Gardener Roberts v State of NSW (Department of Attorney General and Justice)
[2013] NSWADT 167
•26 July 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Gardener Roberts v State of NSW (Department of Attorney General & Justice) [2013] NSWADT 167 Hearing dates: 4 June 2013 Decision date: 26 July 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave for the applicant's complaint of race discrimination to proceed is refused
Catchwords: LEAVE - complaint of race discrimination against correctional officers - alleged assault on the ground of Aboriginality - whether fair and just for complaint to proceed Legislation Cited: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977Cases Cited: Commissioner of Corrective Services v Dezfouli [2008] NSWADTAP 85
IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1
Jones and Anor v Ekermawi [2009] NSWCA 388
Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 LR 92
Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349Category: Interlocutory applications Parties: Guy Gardener Roberts (Applicant)
State of NSW (Department of Attorney General and Justice) (Respondent)Representation: G Gardener Roberts (Applicant in person)
G Singer (Respondent)
File Number(s): 131020
REASONS FOR DECISION
Introduction
Mr Gardener Roberts alleges that while in custody at Goulburn Correctional Centre on 7 April 2011, prison officers assaulted him. In August 2011 he complained to the President of the Anti-Discrimination Board that the assault constituted race discrimination in relation to the provision of services to him. The President declined the complaint and Mr Gardener Roberts now seeks the Tribunal's permission for his complaint to go ahead.
The test is whether it is fair and just for the complaint to proceed: Jones and Anor v Ekermawi [2009] NSWCA 388. When deciding whether to grant leave, the potential merits of the case are relevant. The main issues if this complaint goes to a hearing would be whether the correctional officer's treatment of Mr Gardener Roberts can be regarded as the provision of a service to him and, if so, whether at least one of the reasons for that treatment was Mr Gardener Roberts' race.
Alleged facts
In his complaint to the Anti-Discrimination Board, which was identical to a complaint he made to the NSW Ombudsman, Mr Gardener Roberts says, in part:
On 7 April 2011 about 9:45 am Mr Stephens and Mr McDonald said they were going to make me move to a place I didn't want to move to and mix with sex offenders and child sex offenders. So they started swearing at me, threatening me and saying I have no heart...
... They came into my cell with no video camera and seven officers started smashing me, jumping on my stomach and ribs, kicking me in the head and face, punching me in the face and all over my body. There is a camera in cell 3 which is the cell I was in on D deck. It is called a step down cell but I'm sure that the camera was not working but in the hallway there is a camera above the cell so it can show who goes into the cells and you will see four officers run in but a couple stay and keep watch at the cell door.
I seen (sic) the nurse and she said I had a black eye on my left side and was bruised on my face and all down the left side of my body.
Mr Gardener Roberts was seen by medical staff on the evening of 7 April 2011. Minor swelling and bruising was noticed on his face and there was a minor laceration near his ribs. No medical reports were in evidence.
On the same day as the alleged assault, Mr Gardener Roberts complained to NSW Corrective Services. The "Offender Call Action Report" records that Mr Gardener Roberts alleged that he "mentioned the riots in 2002" and an argument with correctional officers ensued. In that complaint he claims that all the officers on duty that day came into his cell and bashed him up after handcuffing him.
Police were called in response to the complaint by Mr Gardener Roberts. According to Mr Farquhar, the General Manager of Goulburn Correctional Centre, Constable Matt Murphy attended the centre and interviewed Mr Gardener Roberts. Mr Farquhar said that "informal advice from police at that time was that the matter would be logged but further investigations would not proceed." The COPS event recording that incident was not in evidence.
The complaint was referred to the Professional Standards Committee of the NSW Police Force. On 4 May 2011 the Professional Standards Committee considered Mr Gardener Roberts' complaint about the incident. The Committee requested that reports be obtained from all the officers involved.
Mr Farquhar wrote to the Director of Professional Standards on 20 April 2011 in relation to the alleged assault. In that letter Mr Farquhar says in part:
On 12 April CCTV footage was viewed which did not show Gardener being assaulted however it was in fact incriminating. The footage shows SCO Stephens engaging in some form of exchange with an inmate in a cell pointing his finger in an angry fashion. Mr Stephens throws open the cell door and enters the cell, a short time later he emerges shaking his right hand.
I have interviewed Mr Stephens in regard to the matter who agrees that the CCTV footage "does not look good" but categorically denies any assault on Gardener.
The CCTV footage was not in evidence.
The alleged perpetrator, Mr Stephens, denies that he assaulted Mr Gardener Roberts. In a memorandum dated 2 June 2011 he writes:
At approximately 9 am on 7 April 2011 in the company of AS McDonald and officers Cockburn and Taylor, inmate Gardener was informed he was required to move to "B" Deck as the cell he occupied was required. Upon being informed he was moving Gardener immediately launched into a tirade of abuse stating that he would "punch on with any cunt at any time".
During the morning staff were bombarded with threats from Gardener which included "Put me back in D wing where I caved the screws head in", "Stephens I will put a 303 bullet in you and your entire family."
At approximately 10 am in the presence of officers Taylor and Cockburn, Gardener was issued with two property tubs to facilitate his move. Upon issuing the property tubs Mr Taylor informed Gardener to calm down and that it was not appropriate to mention the riot in 2002. At this point Gardener threw himself on the ground in a foetal position and screamed, "Well come on and hit me". Mr Taylor said to Gardener, "Get up no one is going to hit you." Mr Taylor has then exited the cell without incident. Gardener has then shouted out "Stephens I want to talk to you." I have entered Gardener's cell and said to him, "What do you want now?" Once again Gardener has thrown himself on the floor and started yelling "Come on and bash me." I said to Gardener, "Stand up I can't talk to you while you're on the ground." Gardener kept repeating "hit me hit me." I said to Gardener, "Wake up to yourself and pack the tubs." I then exited the cell without incident.
Statements from other officers including Senior Correctional Officer Butterfield and Correctional Officer Cockburn corroborate Mr Stephens' version of events.
The Professional Standards Committee considered the evidence together with correspondence from NSW Police Force. The Committee reviewed video footage of the incident and were concerned by the fact that Mr Stephens had engaged in an angry exchange with Mr Gardener Roberts and pointed his finger at him. According to the Committee, the footage did not provide any conclusive evidence of an assault occurring. Due to a lack of corroborating evidence, the Committee decided not to take any further action.
The Ombudsman also investigated the complaint. On 17 October 2011 the Ombudsman wrote to the Commissioner of Corrective Services advising that he had decided to take no further action in relation to the matter. The Ombudsman wrote to the applicant providing reasons for that decision. That letter was not in evidence.
Meanwhile on 23 August 2011, Mr Gardener Roberts had also complained to the President of the Anti-Discrimination Board. The President advised Corrective Services NSW of the complaint on 11 April 2012.
If this matter proceeded to a hearing it is highly unlikely that Mr Gardener Roberts would be able to prove, on the balance of probabilities, that Mr Stephens assaulted him. Neither the Professional Standards Committee nor the Ombudsman came to that view. While there is some circumstantial evidence supporting Mr Gardener Roberts' version of events, there is no CCTV footage of the alleged incident and none of the correctional officers support his version. Unless Mr Gardener Roberts was able to prove that he was assaulted, his complaint of discrimination would not succeed.
Legal principles
Even if Mr Gardener Roberts was able to prove that an assault occurred, he would also need to establish that it constitutes a breach of the Anti-Discrimination Act 1977. Section 19 of the AD Act 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.
I understand Mr Gardener Roberts' complaint to be one of direct 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 the perpetrator:
(a) on the ground of the aggrieved person's race or the race 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 of a different race or who has such a relative or associate of a different race, or ...
In order to substantiate a complaint of direct race discrimination, Mr Gardener Roberts would have to prove that:
(1) he is of a member of a race as defined in the AD Act;
(2) he was refused a service or provided with a service on unfavourable terms; AD Act, s 19
(3) in refusing that service or providing it on unfavourable terms, the respondent 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 Gardener Roberts' race: (causation) AD Act, s 7 and s 4A.
"Race" is defined in the AD Act to include "colour, nationality, descent and ethnic, ethno-religious or national origin." Mr Gardener Roberts says he is Aboriginal and that was not disputed.
The first step in determining whether a person has been refused a service or 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. Mr Gardener Roberts has not identified the precise service with which the respondent was providing him. The term "services" is defined by s 4 of the AD Act to include "services provided by a council or public authority".
Mr Gardener Roberts was on remand at the time of the alleged incident. A few days later he was transferred to Parklea Correctional Centre. The Department submitted that they were not providing Mr Gardener Roberts with a "service" when their officers interacted with him.
Determining whether a particular activity comes within the definition of a "service" is not a straightforward task: Commissioner of Corrective Services v Dezfouli [2008] NSWADTAP 85 (23 December 2008). I did not have the benefit of any detailed submissions on that subject. In those circumstances I have assumed, for the purpose of these proceedings, that the Department of Attorney General and Justice was providing Mr Gardener Roberts with a service when they interacted with him on 7 April 2011.
The first component of the test for direct discrimination is the 'differential treatment' test. The alleged treatment afforded to the applicant must be compared with the treatment that would have been afforded to a person not of his race in the same or similar circumstances. There is no actual comparator in this case so the question is how a hypothetical person would have been treated.
Even if Mr Gardener Roberts could establish the 'differential treatment' element of direct discrimination, he would also have to prove that the treatment was "on the ground of" his race. Courts have interpreted that phrase to mean whether at least one of the "real", "genuine" or "true" reasons for the treatment was the person's race: Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 LR 92, 163.
Mr Gardener Roberts appeared at the hearing by phone. He said that on 7 April 2011 he had "mentioned something about the riots in 2002." He said that there had been riots by Aboriginal inmates at that time and he said to Mr Stephens, "I heard you got hurt in the riots." An argument then took place. According to Mr Gardener Roberts, the officers then planned to assault him.
The letter Mr Gardener Roberts sent to the President of the Anti-Discrimination Board was the same letter that he sent to the Ombudsman complaining about this incident. In that letter, Mr Gardener Roberts wrote, in part:
We both know ... the personal grudges Goulburn gaol hold against me because of the riot in 2002 and the assaults they did to me, the black eyes, busted ribs and bruises all over my face and body. In 2007 and 2008 I complained to you numerous times as the officers in Goulburn were trying to kill me or make me kill myself.
The Offender Call Action Report received on the same day as the assault also records that "Inmate Gardener claims that on 7 April he 'mentioned' the riots and an argument with Correctional Officers ensued as a result of him being told to go to the protection area." It appears that Mr Gardener Roberts' submission is that the assault was in response to him "mentioning" riots. At the hearing Mr Gardener Roberts gave new evidence that Mr Stephens had called him an "Abo dog" when he was assaulting him.
Conclusion and order
It is not fair or just for this complaint to proceed because it is highly unlikely that Mr Gardener Roberts will be able to prove that he was assaulted. Even if he was able to prove that an assault occurred he would have to persuade the Tribunal that one of the reasons for the assault was his race. There is very little direct evidence of any connection between Mr Gardener Roberts' Aboriginality and the alleged assault. It is likely that a tribunal would find that Mr Gardener Roberts' reference to an "Abo dog" was a recent invention. Leave is refused for the complaint of race discrimination to proceed.
Decision last updated: 26 July 2013
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