FEDERAL COURT OF AUSTRALIA

Myatt v State of Queensland (Queensland Police Service) [2016] FCA 133

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding is dismissed.

2.    The applicant pay the respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The applicant, Craig Myatt, alleges that the respondent, State of Queensland, unlawfully discriminated against him in contravention of s 22 of the Sex Discrimination Act 1984 (Cth) and s 24 of the Disability Discrimination Act 1992 (Cth).

2    The State has filed an application for summary judgment pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) on the basis that Mr Myatt has no reasonable prospect of successfully prosecuting the proceeding.

3    The originating application contains some 89 paragraphs and is supported by eight affidavits of Mr Myatt consisting of more than 1,000 pages. It is possible to discern that Mr Myatt’s main grievance is that officers of the Queensland Police Service (“QPS”) charged him with unlawfully stalking his former girlfriend, but failed to act upon his complaints that his former girlfriend had unlawfully stalked him. However, the prolixity and discursiveness of the documents make it difficult to understand precisely what his allegations of unlawful discrimination are.

4    The allegations of stalking stem from a short romantic relationship between Mr Myatt and a former workmate some 16 years ago. It is necessary to describe events that occurred after the relationship ended and Mr Myatt’s subsequent involvement with the police in order to try to understand his complaints of unlawful discrimination. In doing so, I have not found it easy to reconcile all of the events and dates set out in Mr Myatt’s various affidavits.

BACKGROUND

5    Mr Myatt was in a romantic relationship with a woman (whom I will call Ms D) from about March to July 1999. Mr Myatt and Ms D had previously worked together at a lighting business from 1996 until 1998. The business was owned by a man whom I will describe as Mr A. I will not refer to Ms D and Mr A by their full names because Mr Myatt makes serious but untested allegations against them and they are not parties to the proceeding.

6    Mr Myatt claims that it was his decision to end the relationship with Ms D. He was living in Perth and she was in Brisbane at the time. He says that Ms D sought to resume contact with him by telephone about two weeks later, assuring him that the contact was to be platonic. Mr Myatt says she telephoned him a number of times over the next month or so. Mr Myatt claims that one morning in September 1999, Ms D telephoned him at about 3 am or 4 am waking him up from his sleep. He says:

That was unequivocally romantic conduct to me, in contravention of our firm agreement which to my mind, presumed that I returned her romantic feelings, which was generally wrong.

7    Mr Myatt does not describe the content of the telephone call, but states that the call caused him to experience a severe nervous breakdown. He says that the factors triggering that breakdown were:

(a)    the emotional upheaval I experienced just after the breakup with [Ms D], due to my feelings of anxiety that I had not ended the relationship sooner;

(b)    the very strong impression I had that [Ms D] was engaging in pre-planned romantically motivated harassment of me by making her late night call;

(c)    an overwhelming feeling of hopelessness because my sleep had been unexpectedly interrupted by her, reversing a fragile recovery from earlier anxiety and depression.

8    Mr Myatt states that he had “limited contact” with Ms D from late 1999 to 2002. In August 2001 he visited a former colleague at Ms D’s workplace and Mr A telephoned Mr Myatt and “harassed” him, suggesting that Mr Myatt had been making a romantic approach to Ms D. Mr A is said to have been “abusive and menacing”. Mr A said “[T]here are laws against that you know”. He also said “You are a good looking guy” and “[L]eave [Ms D] alone”.

9    Mr Myatt states that he had contact with Ms D in 2001 and 2002 by telephone and she was a willing participant in those conversations. In April 2002 he confronted her about having stalked him through the September 1999 telephone call and disclosed to her that she was the cause of his nervous breakdown. She said “I don’t apologise. Fuck off. We have nothing in common. Stop calling me.” Mr Myatt claims that Ms D cut off contact because she wished to avoid some kind of liability or responsibility for his psychiatric illness. Mr A telephoned Mr Myatt again and repeated the allegations he had made in August 2001.

10    Mr Myatt says he became aware that Ms D was making false accusations against him in her workplace. On 16 April 2003, he telephoned Ms D to warn her that he was going to the police about her behaviour but it is unclear whether he actually spoke to her.

11    Mr Myatt then went to the Dutton Park police station and spoke to Senior Sergeant King and asked him to contact Ms D to “reiterate that I felt anger and offence”. Mr Myatt says S/S King seemed sceptical of Mr Myatt’s story, but agreed to call Ms D to provide her with “an informal warning about the stalking I had alleged”. Mr Myatt says that S/S King apparently called Ms D, but Ms D made a complaint of unlawful stalking against Mr Myatt and that S/S King then treated Ms D as the complainant.

12    Mr Myatt states that S/S King was aware that Mr Myatt had a mental disorder. Mr Myatt alleges that S/S King unlawfully discriminated against him by failing to record his report of stalking on the QPS database in contravention of a requirement of the QPS Operations Procedures Manual (“OPM”).

13    In April 2003, Ms D made her complaint to the QPS that Mr Myatt had been stalking her. In her detailed written statement to the police she said that she and Mr Myatt had an amicable separation and continued to contact each other by phone until early November 1999. She stated that in early February 2000, Mr Myatt contacted her saying that he wanted to sort things out, but she rejected that proposal. She claims that from mid-September 2000 she began receiving a number of phone calls from Mr Myatt, but she rebuffed his advances. She says that there were further phone calls in 2001 and 2002 in which she told him to stop calling her. Around Easter 2002, she started receiving more calls from him. He sent her a book called “Get in touch with Your Emotions”, which she sent back. She eventually told him, “I don’t want to talk to you, fuck off”. The version of Ms D’s statement in evidence has the last page missing so it is not clear what she says happened after that.

14    In his statement to police, Mr A (who remained Ms D’s employer) said that she had made him aware that she had been receiving unwanted calls from Mr Myatt and that, as time progressed, she was finding these calls increasingly distressing and somewhat frightening. Around Easter 2002, Mr A called Mr Myatt and told him that his behaviour was not rational, that he was frightening Ms D and that he should stop. Mr A states that on 16 April 2003, Mr Myatt called Ms D’s workplace and asked to speak to her. After being told that she was in a meeting, Mr Myatt rang back several times in quick succession and demanded that Ms D be interrupted to take his call. Mr A spoke to Mr Myatt and told him that he should not contact Ms D or the workplace again and, if he did so, he would be referred to the police.

15    Mr Myatt was interviewed at the Dutton Park police station by Senior Constable Watts and Senior Constable Wong, who were investigating Ms D’s complaint, on 23 May 2003. Mr Myatt says that he told the officers about the September 1999 telephone call and the reasons why he considered that it was, in fact, Ms D who had unlawfully stalked him. He said that it was clear to him that his story was being completely rejected, but it was not clear why. At the end of the interview, Mr Myatt was charged with unlawfully stalking Ms D. Mr Myatt was “utterly shocked” to be charged with stalking when he claimed to be the victim. He says the QPS appeared to believe that he was having “persecutory delusions.”

16    Mr Myatt states that after he was charged, S/C Watts invited Mr Myatt to attend the police station to make a complaint of stalking against Ms D. When he went to the police station to make the complaint, S/C Watts appeared to focus on issues that seemed to Mr Myatt to be irrelevant. Mr Myatt says that he ended the interview with S/C Watts “before he took any complaint.” He complains that the QPS did not charge or prosecute Ms D with unlawful stalking and that S/C Watts did not log his complaint onto the QPS database.

17    It appears that Ms D obtained a restraining order against Mr Myatt on 14 January 2004 which required Mr Myatt to have no contact with Ms D for five years. At some point the QPS decided not to pursue the prosecution of Mr Myatt for unlawful stalking.

18    In May 2004, Mr Myatt made written complaints to the QPS against Ms D of unlawful stalking and making a false complaint. The unlawful stalking complaint contains a lengthy and rambling rant about Ms D’s alleged conduct and Mr Myatt’s feelings. Mr Myatt explained that he had been in a relationship with a woman whom I will describe as Ms L before he entered the relationship with Ms D. He said that Ms L had later left him a card which suggested or indicated to him that she wished to rekindle their relationship, but he felt “deep grief and emotional turmoil” because he had lied to and betrayed Ms L by seeing Ms D. Some of the flavour of the complaint can be gleaned from Mr Myatt’s florid description of his reaction to the September 1999 telephone call:

Oh, [Ms D] you didn’t. I felt my heart sliding down a slope, from the very moment I put the phone down: I had had very little sleep over the past 6 weeks, since [Ms L] had left the card for me, and I was starting to feel better. I could feel my strength slowly returning. When she called all I could think was if it was [Ms D], I would be very anxious, and I may not pick up the phone. (She had been acting obsessively, prior to then.) I thought that if something bad had happened to my parents, I would wish to know, so I picked up the phone: it was [Ms D]. She simply wanted to engage in a conversation…of no import whatsoever. The time was 4.00 am Local time in Perth.

At the time, I felt powerless to do anything. It seemed like a trivial request to pick up the phone and call the police, however, I felt the damage had already been done. I felt my body and mind sliding down an imaginary slope; my mind, my intelligence saying, this is the start of a chasm; the feeling of utter hopelessness and a “knowing” that it was permanent, or chronic, and unavoidable illness.

19    The QPS did not respond to Mr Myatt’s complaints of May 2004. Mr Myatt states that it was obvious to him that the QPS did not believe him and thought that he was not a credible complainant.

20    Mr Myatt states that in September 2004, he sent emails to S/C Watts encouraging him to progress his complaint about Ms D’s stalking. S/C Watts telephoned him and said that he would not be progressing Mr Myatt’s complaint. He alleges that S/C Watts said that he had not invited Mr Myatt to make a complaint in order to act on it, but in order to progress the prosecution of Mr Myatt. Apparently the QPS Ethical Standards Command later found no evidence of fraud on the part of S/C Watts.

21    From 2005 to 2006, Mr Myatt engaged a firm of solicitors to advise him with respect to possible legal action against Ms D and Mr A. Mr Myatt did not ultimately commence proceedings because he could not afford the legal costs.

22    Between 2007 and 2008, Mr Myatt wrote a report entitled “Malicious Prosecution Action Against [Ms D]” containing what he alleged to be evidence of Ms D’s fraudulent complaint against him. He provided that report to the Police Commissioner, the Crime and Misconduct Commission, the Director of Public Prosecutions and the Queensland Attorney General.

23    On 4 December 2007, Mr Myatt wrote to the officer in charge of the Coolangatta police station with a copy of his report. He requested that the QPS investigate Ms D’s alleged fraud in making her 2003 complaint and that she be charged with various offences.

24    In June 2008, Mr Myatt sent a letter to Her Majesty Queen Elizabeth II putting a case that Ms D should be prosecuted for her fraud. He provided a copy of that letter to the Parliament of Queensland. He says that he had some discussions with the then Police Minister, who passed the letter onto Sergeant Quinn of the Coolangatta police station.

25    Mr Myatt alleges that Sergeant Quinn did not record his complaints on the QPS computer system and did not take any further action to investigate his complaints or to seek further information from him and did not provide him with a “formal complaint response”. Mr Myatt did receive an email from Sergeant Quinn who noted that:

I have spoken to you on one previous occasion on 11th November 2007 when I attended at your residence in an attempt to ascertain information to assist in addressing issues concerning your complaint against Ms [D] and her alleged stalking.

At that time you indicated to me that the matter had been referred to the Commissioner of Police and that you were not prepared to talk to me.

It would appear that at this time that your complaint has not proceeded any further. In order to address your complaint it is necessary that a member of the Queensland Police Service speak to you in person and discuss the matters that you have raised. Until this occurs we are not in a position to progress this investigation any further.

26    Mr Myatt then sent a number of emails, letters and documents between 2008 and 2011 to the Parliament, various people within government and the Magistrates Court encouraging them to take action against Ms D.

27    On 15 June 2011, Superintendent Ziebarth of the QPS wrote to Mr Myatt saying that Ms D’s alleged conduct had been examined against the unlawful stalking provisions and it had been decided that Ms D’s conduct did not amount to a breach of these provisions.

28    In response to a letter from Mrs Liz Cunningham MP, the then Minister for Police, Corrective Services and Emergency Services wrote on 21 September 2011:

I understand Mr Myatt’s allegations have been reviewed by senior police on a number of occasions as a result of his further approaches. The last investigation was conducted in 2010 when Mr Myatt was advised the QPS had found insufficient evidence to substantiate any further investigation into his allegations. Unless Mr Myatt is able to offer any new evidence, the QPS is unable to take this matter any further.

29    On 21 January 2012, Mr Myatt sent a written complaint against Ms D and Mr A to the Palm Beach police station. Mr Myatt alleged Ms D had engaged in unlawful stalking, attempting to pervert the course of justice and criminal defamation. Mr A was also alleged to have attempted to pervert the course of justice. Mr Myatt referred to S/C Watts and said that:

Because I made a complaint about Rod Watts to the United Nations (his conduct was against the law) I do not wish to have verbal discussions with police, in case his dishonesty is repeated or is a normal practice.

30    Mr Myatt complains that the QPS did not charge Ms D or enter his complaint of 21 January 2012 into the QPS computer system.

31    In 2012, Mr Myatt published a letter containing serious allegations against Ms D to various people within his professional networks, in government, the courts and the legislature. On 29 May 2012, Ms D and Mr A attended the Cleveland police station and complained to the QPS about Mr Myatt’s publication of the letter. Mr A gave further details about Mr Myatt’s conduct prior to the 2004 charge. He stated that Mr Myatt had continued to send emails to Ms D at her place of employment despite the restraining orders requiring him to have no contact with Ms D for five years. He stated that in about 2007, the barrage of letters and emails increased and led to fear among his staff members, resulting in extensive security measures being taken. Mr A stated that “The volume of letters and emails continued and came quicker than we could read them.” Mr A expressed concern for his safety and the safety of his staff.

32    In her statement dated 29 May 2012, Ms D repeated her version as to the way the relationship ended and events that occurred in the months that followed. She said that in February 2000 she observed some emotional instability in Mr Myatt. She alleged that Mr Myatt would infrequently attend her workplace to see her and she would sneak out. She alleged that Mr Myatt would make telephone calls to her home and hang up. She made her initial complaint of unlawful stalking after the incident in 2003 when he became angry when she would not take his call at work. A restraining order was made for a period of five years. She said that despite the order, Mr Myatt sent “countless” emails and letters to her and her co-workers. In late May 2012, Mr Myatt allegedly sent further letters to Ms D and various people at her work. She then decided to make a further complaint.

33    The statements of Ms D and Mr A were supported by the statement of a worker at the same business. She stated that she had seen “piles of letters” from Mr Myatt to Ms D that seemed to arrive in waves.

34    Mr Myatt claims that the statements of Ms D and Mr A contain a number of falsehoods.

35    Senior Constable Glaister was assigned by the QPS to investigate Ms D and Mr A’s complaints against Mr Myatt. S/C Glaister visited Mr Myatt’s residence on 20 October 2012 and left her card asking Mr Myatt to contact her. Mr Myatt wrote to S/C Glaister on 30 October 2012 stating:

I don’t wish to engage Queensland police in any form, so if you have communications or business to conduct with me, please go through an independent organisation, such as the CMC.

36    On 1 December 2012, S/C Glaister attended Mr Myatt’s home. He alleges that she pounded on his door and threatened to break down the door. S/C Glaister left two notices to appear alleging unlawful stalking of Ms D and Mr A on his door when she left.

37    It appears that the prosecution of Mr Myatt was discontinued at some stage for reasons that are not apparent from the evidence.

38    On 12 September 2013, Mr Myatt attended Cleveland police station where he made yet another written complaint about Ms D’s and Mr A’s alleged fraud in making their 2012 complaints. He says that a Police Prosecutor came to the front counter and said “[Y]ou won’t be making a complaint about our witnesses”. The police officer present said that they would not “take” his complaint.

39    Mr Myatt made a written complaint dated 22 January 2014 to the Police Commissioner, alleging that Ms D and Mr A had engaged in fraud and had fabricated evidence in their 2012 witness statements. He also alleged that Mr A had engaged in unlawful stalking. He made a second complaint to the Commissioner about Ms D’s alleged unlawful stalking. The Commissioner did not respond to his complaints.

40    On 12 July 2013, Mr Myatt made a complaint to the Australian Human Rights Commission (“AHRC”) of unlawful discrimination by the QPS on the basis of his sex and disability. The QPS solicitor wrote to the Commission on 22 May 2014, stating that by letter dated 15 June 2011 Mr Myatt had been told that after investigation his allegations of stalking against Ms D had been determined to be unsubstantiated. The letter stated that the QPS denied that Mr Myatt had been discriminated against by reason of his sex or disability. The letter stated that at no time had Mr Myatt been recorded as a “complainant” or “victim” of unlawful stalking. On 5 September 2014, the complaint was terminated by the President of the AHRC.

41    Mr Myatt then filed his originating application to the Federal Court on 6 November 2014.

42    On 4 December 2014, I made directions requiring, inter alia, that Mr Myatt file affidavits of the witnesses he intends to rely on at the trial of his proceeding. Mr Myatt then filed his final affidavits. After Mr Myatt filed these affidavits, the State filed its application for summary judgment.

The statutory provisions

43    Section 46P(1) of the Australian Human Rights Commission Act 1986 (Cth) (“the AHRC Act”) provides that a written complaint may be lodged with the Commission, alleging unlawful discrimination. Section 46PH(1) provides that the President may terminate a complaint on the various grounds set out in the provision. Section 46PO(1) allows an affected person to make an application to the Federal Court alleging unlawful discrimination if a complaint has been terminated by the President.

44    Section 22 of the Sex Discrimination Act provides, relevantly:

22    Goods, services and facilities

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

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

(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.

…

45    Section 5 of the Sex Discrimination Act provides:

5    Sex discrimination

(1)    For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:

(a)    the sex of the aggrieved person;

…

(c)    a characteristic that is generally imputed to persons of the sex of the aggrieved person;

the discriminator treats 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 of a different sex.

…

46    The expression “services” is defined in s 4 of the Sex Discrimination Act to include “services of the kind provided by a government, government body or a local government body.”

47    Under s 8 of the Sex Discrimination Act, an act is done “by reason of” a particular matter if the act is done “by reason of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act”.

48    Section 24 of the Disability Discrimination Act provides:

24    Goods, services and facilities

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:

(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.

49    The expression “disability” is defined in s 4 of the Disability Discrimination Act to include “a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour”. It also includes a disability that “is imputed to a person”.

50    The expression “services” is defined in s 4 of the Disability Discrimination Act in the same way as under the Sex Discrimination Act.

51    Section 5 of the Disability Discrimination Act provides:

5    Direct disability discrimination

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

…

52    Under s 10 of the Disability Discrimination Act, if an act is done for two or more reasons and one of those reasons is the disability of a person (whether or not it is the dominant or a substantial reason), then the act is taken to be done for that reason.

53    In Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92, Gummow, Hayne and Heydon JJ discussed the application of s 5(1) in the Disability Discrimination Act:

213    Section 5(1) of the Act requires comparison between the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person’s disability ‘‘in circumstances that are the same or are not materially different’’. If that comparison reveals that the disabled person was treated less favourably, the further question which must be asked is whether that was because of the disabled person’s disability. Section 5(1), therefore, requires equality of treatment between the disabled and those who are not. Attention is invited to how the discriminator “treats or would treat a person without the disability” (emphasis added). The “comparator” identified by s 5(1) is “a person without the disability”.

54    Their Honours continued:

223     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.

224     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.

55    Section 31A of the Federal Court of Australia Act provides:

31A    Summary judgment

…

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

56    In Spencer v Commonwealth of Australia (2010) 241 CLR 118, French CJ and Gummow J said:

[25]    Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the court has formed the view that the applicant is unlikely to succeed on the factual issue.

57    Further, Hayne, Crennan, Kiefel and Bell JJ said:

[59]    In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.

[60]    Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success.

The issues

58    In the course of written and oral submissions, Mr Myatt’s allegations became somewhat clearer. On 13 July 2015, Mr Myatt filed a set of written submissions containing a table which names the police officers engaging in the treatment he complains of, sets out the dates of the treatment and gives references to paragraphs of his affidavits relating to that treatment. He confirmed in oral submissions that the table and the references in the table summarise his allegations. However, it remains difficult to reconcile all of the events and dates recounted in Mr Myatt’s affidavits with his allegations.

59    I understand the treatment that Mr Myatt alleges to constitute unlawful discrimination to be as follows:

Allegation 1    On 16 April 2003, S/S King failed to log Mr Myatt’s report of Ms D’s unlawful stalking onto the QPS computer system.

Allegation 2    Between 23 May 2003 and 6 June 2003, S/C Watts and S/C Wong failed to investigate Mr Myatt’s complaint of unlawful stalking against Ms D, and failed to charge her; and instead charged Mr Myatt with unlawfully stalking Ms D. In addition, S/C Watts invited Mr Myatt to make a complaint against Ms D so that he could gather evidence in the respect of the charge he proposed to bring against Mr Myatt.

Allegation 3    In May 2004, the officer in charge of the Palm Beach police station failed to investigate Mr Myatt’s complaint of unlawful stalking and making a false complaint against Ms D, and failed to charge her.

Allegation 4    In December 2007 and July 2008, Sergeant Quinn of the Coolangatta police station failed to investigate Mr Myatt’s complaint of fraud and making a false complaint against Ms D, and failed to charge her.

Allegation 5    In January 2012, officers of the QPS at the Palm Beach police station failed to investigate Mr Myatt’s complaint of unlawful stalking, attempting to pervert the course of justice and criminal defamation against Ms D and attempting to pervert the course of justice against Mr A, and failed to charge them.

Allegation 6    Between May 2012 and February 2013, S/C Glaister engaged in harassing conduct towards Mr Myatt in connection with complaints made against Mr Myatt by Ms D and Mr A.

Allegation 7    In September and October 2013, officers at the Cleveland police station refused to accept a written complaint by Mr Myatt of fraud against Ms D and Mr A.

Allegation 8    In January and February 2014, the Police Commissioner refused to investigate Mr Myatt’s complaint of fraud, fabricating evidence and unlawful stalking against Ms D and Mr A and failed to charge them.

60    In summary, Mr Myatt alleges that QPS officers unlawfully discriminated against him in contravention of s 22 of the Sex Discrimination Act and s 24 of the Disability Discrimination Act by charging him with unlawful stalking, but failing to investigate or prosecute Ms D and Mr A for unlawful stalking and making false complaints. In addition, he alleges that police officers discriminated against him by failing to comply with certain obligations they owed to him under the OPM.

61    Mr Myatt alleges that he was treated less favourably than a woman would have been treated in the same circumstances. He also alleges that he suffered (but no longer suffers) from a psychiatric impairment, and that he was treated less favourably than a person without such a disability would have been treated in the same circumstances.

62    The State’s summary judgment application focuses on the meaning of “discriminate” in ss 5 and 22 of the Sex Discrimination Act and ss 5 and 24 of the Disability Discrimination Act. The State argues that Mr Myatt has no reasonable prospect of proving that he was treated less favourably than a person of a different sex or without a psychiatric impairment would have been treated in circumstances that are the same or not materially different. It also argues that he has no reasonable prospect of proving that any less favourable treatment was because of his sex or disability.

63    For the purposes of the summary judgment application, the State does not dispute that Mr Myatt’s case, taken at its highest, meets the remaining requirements of s 22 of the Sex Discrimination Act and s 24 of the Disability Discrimination Act. In particular, it may be assumed that Mr Myatt had a disability consisting of a partial loss of mental function, or a disorder, illness or disease that affected his thought processes, emotions or judgment or which resulted in disturbed behaviour. It may also be assumed that such a disability was imputed to Mr Myatt by the various members of the QPS he dealt with. The State does not contend that the proceeding has been brought outside any limitation period.

consideration

Allegation 1

64    Mr Myatt’s first allegation is that S/S King unlawfully discriminated against him in contravention of s 22(1)(c) of the Sex Discrimination Act and s 24(c) of the Disability Discrimination Act. He alleges, in particular, that on 16 April 2003, S/S King did not log his complaint onto the QPS computer system (then known as “CRISP”) and that this was a breach of the OPM in force at the time.

65    As Purvis v State of New South Wales makes clear, s 5(1) of the Disability Discrimination Act requires:

(a)    identification of the aggrieved person’s disability;

(b)    identification of the treatment alleged by the aggrieved person;

(c)    identification of the relevant circumstances concerning the treatment;

(d)    identification of the relevant comparator;

(e)    a comparison between how the discriminator treated the aggrieved person and how the discriminator would treat the comparator in circumstances which are the same or not materially different;

(f)    consideration of whether that treatment was less favourable treatment;

(g)    consideration of whether the person was treated less favourably because of his or her disability.

66    The questions that arise under s 5(1) of the Sex Discrimination Act are analogous, but, of course, the relevant attribute is sex, not disability.

67    Although Mr Myatt has not clearly articulated his case, his argument must be that if a woman or a person without a psychiatric impairment had attended the Dutton Park police station and made the same “complaint”, S/S King would have recorded that complaint on the CRISP database; and this was less favourable treatment because of his sex or disability.

68    It is necessary to examine what the evidence discloses about the circumstances in which Mr Myatt made his “complaint”.

69    Mr Myatt’s evidence is that he told S/S King what he had experienced in relation to the September 1999 phone call and “asked him to contact [Ms D] on my behalf to reiterate that I felt anger and offence.” He continues that S/S King “agreed to call [Ms D]…to provide her an informal warning about the stalking I had alleged.” It appears that S/S King did in fact contact Ms D.

70    Section 4.9(1) of the Police Service Administration Act 1990 (Qld) (“PSAA”) provides that the Police Commissioner may give written or oral directions to officers, which officers are required to comply with. The OPM contains written directions given by the Commissioner.

71    The version of the OPM in force in May 2003 (the April 2003 version is not in the evidence) contained a section headed “Policy”, which stated that:

CRISP reports are required to be furnished in respect of the commission or suspected commission of any indictable offence or any simple offence of a serious nature or a regulatory offence.

72    The OPM also stated:

A member who receives a complaint of an offence… is to ensure that it is recorded on CRISP…

73    The introduction to the OPM provided:

[T]his Manual outlines general policies and procedures which may be adapted to circumstances as they arise.

74    It may be seen that the OPM required that police officers should ordinarily make an entry on the CRISP database in respect of a “complaint” of unlawful stalking. The extracts of the OPM before the Court do not set out any definition of “complaint of an offence”. However, the context indicates that a “complaint” is one involving an allegation that an offence has been (or may have been) committed and an express or implicit request that the police investigate the alleged offence and charge the offender.

75    Mr Myatt’s expression of his concerns to S/S King did not have the second of those qualities. He did not ask S/S King to investigate his allegations or to charge Ms D with unlawful stalking. He only asked S/S King to “contact” Ms D, and S/S King agreed to provide “an informal warning”. In these circumstances, the OPM did not require S/S King to record Mr Myatt’s concerns in the CRISP database.

76    There is no direct evidence that if the so-called “complaint” had been made by a woman or a person without a psychiatric impairment, S/S King would have recorded it in the CRISP database. As is commonly the case in proceedings involving allegations of unlawful discrimination, the success of the case depends upon the trial judge drawing an inference that a person without the relevant attribute would have been treated more favourably: see Sharma v Legal Aid (Qld) (2002) 225 IR 92; [2002] FCAFC 196 at [40]-[41] (Heerey, Mansfield and Hely JJ). In G v H (1994) 181 CLR 387, Brennan and McHugh JJ said at 390:

An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law.

77    The onus of proof is on Mr Myatt: see Qantas Airways v Gama (2008) 167 FCR 537 at [65] (French and Jacobson JJ), [132] (Branson J), Ewin v Vergara (No 3) (2013) 238 IR 118; [2013] FCA 1311 at [90] (Bromberg J), Chen v Monash University [2015] FCA 130 at [16] (Tracey J), Kiefel v State of Victoria (Department of Education and Early Childhood Development) [2013] FCA 1398 at [58] (Tracey J).

78    In Henderson v Queensland (2014) 315 ALR 188; [2014] HCA 52, Gageler J said at [89]:

Generally speaking, and subject always to statutory modification, a party who bears the legal burden of proving the happening of an event or the existence of a state of affairs on the balance of probabilities can discharge that burden by adducing evidence of some fact the existence of which, in the absence of further evidence, is sufficient to justify the drawing of an inference that it is more likely than not that the event occurred or that the state of affairs exists. The threshold requirement for the party bearing the burden of proof to adduce evidence at least to establish some fact which provides the basis for such a further inference was explained by Kitto J in Jones v Dunkel:

One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed.

79    The facts proved must give rise to a reasonable and definite inference, not merely to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture: Jones v Dunkel (1959) 101 CLR 298 at 304 (Dixon J), Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 at 161-162 (Stephen J), Trustees of the Property of Cummins (A Bankrupt) v Cummins (2006) 227 CLR 278 at [34] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).

80    Taking Mr Myatt’s evidence at its highest, the evidence is not capable of allowing a trial judge to infer that if a woman or a person without a psychiatric impairment had instead made the so called “complaint”, S/S King would have recorded it on the CRISP database. There was no obligation on S/S King to record the “complaint” made by Mr Myatt. S/S King did in fact contact Ms D as he had been asked to do by Mr Myatt. That evidence is inconsistent with Mr Myatt being treated less favourably because he is a man or had a psychiatric impairment. Rather, S/S King’s failure to record the matter is consistent with the informality with which Mr Myatt asked him to treat the allegation.

81    Mr Myatt also alleges that S/S King failed to comply with requirements of the OPM concerning the way victims of crime were to be treated. He says, for example, that S/S King should have given him assistance “in overcoming the effects of physical or psychological injury and trauma and financial disadvantage”. In circumstances where Mr Myatt did not make any formal “complaint” it is difficult to see how provisions of the OPM regarding dealing with victims of crime had any application to him. Even if it did apply, Mr Myatt does not suggest that he asked for any particular steps to be taken other than Ms D to be given an informal warning. There is no evidence from which a trial judge could infer that a woman or a person without psychiatric impairment would have been treated differently.

82    Mr Myatt has no reasonable prospect of persuading a trial judge the S/S King’s failure to record Mr Myatt’s allegations in the CRISP database, or to take other steps required under the OPM, amounted to less favourable treatment than a woman or a person without a psychiatric impairment would have received in the same circumstances.

Allegation 2

83    Mr Myatt’s second allegation is that S/C Watts and S/C Wong discriminated against him in contravention of s 22(1)(a) and (c) of the Sex Discrimination Act and s 24(a) and (c) of the Disability Discrimination Act.

84    It will be recalled that in April 2003, Ms D made a complaint to the QPS that Mr Myatt had been stalking her. The police took detailed statements from Ms D and a witness, Mr A. S/C Watts and S/C Wong then interviewed Mr Myatt and charged him with unlawful stalking. In the course of the interview, Mr Myatt alleged that Ms D had unlawfully stalked him. At the invitation of S/C Watts, Mr Myatt attended a police station to make a complaint of stalking against Ms D, but ended the interview with S/C Watts “before he took any complaint.” Mr Myatt alleges that in September 2004 he emailed S/C Watts to encourage him to progress his complaint, but S/C Watts made it clear that he had not invited Mr Myatt to make a complaint in order to act on it, but only to assist in gathering evidence for the prosecution of Mr Myatt.

85    The less favourable treatment that Mr Myatt alleges consists of four parts. They are:

(a)    S/C Watts failed to investigate Mr Myatt’s complaint and failed to charge Ms D with unlawful stalking;

(b)    S/C Watts and S/C Wong charged Mr Myatt with unlawful stalking;

(c)    S/C Watts pretended to be willing to investigate Mr Myatt’s complaint of unlawful stalking in order to trick him into providing incriminating evidence;

(d)    S/C Watts failed to comply with procedures prescribed under the OPM.

Failing to investigate Mr Myatt’s complaint and failing to charge Ms D

86    The first part of Mr Myatt’s allegation involves the proposition that if the same complaint had been made by a woman, or a person without a psychiatric impairment, S/C Watt would have investigated the complaint and charged Ms D with unlawful stalking.

87    A fundamental strand of Mr Myatt’s allegation is that he made a “complaint” to S/C Watts, which S/C Watts then failed to investigate. Mr Myatt seems to use “complaint” to refer to an allegation of unlawful stalking which he expressly or impliedly asked S/C Watts to investigate. However, Mr Myatt’s evidence is that he ended his interview with S/C Watts “before he took any complaint”. On Mr Myatt’s own evidence, he did not request that S/C Watts investigate his allegation. The first aspect of the second allegation has no reasonable prospect of success for this reason.

88    However, Mr Myatt says that he later emailed S/C Watts encouraging him to progress his complaint. I will proceed on the assumption that Mr Myatt did request that S/C Watts investigate Ms D for unlawful stalking.

89    Mr Myatt says that he had told S/C Watts about the September 1999 telephone call from Ms D and the reasons why he considered that Ms D had unlawfully stalked him. Mr Myatt’s evidence is that Ms D’s telephone call in September 1999 was at about 3 am or 4 am, and this was “unequivocally romantic conduct to me.” All he says about the content of the telephone call is that “She simply wanted to engage in a conversation…of no import whatsoever”. Therefore, Mr Myatt’s apprehension that Ms D was engaging in “romantic conduct” towards him seems not to have come from anything that Ms D said, but the fact that the telephone call was at 3 am or 4 am.

90    There had also been a number of telephone conversations between Mr Myatt and Ms D in the weeks leading up to September 1999, but Mr Myatt made no complaint about Ms D’s conduct during those conversations. Therefore, Mr Myatt’s complaint to S/C Watts that Ms D had unlawfully stalked him could only have been on the basis that she made a single telephone call to him at 3 am or 4 am some 3½ years earlier in which she said nothing of any import, but which he perceived to be a romantic overture; and that he suffered a severe nervous breakdown as a result.

91    Section 359E(1) of the Criminal Code 1899 (Qld) provides “A person who unlawfully stalks another person is guilty of a crime”.

92    In September 1999, s 359B of the Criminal Code defined “unlawful stalking” as follows:

359B    What is unlawful stalking

Unlawful stalking is conduct—

(a)     intentionally directed at a person (the stalked person);

and

(b)     engaged in on any 1 occasion if the conduct is protracted or on more than 1 occasion; and

(c)     consisting of 1 or more acts of the following, or a similar, type—

…

(ii)     contacting a person in any way, including, for example, by telephone, mail, fax, email or through the use of any technology;

…

(d)     that—

(i)     would cause the stalked person apprehension or fear, reasonably arising in all the circumstances, of violence to, or against property of, the stalked person or another person; or

(ii)     causes detriment, reasonably arising in all the circumstances, to the stalked person or another person.

93    The expression “detriment” is defined in s 359A of the Criminal Code to include “serious mental, psychological or emotional harm”. The word “circumstances” is defined to include the alleged stalker’s circumstances and the circumstances of the stalked person known, foreseen or reasonably foreseeable by the alleged stalker.

94    In R v Armstrong [2015] QCA 189, McMurdo J (with whom Holmes CJ and Lyons J agreed), explained at [17] that for s 359B(d)(ii) of the Criminal Code, the jury has to be “satisfied of the truth in substance of the complainant’s evidence about the consequences of the appellant’s conduct and that these were reasonable reactions by the complainant to that conduct”.

95    Mr Myatt’s complaint of unlawful stalking against Ms D must rely on s 359B(d)(ii) of the Criminal Code. It must be to the effect that Ms D’s telephone call caused him detriment, namely serious mental, psychological or emotional harm, and the detriment was one “reasonably arising in all the circumstances.”

96    The expression “reasonably arising in all of the circumstances” requires consideration of whether the alleged conduct would cause serious mental, psychological or emotional harm to a reasonable person in all the circumstances. The circumstances include the circumstances of the stalked person which the alleged stalker knew or foresaw or should have foreseen. Mr Myatt claims that he was particularly vulnerable to psychological or emotional harm because of his feelings of guilt stemming from his relationship with Ms D in circumstances where he had lied to and betrayed his previous girlfriend. However, the evidence does not indicate that at the time she made the September 1999 telephone call Ms D was aware of Mr Myatt’s feelings of guilt, or was, or should have been, aware of any mental, psychological or emotional vulnerability on the part of Mr Myatt. In the circumstances, the reasonable person to be considered is one of ordinary mental, psychological or emotional fortitude.

97    The issue is whether a reasonable person would have reacted in the way Mr Myatt did. The telephone call from Ms D was innocuous. Mr Myatt seems to have leapt to the conclusion that the fact that the telephone call was in the early hours of the morning meant that Ms D telephoned because she had some romantic interest in him. It is well within the realms of ordinary human behaviour that friends, particularly young people, sometimes inconsiderately telephone each other at odd hours, perhaps because they exuberant, or simply have an impulse to talk to a friend (and it is also necessary to bear in mind the two hour time difference between Queensland and Western Australia). Mr Myatt’s claim that Ms D’s innocuous telephone call at 3 am or 4 am indicated some romantic interest in him is narcissistic and bizarre. Even if the fact that Ms D telephoned him obliquely indicated some romantic interest, it cannot be supposed that any reasonable person would suffer severe mental, psychological or emotional harm as a result.

98    Mr Myatt has suggested that Ms D also unlawfully stalked him by procuring Mr A to make harassing telephone calls to him in August 2001 and April 2002. This suggestion has the appearance of being somewhat belated, and the evidence does not indicate that Mr Myatt told S/C Watts that Mr A’s calls were part of his complaint of stalking. Even assuming that he did, that does not increase the strength of the complaint. There is no evidence that Ms D procured Mr A to make the calls. Mr Myatt does not detail the content of the calls, other than that Mr A said “[T]here are laws against that you know” and “You are a good looking guy” and “[L]eave [Ms D] alone”. S/C Watts could not conclude from the information given by Mr Myatt that there was any realistic prospect that the elements of s 359B of the Criminal Code could be proven.

99    The QPS explained, most recently in its letter to the AHRC of 22 May 2014, that Mr Myatt’s allegations against Ms D had been determined to be unsubstantiated. There was (and remains) no realistic prospect that a jury properly instructed could lawfully convict Ms D of unlawful stalking: see Doney v R (1991) 171 CLR 207 at 215, May v O’Sullivan (1955) 92 CLR 654 at 658-659. A judge would not allow the charge to go to a jury.

100    Officers of the QPS are not obliged to investigate a complaint or to charge a person merely because a complaint is made. Police officers retain a discretion as to whether to investigate and charge.

101    In R v Commissioner of Police of the Metropolis; Ex parte Blackburn [1968] 2 QB 118, Lord Denning MR said at 136:

Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere. For instance, it is for the Commissioner of Police of the Metropolis, or the chief constable, as the case may be, to decide in any particular case whether inquiries should be pursued, or whether an arrest should be made, or a prosecution brought.

102    In Hinchcliffe v Commissioner of Australia Federal Police (2001) 118 FCR 308, Kenny J at [35] noted that Australian courts have also accepted that a Police Commissioner has a broad discretion as to the manner in which he or she chooses to fulfil the responsibilities of office. Her Honour continued at [37]:

I accept that, where a member of the AFP receives a complaint from a member of the public, the member discharges his or her duty to enforce the law if:

(1)    he or she gives due and proper consideration to the question whether and in what way an initial inquiry into the complaint should be made; and

(2)    he or she acts appropriately upon the view which he or she has formed.

A range of matters may be pertinent to the member's consideration of the complaint, depending on the circumstances.

103    In Desai v Keelty, Commissioner, Australian Federal Police (2009) 180 FCR 559, Tracey J at [16] referred to the powers and duties imposed by common law on constables of a State. His Honour said at [18]:

[P]olicing powers carry with them a wide measure of discretion such that it usually cannot be asserted, as a matter of law, that a police officer is under any unqualified duty to exercise particular powers.

104    In O’Malley v Keelty (2005) 148 FCR 170, Magwick J said at [36]:

[A] court cannot and should not compel a police force to investigate every breach of the law. There are many mysteries in this world. Some of them involve possible commissions of crime. It is not, however, the responsibility of police officers to investigate all of them. Indeed, the role of the police is not to investigate whether, at large, there has been a breach of the law. Rather, their duty is to investigate whether there has been a breach of the law for which an identifiable person might be convicted if prosecuted.

(Emphasis added.)

105    In Scott v Northern Territory of Australia [2003] FCA 658, Magwick J said:

[69]    [I]f there appears to be no serious prospect of obtaining a conviction, it may be a quite reasonable decision, even in a very serious case, by the relevant police officer(s) not to expend resources or further resources on an investigation.

…

[75]    There is, however, as it seems to me, nothing unlawful in a police officer bona fide determining, where there is some proper material to support the view, that one or more crucial witnesses are unlikely to be believed by a jury, and on that account to cease an inquiry. It must happen frequently in police work. In the case of a very serious crime, such as the various applicants allege here, one would usually expect that such a determination would not be made without interviewing the witness(es) concerned. Nevertheless, unusual circumstances may exist such that a police officer might reasonably come to the view that the matter is not worth investigating further or taking to court.

106    Section 2.1 of the PSAA provides for the maintenance of a body of persons under the name and style “Queensland Police Service”. Section 2.3 of the PSAA provides that the functions of the QPS include protection of people from commission of offences against the law, bringing offenders to justice and the upholding of the law generally.

107    Under s 3.2(2) of the PSAA, a non-commissioned officer or a constable has and may exercise the powers of a constable at common law or under any Act or law. Section 3.2(4) of the PSAA provides that the PSAA does not derogate from the powers, obligations and liabilities of a constable at common law. Nothing in the PSAA operates to remove the discretion of a police officer under common law as to whether and how to investigate a complaint and as to whether to lay charges.

108    After hearing Mr Myatt’s allegations in the course of the interview in May 2003, S/C Watts apparently decided not to conduct any investigation, or any further investigation, of Mr Myatt’s allegations of unlawful stalking against Ms D and decided not to charge her. S/C Watts had the benefit of Mr Myatt’s explanation of why he contended that Ms D had unlawfully stalked him. It was not only entirely open to S/C Watts to not to investigate the complaint and not to charge Ms D, but that was the only sensible decision that he could have made. There was no realistic prospect of obtaining a conviction.

109    It is necessary to consider whether S/C Watts would have investigated and charged Ms D with unlawful stalking if the same complaint had been made by a woman or a person without a psychiatric impairment. Mr Myatt argues that the very fact that he was charged with unlawful stalking, whereas Ms D was not, proves his case. However, as I will discuss later, the allegations made by Ms D against Mr Myatt were quite different and the case against Mr Myatt was much stronger. There was a clear, obvious and reasonable basis for S/C Watts and S/C Wong to charge Mr Myatt, whereas there was no prospect that Ms D would be convicted if charged.

110    The evidence is not capable of allowing a trial judge to draw an inference that if the complaint made by Mr Myatt had been made by a woman, or a person without a psychiatric impairment, S/C Watts would have investigated the complaint and would have charged Ms D.

Charging Mr Myatt with unlawful stalking

111    The second part of the second allegation is that by charging Mr Myatt with unlawful stalking, S/C Watts treated him less favourably than a woman or a person without psychiatric impairment would have been treated in the same circumstances.

112    Ms D’s statement detailed her allegations about numerous telephone calls from Mr Myatt that persisted despite her repeatedly telling him to leave her alone. Her evidence was supported by the evidence of Mr A.

113    The conduct alleged against Mr Myatt was persistent, obsessive and unwelcome. The fact that Ms D did not allege any overt threat of violence did not mean that there could be no conviction for unlawful stalking: see R v Armstrong at [21]–[22]. The mere fact that the police decided not to proceed with the prosecution, for reasons that are not explained in the evidence, does not indicate that there was no basis for charging Mr Myatt. That conduct could reasonably be assessed by S/C Watts as causing “the stalked person apprehension or fear, reasonably arising in all the circumstances, of violence” within s 359B(d)(i) of the Criminal Code.

114    Mr Myatt alleges that police officers tend to attribute propensity for violence to men and persons with psychiatric impairments. He has placed in evidence an academic study which suggests that “there may be an assumption that males perpetrate more stalking violence than females”, whereas the rates are in fact about equal. That evidence would not be admissible at trial in its present form. Even if such evidence were admitted, Mr Myatt could only succeed if the evidence leads to an inference that S/C Watts not only had such a tendency, but then acted on that view to charge Mr Myatt when he would not have charged a woman or a person without a psychiatric impairment. In circumstances where there was a clear, obvious and reasonable basis for charging Mr Myatt, no such inference is available.

115    The evidence is not capable of leading to an inference that if the same allegations had been made against a woman or a person without a psychiatric impairment, S/C Watts would not have charged such a person with unlawful stalking.

Pretending to investigate Mr Myatt’s allegation of unlawful stalking

116    The third part of Mr Myatt’s second allegation is that S/C Watts pretended to be willing to investigate Mr Myatt’s complaint of unlawful stalking in order to trick him into incriminating himself. Mr Myatt’s allegation must involve the assertion that S/C Watts would not have engaged in that conduct against a woman or a person without a psychiatric impairment in the same circumstances.

117    The allegation against S/C Watts must be seen in light of the complaint made against Mr Myatt by Ms D. S/C Watts’ conduct is alleged to have occurred in the course of his investigation of that complaint. It is apparent that S/C Watts regarded Ms D’s complaint as being sufficiently credible and cogent to warrant investigation. There is no evidence from which an inference could be drawn by a trial judge that the means by which S/C Watts’ investigated the complaint (even if improper) would have been different if S/C Watts were investigating a complaint against a woman or a person without a psychiatric impairment.

Failing to comply with procedures under the OPM

118    The fourth part of Mr Myatt’s second allegation is that S/C Watts breached the requirements of the OPM by failing to record Mr Myatt’s complaint on the CRISP database. On the assumption that S/C Watts was required to record the complaint in the CRISP database, his failure to do so may be assumed to be unfavourable treatment of Mr Myatt. The obvious explanation for S/C Watts’ failure to record the complaint was his view that the complaint lacked merit. That is consistent with S/C Watts’ decision not to investigate the complaint. There is no evidence from which an inference could be draw that if the same complaint with the same lack of merit had instead been made by a woman or a person without a psychiatric impairment, S/C Watts would have recorded it in the CRISP database.

119    Mr Myatt alleges other breaches of the OPM by S/C Watts. These alleged breaches include not treating him as a victim of crime, not being courteous and respectful to him and treating him with dignity, not responding to his disability and not providing him with access to the justice system. A trial judge could not infer from the evidence that Mr Myatt would have been treated differently if he were a woman or a person without psychiatric impairment.

120    For these reasons, there is no reasonable prospect that a trial judge would find that S/C Watts or S/C Wong contravened ss 22(1)(a) and (c) of the Sex Discrimination Act or ss 24(a) and (c) of the Disability Discrimination Act.

Allegation 3

121    Mr Myatt’s third allegation is that in May 2004, the officer in charge of the Palm Beach police station failed to investigate his complaint against Ms D, and failed to charge her, and that this conduct contravened s 22(1)(a) of the Sex Discrimination Act and s 24(a) of the Disability Discrimination Act.

122    Mr Myatt sent written complaints to the Palm Beach police station. He alleged that Ms D had engaged in unlawful stalking against him and had also made a false complaint against him of unlawful stalking. The QPS did not respond to Mr Myatt’s complaints. Mr Myatt states that it was obvious to him the QPS did not believe him and thought that he was not credible.

123    As I have said, the police had a discretion as to whether to investigate Mr Myatt’s complaints and as to whether to charge Ms D. Mr Myatt accepts that the police, having read his complaints, treated him as not being a credible complainant. It was open to the police to consider the complaint and to determine not to investigate it on the basis that it lacked merit, or to use the language of the QPS, that the complaint was unsubstantiated.

124    There is no evidence from which a trial judge could infer that if a woman or a person without a psychiatric impairment had made the same complaints, Ms D would have been investigated and charged.

125    Mr Myatt has no reasonable prospect of succeeding in his third allegation.

Allegation 4

126    Mr Myatt’s fourth allegation is that in December 2007, Sergeant Quinn of the Coolangatta police station failed to investigate his complaint of fraud and making a false complaint against Ms D, and failed to charge Ms D with any offence. He alleges that this conduct breached of ss 22(1)(a) and (b) of the Sex Discrimination Act and ss 24(a) and (b) of the Disability Discrimination Act.

127    It was apparent that Sergeant Quinn did investigate Mr Myatt’s complaint. He attended Mr Myatt’s residence on 11 November 2007 to obtain information about Mr Myatt’s complaint. Mr Myatt said he was not prepared to talk to Sergeant Quinn. Sergeant Quinn decided that he was not in a position to progress the investigation unless Mr Myatt was prepared to speak to a member of the QPS in person.

128    It is obviously important for a police officer to speak to a person making a written complaint before taking further steps to investigate the complaint or to charge the alleged offender. Police have great powers which must be exercised with care and caution, and large demands on their limited resources. An investigating police officer will need to form some view as to the credibility of the complainant. The police officer will usually need to question the complainant to test the veracity of the complaint and to fill in gaps in the material supplied by the complainant. Mr Myatt’s written complaint, on its face, suggested that there was no realistic prospect of a conviction being obtained. It is unsurprising that Sergeant Quinn was not prepared to progress the investigation without talking to Mr Myatt in person.

129    Again, there is no evidence capable of leading to an inference that Sergeant Quinn would have conducted any further investigation of the complaint in the same circumstances if the same complaint had been made by a woman or a person without a psychiatric impairment.

130    Mr Myatt’s fourth allegation has no reasonable prospect of success.

Allegation 5

131    Mr Myatt’s fifth allegation is that in January 2012, officers of the QPS at the Palm Beach police station failed to act in relation to his complaints against Ms D and Mr A. He alleges that this conduct breached s 22(1)(a) of the Sex Discrimination Act and s 24(a) of the Disability Discrimination Act.

132    Mr Myatt alleged that Ms D had engaged in unlawful stalking, attempting to pervert the course of justice and criminal defamation. He alleged that Mr A had also attempted to pervert the course of justice.

133    In his written complaint, Mr Myatt said that he did not wish to “have verbal discussions with police”. Mr Myatt’s unwillingness to speak to the police makes the position in relation to Mr Myatt’s fifth allegation the same as in respect of the fourth allegation.

134    There is no evidence from which a trial judge could infer that the officer in charge of the Palm Beach police station would have conducted any investigation, or any further investigation, of Ms D or Mr A if the complaint had instead been made by a woman or a person without a psychiatric impairment.

135    Mr Myatt has no reasonable prospect of proving his fifth allegation.

Allegation 6

136    Mr Myatt’s sixth allegation is that between October and December 2012, S/C Glaister engaged in harassing conduct against him in connection with complaints made by Ms D and Mr A against Mr Myatt. He alleges that this conduct breached s 22(1)(c) of the Sex Discrimination Act and s 24(c) of the Disability Discrimination Act.

137    By that time, Ms D had made a second complaint of unlawful stalking against Mr Myatt and Mr A had also made a complaint of unlawful stalking. These complaints seem to have been precipitated by Mr Myatt’s publication of a letter containing serious allegations against Ms D and Mr A to various people.

138    S/C Glaister was assigned to investigate Ms D’s and Mr A’s complaints. S/C Glaister attended Mr Myatt’s home on 1 December 2012. Mr Myatt alleges that she pounded on the door and threatened to break down the door when he refused to talk to her. She left him notices to appear for unlawful stalking. He alleges that by this conduct S/C Glaister unlawfully stalked him.

139    Mr Myatt’s allegation must be that S/C Glaister would not have engaged in such conduct against a woman or a person without a psychiatric impairment in the same circumstances. If the conduct occurred, it was inappropriate, but the obvious inference is that it occurred because S/C Glaister wanted to interview Mr Myatt and she was frustrated by his refusal to co-operate. There is no evidence capable of leading a trial judge to infer that S/C Glaister would not have engaged in the same conduct if Mr Myatt were a woman or a person without a psychiatric impairment.

140    Mr Myatt also alleges that S/C Glaister denied Mr Myatt natural justice and due process by failing to pass on the investigation to an independent body, failing to provide adequate particulars of the allegations to Mr Myatt, failing to provide him with a fair hearing prior to making a decision to charge him. He also alleges that S/C Glaister’s conduct failed to comply with a number of provisions of the OPM and the QPS Code of Conduct.

141    Again, there is no evidence capable of leading a trial judge to infer that S/C Glaister would not have engaged in the same conduct if Mr Myatt were a woman or a person without a psychiatric impairment.

142    Mr Myatt says that S/C Glaister’s decision to charge Mr Myatt amounted to a refusal by the QPS to investigate his counter-allegations against Ms D. In circumstances where Mr Myatt’s complaint did not, on its face, suggest any realistic prospect of obtaining a conviction and Mr Myatt refused to talk to the police, any refusal to investigate was sensible and reasonable. There is no evidence from which a trial judge could infer that the same complaint would have been investigated, or investigated further, if made by a woman or a person without a psychiatric impairment.

143    Mr Myatt has no reasonable prospect of proving his sixth allegation.

Allegation 7

144    Mr Myatt’s seventh allegation is that in September and October 2013, an officer of the Cleveland police station refused to accept his written complaint that Ms D and Mr A had committed fraud by making their complaints of unlawful stalking, in contravention of in contravention of ss 22(1)(a) and (b) of the Sex Discrimination Act and ss 24(a) and (b) of the Disability Discrimination Act.

145    Mr Myatt’s allegation must be that the officers of the Cleveland police station would have accepted a complaint of fraud against Ms D and Mr A if the complaint had been made by a woman or a person without a psychiatric impairment.

146    It is necessary to consider all the relevant circumstances. One of the officers who refused to accept a complaint was a Police Prosecutor who seems to have been involved with the prosecution of Mr Myatt upon the complaint of Ms D and Mr A. The statements of Ms D and Mr A raised allegations of harassment at their workplace over a lengthy period of time. By then Mr Myatt had made at least four lengthy complaints. The QPS had previously investigated Mr Myatt’s complaints and determined that they were unsubstantiated.

147    In these circumstances, it is unsurprising that officers of the Cleveland police station refused to accept Mr Myatt’s further complaints. The obvious inference is that they refused to accept the complaints because they thought it would be a waste of time to investigate them. A trial judge could not infer from the available evidence that the complaint would have been accepted if Mr Myatt were a woman or a person without a psychiatric impairment.

148    Mr Myatt’s seventh allegation has no reasonable prospect of success.

Allegation 8

149    Mr Myatt’s final allegation is that the Police Commissioner contravened s 22(1)(a) of the Sex Discrimination Act and s 24(a) of the Disability Discrimination Act by refusing to investigate his complaint of fraud, fabricating evidence and unlawful stalking against Ms D and Mr A, and failing to charge them.

150    Mr Myatt made a written complaint dated 22 January 2014 to the Police Commissioner, alleging that Ms D and Mr A had engaged in fraud and fabricated evidence in their 2012 witness statements. He also alleged that Mr A had engaged in unlawful stalking. He made a further complaint to the Commissioner about Ms D’s alleged unlawful stalking. The Commissioner did not respond to these complaints.

151    In the circumstances described earlier, it was unsurprising that there was no response from the Commissioner. The Commissioner was entitled to take the view that Mr Myatt’s complaints were a waste of time.

152    It would not be open to a trial judge to infer that the Commissioner would have responded to, or investigated Mr Myatt’s complaints, or charged Ms D or Mr A with an offence if Mr Myatt were a woman or a person without a psychiatric impairment.

153    Mr Myatt has no reasonable prospect of proving his eighth allegation.

conclusion

154    Mr Myatt has no reasonable prospect of success in respect of any of his allegations of unlawful discrimination. His originating application must be dismissed.

155    Mr Myatt is ordered to pay the respondent’s costs of the proceeding.

Associate:

Dated:    25 February 2016