sometime on 21 March 2009 after Mr Robinson had left Liverpool Hospital for the first time that day. He said that Ms El Masri told him that the police had charged him with breaking a window in “the padded room”. She asked him what had happened. He told her that a police officer was laughing at him and telling him to “stop faking it”. Mr Robinson said that this had made him feel “so angry”. He said that hospital staff held him down and gave him an injection. He said that Ms El Masri had informed him that it was DC Johnson who was inside the ambulance and at the hospital. Mr Robinson said that he never gave permission to DC Johnson to be inside the ambulance or “to discriminate against my disability at Liverpool Hospital”. He said that he wanted Ms El Masri to be with him inside the ambulance and at the hospital. Mr Robinson said that at no time did he consent or give permission to DC Johnson or any police officer to comment on or discuss his medical condition and criminal history with the medical staff at Liverpool Hospital.
54 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”.
55 Mr Robinson also said that, while at Liverpool Police Station on 21 March 2009, DSC Mangan said to him, while taking his photograph in the custody cell:
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.
56 Mr Robinson said that DSC Mangan was laughing at him. He said that other police officers were laughing as well.
57 In cross-examination Mr Robinson said that he had no memory of the events of 21 March 2009 beyond what he could ascertain from reading documents or beyond what he had been told by Ms El Masri. He said he had no memory of what medication he was taking, what car he was driving, or even that he was able to drive. He said that he had no memory that he held a driver’s licence in the name of Adam Rayan, although he accepted that that was the name he used at the time.
58 In relation to the events of 21 March 2009, he said he had no memory of:
a. speaking with DSC Mangan or DC Johnson;
b. being arrested;
c. being taken to Liverpool Hospital;
d. speaking with Ms El Masri; or
e. being in police custody that evening.
59 He said that the only things he knew about that day were taken from documents including “notation in my own diary”. It emerged later in cross-examination that he did not keep a diary as such. He said he would make notes on pieces of paper or in his telephone. He accepted that, in preparing his affidavit, he had not included any notes he may have taken on that day. He could not remember whether he had made a note with respect to anything that had happened on 21 March 2009.
60 When asked whether he could tell with any certainty whether he had actually made a notation about the events of 21 March 2009 in a diary or in some other written form, he said:
I relayed back to Sonia. As it’s read in here [referring to his affidavit]. And I can’t answer that question to you. Because I wasn’t prepared for that question. So it is impossible for me to answer that question.
61 Mr Robinson was shown the medical notes made during the period of his admission to Liverpool Hospital on 21 March 2009. Those notes commence with entries for “12.25” and end with an entry for “18.45”. After reading those notes Mr Robinson said that they did not help him recall anything that had happened at Liverpool Hospital that day.
62 Mr Robinson’s attention was also directed to a number of paragraphs in DSC Mangan’s affidavit. Those paragraphs did not prompt his memory about the events recorded by DSC Mangan. Mr Robinson accepted that his memory of events at Liverpool Police Station was based on reading documents, such as the Facts Sheet to which I have referred. Mr Robinson said that he had no memory of any conversation with any police officer at the police station; no memory of Ms El Masri being with him at the police station; no memory of answering any questions by a police officer in relation to a court attendance notice; and no memory of leaving Liverpool Police Station that evening.
63 Mr Robinson also said that he had no memory of taking antipsychotic medication called Seroquel in March 2009.
Ms El Masri
64 Ms El Masri’s evidence in chief was provided by an affidavit sworn on 4 April 2011. The affidavit was read subject to the rulings made on 23 September 2011.
65 In relation to the events on 21 March 2009, Ms El Masri said that Mr Robinson “was sick on the floor on the side of the road (approximately 100 mtrs) from our home”. She said she gave DSC Mangan a certified copy of the order made in the Supreme Court of New South Wales which had appointed her the manager of Mr Robinson’s estate. She said that DSC Mangan said:
Who cares? He’s … not sick, he’s going to gaol.
66 Ms El Masri also said that when the ambulance arrived to take Mr Robinson to hospital she “tried to leave immediately to follow the ambulance to the hospital”. She said that DSC Mangan stood in front of her and blocked her from leaving, then said:
Stay right here, you’re not going anywhere.
67 She said that at no time did DSC Mangan tell her that she was under arrest or give her any reason at all as to why “he would not let me leave”.
68 In his own affidavit, DSC Mangan denied saying these things. He also denied that he attempted to stop Ms El Masri from following Mr Robinson to Liverpool Hospital.
69 In cross-examination Ms El Masri said she had a clear recollection of events on 21 March 2009. She said that, at that time, Mr Robinson held a Queensland driver’s licence under the name Adam Rayan and that Mr Robinson was driving a red Toyota Hilux vehicle.
70 When asked about being first approached by the police on the morning of 21 March 2009, Ms El Masri said that it was DC Johnson who came to the front door of her house. She said that she found this out later, “through the documentation”. She said that she did not see DSC Mangan until she arrived at the scene of the arrest. Ms El Masri accepted that she had not seen either DSC Mangan or DC Johnson prior to 21 March 2009. She did say, however, that she has seen DSC Mangan on a few occasions since that day. She said that she could tell DSC Mangan and DC Johnson apart. She said that DC Johnson was much shorter than DSC Mangan.
71 Ms El Masri said that it was DC Johnson who told her that Mr Robinson was asking for his medication. She accepted that she picked up “some belongings or medication” and then walked to the scene of the arrest, which was about 100 metres from the house. Later, Ms El Masri said that she had driven to the scene. Ms El Masri said that when she arrived at the scene, no ambulance was present. She said she gave Mr Robinson a Seroquel tablet. When she saw him he was sitting on the ground with his legs extended. She observed no blood or visible injuries.
72 Ms El Masri did not accept that she told DSC Mangan that Mr Robinson had had an accident or that he had hit his head or that he had fits from time to time. She said that she told DSC Mangan that Mr Robinson suffered from a mental illness and had been diagnosed with “acquired brain injury”.
73 Ms El Masri was challenged on her evidence about what DSC Mangan had said to her, as quoted in [66] above. She repeated her evidence in that regard. She said:
… Detective Mangan stood close to me, he moved forward towards me. He put his foot right in front and he said, “You’re not going anywhere”, and looked down at me. He’s tall and I’m pretty short next to him and I will never forget that.
74 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; she thought she was going to be arrested. She said:
I wanted to follow him with my car because I had a baby, and the most appropriate thing was to follow him and I was deprived from my liberty to do that … I didn’t have a choice to leave.
75 She also said:
Well, as I said to you, I wasn’t allowed to leave. I was made to stand there with my baby until the tow truck arrived which would have been at least an hour after David has already left in the ambulance. I had to stand there with my baby, pregnant at the time, about six months pregnant, with a baby, it was hot weather, wasn’t allowed – saying “you’re not going anywhere”, gets on the phone in front of me and says, “I’m calling in for a search warrant for your house”. That’s when the – how things played out afterwards. So I was told that I can’t leave, so whether or not how I got to my home, I was actually – he wanted to come with me to my home and that’s how it happened.
76 Ms El Masri said that DSC Mangan told her that Mr Robinson was under investigation in relation to the red Toyota Hilux vehicle, but did not discuss any details with her.
77 She said that, later, she drove home. DSC Mangan followed in his car. She said that, before leaving, DSC Mangan had said:
I’m coming with you. I’m coming with you to your home.
78 She said that when she got home, she opened the front door and entered. She said that DSC Mangan entered the house after her.
79 Ms El Masri denied that DSC Mangan told her that she could either stay while a search was undertaken of the house or she could collect a few essential items and go to the hospital. She said that DSC Mangan told her:
You can’t take nothing out of the home.
80 Ms El Masri accepted that, at the scene of the arrest, DSC Mangan had told her that Mr Robinson was being taken to Liverpool Hospital. She accepted that she did not call Liverpool Hospital and that Liverpool Hospital did not call her. Her explanation was that she did not have “credit in my phone on that day”.
81 Ms El Masri accepted that other police officers attended her house during the afternoon. She said that DSC Mangan left the vicinity of her house at about 4.30 pm to 5.00 pm and that the search warrant was executed between 6.00 pm and 6.30 pm.
82 Ms El Masri later said that, when DSC Mangan entered her home, she asked him to leave. She also said that she asked whether she could be with Mr Robinson. Her evidence was that DSC Mangan had said:
Don’t worry about him. He’s already been taken to Liverpool Police Station.
83 Ms El Masri said that she was under the impression that Mr Robinson was at Liverpool Police Station from about 1.30 pm or 2.00 pm. She said that she took a video of DSC Mangan while he was waiting outside her house for the police officers who were to execute the search warrant. Ms El Masri said that after the search of her house had been completed, she went to Liverpool Police Station. She said she arrived at about 7.30 pm to 8.00 pm. She agreed that, at the police station, no one stopped her from seeing Mr Robinson. She was able to speak to him, although she said that Mr Robinson was not responsive.
84 She agreed that, at Liverpool Police Station, LSCON (Senior Constable) Taseski, gave her information and answered the questions she asked. Her evidence was (referring to Senior Constable Taseski): “He was OK”. She agreed that DSC Mangan had suggested that he not interview Mr Robinson at that time, and that, after bail was granted, she left the station with Mr Robinson at about 11.00 pm.
Other matters
85 The custody officers at Liverpool Police Station dealing with Mr Robinson on 21 March 2009 were Senior Constable Tomasic and Senior Constable Taseski. They made a number of observations about Mr Robinson. I will refer to those observations later.
86 Senior Constable Taseski, as custody officer, granted bail to Mr Robinson on conditions. He provided reasons. I will refer to them later. Apart from requiring Mr Robinson to give a bail undertaking, as he was obliged to do, Senior Constable Taseski imposed conditions that required Mr Robinson to report each Monday and Friday to a designated police station and to provide a surety, without security, for the sum of $1,000.
Findings
87 As the evidence unfolded, many facts were not contentious. I make the following findings based on the affidavit and oral evidence of the witnesses, and on hospital and police records that were tendered at the hearing, or form part of the terminated complaint and are not contentious.
88 DSC Mangan and DC Johnson were outside Ms El Masri’s house on the morning of 21 March 2009. They were making observations from an unmarked police car on the basis that Adam Rayan (that is, Mr Robinson) may be present. They were investigating alleged offences involving the use by Adam Rayan of valueless cheques in the purchase of goods. At about 11.30 am they saw Mr Robinson enter and drive away in a red Toyota Hilux vehicle. This vehicle was the subject of one of the alleged offences they were investigating. They followed the vehicle and pulled it over in a side street approximately 100 metres from Ms El Masri’s house. Mr Robinson got out of the vehicle. DSC Mangan approached him. Mr Robinson identified himself as Adam Rayan and produced a Queensland driver’s licence bearing that name. DSC Mangan then arrested Mr Robinson for fraud offences involving the use of valueless cheques, and cautioned him.
89 Mr Robinson then asked if he could return to Ms El Masri’s house because he was feeling faint and needed his medication. When further questioned, Mr Robinson fell to the ground, closed his eyes and began shaking. This appeared to be a seizure of some kind, although DSC Mangan formed the view that Mr Robinson was controlling his head and had control of his faculties. An ambulance and other police officers were called.
90 It is from this point that there are conflicting versions of the facts. I will return to those versions. However, once again, a number of other facts are not contentious. In that connection I make the following findings.
91 Ms El Masri arrived at the scene and gave Mr Robinson some medication. Mr Robinson was then conveyed by ambulance to Liverpool Hospital with DC Johnson in attendance. The ambulance arrived at Liverpool Hospital at some time before 12.25 pm. At 12.25 pm Mr Robinson was seen by a nurse. The notes made by hospital staff record that Mr Robinson was “under police custody after allegedly using fake cheques”. The notes record that when approached by police, Mr Robinson became short of breath. The notes record Mr Robinson’s medical history as “bipolar, brain injury, schizophrenia” and that he had a history of being non-compliant with his medications. The notes also record that Mr Robinson was “alert”, “aggressive”, “pacing around isolated room”, “wanting to leave”, and “swearing”. I accept that these notes accurately describe Mr Robinson’s behaviour at the time. The notes do not record the source of Mr Robinson’s medical history. The source is unlikely to be DC Johnson. There is no evidence to suggest that DC Johnson had any knowledge whatsoever of Mr Robinson’s medical history. I find that Mr Robinson provided that history.
92 The medical notes also record observations of Mr Robinson’s behaviour at 1.35 pm. The notes record that he was aggressive, demanding Seroquel and that he had kicked a window in the observation room and shattered it. The notes record that at 1.45 pm Mr Robinson was settled and “talking about suing everyone”. The notes record that at 1.50 pm Mr Robinson requested “camera footage”. He wanted the hospital to ring his “carer” as well as the St George Acute Care Unit “as they treat him better”. I accept the accuracy of those notes.
93 The notes record that Mr Robinson was seen by a medical practitioner at 2.04 pm. Amongst other observations, a record was made of certain background matters, in the following terms:
- Brain injury
- ? Seizure disorder
- Bipolar?
- Schizophrenia
- History of drug offences
Sonia El Mazri
[As in original]
94 It seems most likely that this information was provided either by Mr Robinson or by staff at Liverpool Hospital who had contacted St George Hospital as a result of Mr Robinson’s request. I am satisfied that DC Johnson did not provide this history.
95 The medical notes contained the following entry for 2.15 pm:
Pt BIBP due to aggressive behaviour. Pt clearly under influence of illicit drugs. He was caught and arrested for stealing car. As per police pt was fine. There was no evidence of abnormal behaviour until he was told that he was under arrest. During assessment he presented as passive aggressive but no acute evidence of psychotic symptoms. He denied any thoughts plans or intent to suicide. No evidence of any MH issues.
[As in original]
96 This is the last observation recorded in the notes. The final entry is for 6.45 pm when the notes record that Mr Robinson was discharged into police custody and left the Emergency Department of the hospital. The discharge time is in conflict with police records which record that Mr Robinson entered custody at Liverpool Police Station at 3.20 pm. I prefer the police records. It seems most unlikely, based on the timing of the other entries in the medical notes, that hospital staff would have made no observation of Mr Robinson over the four and a half hour period between 2.15 pm and 6.45 pm. I am satisfied, on the balance of probabilities, that Mr Robinson was discharged from Liverpool Hospital before 3.20 pm. In all likelihood he was discharged at about 2.45 pm and not 6.45 pm.
97 Senior Constable Tomasic was the custody officer in charge of Mr Robinson when he arrived at Liverpool Police Station. Senior Constable Tomasic made a number of observations about Mr Robinson, including: “is shaking however he has no shoes”, “is slow”, “stated he felt ill and wanted water” and “is slow and disabled”. He also recorded the fact that Mr Robinson had told him that he takes six different types of tablets; that he has been treated for epilepsy; that he was suicidal; that he had “mental problems”; and that he was receiving treatment at “st geoge acute unit”. Senior Constable Tomasic made the general observation that Mr Robinson “appears physically challenged, slow to respond”. I accept that these observations accurately described Mr Robinson’s condition. Senior Constable Tomasic specified that Mr Robinson was to be inspected every 30 minutes.
98 DSC Mangan arrived at Liverpool Police Station at approximately 6.00 pm. At that time Ms El Masri was not present. She arrived at Liverpool Police Station later that evening. I accept that Mr Robinson appeared to DSC Mangan to be drowsy, dazed and not lucid and that, for this reason, DSC Mangan decided not to interview Mr Robinson at that time. I accept that DSC Mangan informed Ms El Masri of his decision and that she agreed with it. While at Liverpool Police Station DSC Mangan prepared the Facts Sheet and other documents. The Facts Sheet was used by Senior Constable Taseski when considering Mr Robinson’s bail application.
99 Senior Constable Taseski made the following entry at about 9.40 pm in the custody record for 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]
100 Mr Robinson was taken to Liverpool Hospital under police custody at about 10.00 pm that evening. At the hospital he was given Seroquel. He was returned under police custody to Liverpool Police Station, where he was then bailed. He left Liverpool Police Station at approximately 11.00 pm, accompanied by Ms El Masri.
101 In the Reasons for Bail Decision, Senior Constable Taseski said:
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]
102 I am satisfied that, in making this statement, Senior Constable Taseski relied on what DSC Mangan had written in the antecedents section of the Facts Sheet, including DSC Mangan’s belief that Mr Robinson had feigned a mental illness. I am also satisfied that DSC Mangan’s statement about Mr Robinson feigning a mental illness was intended to convey, and in all likelihood did convey, to Senior Constable Taseski that Mr Robinson had feigned a seizure earlier that day. Thus the “act” referred to by Senior Constable Taseski included, at least, the feigning of seizures.
103 The conflicting versions of the facts concern the period immediately after Mr Robinson was arrested; the events that occurred at the scene of the arrest after Ms El Masri arrived and Mr Robinson had been taken to Liverpool Hospital; and the events that subsequently occurred at Ms El Masri’s house while DSC Mangan was present. A number of these matters are of a trifling nature. The main area of conflict is 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 (according to Ms El Masri), or whether DSC Mangan told Ms El Masri that she could collect a few essential items and go to the hospital to be with Mr Robinson or remain while a search was conducted at her house (according to DSC Mangan).
104 In my view it is not strictly necessary for me to resolve that conflict in order to determine the applicants’ claims. If, however, a different view be taken of that matter, I should record that I am not satisfied that the applicants have established, on the balance of probabilities, that DSC Mangan did prevent Ms El Masri from following the first applicant to the hospital. My reasons are 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.
109 At this point I should also say something about Mr Robinson’s evidence. It became apparent, very early in his cross-examination, that he had no recollection whatsoever of anything that had happened on 21 March 2009 other than, possibly, what he had subsequently read or had been told, principally by Ms El Masri. His complete absence of recollection stands in stark contrast to the account given in his affidavit, which was sworn less than seven months before the hearing, but more than 26 months after the events in question. It is true that Mr Robinson said that he had told Ms El Masri things, and I have no doubt that Mr Robinson and Ms El Masri would have discussed the events of 21 March 2009 both on that day and at later times. I doubt, however, that, based on the evidence of his presentation on 21 March 2009, and his evidence in cross-examination, Mr Robinson was capable of giving a coherent and reliable account, at any time, of the events of that day. I am satisfied that his affidavit evidence is essentially a reconstruction, most likely based on what he believes to have happened rather than what, in fact, happened. For this reason I place very little weight on his affidavit evidence. In this state of the evidence I am not prepared to find, for example, that DC Johnson goaded Mr Robinson at Liverpool Hospital, as Mr Robinson recounted in his affidavit. Moreover, for the reasons I have given earlier, I am not satisfied that DC Johnson commented on or discussed Mr Robinson’s medical history with medical staff at Liverpool Hospital.
the applicants’ claims
110 In the amended points of claim filed on 14 December 2011 the applicants identified the following as the acts of discrimination on 21 March 2009 on which they relied:
(a) 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”.
(b) DSC Mangan used New South Wales computer equipment to note, create, publish and distribute the Facts Sheet in which he made the quoted statement.
(c) 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.
(d) DC Johnson interfered in the way in which Mr Robinson should have been medically treated at Liverpool Hospital.
(e) 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.
(f) 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.
(g) DC Johnson laughed at Mr Robinson and said: “Stop faking it”.
(h) 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’”.
(i) Senior Constable Taseski “accepted” DSC Mangan’s quoted statement.
(j) 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”.
(k) 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”.
111 The amended points of claim also allege that each of DSC Mangan, DC Johnson, Senior Constable Taseski and Senior Constable Tomasic failed to treat Mr Robinson as a vulnerable person in accordance with cl 24(1)(b), and failed to make arrangements for Ms El Masri to be present as a support person under cl 26(b)(i), of the Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW) (the LER). These allegations, referenced as they are to cll 24(1)(b) and 26(b)(i), do not identify any breach of the LER. I will return to that matter. Furthermore, the applicants have not sought to articulate how, if at all, the unidentified breach or breaches of the LER might, separately, constitute unlawful discrimination in breach of s 24 of the Act.
112 The findings of fact I have made do not sustain the claims of unlawful discrimination in relation to DC Johnson in respect of the acts alleged in subparagraphs (c), (d), (g) and (h) above. Therefore, those claims fail at the outset for want of proof. The claim made in subparagraph (e) seems to be an aspect of the allegation that DC Johnson breached the LER. Whether he did so depends on whether the LER applied to him at that time. Once again, I will return to that matter.
113 I have treated the allegation in subparagraph (k) as referring to the imposition by Senior Constable Taseski of the particular conditions on which Mr Robinson’s bail was granted on 21 March 2009.
Issues
114 As the applicants’ claims have now come to be advanced, the following questions arise for determination:
(a) Does s 24 of the Act extend, by operation of s 12, to the claims made by the applicants?
(b) If so, was the respondent providing “services” to each of the applicants, respectively, for the purposes of s 24(1)?
(c) 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?
(d) If so, was Mr Robinson’s disability a reason for that less favourable treatment?
115 Other issues were raised in the course of the hearing and in the written submissions of the parties. In light of the conclusions to which I have come on the above questions, it is not necessary for me to consider these other issues.
Jurisdiction
116 The Act applies throughout Australia: s 12(2). However, s 24 is one of a number of defined “limited application provisions”: see s 12(1). The limited application provisions only have effect to the extent that they are supported by reference to certain heads of Commonwealth legislative power. They do not otherwise have effect: see s 12(4). The parties accept that, in the present case, s 24 will only have application to the extent provided for by s 12(8), and not otherwise.
117 Section 12(8) of the Act provides:
The limited application provisions have effect in relation to discrimination against a person with a disability to the extent that the provisions:
(a) give effect to the Convention; or
(b) give effect to the Covenant on Civil and Political Rights; or
(c) give effect to the International Covenant on Economic, Social and Cultural Rights; or
(d) relate to matters external to Australia; or
(e) relate to matters of international concern.
118 This provision plainly draws upon s 51(xxix) of the Constitution for its authority. The applicants rely, specifically, on ss 12(8)(b) and 12(8)(e).
119 The reference in s 12(8)(b) to the Covenant on Civil and Political Rights is to the International Covenant on Civil and Political Rights (the ICCPR) , the English text of which is set out in Sch 2 of the now AHRC Act.
120 With respect to giving effect to the ICCPR, the applicants rely on certain parts of the Preamble and Articles 2, 9 and 10.
121 The Preamble provides a recognition that:
… in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights …
122 Article 2 of the ICCPR is concerned with implementation by each of the State Parties. It provides that:
1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
[Emphasis added]
123 The applicants point, in particular, to the use of the expression “other status” in paragraph 1 of Article 2. They submit that “other status” includes a person with a disability.
124 Article 9 relevantly provides that:
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. …
3. … It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial ...
4. ...
5. ...
[Emphasis added]
125 Article 10(1) provides that:
All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
126 The applicants submit, by reference to the Preamble and Articles quoted above, that the granting of bail to persons arrested and charged with offences is one of the procedures contemplated by the ICCPR in respect of which there must be no distinction drawn on the grounds of disability. Where a person’s right to be treated without distinction has been violated, there must be an effective remedy. They submit that the evident purpose of s 24 of the Act in respect of the detention of a person with a disability is to treat as unlawful discrimination against that person on the basis of that disability. They submit that that is a key step in the legislative regime which provides an effective remedy for discrimination against a person with a disability in such circumstances. It follows, they submit, that s 24 gives effect to the ICCPR and applies to Mr Robinson’s claim by reason of s 12(8)(b) of the Act. Alternatively, they submit that the ICCPR demonstrates that discrimination against, and equal treatment of, persons with disabilities is a matter of international concern. It follows, they submit, that s 24 also applies to Mr Robinson’s claim by reason of s 12(8)(e) of the Act.
127 In relation to Ms El Masri’s claim, the applicants submit that Mr Robinson is a “vulnerable person” within the meaning of cl 24 of the LER by reason of his “impaired intellectual functioning”. As a “vulnerable person”, he is entitled to contact a support person and have them present during any investigative procedure: see cl 27. Article 9 of the ICCPR prohibits the detention of any person other than in accordance with procedures established by law. The evident purpose of the LER is to ensure that individuals with intellectual disabilities enjoy the same rights as persons without such disabilities, by providing for a support person to assist the “vulnerable person” to assert and exercise those rights. Permitting discrimination against a person on the basis of that person’s association with a vulnerable person would discourage persons from supporting vulnerable persons to assert their rights in respect of detention. They submit that that would be clearly contrary to the purpose of the ICCPR. They submit that s 24, insofar as it applies to claims by associates of persons with disabilities held in detention, supports the purpose of the ICCPR and consequently gives effect to the ICCPR within the meaning of s 12(8)(b) of the Act. Alternatively, they submit that this reasoning supports the conclusion that discrimination against an associate of a person with a disability is a matter of international concern with the consequence that s 12(8)(e) is engaged so as to extend s 24 to apply to Ms El Masri’s claim.
128 The question of whether s 24 of the Act gives effect to the ICCPR requires detailed consideration of the terms of s 24 itself. The section is not directed, in terms, to the detention of persons and the rights of individuals in relation to detention. Rather, it concerns, relevantly, the provision of services and, more specifically, the refusal to provide services, the terms or conditions on which services are provided, and the manner in which services are provided. As a threshold matter, s 24 of the Act can only give effect to the ICCPR if the Articles on which the applicants rely concern the provision of services as understood by s 24. Otherwise, there would be a disconnect between the ICCPR and s 24. Thus the jurisdictional question that is raised in the present case by s 12(8)(b) cannot be divorced from the determination of the meaning of the word “services” as used in s 24. If the alleged acts of discrimination relied upon by the applicants 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) becomes otiose.
129 The question of whether disability discrimination in the provision of services relates to “matters of international concern” stands in a somewhat different position.
130 In Souliotopoulos v La Trobe University Liberal Club (2002) 120 FCR 584, Merkel J gave consideration to the question of whether discrimination in the areas covered by the provisions in Divs 1, 2 and 3 of Pt 2 of the Act relate to matters of international concern. The particular provision in question in that case was s 27 dealing with discrimination in relation to membership of clubs or incorporated associations. Significantly, s 24 (of present relevance) and s 27 are both in Div 2 of Pt 2 of the Act dealing with “discrimination in other areas”. His Honour’s analysis at [32] to [57] with respect to disability discrimination in the international context, which I will not attempt to summarise, included consideration of the Second Reading Speech (Commonwealth, Parliamentary Debates, House of Representatives, 26 May 1992, 2751 (Brian Howe, Minister for Health, Housing and Community Services)) and the Explanatory Memorandum for the Disability Discrimination Bill 1992 (Cth).
131 The Second Reading Speech included the following:
The Bill recognises that discrimination against people with disabilities is a matter of international concern. It is another significant step in fulfilling Australia's international obligations under a number of United Nations instruments. These include the International Labour Organisation Convention concerning discrimination in respect of employment and occupation; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; and a number of related declarations.
132 Clause 12 of the Explanatory Memorandum stated:
This clause provides that the legislation is to apply throughout Australia. The provision is also designed to ensure that all possible Commonwealth Constitutional power is relied upon to support the various provisions of the Act.
In particular sub-clause (8) of this clause indicates that certain provisions of the legislation have effect in relation to discrimination against people with disabilities to the extent that the provisions implement Australian responsibilities under certain international instruments. Most notably these are the United Nations International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights and the International Labour Organisations Convention Number 111 entitled Convention concerning Discrimination in Respect of Employment and Occupation.
In relation to ILO 111 Australia determined in 1988 that disability would be regarded as a distinction, exclusion or preference for the purposes of Article 1(b) of that Convention. In 1989 Australia gave limited legislative effect to that determination when it enacted regulations under the HREOC Act giving HREOC authority to investigate complaints in relation to discrimination on the basis of disability in employment.
It is also clear from a number of lesser international instruments that discrimination against people with a disability is a matter of concern to the international community generally. The limited application provisions apply to the extent of that international concern. The Declaration on the Rights of Disabled Persons, The Declarations on the Rights of Mentally Retarded Persons and The Declaration on the Rights of the Child are just some of the instruments which further indicate how discrimination against people with disabilities is a matter of international concern.
133 His Honour’s analysis led him to conclude (at [57]) as follows:
Plainly, the purpose or object of Divs 1, 2 and 3 of Pt 2 of the Act is to deal with international concerns about disability discrimination. Accordingly, I am satisfied that the limited application provisions in Divs 1, 2 and 3 of Pt 2 of the Act but, in particular s 27(2), have effect by reason of s 12(8)(e). …
134 His Honour’s conclusion was a broadly-stated one covering all the limited application provisions of the Act, although it must be accepted that his Honour’s decision is grounded on the operation of s 27. Nevertheless, his Honour’s analysis and conclusion are persuasive in relation to the operation of the other limited application provisions, and s 24 in particular. His Honour’s analysis of a number of international instruments, the Second Reading Speech and the Explanatory Memorandum led him to find that national disability discrimination had become a matter of international concern: see at [52]-[53]. It followed that s 27 dealing with discrimination in relation to membership of clubs or incorporated associations was a provision that related to that matter. The same analysis and conclusion applies, as [57] of his Honour’s reasons recognises, with no less force to s 24 concerning disability discrimination in the provision of services. That provision relates to a matter (national disability discrimination) that is of international concern.
135 I propose to follow the reasoning and broadly-stated conclusion in Souliotopoulos. I am not persuaded that the decision is clearly wrong.
136 While s 12(8)(e) would extend s 24 to Mr Robinson’s claim (making further consideration of the effect of s 12(8)(b) unnecessary), it would not extend the section to Ms El Mari’s claim. This is because s 12(8)(e) only provides that s 24 will apply 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 follows with respect to Ms El Masri’s reliance on s 12(8)(b). In this connection the operation of s 12(8) can be contrasted with the operation of other subsections of s 12 which are not, in terms, so confined. Section 12(4) provides that the limited application provisions have effect as provided by s 12 “and not otherwise”.
137 Thus I am satisfied that, subject to its requirements otherwise being met, s 24 extends, by operation of s 12(8)(e), to Mr Robinson’s claim but not to Ms El Masri’s claim. Plainly that conclusion means that Ms El Masri’s claim must be dismissed. Nevertheless, against the possibility that a different view might be taken of the effect of s 12(8) in the present case, I propose to consider and make findings in respect of her claim to the extent that it is capable of being sustained on the facts as I have found them to be.
138 Finally, I note that there is a question about whether laws that “relate to matters of international concern” can be supported by s 51(xxix) of the Constitution: see, for example, XYZ v The Commonwealth of Australia (2006) 227 CLR 532 at [50]-[53], [119]-[127] and [219]-[226]; see Murray S, “Back To ABC After XYZ: Should We Be Concerned About ‘International Concern’?” (2007) 35 Federal Law Review 317. The validity of s 24 of the Act, as supported by s 12(8)(e), has not been argued in the present case.
services
Introduction
139 At the hearing the respondent submitted that, although the applicants had identified various aspects of conduct that were matters of complaint by them, they had not identified the services that were the subject of the alleged discrimination. They submitted that the services in issue must be identified precisely and concretely in relation to the facts of the case and the issues that arise for determination.
140 In the context of alleged discrimination under s 66K(1) of the Equal Opportunity Act 1984 (WA) – a provision which is not materially different to s 24 of the Act – Brennan CJ and McHugh J said in IW v The City of Perth (1997) 191 CLR 1 at 16-17:
In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service or services the alleged discriminator provides. …
141 Earlier, in Waters v Public Transport Corporation (1991) 173 CLR 349, which was a case of alleged discrimination under the similarly worded provision of s 29(1) of the Equal Opportunity Act 1984 (Vic), McHugh J said at 404:
… the goods or services which must be identified are those goods or services which are relevant to the complainant or any person or persons whom the complainant represents. Before there can be a finding of discrimination by a person in relation to the provision of goods or services, therefore, the relevant goods or services must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination. …
142 When the applicants were afforded the opportunity to provide written submissions in reply, the only services they identified for the purpose of considering the application of s 24 of the Act were “dealing with” Mr Robinson’s application for bail. They went on to contend, however, that any failure by them to refer in their written submissions to the particular claims that had been advanced should not be understood as a withdrawal of those claims. Thus it would appear that the applicants wish to maintain the complaints they have made in the amended points of claim but have been unable, save in one respect, to identify the framework by which those complaints can be said to give rise to unlawful discrimination under s 24 of the Act. I should record that the applicants did not seek to identify any relevant services in the course of their oral submissions.
143 As I have noted, the respondent contends that the position adopted in the applicants’ written submissions represents a very significant shift from the way in which they presented their case at the hearing. The respondent submits that, prior to the written submissions, the applicants’ claim had been directed to police conduct concerning Mr Robinson’s arrest, the decision to convey him to the hospital and DSC Mangan’s preparation of the Facts Sheet. The respondent complains that this departure by the applicants has denied him the opportunity of adducing evidence on the question of whether “dealing with” Mr Robinson’s bail application involved “services”.
144 While I accept that there has been a shift in focus in the applicants’ case, I am satisfied that the present focus finds a basis in the amended points of claim. Although the amended points of claim were filed shortly before the commencement of the hearing, the respondent was content to proceed on the basis of them. The only issues that were raised at the hearing in that regard were whether the applicants wished to call, in their own case, additional evidence from police witnesses (whose attendance the respondent offered to secure) and whether, in any event, the Court required such witnesses to be called. The applicants chose not to call any police witnesses in their own case. The respondent indicated that he did not propose to call evidence from police witnesses other than DSC Mangan, unless required to do so by the Court. The Court had no requirement in that regard.
145 I am left to consider, therefore, whether, in respect of the various and separate interactions between members of the NSW Police Force and each of the applicants respectively, on 21 March 2009, services were being supplied, or there was a refusal to supply services, for the purposes of s 24 of the Act.
General observations on the meaning of services
146 Relevantly for present purposes, s 24 of the Act proceeds on the basis of discrimination occurring in the course of providing services. A threshold question arises as to what is meant by “services” in this particular statutory context.
147 Section 4 of the Act defines “services” as follows:
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.
148 It is apparent that the s 4 definition does not seek to fully characterise the meaning of “services”. The respondent accepts, however, that “services” is a word of generality and that it should be construed in a way that gives effect to the objects of the Act. The respondent accepts that “services” in s 24 of the Act is apt to cover “any helpful activity”. The respondent also accepts that, for the purposes of paragraph (f) of the definition of “services” in s 4 of the Act, the NSW Police Force is a government authority: see in that regard Commissioner of Police, NSW Police Service v Estate of Edward John Russell [2001] NSWSC 745 at [41]-[43].
149 Perhaps the most extensive discussion of the meaning of “services” in the context of legislation of the present kind is the High Court’s decision in IW. The case concerned whether a refusal by the City of Perth to give planning approval in respect of certain premises involved a refusal to provide services.
150 In that case Dawson and Gaudron JJ, after observing that the word “services” should be given its ordinary and broad meaning, said (at 23):
The word “services”, in its ordinary meaning, is apt to include the administration and enforcement by the City of Perth of the Planning Scheme. That being so, the Tribunal was correct in holding that “in administering a town planning scheme …, regulating the use of land …, securing provision for traffic …, and generally implementing or enforcing measures directed to the amenity of the area, … the City of Perth [was] providing a service to residents”.
151 Later (at 24) their Honours said:
Within the context of s 66K(1), a person who provides a service by exercising a discretion to grant or withhold approval may discriminate against a person in the exercise of that discretion by refusing to exercise it at all (par (a)), by imposing terms and conditions (par (b)), or by exercising it in a particular manner (par (c)). Subject to the question whether the appellant is an aggrieved person, it may be that a case can be made that, in refusing PLWA’s application, the City of Perth exercised its discretion in a discriminatory manner and, thus, infringed s 66K(1)(c) of the Act. …
152 In the same case, Toohey J (at 27-28) said:
Given the breadth of the term “services”, it might be readily concluded that a refusal to give planning approval to the application by PLWA was a refusal to provide a service. The contrary argument however is that the service provided by the Council is not the giving of planning approval but the consideration of an application for such approval. It is not incumbent on the Council to give its approval; it may refuse its approval, or grant its approval unconditionally or subject to conditions. The service it provided was to consider the application in question and this it did. This approach to the issue is in my view too narrow.
153 After noting, again, that the Council may grant or refuse an application to rezone, his Honour (at 28) posed and answered the following question:
… But how, it is asked, can a refusal of an application be a refusal to provide a service? The answer to this may be found in s 66K(1)(c) of the Act. If the service is seen as the consideration of the application and its disposition and if it appears that the Council refused the application on the ground of impairment, why is that not discrimination “in the manner in which the first-mentioned person provides the other person with those … services”? Consideration of an application is of itself hardly a service; it is the disposition of the application which either provides or refuses the service. In the manner of that refusal there may be discrimination.
154 At 44 Gummow J said:
The question arises whether the circumstance that, in dealing with applications for approval, the Council, as responsible authority, exercises its statutory functions and duties under the town planning law has the consequence that the Council is not also engaged in the provision of services to applicants within the meaning of the anti-discrimination legislation. An issue of characterisation is involved. Each statute operates in aid of particular ends considered important by the legislature. There is no reason in logic or good sense to deny the proposition that the Council may be engaged in the provision of services, not only to the community as a whole, but also to individual applicants who invoke the exercise of the powers of the Council under the town planning law. There is no dichotomy here between the discharge of statutory functions and the provision of services to those seeking the discharge of these functions.
155 In his reasons, Kirby J noted that many cases in Australia and overseas had expanded the notion of “services” to include a variety of governmental services, including the making of decisions under or pursuant to legislation: see at 74. His Honour continued (at 74-75):
… The provision of permission to change a planning use is capable of being a “service”. It can undoubtedly be helpful and valuable to the recipients. A refusal to provide it, on a ground of unlawful discrimination, is plainly the kind of conduct which the Act was designed to discourage and redress. Just as governmental services have changed, by expansion and, in recent times, contraction, so it is undesirable to impose a narrow meaning on the word “services” used in this context. Unless the City’s permission were granted, the consequent services and facilities of the City, the subject of town planning, would not be provided to the applicant. Such a result would flow from the refusal to make the service of planning permission available. If the refusal were “on the ground of” the applicant’s impairment, that would be contrary to the Act.
156 However, in the same case, Brennan CJ and McHugh J took a narrower view of the scope and meaning of the word “services” as used in its particular statutory context. Their Honours said (at 15):
Thus, when a council is called on as a deliberative body to exercise a statutory power or to execute a statutory duty, it may be acting directly as an arm of government rather than as a provider of services and its actions will be outside the scope of the Act. This is particularly so when councillors are acting as representatives of their constituencies in making by-laws or resolutions that will have the force of law throughout the municipality or borough. Such "legislative" acts have to be contrasted with the acts involved in making operational decisions as to whether a particular service should be provided to certain individuals or to a section of the community.
Similarly, when a council is required to act in a quasi-judicial role in exercising a statutory power or duty, it may be inappropriate to characterise the process as the provision of a service for the purpose of the Act even in cases where the product of the process is the provision of a benefit to an individual. This is likely to be the case where the council, before making a decision, is required to consider matters that affect the public interest. In such a case, the Council may be providing a "service" in a very general sense because its ratepayers ultimately benefit from the process. But that may not be sufficient to bring the process within the scope of Pt IVA of the Act.
157 Their Honours 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. …
158 In Rainsford v Victoria (2005) 144 FCR 279, when dealing with a case of alleged discrimination arising under s 24 of the Act, Kenny J (with whom Hill and Finn JJ agreed) said (at [54]):
Section 4(1) provides an inclusive definition of services and that, amongst other things, unless the contrary intention appears, "services" includes "services of the kind provided by a government, a government authority or a local government body" (para (f)). As his Honour recognised, on account of its remedial character, [the Act] is to be generously construed and the word "services" includes all matters which ordinarily fall within that notion: see IW v City of Perth at 11-12 per Brennan CJ and McHugh J; 22-23 per Dawson and Gaudron JJ; 27 per Toohey J; 39, 41-42 per Gummow J; and 69-70 per Kirby J. The identification of the "service" at issue in any case is a question of fact for the trier of fact: see Waters at 361 per Mason CJ and Gaudron J, with whom Deane J relevantly agreed (382); 394 per Dawson and Toohey JJ; and 404-405 per McHugh J; and also Catholic Education Office at [12]-[13] per Tamberlin J and [102] per Sackville and Stone JJ. The question of whether an activity is a service for the purposes of s 24 of [the Act] is essentially a matter of characterisation. In discharging statutory duties and functions and in exercising statutory powers in the public interest, a body may also be engaged in the provision of services to particular individuals: see IW v City of Perth at 44 per Gummow J; also 12-13 per Brennan CJ and McHugh J; 24 per Dawson and Gaudron JJ; 29 per Toohey J; and 72 per Kirby J. …
159 Subsequently, in Rainsford v Victoria (2007) 167 FCR 1 Sundberg J (at [72]) stressed that not all government functions are services:
The judgments in IW 191 CLR 1 are clearly dependent on the particular fact situation of that case, but some general propositions can be identified. First, not all government functions are services, although some undoubtedly are. Second, as the difference between Dawson, Gaudron and Gummow JJ on the one hand, and Toohey and Kirby JJ on the other hand demonstrates, the way in which the service is identified is critical. It is a question of fact determined by the situation of the particular case.
160 In that case his Honour accepted the usefulness of asking whether a particular act (claimed to be “services”) involves “helpful or beneficial activity” to the relevant class of persons to which the person alleging discrimination belongs: see at [73]. His Honour held, however, that neither:
(a) the transportation of prisoners between prisons and between prison and court; nor
(b) the accommodation of a prisoner in cells within the prison system,
is a service for the purposes of s 24 of the Act.
161 In the case of transportation, his Honour reasoned (at [77]) that the prison system could not function without prison transport and that it was an artificial use of the word “service” to apply it to “a fundamental integer of a system over which those affected have no or almost no control”. His Honour also reasoned (at [78]) that prisoner accommodation was an inherent part of incarceration; prisoners must be housed somewhere within the prison system. Having a cell was not a helpful or beneficial activity so far as the prisoner is concerned.
162 A number of other cases have held that the performance of particular public duties does not constitute the provision of services. In R v Immigration Appeal Tribunal, Ex parte Kassam [1980] 1 WLR 1037 it was held that, in giving leave to immigrants to enter or remain in the United Kingdom, the Secretary of State was not providing facilities (a term there accepted as akin to services) to a section of the public under the Immigration Act 1971 (UK) or the rules made thereunder. Similarly, in R v Entry Clearance Officer, Bombay, Ex parte Amin [1983] 2 AC 818 it was held that, in granting immigration vouchers, an entry clearance officer was not providing a service for would-be immigrants, but only performing duties in controlling them. In Secretary of the Department of Justice and Industrial Relations v Anti-Discrimination Commissioner (2003) 11 Tas R 324, it was held that the exercise of a statutory prosecutorial discretion against laying a complaint or filing an indictment was not done in relation to services but merely in the performance of a statutory duty.
Police services
163 The NSW Police Force is established by the Police Act 1990 (NSW) (the Police Act): see s 4. The Police Act provides that the NSW Police Force has a number of functions. One of those functions is to provide police services for New South Wales.
164 Section 6(3) of the Police Act defines those services as follows:
In this section:
"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.
165 That definition does not greatly advance matters in the present case. It does go some way, however, to recognising that it is apt to refer to the NSW Police Force as providing services in appropriate circumstances: see, in that connection, the observations of Basten JA in Commissioner of Police (NSW) v Mohamed (2009) 262 ALR 519 at [30]-[32].
166 Some consideration has been given in the cases to the characterisation of police functions with a view to determining whether, in particular circumstances, the provision or refusal of services is involved. In this connection, the cases recognise that a dual characterisation might be appropriate. For example, in Farah v Commissioner of Police of the Metropolis [1998] QB 65 a distinction was drawn between pursuing, arresting or charging alleged criminals, which was not the provision of a service to the alleged criminals, and affording protection to members of public against violence and other criminal acts, which was regarded as the provision of a service to members of the public sufficient to attract the operation of s 20(1) of the Race Relations Act 1976 (UK): see at 78 and 83; see also Mohamed at [39]-[45] and [80]-[86]; Patrick v State of South Australia (No 2) [2009] SAEOT 1 at [34].
167 This underscores the need to focus on the position of the person alleging discrimination to identify whether services are being provided or refused to that person and to others in the same circumstances or in circumstances that are not materially different. 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: see IW at 16.
168 In my view it could not be said in the present case that DSC Mangan and DC Johnson were providing services to Mr Robinson for the purposes of s 24 of the Act when pursuing and arresting him on 21 March 2009. Similarly, DC Johnson was not providing services to Mr Robinson when maintaining custody over him in the ambulance and at the hospital. Thus, in my view, none of the complaints made by the applicants 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 Act, even if, contrary to my findings, those complaints, in the case of DC Johnson, could be made out as a matter of fact.
169 Similarly, I am not persuaded that either DSC Mangan or DC Johnson was providing services to Ms El Masri on 21 March 2009 at the scene of the arrest. Furthermore, I am not satisfied that, thereafter, 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. It follows that, even if I were satisfied that s 12(8) of the Act was capable of extending s 24 to Ms El Masri’s claim as an “associate”, s 24 was not engaged.
170 As the applicants’ only fully articulated claim regarding unlawful discrimination in relation to the provision of “services” under s 24 of the Act concerns “dealing with” Mr Robinson’s bail application, I now turn to give that claim separate consideration.
Dealing with Mr Robinson’s bail application
171 In their written submissions the applicants said that “dealing with” Mr Robinson’s bail application meant “considering and disposing of” that application or “considering whether to exercise the discretion to grant or refuse bail”. In this connection the applicants referred to a number of observations made in the various judgments in IW which I have noted above. I note, in particular, the observations made by Gummow J at 44 where his Honour referred to the Council, as the responsible authority, “dealing with” applications for approval when exercising its statutory functions and duties under town planning laws.
172 Mr Robinson’s bail application was “dealt with” under the provisions of the Bail Act 1978 (NSW) (the Bail Act).
173 Section 7(1) of the Bail Act provides:
When:
(a) bail is granted to an accused person in respect of an offence,
(b) the person enters into the bail undertaking, and
(c) if a bail condition or bail conditions are imposed, it or they are entered into,
the person is, subject to this Act, entitled to be released (if in custody) and to remain at liberty in respect of the offence, until the person is required to appear before a court in accordance with the person's undertaking.
174 The Bail Act confers authority on certain police officers to grant bail: s 17. Section 18(1) provides:
Where a person is charged by a police officer with an offence and the person is in custody, the proper officer shall, as soon as reasonably practicable:
(a) give the accused person such information in writing respecting the person's entitlement to or eligibility for bail as is prescribed by the regulations and sign an acknowledgment in the prescribed form that he or she has given the accused person the information, and
(b) if the proper officer is:
(i) authorised to grant bail––determine whether or not bail should be granted to the person or bring the person or cause the person to be brought before a court, or
(ii) not authorised to grant bail––bring the person before a court or an authorised officer.
175 A person is not to be released on bail unless that person gives a bail undertaking in accordance with s 34 of the Bail Act. Otherwise, bail may be granted unconditionally or subject to conditions imposed by instrument in writing: s 36(1). There are, however, restrictions on imposing bail conditions.
176 In this connection, s 37 provides:
(1) Bail shall be granted unconditionally unless the authorised officer or court is of the opinion that one or more conditions should be imposed for the purpose of:
(a) promoting effective law enforcement, or
(b) the protection and welfare of any specially affected person, or
(c) the protection and welfare of the community, or
(d) reducing the likelihood of future offences being committed by promoting the treatment or rehabilitation of an accused person.
(2) Conditions shall not be imposed that are any more onerous for the accused person than appear to the authorised officer or court to be required:
(a) by the nature of the offence, or
(b) for the protection and welfare of any specially affected person, or
(c) by the circumstances of the accused person.
(2A) Before imposing a bail condition on an accused person who has an intellectual disability, the authorised officer or court is to be satisfied that the bail condition is appropriate having regard (as far as can reasonably be ascertained) to the capacity of the accused person to understand or comply with the bail condition.
(3) A condition referred to in section 36 (2) (b)-(h) shall not be imposed unless the authorised officer or court is of the opinion that any condition or combination of conditions referred to in any preceding paragraph or paragraphs of section 36 (2) is not likely to secure the purpose referred to in subsection (1) of this section.
(4) Notwithstanding subsection (3), the authorised officer or court may, at the request of the accused person, grant bail subject to any conditions referred to in section 36 (2) appropriate to secure the purpose referred to in subsection (1) of this section.
(5) In this section:
intellectual disability means a significantly below average intellectual functioning (existing concurrently with two or more deficits in adaptive behaviour) that results in the person requiring supervision or social rehabilitation in connection with daily life activities.
specially affected person means:
(a) any person against whom it is alleged that the offence concerned was committed, and
(b) the close relatives of any such person, and
(c) any other person whose needs, in the opinion of the authorised officer or court, warrant special consideration because of the circumstances of the case.
177 The conditions on which bail may be granted are dealt with in, for example, ss 36(2), 36(A) and 36(B) of the Bail Act. As I have noted, Mr Robinson was granted bail on conditions.
178 I have come to the conclusion that “dealing with” Mr Robinson’s bail application did not involve the provision of “services” within the meaning of s 24 of the Act. I accept that the word “services” is a word of generality and should be given a broad meaning consistent with the objects of the Act. I also accept that the word is apt to cover activities that are helpful and beneficial. No doubt the granting of bail to Mr Robinson was, in a sense, helpful and beneficial to him, as it might be to all accused persons, compared with the alternative of remaining in custody. But in no true sense can an authorised officer acting pursuant to the duties imposed by s 18 of the Bail Act, and its related provisions, be said to be providing services to accused persons, such as Mr Robinson.
179 The applicants submit that the facts of the present case are “not dissimilar” to the facts in IW because what is involved is an application to a government body for the exercise of power to grant consent to a course of action that would confer a benefit on an applicant. In my view the facts and circumstances of IW are far removed from the facts and circumstances of the present case.
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].
Conclusion on services
181 For these reasons, the various interactions between Mr Robinson, Ms El Masri and members of the NSW Police Force on 21 March 2009 did not involve “services” for the purposes of s 24 of the Act. As the applicants’ claims of unlawful discrimination are based solely on unlawful discrimination under s 24 of the Act, it follows that their claims must be dismissed.
182 However, given the present focus of the applicants’ case, and given that a different view might be taken about the scope of the word “services” as used in s 24, I will assume, contrary to my own finding, that “dealing with” Mr Robinson’s bail application on 21 March 2009 involved the provision of “services” within the purview of the section, and proceed to make findings as to whether there was unlawful discrimination.
Less favourable treatment
Introduction
183 The applicants submit that the unlawful discrimination involved in “dealing with” Mr Robinson’s bail application was reflected either in the terms or conditions on which “services” were provided or in the manner in which “services” were provided: see ss 24(1)(b) and 24(1)(c) of the Act.
184 By dint of s 5(1) of the Act, a person discriminates against another person if that person treats or proposes to treat the person with the 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. Section 6 of the Act introduces the notion of indirect disability discrimination. The applicants do not invoke indirect disability discrimination in relation to “dealing with” Mr Robinson’s bail application.
The applicants’ case on less favourable treatment
185 The case advanced by the applicants in their written submissions of “less favourable treatment” is as follows.
186 First, they submit that Mr Robinson’s disability is that he suffered from epilepsy. They submit that his disability was both this condition (epilepsy) and the seizures or epileptic fits he suffered as a result of this condition. Their case is that, at the time of his arrest on 21 March 2009, Mr Robinson suffered an epileptic fit.
187 Secondly, the applicants submit that, when applying s 5(1) of the Act in the present case, I should have regard to a hypothetical comparator. On their case, the hypothetical comparator should be taken to be a person who, in the same circumstances as Mr Robinson (or in circumstances not materially different), had not suffered an epileptic fit at the time of the arrest on 21 March 2009 and who had not feigned a seizure.
188 Thirdly, the applicants submit that, had he not suffered an epileptic fit, Mr Robinson would simply have been conveyed from the scene of his arrest to Liverpool Police Station. DSC Mangan would not have been suspicious that Mr Robinson had attempted to deceive the police by feigning a seizure. In these circumstances, DSC Mangan would not have recorded in the antecedents section of the Facts Sheet that (a) Mr Robinson “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”, or that (b) Mr Robinson has shown that “he is capable of incredible deception”. Similarly, DSC Mangan would not have requested that “the strictest of conditions be imposed” on any bail granted to Mr Robinson.
189 Fourthly, the applicants submit that, had DSC Mangan not made these statements, Senior Constable Taseski, as the relevant custody manager, would not have made the statement that Mr Robinson had engaged in an “act” to “utilise the system”.
190 Fifthly, the applicants submit that the making, recording and communicating of these statements by DSC Mangan and Senior Constable Taseski satisfies the requirement of less favourable treatment of Mr Robinson because of his disability.
191 Sixthly, they submit that, but for these statements, Senior Constable 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. They submit that the imposition of “the strictest” bail conditions was also less favourable treatment of Mr Robinson because of his disability.
Consideration
192 The respondent says that all these submissions are contentious.
193 First, the respondent complains that at all times prior to filing their written submissions, the applicants’ case was that Mr Robinson’s disability was that he suffered a mental illness, not that he suffered from epilepsy. The respondent had accepted at an early stage of the proceeding that, as at 21 March 2009, Mr Robinson suffered from a mental illness, but submitted at the hearing that the medical evidence on which the applicants relied did not provide a clear picture of the types of symptoms that Mr Robinson may have been exhibiting at the time of his arrest, including whether he had a propensity to suffer seizures. The respondent’s acceptance that Mr Robinson suffered a mental illness did not extend to the fact that he suffered from epilepsy.
194 There is, in my view, considerable force in the respondent’s complaint. The focus of the applicants’ case was that Mr Robinson suffered a brain injury that could have been frontal lobe damage, and that various psychiatric diagnoses had been made, including Bipolar Disorder and Schizoaffective Disorder, and an Acquired Brain Injury. The evidence was that Mr Robinson was treated with Seroquel (as an antipsychotic medication) and Epilim (as a mood stabiliser). Having said this, there is some evidence that Mr Robinson was treated for epilepsy using Epilim in 2009 and that, in 2008, he suffered “occasional epilepsy”. The medical reports do not provide a clear picture.
195 Importantly for present purposes, no diagnosis was made at Liverpool Hospital on 21 March 2009 that Mr Robinson had suffered an epileptic fit earlier that day. The hospital medical records do raise the possibility that Mr Robinson might suffer from a “seizure disorder”, but that is far from diagnosing that he had actually suffered an epileptic fit. Moreover, the applicants did not seek to adduce medical evidence at the hearing that provided an expert opinion that Mr Robinson had suffered an epileptic fit on 21 March 2009. On the balance of the evidence before me, I am not prepared to find that, at the time of his arrest on 21 March 2009, Mr Robinson suffered an epileptic fit.
196 That, however, is not the end of the matter. The Custody Management Record for Mr Robinson at Liverpool Police Station on 21 March 2009 does record that he had been treated for epilepsy in the past. This information must have been provided by Mr Robinson to Senior Constable Tomasic who made this record. At the time that he was “dealing with” Mr Robinson’s bail application, Senior Constable Taseski must have been aware that Mr Robinson claimed to have been treated for epilepsy.
197 Secondly, the respondent disputes that the hypothetical comparator is a person who did not suffer an epileptic fit and had not feigned a seizure at the time of the arrest on 21 March 2009. The respondent submits that, in the present case, the relevant inquiry is how members of the NSW Police Force would have treated a person without Mr Robinson’s disability in circumstances of the kind that had occurred on 21 March 2009. The respondent submits that, in effect, the question is: how would members of the NSW Police Force have treated a person who did not have a disability but collapsed when an arrest was effected? The respondent submits that DSC Mangan was never asked this question but, based on the evidence that he considered Mr Robinson was feigning a seizure, it would appear that DSC Mangan would have called for an ambulance.
198 I am not persuaded that the respondent’s approach is correct. For one thing, by focusing on whether or not an ambulance would have been called for a person without Mr Robinson’s disability, the respondent’s approach does not address the issue of discrimination that is raised in the applicants’ written submissions. The applicants’ written submissions are not directed to services provided or refused on the occasion of Mr Robinson’s apparent seizure at the time of his arrest, but to the asserted services of “dealing with” Mr Robinson’s bail application. The question is not whether DSC Mangan would have treated a person without Mr Robinson’s disability differently at the time of the apparent seizure, but whether Senior Constable 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 that time.
199 Importantly, however, those circumstances include the fact that DSC Mangan believed that Mr Robinson had feigned a seizure at the time of his arrest. This belief was based on DSC Mangan’s observations of Mr Robinson at that time and on the other information he had obtained from the COPS profile about Mr Robinson (under the name Ali Kassar). I accept that DSC Mangan’s belief was carried forward into, and formed part of, Senior Constable Taseski’s consideration of Mr Robinson’s bail application. But, significantly, the existence of that belief cannot be ignored when considering, in the present case, the circumstances to which s 5 of the Act refers.
200 In Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92, Gummow, Hayne and Heydon JJ (at [222]-[224]) said:
It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the "circumstances" to be considered are to be identified in the way the appellant contended. Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. The appellant's contention, however, went further than that. It sought to refer to a set of circumstances that were wholly hypothetical — circumstances in which no aspect of the disability intrudes. That is not what the Act requires.
In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant's argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability.
The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.
201 The applicants dispute that Mr Robinson’s seizure was feigned. Nevertheless, that was DSC Mangan’s belief. That belief forms part of the circumstances that must be considered when the comparison required by s 5(1) of the Act is undertaken in the present case. It is one of the circumstances in which Mr Robinson found himself at the time. Mr Robinson’s disability was that he suffered from a mental illness or, as the applicants would now contend, from epilepsy. His disability was not that he feigned seizures or that some members of the NSW Police Force believed that he feigned seizures, or, indeed, feigned a mental illness.
202 Thirdly, the respondent submits that there is no evidence that would properly support a finding that Mr Robinson was, in fact, treated less favourably than a person without his disability, in the same circumstances or in circumstances that were not materially different. In particular, the respondent submits that there is no evidence from which it could be concluded that the bail conditions imposed on Mr Robinson by Senior Constable Taseski were “the strictest of conditions”.
203 Although I accept that DSC Mangan’s belief was carried forward into and formed part of Senior Constable Taseski’s consideration of Mr Robinson’s bail application, I am not persuaded that DSC Mangan’s statements in the Facts Sheet, or Senior Constable Taseski’s summation and adoption of DSC Mangan’s belief about Mr Robinson feigning a mental illness, as recorded in the Reasons for Bail Decision, constituted “less favourable treatment” of Mr Robinson compared to the way in which a person without Mr Robinson’s disability (be it a mental illness or epilepsy) would have been treated in the same circumstances or in circumstances that were not materially different. DSC Mangan’s statements, and Senior Constable Taseski’s adoption and summation of DSC Mangan’s belief, are simply perceptions that were considered by them, respectively, to be relevant to the determination of Mr Robinson’s bail application. Those perceptions would have been the same regardless of whether Mr Robinson suffered a mental illness or suffered from epilepsy.
204 Furthermore, I am not satisfied that, absent DSC Mangan’s statements, Senior Constable Taseski would have granted unconditional bail to Mr Robinson or that, in the event, Senior Constable Taseski imposed “the strictest of conditions”. There is simply no evidence about either of these matters from which sound findings of fact could be made on the balance of probabilities.
205 In this connection, it is not disputed that Mr Robinson was under investigation for serious offences that involved deception. He had been charged with one such offence on 21 March 2009. The antecedents statement in the Facts Sheet provided to Senior Constable Taseski included information that Mr Robinson had a lengthy criminal history and that further investigations were being carried out in respect of other alleged offences for which, it seemed, Mr Robinson would be charged. However, those matters could not be dealt with at the time because of Mr Robinson’s “mental presentation”. Strict bail conditions were sought by DSC Mangan so as to ensure that Mr Robinson’s “whereabouts are known by police at all times”. It does not follow from this request that, as a matter of fact, “the strictest of conditions” were imposed and that, in consequence, Mr Robinson was treated less favourably than a person without his disability would have been treated in the same or not materially different circumstances. Indeed, there is simply no evidence that would allow me to conclude that, absent the belief that Mr Robinson had feigned a mental illness (including a seizure), different bail conditions would have been sought or imposed in the circumstances.
206 For these reasons, even if services were involved in “dealing with” Mr Robinson’s bail application, I am not satisfied that the applicants have established that s 24 was contravened by reason of Mr Robinson being treated less favourably in relation to the terms or conditions on which those services were supplied or the manner in which those services were supplied.
207 Finally, the respondent submits that, even if Mr Robinson was treated less favourably, that treatment was not because of his disability. I accept that submission. Here, once again, the applicants’ focus has been on the influence of DSC Mangan’s statements in the Facts Sheet about Mr Robinson feigning a mental illness. But these statements were made by DSC Mangan because he believed that Mr Robinson had feigned a mental illness (including the seizure). These statements were not made because Mr Robinson had a disability but because DSC Mangan believed that Mr Robinson had feigned a disability: Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 at [68]-[70] and [76].
Other matters
208 As I have noted, the applicants made a number of allegations in the amended points of claim to the effect that members of the NSW Police Force failed to treat Mr Robinson as a vulnerable person in accordance with cl 24(1)(b), and failed to make arrangements for Ms El Masri to be present as a support person under cl 26(b)(i) of the LER.
209 Clause 24 of the LER provides:
(1) A reference in this Division to a vulnerable person is a reference to a person who falls within one or more of the following categories:
(a) children,
(b) persons who have impaired intellectual functioning,
(c) persons who have impaired physical functioning,
(d) persons who are Aboriginal persons or Torres Strait Islanders,
(e) persons who are of non-English speaking background,
but does not include a person whom the custody manager reasonably believes is not a person falling within any of those categories.
Note. If a person falls within more than one of the above categories, each provision of this Division relating to any category within which the person falls applies in relation to the person.
(2) Pursuant to section 112(1) of the Act, the application of Part 9 of the Act to vulnerable persons is modified by this Division.
210 Clause 25 of the LER provides:
The custody manager for a detained person who is a vulnerable person must, as far as practicable, assist the person in exercising the person’s rights under Part 9 of the Act, including any right to make a telephone call to a legal practitioner, support person or other person.
211 Clause 26 of the LER provides:
A person may be a support person for a detained person who is a vulnerable person for the purposes of this Division only if the first-mentioned person is aged 18 years or over and is:
(a) in the case of a detained person who is a child:
(i) a parent or guardian, or a person who has the lawful custody of the child, but not a parent of the child if the parent has neither guardianship nor custody of the child, or
(ii) a person who is responsible for the care of the child, or
(iii) an adult (other than a police officer) who has the consent of a person referred to in subparagraph (i) or (ii) to be the support person for the child, or
(iv) if the child is aged 14 years or over––an adult (other than a police officer) who has the consent of the child to be the support person for the child, or
(v) a legal practitioner of the child’s own choosing, or
(b) in the case of a detained person who is not a child:
(i) a guardian or any other person who is responsible for the care of the detained person, or
(ii) a relative, friend or any other person (other than a police officer) who has the consent of the detained person to be the support person for the detained person, or
(iii) if none of the persons mentioned in subparagraph (i) or (ii) is applicable or readily available––a person (other than a police officer) who has expertise in dealing with vulnerable persons of the category, or a category, to which the detained person belongs.
212 Clause 27 of the LER provides:
(1) A detained person who is a vulnerable person is entitled to have a support person present during any investigative procedure in which the detained person is to participate.
(2) However, a detained person who is a vulnerable person solely as a result of being a person of non-English speaking background is entitled to have a support person present only if an interpreter is not required to be arranged under section 128(1) of the Act solely because of section 128(3)(a) of the Act.
(3) Before any such investigative procedure starts, the custody manager for the detained person must inform the person that the person is entitled to the presence of a support person during the investigative procedure.
(4) If the detained person wishes to have a support person present, the custody manager must, as soon as practicable:
(a) give the detained person reasonable facilities to enable the person to arrange for a support person to be present, and
(b) allow the detained person to do so in circumstances in which, so far as practicable, the communication will not be overheard.
(5) The custody manager must defer for a reasonable period any such investigative procedure until a support person is present unless the detained person has expressly waived his or her right to have a support person present.
(6) An investigative procedure is not required to be deferred under subclause (5) for more than 2 hours to allow a support person to arrive at the place of detention.
(7) A custody manager is not required to comply with subclauses (3)–(5) if the custody manager believes on reasonable grounds that:
(a) doing so is likely to result in an accomplice of the detained person avoiding arrest, or
(b) doing so is likely to result in the concealment, fabrication, destruction or loss of evidence or the intimidation of a witness, or
(c) doing so is likely to result in hindering the recovery of any person or property concerned in the offence under investigation, or
(d) doing so is likely to result in bodily injury being caused to any other person, or
(e) the safety of other persons requires that the investigative procedure be carried out as a matter of urgency.
213 The reference in cl 25 of the LER to “Part 9 of the Act” is to Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (the LEA). The LEA consolidates and restates the law relating to police and other law enforcement officers’ powers and responsibilities and sets out safeguards applicable to persons being investigated for offences. Part 9 of the LEA deals with investigations and questioning. Its objects include providing for the period of time that a person who is under arrest may be detained by a police officer to enable the investigation of the person’s alleged involvement in the commission of an offence, and providing also for the rights of a person so detained.
214 The LEA provides that regulations may be made which give a modified application of Part 9 to certain persons, including persons who have a disability: see s 112. Clause 25 of the LER effects a modification by requiring the custody manager for a detained person to assist that person in exercising that person’s rights under Part 9 of the LEA.
215 The applicants’ focus on cll 24(1)(b) and 26(b)(i) of the LER does not articulate any breach, as such, of the LER. Those clauses only identify who is a vulnerable person and who may be a support person. Nevertheless, in their written submissions, reference was made to cl 27 of the LER when dealing with the question of the extended operation of s 24 of the Act as provided by s 12(8)(b).
216 It is to be noted that cl 27 of the LER is directed to the responsibilities of custody managers, as is cl 25. In the present case, the only custody managers relevant to Mr Robinson on 21 March 2009 were Senior Constables Tomasic and Taseski. Ms El Masri is recorded in the Custody Management Record of Liverpool Police Station as being the support person who was present for Mr Robinson on that day. There is no doubt about that fact.
217 The applicants have not identified in specific terms how or in what respect they say the LER was breached in respect of Mr Robinson on 21 March 2009, other than, possibly, in the allegation in the amended points of claim that DC Johnson failed to contact and allow Ms El Masri to be Mr Robinson’s support person inside the ambulance and at Liverpool Hospital. However, there is no evidence that any investigative procedure was sought to be undertaken while Mr Robinson was conveyed to Liverpool Hospital or while he was at the hospital. He was taken there for medical treatment, not for investigation. In any event, DC Johnson was not a custody manager for the purposes of the LER.
218 Furthermore, DSC Mangan did not seek to interview Mr Robinson at Liverpool Police Station. Ms El Masri was consulted in relation to that decision and agreed with it.
219 I am unable to divine from the evidence before me how there was any breach of the LER. Moreover, as I have already noted, the applicants have not sought to articulate how, if at all, the unidentified breach or breaches of the LER might, separately, constitute unlawful discrimination in breach of s 24 of the Act.
conclusion and disposition
220 For these reasons the applicants’ application must be dismissed. The question of remedies, including damages, does not arise.
221 At the conclusion of the hearing the respondent asked me to reserve the question of costs for later argument. I will reserve the question of costs and hear the parties on what directions might be necessary for the purpose of determining costs.
I certify that the preceding two hundred and twenty-one (221) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. |
Associate:
