Barnes v Northern Territory Police

[2013] FCCA 30

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARNES v NORTHERN TERRITORY POLICE & ANOR [2013] FCCA 30

Catchwords:
HUMAN RIGHTS – Racial discrimination – whether on the balance of probabilities alleged incident occurred – where causal nexus is defined as underlying reason for action – where it is sufficient that one of the reasons for an act, where there are more than two reasons for the act, is the race, colour or national or ethnic origin of applicant – where no direct evidence as to reason for act – whether action carried out because of the race, colour or national or ethnic origin of the applicant – whether breaches of ss.18A and 18C(1) of Racial Discrimination Act 1975 (Cth).

DAMAGES – Assessment – where compensatory and no medical evidence of harm.

Legislation:
Human Rights and Equal Opportunity Commission Act 1986, s.46PO
Racial Discrimination Act 1975, ss.18A, 18C
Federal Magistrates Court Rules 2001

Cases cited:
Rodney Barnes v Northern Territory Police & Ors [2012] FMCA 1044
Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573
Travers v New South Wales [2000] FCA 1565
Purvis v New South Wales (2003) 217 CLR 92
IW v City of Perth (1997) 191 CLR 1
Qantas Airways Ltd v Gama [2008] FCAFC 69
Hall v Sheiban (1989) 20 FCR 217
Alexander v Home Office [1988] 2 All ER 118
Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64

Applicant: RODNEY BARNES

First Respondent: NORTHERN TERRITORY POLICE

Second Respondent: DAVID O'RIORDAN

File Number: DNG 33 of 2012

Judgment of: Judge Raphael

Hearing dates: 18, 19, 20 March 2013 at Darwin

Date of Last Submission: 20 March 2013

Delivered at: Sydney

Delivered on: 15 April 2013

REPRESENTATION

For the Applicant: Mr Barnes in person

Solicitors for the Respondents: Solicitor for the Northern Territory

ORDERS

1. Respondents to pay the Applicant the sum of $3,500.00 for breaches of ss.18A and 18C of the Racial Discrimination Act 1975 (Cth).

2. The Respondents pay the Applicant $881.99 interest on the sum of $3,500.00.

3. Respondents to pay the Applicant’s expenses for attendance including those of his witness assessed in the sum of $1,000.00.

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT DARWIN

DNG 33 of 2012

RODNEY BARNES

Applicant

And

NORTHERN TERRITORY POLICE

First Respondent

DAVID O'RIORDAN

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. These are proceedings brought by Mr Rodney Barnes pursuant to the provisions of s.46PO of the Human Rights and Equal Opportunity Commission Act 1986[1] seeking relief against the first respondent as employer of the second respondent for actions which the applicant believes constituted a breach of s.18C of the Racial Discrimination Act 1975[2].  That section is in the following form:

   [1] “HRC Act”

   [2] “RDA”

   18C     Offensive behaviour because of race, colour or national or ethnic origin

   (1)  It is unlawful for a person to do an act, otherwise than in private, if:

   (a)  the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

   (b)  the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

   Note: Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.

   (2)  For the purposes of subsection (1), an act is taken not to be done in private if it:

   (a)  causes words, sounds, images or writing to be communicated to the public; or

   (b)       is done in a public place; or

   (c)  is done in the sight or hearing of people who are in a public place.

   (3)  In this section:

   "public place" includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.”

2. There is provision in the Act for vicarious liability on the part of an employer, that is s.18A:

   18A     Vicarious liability

   (1)  Subject to subsection (2), if:

   (a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and

   (b)  the act would be unlawful under this Part if it were done by that person;

   this Act applies in relation to that person as if that person had also done the act.

   (2)  Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.”

3. There is also provision in s.18 that where an act is done for two or more reasons and one of the reasons is the race, colour, descent or national or ethnic origin of a person (whether or not it is the dominant reason or substantial reason for doing the act) then the act is taken to be done for that reason. 

4. The alleged discriminatory act which took place in September 2010, was said by the applicant to be the driving past of his house by the second respondent in his private white Nissan motor vehicle mouthing offensive language at him that the applicant could not hear but could lip read and the trading of one offensive remark between them. Mr Barnes is an Aboriginal person who asserts that the actions of the second respondent, a Constable of Police in the Tennant Creek command of the first respondent, was racially motivated and thus fell within the provisions of s.18C.

5. The respondents denied these claims which the applicant deposed to and which were supported by evidence from his son.  A number of additional affidavits were tendered in support of the respondents including one of Superintendant Delcene Jones to which was annexed the transcript of a detailed discussion between herself and the applicant and his son as a result of Mr Barnes’ request that his complaints be investigated by the police.  A number of documents attached to affidavits were tendered with those affidavits that included a letter from Northern Territory Legal Aid to the applicant that set out the complaint made by the applicant and another letter written by the Central Australian Aboriginal Legal Aid Service[3] to the applicant following a request by him for assistance in relation to the matter which also set out in short form the complaint being made by the applicant.

   [3] “CAALAS”

6. In these reasons I propose to deal first with the evidence called insofar as it relates directly to matters in issue, then to indicate the findings which I make upon that evidence and finally my findings as to whether or not the evidence sustains the applicant’s complaint of a breach of the Act, the responsibility for that breach and any damages that might flow from it.

Mr Barnes’ evidence

1. Mr Barnes was unrepresented at the hearing.  Attempts were made through the good offices of the court to obtain assistance for him but this was not forthcoming.  He is, however, articulate and clearly spoken.  His Aboriginality is not denied.  He was questioned throughout the first day of the hearing by Mr Selvaretnam on behalf of the respondents.  It is fair to say that the documentary evidence was complicated by this particular complaint being one of several that Mr Barnes made at this time against the police.  Some arose out of what he considered to be unsatisfactory treatment of him by the police force and others from what he considered to be the unsatisfactory treatment of a second son, also known as Rodney Barnes.  These additional complaints are not the subject of these proceedings although they cast a shadow over them.  They may well have coloured the language of Mr Barnes’ written complaints.

2. Mr Barnes deposed three affidavits.  The first dated 6 June 2012 attached, as required by the HRC Act, a number of documents that went to the Human Rights Commission[4], and also a statement dated 12 June 2012.  Although Mr Barnes’ affidavit is dated 6 June it appears to have been sworn on 14 June.  Mr Barnes’ letter commences by identifying himself, his sons and his connection to the Northern Territory and the land.  He makes a general complaint of harassment by the police over the last eleven years and the way in which his complaints about that alleged treatment have been dealt with.  He then turns to a complaint against the police officer who was at the time the second respondent in the proceedings.  As a result of a decision of this court on 17 October 2012 Rodney Barnes v Northern Territory Police & Ors [2012] FMCA 1044 that claim was dismissed. The relevant part of the letter for the purposes of these proceedings is in the following form:

   “My next complaint is against Constable David O’Riordan as I was told his name.  I am still shocked and angry as I was that September day when he drove slowly past our house mouthing off swear words towards me in front of my son Russell as if he was exercising his white pride.  I saw also that it was a dangerous situation if he had stopped because nobody does that in a place like Tennant Creek.  After that he has continued to harass me and taunt me sometimes driving past our house on Wolsley Street with another policeman named Trevor Howie.  I am also amazed at this policeman David O’Riordan.  I don’t know him, never met him but he has taken it upon himself to persecute me like this.”

   [4] “HRC”

3. In his second affidavit dated 3 September 2012 Mr Barnes says:

   “In my human rights complaint I mentioned an incident where one afternoon in September 2010 a police officer while in plain clothes and driving his car drove past my house.  I knew he was a policeman but had never any previous contact with him.  I could see him coming down the street and I felt something was wrong.  He had his head [out] of the car and he drove up right opposite the house mouthing words at me.  I did not hear the words but I could tell he was swearing at me.  His raw hatred made my angry and shocked me.  I had never done anything against him, the police officer was so proud and he did it because he could get away with it.  This kind of thing would never happen to a white person… The police are clearly motivated by the fact that I am an Aboriginal person.  They don’t treat white people that way.  It is my experience of racism since I was a child that tells me that their behaviour against me is racially motivated.  I have complained about the police but I feel they just cover everything up and don’t investigate my complaints. They don’t take my complaints seriously because I am an Aboriginal person.”

4. The third affidavit filed by Mr Barnes on 27 November 2012 is his response to the affidavits filed on behalf of the respondents.  It does not deal directly with the incident with which this court is concerned.  This incident, being what was described in court as “the drive by incident”, took place on either 24, 25 or 26 September 2010.  That was the only relevant matter that was considered by the HRC and thus the only matter that was capable of being considered by this court: AHRC Act 1986 (Cth) s.46PO(3), Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573, Travers v New South Wales [2000] FCA 1565. Whilst Mr Barnes has enlarged his complaints against Constable O’Riordan and against others in his testimony the incident in September 2010 is the only one that falls to be determined.

5. Mr Barnes was cross-examined by Mr Selvaretnam who took him through the documentary evidence in the case filed by both Mr Barnes and by the respondents.  This evidence included a letter to Mr Barnes from the Northern Territory Legal Aid Commission[5] that he had provided to the HRC.  That letter is dated 7 December 2010 and is set out below:

   [5] “NTLA”

   “7 December 2010

   Mr Rodney Barnes
   P O Box 401
   TENNANT CREEK  NT  0861

   Dear Sir

   Re:  COMPLAINT AGAINST POLICE

   I spoke to you by telephone on about 15 November 2010.  You instructed  me as follows:

   On 25^th September 2010 at 2 pm at 7 Wolseley St, I was sitting at home with my son.  A police officer was driving past in a car, in civilian clothes.  A Nissan Patrol trayback.  A woman was in the car too.  I didn’t hear anything.  I could see he was swearing at me.  On 26the September, another policeman in a red Pajero in civilian clothes (a singlet or T shirt) drove in front of my yard, and stopped.  He was looked at me through the window and was swearing at me.  I couldn’t hear anything.  I believe he was saying words like ‘Fuck and ‘cunt’.  Since then that policeman always stares at me, and I saw him point at me.  It scared and shocked me.

   I then spoke to your son Russell Barnes by telephone about this matter on about 17 November 2010.  Russell Barnes instructed me as follows:

   The other month, me and dad were at the front yard of my house at 7 Wolseley St.  Dad was on a chair.  I was standing facing the road.  A police officer in his personal vehicle, a Nissan patrol ute drove up.  He was looking into our yard.  As he approached, drove real slow, he was looking at dad, and he mimed the words ‘Fuck You’.  Couldn’t hear what he said, but I could sort of kip-read him.  I think a woman was in the car.  He drove past really slowly.  He swore at my father.  He’s a big bloke: tall, shaved head, bulky, no facial hair, singlet.  I recognised him as being a policeman, but I don’t know his name.  He’s still in Tennant Creek.  I saw him the other day.

   Having taken these instructions, I now confirm that I advised you that I consider that on the basis of these instructions there is no reasonable prospect of proving that you have been harassed by a Tennant Creek police officer, and that accordingly, in my opinion you would not be eligible for a grant of legal aid to complain to police about these incidents.  If you wish, you can complain to the police about these incidents, by writing to:

   Superintendent, Ethical & Professional Standards Command,
   Northern – PO Box 39764, Winnellie, NT 0821.

   Fax:  [phone], phone [phone]; email [email protected]”

6. The second letter is dated 2 March 2011 and is written by CAALAS on behalf of Mr Barnes to the Ethnical and Professional Standards Command of the Northern Territory Police.  The letter was written by Mr Yan Moerkerke and it states relevantly:

   “Dear Sir or Madam

   RE: Rodney Barnes DOB: 02/07/1957

   We assist Mr Barnes in relation to ongoing harassment by police officers.  Mr Barnes instructs us as follows:

   1.On 25 September 2010 Mr Barnes was at home when he saw a private car - a white Nissan Patrol - near the driveway to his house at 7 Wolseley Street Tennant Creek.  He saw a male person who he recognised as a police officer was driving the car.  As the car approached Mr Barnes’ son said words to the effect … “they are swearing at you…”.  Mr Barnes noted that the police was mouthing words that he could discern as being abusive towards him.

   2…

   3…

   In general, Mr Barnes is concerned at the behaviour of police officers both towards him directly and his family members.  In 2008 he made a complaint against a police officer – ID – who swore at Mr Barnes and made offensive gestures towards him.  Since that time Mr Barnes has raised a number of issues with police about the behaviour of officers and none has been resolved to his satisfaction. 

   Mr Barnes requests that all these matters be investigated and steps be taken to avoid any future incidents of harassment.  He is willing to assist in investigating officer with enquiries.  However, he requests that any investigation be independent of the Tennant Creek Police Station.”

7. Much of Mr Barnes’ cross examination was taken up with the apparent discrepancy of the dates in the alleged incident.  Mr Barnes had first told that it was on 24 September, a Friday, but he later changed that to 25th and then at some stage thought it might be 26th, a Sunday.  As his evidence came out it would appear that the incident, if it took place at all, took place on 25 September 2010, a Saturday, being the day after one of Mr Barnes’ son’s birthday.  Mr Barnes claims another incident took place on the Sunday but it is not the subject of these proceedings.

8. As a result of the CAALAS letter an investigation was conducted by the Ethical Standards Office and Superintendent of Governance and Accountability, Alice Springs, Delcene Julie Dorothea Jones was tasked with the investigation.  She interviewed Mr Barnes and his son Russell on 7 April 2011 and transcripts of that interview are attached to her affidavit sworn on 6 November 2012.  In response to a question from me Mr Barnes agreed that the first time he had ever given a full statement about this incident was to Ms Jones.  There was considerable cross examination about Mr Barnes’s communication with Mr Goldflam of the NTLA and Mr Moerkerke of CAALAS.  This was directed at the very skimpy detail of the incident as narrated by them.  Mr Barnes does not have a happy relationship with either of these gentlemen.  He believes that they do not take his complaints seriously.  He even commenced certain proceedings against Mr Goldflam.  The fact that two months had passed between the time of the alleged incident and the time Mr Goldflam first wrote about it to him was the subject of considerable questioning.  Mr Barnes thought that he had spoken to Mr Goldflam quite soon after the incident but that nothing had happened.  He thought that he had phoned him or his office.  The letter from Mr Goldflam makes no reference to any earlier communication between them.  Mr Barnes conceded that his most effective communication with Mr Goldflam was 15 November 2010 but to my understanding did not resile from the possibility that he had spoken to someone at NTLA shortly after the incident.  Mr Barnes told that whatever communication he did have with Mr Goldflam was at the telephone.  He never sat down with him and gave him the full statement.  He said that Mr Goldflam tried to brush him off but eventually he agreed to consider his complaint.  This resulted in the letter.  With regard to Mr Moerkerke Mr Barnes deposed that he again had to badger him to do anything to assist, that he had never sat down with Mr Moerkerke and given a statement but had spoken to him at the door of his office.  He told him his complaint and Mr Moerkerke agreed that he would write a letter.  Mr Barnes told the court that he never received a copy of the letter that CAALAS wrote to the Ethnical Standards or seen the one written to Mr Moerkerke by Acting Commander Michael White dated May 2011 after the investigation by Superintendent Jones.

9. The transcript of the interview with Superintendent Jones is detailed and in respect of the drive by incident is as follows:

   “JonesWe’re discussing some complaints that you’ve got in relation to the Tennant Creek Police.  Is that correct?

   Barnes        Yes.

   Jones       You tell me your story.

   BarnesIt was on the 24^th of September, twenty ten, I was sitting outside here with, with my son, standing, Russell.

   Jones       Outside where, sir?

   Barnes        Of the front yard of his house, on 7 Wolseley Street.

   Jones       This premises here?

   BarnesYep.  It was a quite afternoon and I couldn’t help noticing this try back vehicle coming along and identified straight away as Police that I’ve seen a number of times drinking across the road from where I live..

   Jones       mmm

   BarnesAnd from that, it was a fair distance, but I could see him wit his heat out and he was mouthing off and I said “Russell have a look at dis here, what’s with this bloke? Something wrong”.  And he kept coming as he came closer.  I believe had had this Spanish looking little policeman, also I noticed at the Police Station, they were driving around a lot together, and he was just mouthing, and I see clearly he was swearing at me personally, everything, swearing at me…”.

   Jones       Could you hear what he was saying?

   Barnes        No, but I know he was swearing at me!

   Jones       And why would you think that?

   BarnesHe was just swearing at me!

   Jones       But you didn’t hear him?

   Barnes        No.

   Jones       OK.

   Barnes        That’s what he relies on that what he was told how to do it.

   Jones       Can you describe this Police Officer to me?

   BarnesHe was a big fella with red cheeks face, very, very short hair and he’s been wearing his normal umm what I’d call the army sort of singlet I recall.

   Jones       What colour?

   Barnes        Green.

   Jones       Green.

   Barnes        Green or even a Police singlet if you like,

   Jones       And you can describe the vehicle that he was in?

   Barnes        It was a Nissan Tray Back with a cage at the back where he carry his dogs.

   Jones       Did you get the registration number?

   BarnesNo Miss… but I got, I got my daughter in law to take a mobile phone picture of it park here one night when they were all drinking here across the road.  But you still can’t see that number but I can identify him anywhere in that vehicle if I saw him today.

   Jones       Or do you know who the Policeman is?  Do you know his name?

   Barnes        I don’t know his name.

   Jones       Ok, and the um Spanish gentleman you say he was with?

   BarnesA he’s a dark skinned, skinny little fella, he was always look very small in that vehicle, but I never took notice of, I knew he had somebody in there and I believe it was this little man because he was always in that vehicle.  I was more like transfixed at this bloke swearing at me.  Trying to make sure I got it right with him, with everything with that he was doing you know!

   Jones       Oh, could you identify this dark skinned gentleman if you saw him again?

   Barnes        Yes, yes.

   Jones       At about what time did this happen on the 24th?

   BarnesIt was about two o’clock, exactly two o’clock.

   Jones       In the, in the afternoon?

   BarnesYes, yes afternoon.

   Jones       And um what distance were you from the vehicle when you saw this Police…

   BarnesI saw him from a distance of there, I would say, of what would you call…a few hundred metres, or five hundred metres.  He had his head out of the vehicle until he came right past us, right in front of our yard and I, and as he was came right past my son Russell said “Dad he’s swearing at you”.  I said “I know” so I said “fuck you too!” and he said the same (laughing) “Fuck you too!”

   Jones       Who said that?

   BarnesThe Police Officer.

   Jones       Who to? Your son?

   BarnesNo, to me, when I said to him “Look at him he’s swearing at me” and said “Well fuck you too!” and he was trying to, you know, intimidate me by staring at me he’s been doing it ever since.  Lately it’s stopped he’s never come past here.

   Jones       Alright, and you say your son Russell was…

   Barnes…was standing with me yeah…

   JonesWas anyone else here when it happened?

   BarnesNo, only Russell stood right behind me, next to me, when I was sitting on the seat.”[6] 

   [6] “[T pp1-3 of 14]

   Other relevant parts of the transcript are:

   “JonesWhen this incident happened on the 24^th did you report it to anyone?

   BarnesI thought that it’s no good going to the Police Station because they all in it together you know…and um, I tried to ring this ah Russell Goldflam of the NT Legal Aid Commission.  I think he sent a copy of his letter to everyone so …

   JonesRussell…

   BarnesGoldflam, in Alice Springs, that lawyer …

   JonesYou rang him immediately after this is that right?

   BarnesCertainly did, yeah.

   JonesAnd what did you tell him?

   BarnesI told him like that what he done to me and he said he can’t do nothing and I reckon you, I reckon you do what you gotta do because he’s planned it so as long as I couldn’t hear what he’s saying it didn’t (inaudible) that motherfucker if I see him straight after (inaudible – muttering)

   JonesOK, so you reported it to Legal Aid and they couldn’t help you?

   Barnes…and then I tried to go to Anti Discrimination and they wouldn’t help me.”[7]

   [7] “[T p4 of 14]”

   And at p6 of 14:

   “JonesAlright ah the letter to CAALAS it’s got on the 26^th of September is that the date that you…

   BarnesNo wait a minute it was on the 25^th and 26th.

   Jones       25^th and 26^th okay and again was this Police Officer in uniform?

   BarnesNo.

   Jones       25^th.. so there’s two separate incidents?

   BarnesHe been he been taunting me a lot, same as this other Policeman like waving, waving at me like harassing me like that when I’m sitting down like most of them been doing like that.

   Jones…and when has this happens this is on the 25th?

   Barnes…this continue happening.”[8] 

   [8] “[T p6 of 14]”

1. The first reference to any conversation between him and Constable O’Riordan as opposed to O’Riordan merely mouthing insults at him came in this interview with Superintendent Jones.  When he was taxed as to why he had not said anything about this before he explained that he had told his story as best he could within the time to Mr Goldflam and Mr Moerkerke and they had translated it into their own words for the purposes of the two letters.

2. Mr Barnes was also questioned upon his conflicting evidence about the passenger in the car.  He said at first he thought it was a woman in the car and then changed his mind and thought it was another police constable who he described as “Spanish looking”.  He said in response to questions that he wasn’t quite looking at the passenger and his attention was directed at what Constable O’Riordan was doing.  He had always had what he described as a “not sureness” about the passenger.  Under cross examination Mr Barnes described with reference to a plan and certain photographs that were tendered where he was sitting when the alleged incident occurred.  This was in the grass area in the front of the house in the shade.  Although he says in the statement to Ms Jones that he first saw the car about 500 metres away this cannot be the case given the length of the street and in response to questions from Mr Selvaretnam he indicated that he first saw the white Nissan vehicle as it approached the house just beyond the laneway between it and the next door house.  He was questioned about what he saw Constable O’Riordan mouthing at him.  He said that as far as he could recall it was words like “fuck” and “cunt”, “fucking cunt”.  He referred to other racially abusive words but said that he didn’t really remember all of them.  Again pressed on why the conversational exchange “fuck you – fuck you too” had not been mentioned by either of the lawyers Mr Barnes said that he thought that he told Mr Goldflam about it but he was not sure he told Mr Moerkerke.  Mr Barnes agreed that there was nothing in the letter from CAALAS about a woman being in the car although there is in the letter from the NT Legal Aid to Mr Barnes.

3. Mr Barnes was asked about his history with the Northern Territory Police.  It was suggested that this went back to 1975.  Mr Barnes admitted that in 1975 he had been charged with a motor vehicle offence which he said happened when he was a young man and which he accepted.  It was, however, after 1988 that he felt that the police were pursuing him and his family and harassing him.  He agreed that he had made an accusation that Constable Howie had broken his son’s arm and made other allegations against the police, none of which had been substantiated after investigation.  He agreed that he was angry with the police and he felt threatened by them.  He agreed that he had “given the finger” to Constable Howie although he said that this was after Howie had passed him in his car and given him a Hitler salute.  He indicated that police abusing him from their cars was a common occurrence and that he would respond.  He told Mr Selvaretnam he stood by his story that these events occurred and that it was Constable O’Riordan who had threatened him and harassed him.  He denied that he was so angry with Constable Howie that he had come up with the idea of attacking his partner Mr O’Riordan.

4. The court asked Mr Barnes how he knew that the vehicle belonged to Constable O’Riordan.  He said that he had seen it before 25 September in town in front of the police station and he had seen Constable O’Riordan in uniform and that was how he recognised him driving the vehicle.  He said that Tennant Creek was a small town and you get to know everyone.

Russell Barnes

1. Russell Barnes is the son of Mr Rodney Barnes.  On 15 October 2012 he gave a statutory declaration which was admitted into evidence as his affidavit.  The relevant part of the statutory declaration is as follows:

   “On 25 September 2010 I was with my father at the front of my then residence at 7 Wolseley Street, Tennant Creek.  I noticed a Nissan Patrol ute driving up Wolseley Street towards my house.  I looked to see who it was and it was an off-duty police officer.  As the vehicle came directly in front of my house, the off-duty police officer was looking at my father and was mouthing swear words at my father.  We could not hear him but I know that the police officer was swearing.  I then said to my father, “Dad, he’s swearing at you”.  My Dad then said “Fuck you” and the police officer said “Fuck you too”.  Myself and my father were shocked and angry at this.  We had never had anything to do with this policeman.  This was clearly a racially motivated attack.  My father then said that we should follow the off-duty police officer and confront him but I said that were would get into more trouble.”

2. Mr Barnes was cross examined on his affidavit.  He was asked if he was aware of why the present matter was before the court and indicated that he was.  He said:

   “My father is taking him to court for being sworn at by a police officer that is racially motivated.  It happened on 25 September.”

3. In cross examination he was asked to indicate to the court what occurred on that day.  His evidence was confirmatory of that contained in his statutory declaration.  When he was asked why he did not do anything about the incident he said that Mr O’Riordan was an off duty police officer so they couldn’t go and talk to him.  He said that his father had told him that he had made a complaint shortly afterwards.  He was shown the letter from Mr Goldflam and agreed that that was when he spoke to Mr Goldflam and that the paragraph reporting what he had said to Mr Goldflam was probably the most accurate recollection of what occurred because it was now some three years since the incident.  Mr Russell Barnes and his father have been both shown Exhibits A and B.  Exhibit is a hand drawn map of the area and Exhibit B is a series of photographs.  They both gave evidence indicating where Mr Rodney Barnes was sitting and Mr Russell Barnes was standing when the alleged incident occurred.  His evidence was consistent with the claim.  There was a lot of cross examination about whether or not Constable O’Riordan only mimed words or actually said “fuck you” to Mr Rodney Barnes.  Mr Russell Barnes indicated that his recollection of what occurred was that he saw the vehicle coming down the road and the driver with his head out of the window on his arm miming the words “fuck you” towards his father.  He spoke to his father.  His father said to the driver “fuck you too” and the driver then said “fuck you too” to Mr Rodney Barnes.  He said that he heard all this very clearly.  In response to questions from the court Mr Russell Barnes indicated that although he had spoken to Mr Goldflam he had never sat down with him and given him a full statement.

Constable David O’Riordan

1. Mr O’Riordan swore an affidavit on 7 November 2012.  In it he indicated that he commenced work at Tennant Creek as a probationary constable on 18 February 2009.  He was at the relevant time a uniformed constable in the general duties section which he described as being a responder to a broad range of critical and non critical incidents preventing crime and upholding law within the context of public good and the rights of individuals.  He noted that Tennant Creek was a small town of approximately 3,000 persons, a large portion of whom would be indigenous.  He said that 90% of his work involved dealings with indigenous persons.  In paragraphs 9, 10 and 11 of his affidavit he stated:

   “[9]Given the relatively small size of Tennant Creek I quickly became familiar with peoples faces; who they were and their position in the town.  Over tie I formed some good friendships with local people and local business owners, even if I didn’t know a particular individual personally, I would always exchange pleasantries.

   [10]One of these people I came to be aware of its Rodney Barnes.  I cannot recall when or how I first came to know of who Mr Barnes was, although I quickly became aware, from personal experience, that he was very anti – police.  This was evident when while I was working in uniform and driving in a marked police vehicle.  When ever my marked police van crossed paths with Mr Barnes in public he would stare at the vehicle and extend his arm and give the middle finger at the vehicle, this was usually followed by way appeared to be verbal abuse targeted towards police in general.

   [11]I can not recall who informed that Mr Barnes frequently made complaints about police, but I do remember being aware of his disposition when ever I came into contact with him, one such example is when I conducted a foot patrols of Tennant Creek and I would pass Mr Barnes I would exchange pleasantries and not engage him in unnecessary conversation.”

2. Constable O’Riordan deposed that on 25 September 2010 was a rostered day off and that his partner was on a work course in Darwin.  He said he did not recall what he was actually doing on that day but:

   “I can categorically state that I have absolutely no knowledge of the incident that Mr Barnes refers to on 25 September 2010.  He alleges that I drove past his residence with my head out the window of my personal vehicle and mouthed words to him.  I can, with certainty, say that this did not occur.”

3. Constable O’Riordan was aware that Mr Barnes lived on Wolseley Street because he had attended that street both in his capacity as a police officer and also in his private capacity because a close friend of his lived diagonally opposite Mr Barnes in a police housing unit.

4. In cross examination by Mr Barnes Mr O’Riordan agreed that he did not know Mr Barnes well personally.  In response from questions from the court Mr O’Riordan told that he had become aware of Mr Barnes’ anti police attitude some time shortly after he started work in 2009.  He had been told about it by other policemen, one of whom might have been Mr Howie.  He was certainly aware of this before the 25 September 2010.  Mr O’Riordan indicated that with regard to the incidents referred to in paragraph 10 of his affidavit these incidents could have happened after 25 September 2010 and that in regard to paragraph 13 of the affidavit, where he referred to some other dealings with Mr Barnes and that he had previously spoken with him and did not recall any of the interactions with him being negative, he stated that he could not be certain of the dates.  He told the court that he wasn’t aware when he was first told about Mr Barnes that he was Aboriginal but became aware of that information from the police computer systems.

Trevor Howie

1. Mr Howie is a retired police constable.  He swore an affidavit on 3 November 2012.  He had worked in Tennant Creek from 2005 to 2007 as an acting sergeant in one of the station patrol groups.  He told that it was during this time that he first came into contact with the Barnes family and with Mr Rodney Barnes in particular.  After 2007 he moved down to Alice Springs and returned to Tennant Creek on 16 November 2010 as the officer in charge of the Tennant Creek domestic violence prevention unit.

2. The majority of Mr Howie’s affidavit as originally drafted contained what the court considered to be irrelevant and prejudicial comment information concerning Mr Barnes and his family.  Most of it was voluntarily redacted.  In the end the affidavit contained no more information than that set out above and some information in support of Constable O’Riordan as not being a person who was likely to have acted in the manner complained of by Mr Barnes.

3. In response to questions from the court Mr Howie said that he came to know Mr Barnes through investigating his son Rodney Barnes junior.  Although this was part of the redacted evidence I am satisfied that it is an accepted fact ascertainable from the documentation that was admitted relating to complaints being made by Mr Barnes that Mr Barnes senior had accused Constable Howie of breaking his son Rodney Barnes junior’s arm and otherwise ill treating him when his son was charged with an offence involving domestic violence.  The incident was investigated by the police and no action was taken against Constable Howie.

4. Mr Howie told the court that prior to 25 September 2010 he had come back to Tennant Creek for approximately one month as IC of the Tennant Creek Investigation Unit.  He agreed that he may well have met Constable O’Riordan at that time and he might well have told him then that the Barnes’ were a difficult family.

Superintendent Delcene Jones

1. Superintendent Delcene Jones swore an affidavit on 6 November 2012.  She is Superintendent of Governance and Accountability Alice Springs.  She was responsible for a investigation of the alleged incident following on from the letter of 2 March 2011 from CAALAS.  She carried out the only in depth interviews of either Mr Rodney Barnes or Mr Russell Barnes.  The transcript of those interviews is attached to her affidavit.  The transcript is again consistent with the story told by both Mr Rodney and Mr Russell Barnes.  It confirms two points which were much in dispute in the case.  The first being that there was a passenger in the car who was most likely a woman.  The second was that words were exchanged between the driver and Mr Rodney Barnes as well as the mouthing of insults.  In response to a question from the court Ms Jones said she had not taken a transcript of her discussions with Constable O’Riordan but she had made notes.  She agreed that the notes were not contained in the affidavit.  The affidavit also contains a copy of her report to her superior Acting Commander Michael White who later wrote to Mr Moerkerke of CAALAS advising that the matter had been investigated and stated relevantly:

   “The investigation found that Plain Clothes Constable O’Riordan was the only Officer at Tennant Creek Police Station who matched the description provided by Mr Barnes and who also owns a white Nissan Patrol utility.  Constable O’Riordan was spoken with by Superintendent Jones about the complaint.  He admitted that he had often driven along Wolseley Street to visit a friend who had once lived there.  He could not specifically recall driving along Wolseley Street in late September 2010 however he strenuously denied swearing at Mr Barnes.  He said that he has not had any dealings with Mr Barnes and was surprised at the complaint.

   Mr Barnes told Superintendent Jones that he had previously complained to Alice Springs Legal Aid about this incident and they told him that they couldn’t help him.  Mr Barnes also said that he had contacted the Anti-Discrimination Commission and they also did not progress his complaint.

   In view of the conflicting information that Mr Barnes provided and the denial of the behaviour by Constable O’Riordan no further investigation or action will be taken in relation to this complaint.”[9]

   [9] “pp36-37 Affidavit of Superintendent Jones”

2. Ms Jones had said in her report to Mr White:

   “Mr Barnes said he could clearly see that the male was “swearing at me personally, everything, swearing at me”.  Initially, he said that he could not hear what was being said nonetheless, he was adamant that he was being sworn at.  When asked how he could be sure that the man was swearing at him he said, “That’s what he relies on.  That what he was told how to do it!

   However, later in his interview he said that as the car was driving past and after his son Russell (who was standing next to him at the time of the incident) told him that the man in the white ute was swearing at him, he swore at the man in the car.  He said “Fuck you too!” to the driver.  After he said that he heard the male say “Fuck you too!”  which he believes was directed him.

   Mr Barnes son, Russell, was also interviewed on 7 April 2010.  He said he was standing near his father when a man that he knows to be a Police Officer drove past his house in a white Nissan try back vehicle.  He said that the male drove past with his windows down and swore at his father saying “Fuck you!”[10]

   Having said that Ms Jones then reported:

   “It is surprising that Tennant Creek CAALAS took this matter as a complaint in view of the fact that Mr Barnes said he hadn’t heard any swearing.  Mr Barnes stated in his interview that he’d previously complained to Alice Springs Legal Aid.  They instructed him that there was nothing that they could do because he hadn’t heard what was said.  Mr Barnes’ account of the incident differed in his interview where he claimed that he heard the policeman say “Fuck you too!”  He stated that the policemen said this immediately after he had sworn at the officer.  Whilst this in no means justifies this type of conduct by either party, it cast doubts on Mr Barnes recollections of the incident and the veracity of his complaint.

   It appears that little would be gleaned from any further enquiries being made into this allegation.  Therefore it is recommended that no further action is taken regarding this complaint.”[11]

   [10] [p2 memo to Commander Michael White from Superintendent Jones]

   [11] [p3 memo to Commander Michael White from Superintendent Jones]

Other evidence

1. An affidavit from Mr Selvaretnam, a solicitor employed by the Northern Territory Government attached to the Northern Territory Police Fire and Emergency Services contained a number of documents which were admitted into evidence including the letter to Mr Barnes from NTLA.  In addition to this affidavit there were a number of statutory declarations and affidavits from persons known to Mr O’Riordan.  The gravamen of these documents was that Mr O’Riordan was an excellent and conscientious policeman who interacted with indigenous persons and others in a positive, friendly and co-operative manner.  He had received awards and commendations in the police force.  He was clearly considered to be a future leader.  I informed the parties that I was prepared to accept these affidavits as indicating that an incident such as that described by Mr Barnes was out of character for Mr O’Riordan but otherwise they could throw no light upon the task of the court which was to determine whether or not the incident had taken place and if so its legal affect. 

Discussions and Findings on Evidence

1. The two issues which have to be resolved by the evidence are firstly did the incidence occur as described by Mr Barnes and secondly was it, to use the language of s.18C “because of the race, colour or national or ethnic origin” of Mr Barnes. It is for Mr Barnes to satisfy me on the balance of probabilities that the incident did occur. Mr O’Riordan does not have to satisfy me that it did not. The evidence that it did occur is supplied first hand by Mr Barnes and his son. That evidence was corroborated by the letter from NTLA and the letter from CAALAS. Whilst those letters may have provided some ammunition upon which Mr Selvaretnam could cross examine Mr Barnes and his son it in no way detracted from the essence of the claim. The claim was further corroborated in the statements made by Mr Barnes and his son to Ms Jones. They have been consistent all through since 2010. It was submitted that the first complaint was not made until some two and half months after the alleged incident although in fact it was more like some two months. Mr Barnes senior is adamant that he did try and make some contact with NTLA shortly after the incident occurred. He told the court that it was not easy to get through to NTLA or for them to act on matters. He also told the court that they would have had a pile of complaints from him over the years. It seems to me open for the court to draw an inference from this information that some communication was made but that nothing occurred until Mr Barnes was actually able to speak to Mr Goldflam in November. It is to be remembered that there is no evidence of any interaction between Mr O’Riordan and Mr Barnes between September and November which might have caused Mr Barnes to make up a complaint about the conduct of Mr O’Riordan in September. In my view the fact that the first report of the complaint is in November does not negative the evidence of Mr Barnes and his son that it took place in September.

1. The incident was said to have taken place whilst Mr O’Riordan was not in uniform and was driving his own car.  It took place in a street that Mr O’Riordan agreed that he went down with some frequency both on duty and off.  It occurred in a street where Mr O’Riordan had a close friend who lived diagonally across from Mr Barnes.  Mr Barnes and his son identified Mr O’Riordan as being a policeman they had seen in uniform in Tennant Creek.  It is a small town.  Mr Barnes was known to the police as a persistent complainer and troublemaker.  There is no evidence he had any access to police records so as to know whether or not the person he was about to accuse of discriminatory behaviour was on duty or off duty at a particular time or whether that person was even in Tennant Creek.  The risks to him of making a completely false accusation would appear to be great.   Although Mr O’Riordan denies the incident there was nothing physically to prevent it having occurred as Mr Barnes and his son described.  Mr O’Riordan was off duty, he did own a vehicle similar to that that was seen and he did frequent the street.  I am satisfied on the balance of probabilities that the incident did occur.

2. The court should also state what it finds constituted the incident.  It finds that the incident was constituted by Mr O’Riordan driving down Wolseley Street from east to west when he was seen with his arm outside the open driver’s side window by Mr Russell Barnes at about the junction of the laneway between No 7 (Mr Barnes’ house) and No 9.  He was mouthing what Mr Russell Barnes lip read as obscenities facing towards Mr Rodney Barnes.  He told Mr Rodney Barnes that he was being sworn at.  Mr Rodney Barnes turned and saw Mr O’Riordan mouthing obscenities at him.  Mr Rodney Barnes then said “fuck you” and Mr O’Riordan responded “fuck you too”.  At one stage Mr Barnes appeared to be suggesting that the obscenities had a racial element to them but he did not pursue this.  I cannot be satisfied to the required standard that these were used.

3. The question as to whether Mr Barnes has satisfied me that the actions of Mr O’Riordan were carried out because of his race is more difficult. In cases of direct discrimination it is well-established that there must be a causal nexus between the alleged discriminatory behaviour or acts and the alleged victim’s attribute, be it race, colour or national or ethnic origin in the present case, or physical or mental disability, or sex in another. I am of the opinion that this nexus is not one of the intention or motivation of the perpetrator, but of the underlying reason for the perpetrator’s action: Purvis v New South Wales (2003) 217 CLR 92. As Gummow, Hayne and Heydon JJ opined in Purvis, the question to be asked is “why was the aggrieved person treated as he or she was.” [at 236, emphasis in original]. I believe that this is in keeping with Kirby J’s opinion in IW v City of Perth (1997) 191 CLR 1 at [63] when considering the Equal Opportunity Act 1984 (WA) that:

   The object of the Act is to exclude the unlawful and discriminatory reasons from the relevant conduct. This is because such reasons can infect that conduct with prejudice and irrelevant or irrational considerations which the Act is designed to prevent. Because persons, faced with allegations of discrimination, genuinely or otherwise, assert multiple and complex reasons — and because affirmative proof of an unlawful reason is often difficult — the Act has simplified the task for the decision-maker. It is enough that it be shown that the doing of the act was "by reason" or "on the ground" of the particular matter in the sense that the unlawful consideration was included in the alleged discriminator's reasons or grounds. It must be a real "reason" or "ground". It is not enough to show that it was a trivial or insubstantial one. But once it is shown that the unlawful consideration truly played a causative part in the decision of the alleged discriminator, that is sufficient to attract a remedy under the Act.

   Of note, Gleeson J, approved of this formulation in his extensive consideration of the term “because of” in Purvis, though he was in dissent overall.

4. I am satisfied that this reasoning is also in keeping with s.18B of the Act which states:

   “Reason for doing an act

   If:

   (a)  an act is done for 2 or more reasons; and

   (b)  one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);

   then, for the purposes of this Part, the act is taken to be done because of the person's race, colour or national or ethnic origin.

5. There is no direct evidence on the matter. Mr Barnes’ view is that the actions of Mr O’Riordan had to be because of his race. He believed that this type of activity would simply not happen to a person who was not Aboriginal in Tennant Creek. He believed it was indicative of the attitude of the police towards Aboriginal persons and his family in particular. He believed that his family was targeted by police. The wording of s.18 referred to at [3] of these reasons only requires one of the reasons for doing something to be a discriminatory one for it to constitute a breach of s.18C or any other part of Part IIA of the Act. The question must be looked at upon the evidence. Here it is that Mr Selvaretnam argues that some of the evidence of Mr Howie and other witnesses becomes relevant because that evidence indicates that Mr O’Riordan had a very positive attitude towards indigenous persons, one that is recognised by his colleagues both indigenous and non indigenous and superiors. I accept that in a situation such as this such evidence does have relevance.

6. By the same token, Mr Barnes and his family were considered troublemakers and serial complainers by the police.  They were known to be Aboriginal.  Mr Barnes argues that the action took place because Mr O’Riordan thought he could get away with it because Mr Barnes was Aboriginal.

7. It is not for the court to speculate upon parties’ motives for any action.  It can draw inferences but only those inferences available on the evidence.  Mr O’Riordan has provided no reasons for the incident because he denies that it occurred but the court has found that he was wrong in that and that it did occur.  His evidence is that 90% of his work involved dealings with indigenous persons, that he approaches his policing duties in Tennant Creek in a way which reflects how he expects to be treated, with respect, dignity and courtesy.  The finding that the court has made is that he did not treat Mr Barnes with respect, dignity and courtesy when he drove past his house on 25 September 2010.  He was a relatively new probationary constable driving past the home of a person considered to be a troublemaker and serial complainer by his colleagues.  Mr Barnes was an Aboriginal serial complainer and troublemaker.  Whilst there is certainly no evidence that the principal reason for the act was Mr Barnes’ ethnic origin the inference can I believe be drawn from the evidence of what is known about the relationship between Mr Barnes and his family and the Tennant Creek Police that a part, if only a small but not a trivial or insubstantial part, of the reason for why he acted as he did was Mr Barnes’ ethnicity.

Discussions on Findings of Law

1. The findings which have been made above on the evidence lead to the inevitable conclusion that Mr O’Riordan was in breach of s.18C(1) of the RDA. I would find that Mr O’Riordan’s conduct was reasonably likely in all the circumstances to offend, insult, humiliate and intimidate Mr Barnes. I would find the action took place in a public place, namely the public roadway although this was not disputed by the respondents. I would find that words can be communicated by “mouthing” and that in this case such words were so communicated and were understood by Mr Barnes and his son. Mr Selvaretnam informed the court that he did not propose to argue that the Northern Territory Police was not vicariously liable under s.18A of the RDA, which was the only position he could have taken having represented both Mr O’Riordan and the Northern Territory Police throughout. If he had intended to make that argument then it would have been appropriate for Mr O’Riordan to have been separately represented.

Damages

1. Mr Barnes told the court that of all the complaints he has made against the police he regards this as the most serious and that this is the one that he has followed up with the most determination.  I would accept that this is the case.  Mr Barnes was not encouraged by either of the legal advisors he approached.  He received no assistance from them in his complaint to HRC or to this court.  He tells that the incident and its aftermath have had deleterious effects upon his health, that it has caused him depression and anxiety, that it has made him inward looking and unable to communicate with his family, in particular his grandchildren.  He tells the court he is a disability pensioner but the court has no evidence of the nature of this disability or any medical evidence that would associate his current feelings with the incident or indicate a prognosis.  Damages are awarded in cases such as these not as a punishment to the perpetrator, nor to deter him or others from acting in this manner but are compensatory in form only: Qantas Airways Ltd v Gama [2008] FCAFC 69.

2. It is established that the assessment of damages in such cases is analogous to the assessment of damages in torts law, through a comparison of the position in which the person discriminated against would have been in had the discriminatory conduct  not occurred and the position in which they find themselves after the occurrence of the discrimination: Hall v Sheiban (1989) 20 FCR 217 per Wilcox J at 256. In that case, Wilcox J cited with approval, and I too am likeminded, the opinion of May LJ in Alexander v Home Office [1988] 2 All ER 118, that such damages are inherently difficult to quantify, should not be minimal, but should be restrained.

3. I am prepared to accept that Mr Barnes was hurt and insulted by the actions of Mr O’Riordan and that these have had a deleterious effect upon him, however, without any medical evidence it is difficult to put a substantive figure on that effect.  One is instructed in these matters to “do the best one can” (Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83) and in this case I believe that “the best” is to make an award to the applicant in the sum of $3,500.00. I would also award him interest in accordance with the Federal Magistrates Court Rules 2001 from 26 September 2010 to date upon that sum.  Mr Barnes is self represented.  He is not entitled to costs but he is entitled to reimbursement for his expenses in preparing the case and travelling to Darwin for its hearing.  Mr Barnes has a period of fourteen days in which to provide the court and the respondents with an indication of those expenses and the respondents will have a further seven days in which to make representations to the court thereupon.  The court will then make an order in chambers assessing the appropriate amount to be awarded.

Conclusion

1. At the end of Mr O’Riordan’s evidence I made it clear to him that the references and evidence that had been provided about his conduct, attitude and ability as well as his bravery and community service as a police officer have been noted by the court.  These clearly indicate that Mr O’Riordan is an exemplary officer who has an excellent future in the force.  The court has no reason to believe that his conduct in relation to this incident was anything but out of character, possibly the result of youthful indiscretion by an impressionable probationary constable.  Whilst it is not for this court to influence the police department’s internal disciplinary procedures it is important for both Mr O’Riordan and Mr Barnes for the incident to be seen in the context of Mr O’Riordan’s total career with the force to date.  The positive aspects of that career being indicated by the evidence tendered to the court.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  15 April 2013