Fields v Commissioner of Police, NSW Police Force

[2017] NSWCATAD 311

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Fields v Commissioner of Police, NSW Police Force [2017] NSWCATAD 311
Hearing dates:	29 August 2017
Date of orders:	27 October 2017
Decision date:	27 October 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	1. Ms Patterson is removed as an applicant to the proceedings. 2. Mr Fields is joined as an applicant to the proceedings. 3. Ms Patterson is appointed as Mr Fields’ guardian ad litem under s 45(4)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). 4. Leave is granted for that part of the Mr Fields’ complaint that occurred on 18 May 2016 immediately after his arrest, to proceed.
Catchwords:	HUMAN RIGHTS – where Aboriginal man with mental health issues was arrested and taken into police custody – where it is alleged that police officers used excessive force and failed to promptly decontaminate him after spraying him with capsicum spray – where President of Anti-Discrimination Board had declined complaint of discrimination on the ground of race and disability as lacking in substance – whether fair and just for complaint to proceed - whether police providing a ‘service’ to applicant during or immediately after arrest
Legislation Cited:	Anti-Discrimination Act 1977 (NSW), ss 4, 7(1)(a), 19, 49A, 49M, 87(1), 92(1)(a), 94A, 96 and 103 Civil and Administrative Tribunal Act 2013 (NSW), s 44, s 45(4)(a) Mental Health (Forensic Provisions) Act 1990 (NSW) Police Act 1990 (NSW), s 6(3)(b)
Cases Cited:	Commissioner of Police, NSW Police Service v Estate of Edward John Russell [2001] NSWSC 745 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349
Category:	Procedural and other rulings
Parties:	Richard Fields (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	C Patterson, Guardian ad Litem (Applicant) K&L Gates (Respondent)
File Number(s):	2017/00219440
Publication restriction:	Nil

REASONS FOR DECISION

Overview

1. Mr Fields, an Aboriginal man with mental health issues, complains of race and disability discrimination against the NSW Police Force. On 18 May 2016, he was arrested, taken to various police stations and charged with breaching an Apprehended Domestic Violence Order (ADVO) against his brother. During that time Mr Fields alleges that police officers spat on him, threatened him, abused him, used unreasonable force and took over an hour to arrange for him to be decontaminated after spraying him with capsicum spray.

2. Mr Fields says that this treatment, and other treatment he was subjected to on the same day, amounts to discrimination on the ground of his race and his disabilities. It is unlawful for a person who provides services to discriminate against another person on the ground of their race or disability. Mr Fields alleges that police either refused to provide him with a service or provided him with services on unfavourable terms: Anti-Discrimination Act 1977 (NSW), ss 19 and 49M. Police deny most of the allegations and submit that arresting a person is not the provision of a service to that person.

3. The President of the Anti-Discrimination Board declined the complaints on the basis that they were lacking in substance: Anti-Discrimination Act, s 92(1)(a). When that happens, the complainant must apply to the Tribunal for permission or ‘leave’ for the complaint to go ahead: Anti-Discrimination Act, s 96. I have granted leave in this case. As soon as Mr Fields was formally arrested and placed into police custody, any police officer present had a public duty to provide “police services by way of protection of his person from injury … ”: Commissioner of Police, NSW Police Service v Estate of Edward John Russell [2001] NSWSC 745 at [44]. According to Mr Fields, police officers did not protect him from injury and at least one of the reasons they did not do so was that he is Aboriginal or that he has mental health issues.

Who is the complainant?

4. The complaint was made by Ms Crystal Patterson on behalf of Mr Fields. Ms Patterson cannot make a complaint on behalf of Mr Fields unless Mr Fields is under some ‘legal incapacity’ and Ms Patterson is his parent or guardian: Anti-Discrimination Act s 87(1). Although the Local Court dealt with the charges against Mr Fields under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), that does not mean that he is under any legal incapacity. It follows that Ms Patterson cannot lodge a complaint on behalf of Mr Fields. To overcome this technical obstacle to the complaint, I remove Ms Patterson as the applicant and join Mr Fields as the applicant: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 44. I also appoint Ms Patterson as Mr Fields’ guardian ad litem for the purpose of these proceedings: NCAT Act, s 45(4)(a).

Principles for granting leave – whether “fair and just”

5. The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] – [38]. In that case Schmidt J:

(1) emphasised that a cautious approach should be adopted because a refusal of leave will “finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights”;

(2) found that the Tribunal’s discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint;

(3) concluded that leave must be granted or refused “depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and

(4) noted that where it is apparent that the complaint lacks substance leave may be refused, if that is what justice dictates.

6. The issue to be determined is whether it is fair and just in all the circumstances for the complaints to proceed.

The alleged conduct

7. The period of the complaint is 18 May 2016 to 27 June 2016, but the allegations investigated by the President all occurred on 18 May 2016. In his response to the NSW Police Force’s reply to his complaint, Mr Fields makes allegations about events that did not take place on 18 May 2016. Because the President of the Anti-Discrimination Board did not amend the complaint to include these allegations, I have not taken them into account: Anti-Discrimination Act, s 94A and s 103.

8. On 18 May 2016, Snr Constable Beverly and Snr Constable Cava arrested Mr Fields for allegedly breaching an ADVO. Mr Fields says that in the course of being arrested, Constable Beverly spat on him and said, “I’m gunna take ya out to Emmaville to chuck ya down a mine shaft.” Police deny that this statement was made. Officer McPherson allegedly said to him, “You’re not black, how are you black you got the same colour skin as me, you’re not black”. Police deny that this comment was made.

9. Mr Fields wrote a letter of complaint to the Anti-Discrimination Board on 15 August 2016. In that letter he wrote that, “the day I was arrested I was handcuffed while 4 to 5 coppers on my back and side. I was then pepper sprayed right in the face and was refused to get medical help and wasn’t decontaminated till 1 hour and a half later in the next town so I was tortured … I was threatened to be chucked down a mine shaft by a copper and was treated like crap – to me it was torture. I was threatened to be killed by Scott Beverly and my mental state wasn’t too good at all after being threatened and … the force they used was very excessive”.

10. Police deny that they used excessive force and say that the degree of force used was reasonable. Their version of events is that on 18 May 2016 police mounted an operation to arrest Mr Fields for the alleged breach of an ADVO. Police say they conducted a risk assessment which identified the need to use a police negotiator to contact Mr Fields and negotiate his arrest. However, on the appointed day there was a telephone outage so police had no telephone coverage or computer network. Their only means of communication was through the police radio system. Police revised their plans and decided to go to Mr Fields’Senior Constable address in a marked police vehicle. Other police were located close by for support.

11. The police version is that Mr Fields and his partner approached the police vehicle armed with a large wooden club often called a ‘bundy’ or ‘boondi’ stick. Mr Fields says he was holding a stick but that it was no bigger than an A4 page. When police told him that he was under arrest for the breach of an ADVO he turned to go back inside. Senior Constable Beverly took hold of Mr Fields and arrested him. A struggle took place and Senior Constable Beverly fell over the fence into Mr Fields’ property. According to police, Mr Fields got to his feet and kneed Senior Constable Beverly in the face. Mr Fields denies this version of events and says that Senior Constable Beverly injured himself when he dived at him and fell face first into the ground.

12. Senior Constable Gava sprayed Mr Fields with capsicum spray. Other police officers arrived, restrained Mr Fields and handcuffed him behind his back. Police say they placed Mr Fields in the rear of a caged vehicle and took him to the Glen Innes police station. Using the police radio system, police requested an ambulance to attend the police station to de-contaminate Mr Fields. Police say they have CCTV footage of the custody area at the police station which shows Mr Fields being removed from the vehicle by Senior Constable Gava and Beverly. The Tribunal has not been provided with any CCTV footage.

13. Mr Fields was then taken to a tap so that he could wash himself. Police say Mr Fields refused to use the tap and was taken into the custody area. A further attempt was made to decontaminate Mr Fields in the custody area. That is also said to be recorded on CCTV. Police claim that de-contamination occurred with the use of a hand basin until Mr Fields indicated to police that he was OK.

14. Because of the Telstra outage and the fact that the computers were down, arrangements were made to take Mr Fields to Armidale police station for processing. The ambulance was notified to meet police at Guyra police station on the way to Armidale for further decontamination. At Guyra police station the ambulance decontaminated Mr Fields. At Armidale, Mr Fields received a Court Attendance Notice for various offences. CCTV footage is said to be available.

15. Mr Fields provided a detailed reply to the police’s version of events. While not all of that reply is relevant to the original complaint, some of his points were that:

1. he could not breath properly when inside the police vehicle and police refused to turn on the air-conditioning;

2. police tried to force him to an area away from the cameras so that there would be no video footage of what was happening;

3. it was not reasonable to expect him to decontaminate himself at the tap because it was very low to the ground and he was handcuffed behind his back;

4. he eventually wet his face but that made the pain worse;

5. he was not de-contaminated by the ambulance officer until one hour and twenty minutes after he was sprayed;

6. the comment about not being black was made just before he was put into the cell at Armidale police station; and

7. he requested to see a doctor to treat his “personal injuries” but a doctor was not called.

Race and disability discrimination

Relevant legislative provisions

16. Mr Fields submits that there has been a breach of s 19 of the Anti-Discrimination Act (race discrimination in the provision of goods and services) and s 49M (disability discrimination in the provision of goods and services). Section 19 provides that:

It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race:

(a) by refusing to provide the person with those goods or services,

or

(b) in the terms on which the other person is provided with those goods or services.

17. Section 49M provides that:

49M Provision of goods and services

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

18. I understand Mr Fields’ complaint to be one of direct race discrimination as defined in s 7(1)(a):

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or ...

19. Section 49B(1)(a) defines direct disability discrimination in similar terms:

49B What constitutes discrimination on the ground of disability

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator:

(a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

…

(2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

Elements of the complaint

20. In order to substantiate a complaint of direct race or disability discrimination Mr Fields would have to prove that:

1. he is of a member of a race as defined in s 4 of the Anti-Discrimination Act or he has a disability as defined in s 4 and s 49A;

2. the NSW Police Force refused to provide him with a service or provided him with a service on unfavourable terms;

3. in refusing that service or providing it on unfavourable terms, the NSW Police Force treated him less favourably than it treated or would have treated a person who was of a different race in the same or similar circumstances; (differential treatment) and

4. at least one of the reasons for that treatment was Mr Fields’ race: (causation).

Identification of the "service"

21. The threshold issue if this case proceeds would be whether, when arresting and charging Mr Fields, police officers were providing him with a “service”. The first step in determining whether a person has been refused a service or has been provided with a service on unfavourable terms is to identify the relevant service: Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 404-405 per McHugh J, IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17 per Brennan CJ and McHugh J.

22. Mr Fields has not identified the service precisely but I understand that the services are to protect him from injury when arresting him and holding him in custody. Police submit that they were not providing Mr Fields with a service as defined in the Anti-Discrimination Act when he was arrested and taken into custody on 18 May 2016.

23. The term "services" is defined by s 4 of the Anti-Discrimination Act to include "services provided by a council or public authority". The NSW Police Force is a public authority and “services provided by such serving police officers are services provided by a public authority in the sense contemplated by the Anti-Discrimination Act”: Commissioner of Police, NSW Police Service v Estate of Edward John Russell [2001] NSWSC 745 at [43].

24. Under s 6(3)(b) of the Police Act 1990 (NSW), “police services” include:

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

25. The issue of the circumstances in which police officers are providing “services’ as defined in the Anti-Discrimination Act, to a person they have arrested, was considered by Sully J in Commissioner of Police, NSW Police Service v Estate of Edward John Russell [2001] NSWSC 745. Mr Russell’s parents alleged that when their son was arrested and taken into custody, police officers assaulted him and racially abused him. Sully J held at [44] that when arresting Mr Russell police were not providing him with a service. They were providing a service to the community at large. But as soon as he had been formally arrested and had passed into police custody, police were providing him with services. Any police officer who had any part at all in the way Mr Russell was handled immediately after his arrest was bound to provide “police services by way of protection of his person from injury or death, and the protection of his property from damage”. The full text of [44] is set out below:

44 A correct assessment of the conduct of the individual police officers in the course of their pursuit and arrest of the late Mr. Russell is in my opinion as follows:

[1] The police officers who took part in the pursuit of Mr. Russell were providing to the community at large services of the kind described in section 6(3)(a) and (b) of the Police Service Act.

[2] The police who took part in the arrest of the late Mr. Russell were also thereby providing to the community at large services of those two kinds.

[3] As soon as the late Mr. Russell had been formally arrested, and had passed thereupon into police custody, the arresting police , and any police officer who had any part at all in the way in which Mr. Russell was subsequently handled; or who witnessed the way in which Mr. Russell was handled; became thereupon charged with a public duty to provide to the late Mr. Russell police services by way of the protection of his person from injury or death, and the protection of his property from damage, “whether arising from criminal acts or in any other way”.

[4] All of the police officers mentioned in [3] above wholly failed, on the facts as found by the Equal Opportunity Division, to provide the services which they were bound to provide to Mr. Russell pursuant to section 6(3)(b).

[5] To say that what the individual police officers did, or suffered to be done, to the late Mr. Russell amounted to the provision by them to him of police services, but on a basis discriminatory in the sense contemplated by section 19(b), seems to me to be a wholly artificial perception, given the facts found by the Equal Opportunity Division. The police officers involved did not, in my opinion, provide imperfectly to the late Mr. Russell the services which they were duty bound to provide to him. They did not provide those services at all.

26. It follows from this decision, which is binding on the Tribunal, that as soon as Mr Fields had been arrested, police officers who were involved in any way, even as witnesses, were obliged to protect him from injury. Mr Fields makes several allegations about the actions or inactions of police officers after his arrest including using unreasonable force, treating his face with water which made the pain worse and not being professionally decontaminated until one hour and 20 minutes after he was sprayed with capsicum spray.

Differential treatment and causation

27. The first component of the test for direct race discrimination is the "differential treatment" test. The treatment afforded to Mr Fields must be compared with the treatment that would have been afforded to a person who is not Aboriginal and who does not have mental health issues in the same or similar circumstances. It is difficult to assess how such a hypothetical person would have been treated without first addressing the second component of direct discrimination - causation.

28. At least one of the reasons that the police officers treated Mr Fields in the way that they did must have been his race or disability. As with the vast majority of complaints of discrimination, a causal link between Mr Fields’ race or disability and the treatment he was subjected to, would have to be established by inference from primary facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262.

29. There is CCTV footage of the incidents which has not been provided to the Tribunal and which may help it to find out what happened. It does not appear to be in dispute that police officers knew Mr Fields is Aboriginal and that he had mental health issues. If police officers did not protect Mr Fields from injury, the question arises as to why they did not do so. An available inference may be that at least one of the reasons was that he was Aboriginal or that he had mental health issues. In all the circumstances it is fair and just for the complaint to go ahead.

Orders

1. Ms Patterson is removed as an applicant to the proceedings.

2. Mr Fields is joined as an applicant to the proceedings.

3. Ms Patterson is appointed as Mr Fields’ guardian ad litem under s 45(4)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

4. Leave is granted for that part of the Mr Fields’ complaint that occurred on 18 May 2016 immediately after his arrest, to proceed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 27 October 2017