Jamal v State of NSW (NSW Police Force)
[2013] NSWADT 168
•29 July 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Jamal v State of NSW (NSW Police Force) [2013] NSWADT 168 Hearing dates: 9 & 10 May 2013 Decision date: 29 July 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President
J Schneeweiss, Non-Judicial member
A Lowe, Non-Judicial memberDecision: The applicant's complaints of sex and race discrimination against NSW Police Force are dismissed.
Catchwords: ANTI-DISCRIMINATION - whether police discriminated against applicant on ground of sex (male) or race (Egyptian) in providing services - Legislation Cited: Anti-Discrimination Act 1977
Police Act 1990Cases Cited: Commissioner of Police v Estate of Russell [2001] NSWSC 745
Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770Category: Principal judgment Parties: Jon Jamal (Applicant)
State of NSW (NSW Police Force) (Respondent)Representation: J Jamal (Applicant in person)
Bartier Perry (Respondent)
File Number(s): 121119
reasons for decision
Summary
Complaints of sex and race discrimination against police
Mr Jamal, who originally comes from Egypt, complains that several police officers discriminated against him on the grounds of his race and his sex in breach of the Anti-Discrimination Act 1977 (AD Act). His complaints are that police officers:
(1) threatened him with gaol;
(2) charged him with assaulting his ex-wife based on fabricated evidence;
(3) strip searched, "imprisoned" and denied him medication;
(4) denied him an interpreter and the opportunity to make a statement in Arabic;
(5) refused to investigate his allegations that his wife, or someone else at the women's refuge were she and his three children were staying, deliberately broke his son's leg as a punishment; ("the broken leg allegation")
(6) treated him as if he was naïve and did not deal fairly with his complaint against Constable Semaan.
What does Mr Jamal have to prove?
Discrimination is only unlawful if it occurs in particular areas of public life such as the provision of services or employment. If Mr Jamal can prove that the relationship between himself and police was one of service provision, then he will be within an area of public life protected by the AD Act. But Mr Jamal must also prove that the way he was treated amounts to direct sex or race discrimination. There are two components of discrimination: differential treatment and causation.
To prove that police officers have breached the AD Act, Mr Jamal would have to establish, in relation to each allegation, that:
(a) police officers refused to provide him with a service or provided him with a service on unfavourable terms; AD Act, s 19 and s 33
(b) police officers would not have treated a woman or a person of a different race in that way in the same or similar circumstances: (differential treatment) AD Act, s 7(1)(a) and s 24(1)(a) and
(c) at least one of the reasons for the treatment was Mr Jamal's sex or race: (causation) AD Act, s 7(1)(a) and s 24(1)(a).
Mr Jamal did not complain of indirect discrimination as defined in s 7(1)(c) so we need say no more about that.
Mr Jamal's submissions
Mr Jamal's said very little about whether police were providing him with a service at any particular time. We appreciate that he is not a lawyer and that this is a difficult factual and legal issue.
In relation to the broken leg allegation he says that refusal to investigate his allegations amount to sex discrimination. In relation to the differential treatment component of sex discrimination, he says that police investigated his ex-wife's allegations that he had assaulted her in 2006, but did not investigate his allegations. In relation to the causation component, Mr Jamal says that when asked why he was not investigating the broken leg allegation, Constable Semaan said, "You are a man and she is a woman."
The remaining allegations are said to amount to race discrimination. Mr Jamal does not give an example of a person of another race who police treated more favourably than him. In those circumstances the Tribunal must rely on a hypothetical person as a comparator. In relation to the causation element of race discrimination, Mr Jamal alleges that police officers said things like, "You are a refugee and zero." Mr Jamal also said that that it is direct race discrimination not to provide him with an interpreter because he cannot communicate effectively in English.
Decision to dismiss complaints
We have dismissed all Mr Jamal's complaints. Some have been dismissed because Mr Jamal has not proved that the incident occurred. That applies to the allegations that he was threatened with gaol for making complaints, strip-searched, denied medication and unlawfully imprisoned. Some complaints have been dismissed because police were not providing a "service' at the time. The decision to arrest Mr Jamal and to apply for an ADVO is not the provision of a "service".
The remaining complaints have been dismissed because Mr Jamal has not proved that he has been discriminated against on the ground of his sex or race. That applies to the denial of an interpreter and the broken leg allegation.
The broken leg allegation was one of Mr Jamal's main concerns. We accept that determining whether to investigate such an allegation constitutes a "service". But Mr Jamal has not proved the "differential treatment" or "causation" elements of direct race or sex discrimination. The only reason police refused to investigate was because there was no probative evidence supporting Mr Jamal's allegation. Statements from his ex-wife and hospital records indicate that the child broke his leg when he fell from some play equipment. Mr Jamal did not provide police officers with any persuasive evidence to contradict that version.
Mr Jamal does not gain any support for his case from the allegations that police had made sexist and racist comments. Mr Jamal did not allege that police officers had made those comments until he complained to the Anti-Discrimination Board six months after the events took place. Prior to that, when complaining about police conduct to senior police officers, the Ombudsman and the Police Integrity Commission, Mr Jamal had not mentioned any sexist or racist comments. In those circumstances we are not satisfied that police made those comments.
The rest of these reasons
The rest of these reasons contain background information and more detailed reasons for our conclusions. We have not taken into account anything that occurred outside the complaint period which is 10 May 2011 to 7 October 2011. In particular, we have not taken into account any new allegations made by Mr Jamal or any further evidence he says he has in support of the broken leg allegation.
When quoting from documents we have done so without correcting spelling or grammatical mistakes.
Background
Mr Jamal and his ex-wife have three children of primary school age. In 2011 they had separated but were living in the same house. In February 2011 Mr Jamal's ex wife travelled to Egypt by herself to see her family. Mr Jamal also went to Egypt with the children some weeks later. Mr Jamal's ex wife returned to Australia on 27 April 2011 and stayed with a friend. On 2 May 2011 she reported to police at Waverley that Mr Jamal had assaulted her between 1 June 2006 and 1 January 2007. Constable Semaan who, like Mr Jamal and his ex wife, speaks Arabic was the officer primarily responsible for dealing with these allegations of domestic violence.
On 4 May 2011 Mr Jamal and his children returned to Australia. Six days later police removed Mr Jamal's children from school and placed them with their mother in a women's refuge. On behalf of Mr Jamal's ex-wife, police applied to the Local Court for a provisional Apprehended Domestic Violence Order (ADVO) to prevent Mr Jamal from approaching or contacting his ex-wife or their children. That order was granted on 10 May 2011. On 14 May 2011 Mr Jamal's son broke his leg. His ex-wife says that that happened when he fell from some play equipment. Mr Jamal did not agree and wanted police to investigate the circumstances of that injury.
On 31 May Mr Jamal was arrested and charged with common assault on his ex wife. On 10 November 2011 the Local Court found Mr Jamal guilty. He appealed to the District Court against his conviction. That appeal was dismissed on 1 June 2012. Mr Jamal appealed to the Supreme Court on 29 June 2012. That appeal has not been heard.
On the day of the hearing, police sought to tender COPS entry E44908767 detailing events relating to the charges against Mr Jamal and other interactions between Mr Jamal and police. Mr Jamal initially said that he would need some weeks to study this document but after the solicitor for the police, Mr Mattson, explained the structure and content of the document Mr Jamal agreed that it could be tendered. He said he was familiar with most of the content.
Threats of gaol
On 10 May 2011 the Local Court made an interim Apprehended Domestic Violence order against Mr Jamal. A final order has now been made. As from 1 June 2012 Mr Jamal is subject to an ADVO for two years.
On 11 May Constable Semaan returned a phone call from Mr Jamal and explained the conditions of the interim ADVO in Arabic and then in English. The COPS report (E 44908767) recording the details of the phone call, corroborates Constable Semaan's version of events:
At about 1.20 pm on Wednesday 11 May 2011 Cst.Semaan returned the defendant, Jon Jamal's phone call.
Jamal informed Cst Semaan that he wants his children and his wife to stay at their home in Concord.
I informed Jamal he needs to contact his family lawyer in relation to the custody of his children.
I explained the conditions of the interim AVO to Jamal. Jamal informed Cst Semaan that he understood the conditions because his lawyer had explained them to him.
On 12 May 2011 Constable Semaan returned another call from Mr Jamal about his children not going to school. Constable Semaan told Mr Jamal that this was not a police matter and he would need to contact his family law solicitor.
On 13 May 2011 Mr Jamal says he rang Constable Semaan again and told him that he had heard that his son had fractured his leg. After two or three hours he rang back and Constable Semaan said to him, "If you mention this again I will put you in gaol." Constable Semaan denies making this remark.
If Constable Semaan did make that remark, it could not have been on 13 May 2011 because it is agreed that Mr Jamal's son did not break his leg until 14 May 2011. Mr Jamal may have confused this date with a later date. Mr Jamal says that on 2 June 2011 Constable Semaan threatened him with gaol when he contacted him about his son's broken leg. According to Mr Jamal, Constable Semaan said, "If you open your mouth about this accident I will send you to gaol."
Constable Semaan says he does not recall talking to Mr Jamal on 2 June 2011. His only reference to gaol was when explaining what can happen if Mr Jamal breached the ADVO. He says that he gave that explanation at Waverley Police Station on 31 May 2011 when Mr Jamal was arrested. His recollection is that Mr Jamal said to him, "I want to see my children." Constable Semaan says he explained that he was subject to an ADVO and if he breached those orders he would be arrested and charged and could be sent to gaol. Mr Jamal's response to Constable Semaan's denial is that they were both speaking in Arabic so he understood what was being said. He asked rhetorically why Constable Semaan would be explaining the conditions of the ADVO when he already knew that he could not approach or contact his former wife or his children.
Mr Jamal has the onus of proving that Constable Semaan threatened him with gaol 'if he opened his mouth about this accident'. Apart from Mr Jamal's evidence, there is nothing else to corroborate his version of events. We have observed that Mr Jamal has poor comprehension when under stress. He would have been under severe stress when decisions were being made to remove his children from his care. Constable Semaan's version of events is more plausible than Mr Jamal's version. He kept a record of many of the phone conversations he had with Mr Jamal. We are satisfied that Constable Semaan did not threaten Mr Jamal with gaol other than in the context of explaining the ADVO. Having made that finding, there is no need to consider whether such a threat would have breached the AD Act on the ground of Mr Jamal's sex or race.
That part of Mr Jamal's complaint which alleges that police threatened him with gaol 'if he opened his mouth about this accident' is dismissed.
Assault charges
On 31 May 2011 police charged Mr Jamal with common assault of his former wife. Mr Jamal alleged that police had fabricated the statement that his ex-wife gave and that they accepted statements about incidents that never happened.
Police will only be in breach of the race or sex discrimination provisions of the AD Act if they are providing a "service" to the person. Section 33 provides that:
(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of sex:
(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.
Section 19, which makes race discrimination unlawful when providing services, is in similar terms. Section 6 of the Police Act 1990 deals with the 'mission and functions of the NSW Police Force'. Section 6(2)(a) states that the Police Force is 'to provide police services for New South Wales'. The term 'police services' is defined in s 6(3):
police services includes:
(a) services by way of prevention and detection of crime, and
(b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and
(c) the provision of essential services in emergencies, and
(d) any other service prescribed by the regulations.
Mr Jamal did not identify the service that police were providing him with when arresting him. In Commissioner of Police v Estate of Russell [2001] NSWSC 745 Sully J considered that the arrest of a person involved police providing services to the 'community at large', not to that person. Police were exercising a public duty to arrest Mr Jamal and maintain custody over him: Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 at [162], [167] and [168]. We are bound to follow at least the NSW Supreme Court decision in Russell. That means that we must dismiss that part of Mr Jamal's complaint which alleges that police breached the AD Act in the relation to the decision to arrest.
Denied an interpreter when charged
Mr Jamal accepts that when charged on 31 May he had access to an Arabic interpreter who explained the charges and his rights. We accept Constable Semaan's evidence that as well as having an interpreter, he spoke to Mr Jamal in English and then translated what he had said into Arabic to make sure that he understood. Mr Jamal says that he was not given an opportunity to make a statement in Arabic. Mr Jamal declined to participate in an electronically recorded interview. He was not asked to provide a statement in any language.
As Mr Jamal was provided with an interpreter who explained the charges, there is no 'treatment' which could constitute a breach of the AD Act. That part of Mr Jamal's complaint which alleges that police denied him an interpreter or an opportunity to make a statement in Arabic when he was charged, is dismissed.
Strip search, "imprisoned" and denied medication
Mr Jamal also complains about the way Constable Semaan treated him when he was arrested on 31 May. He alleges that he was strip-searched, "imprisoned" and refused medication.
Constable Semaan says that he searched Mr Jamal and put him in a locked room in accordance with normal practice when arresting a person. He denies that he asked Mr Jamal to take off all his clothes. Constable Semaan explained that every person in custody has to be searched. Normally that is done by the person removing their jacket or coat and being patted down. If the situation justifies it, a person may be strip-searched. Constable Semaan does not recall strip searching Mr Jamal. In a statement that Constable Semaan made on 4 July 2011 in relation to the assault proceedings against Mr Jamal, he stated that, "I escorted the accused to the Waverley Custody area where I searched him."
We are not satisfied that Constable Semaan took all Mr Jamal's clothes off and "strip searched" him. Even if he was strip searched, Mr Jamal has not proven that such a search was not justified.
Mr Jamal does not say what medication he asked for or why he needed it. Constable Semaan says Mr Jamal. did not ask for any medication. We are not satisfied that Mr Jamal asked for any medication or that any such request was refused. If Mr Jamal had asked for medication he would have remembered what the medication was and why he needed it. None of these details were provided.
These factual findings make it unnecessary to determine whether Mr Jamal's allegations would have constituted a breach of the AD Act. That part of Mr Jamal's complaint which alleges that he was strip searched, denied medication or unlawfully 'imprisoned' is dismissed.
Constable Semaan failed to investigate broken leg allegation
Mr Jamal alleges that Constable Semaan refused to investigate his allegation that his wife, or someone else at the women's refuge where she and his three children were staying, deliberately broke his son's leg as a punishment.
During May and June 2011 Mr Jamal says he asked Constable Semaan to investigate the broken leg allegation. Mr Jamal cannot have asked Constable Semaan to do that before 14 May, the day his son broke his leg.
In his statement Constable Semaan says that while he is unable to recall the date, he remembers Mr Jamal telling him that a family friend had told him his son had broken his arm. In oral evidence Constable Semaan said that he thought the injury related to his son's arm but it is possible that it was his leg. Constable Semaan says that he told Mr Jamal that that was not a police matter but that he would telephone his ex wife to ask her what had happened. He says he rang Mr Jamal's ex wife and she told him that her son had fallen while playing. Constable Semaan did not record the details of any conversation about the broken leg allegation in the COPS event E 44908767.
We find that, apart from telephoning Mr Jamal's ex wife, Constable Semaan did not conduct any further investigations of Mr Jamal's broken leg allegation. Did he beach the AD Act by failing to do so?
Mr Jamal did not identify the service that police were providing him in relation to the broken leg allegation. Mr Jamal believed that someone had deliberately assaulted his son and was asking police to investigate. We are satisfied that Mr Jamal was requesting services "by way of prevention and detection of crime" and "the protection of persons from injury or death." Police refused to provide him with that service of investigating the broken leg allegation. To be unlawful, Mr Jamal must satisfy the differential treatment element and the causation element of sex or race discrimination.
Mr Jamal said Constable Semaan's refusal to further investigate the broken leg allegation is sex discrimination because police investigated his wife's allegations of assault against him. In legal terms, Mr Jamal would have to prove that Police would not have treated a woman as he was treated if the circumstances were the same or not materially different (the differential treatment test). In this case the circumstances are materially different. Mr Jamal's ex-wife was the victim of the assault. She was an eye witness to it. Mr Jamal did not witness his son's leg being broken and he did not provide police with any probative evidence to support his allegation. We refer to some of that evidence later in these reasons. Mr Jamal has not proven the differential treatment element of direct sex discrimination.
In relation to the causation element, Mr Jamal alleged that when he asked Constable Semaan why he was not investigating the broken leg allegation, he said, "You are a man and she is a woman." Constable Semaan denies making this comment.
There was no one else present when this comment was said to have been made. We do not accept Mr Jamal's version of events because if Constable Semaan had made that comment Mr Jamal would have complained about it earlier. Between May or June 2011 and March 2012 (the date Mr Jamal complained to the Anti-Discrimination Board) he complained several times about Constable Semaan's conduct. He made two internal police complaints which were investigated by Inspector Stiles. He complained to the Ombudsman and to the Police Integrity Commission. In none of those complaints did Mr Jamal mention that Constable Semaan had told him the reason he was not investigating the broken leg allegation was because he was a man and his wife was a woman. It was only when these complaints were not upheld that Mr Jamal complained to Anti-Discrimination Board and mentioned the comment.
In those circumstances, Mr Jamal has not proven, on the balance of probabilities, that Constable Semaan made that remark. The likelihood is that Mr Jamal made up that comment in an attempt to support his complaint of sex discrimination. We make the same finding for the same reason in relation to Mr Jamal's allegation that Constable Semaan called him "a refugee and zero." The likelihood is that Mr Jamal invented that comment in an attempt to support his complaint of race discrimination.
That part of Mr Jamal's complaint which alleges that Constable Semaan failed to investigate his broken leg allegation on the ground of sex or race is dismissed.
Treatment by Inspector Stiles
On 24 August 2011, Mr Jamal complained about Constable Semaan to the Command at Waverley Police Station. In that complaint, Mr Jamal writes, in part, that:
I made many call to Waverley police station seeking to Constable Rabih Semaan Try to find out why he made the AVO however always he threats me if I broken the AVO I will facing crime charge.
Mr, Semaan Scared me when I informed him about my sun leg broken and he justify me and when I complain concern my money was withdrawing he also justify to me to let her on correctly for provided, legal aid solicitor doc [ ]
On 29 August 2011 Mr Jamal also made a complaint to the NSW Police Customer Assistance Unit. In that complaint he said, among many other things, that:
On 11/5/2011 I received call from my partner friend inform me that going to hit my children to give evidence before the court to sent me to jail. I call the police officer and he told me he take this issues noted and I did complain through the children protection help line and on first of June I received my partner affidavit she declared my sun had broken his leg I call the police officer again I complain to him he threaten me to sent me to jail if I made any complaint as you broken the AVO
Inspector Stiles said he did not understand either of Mr Jamal's complaints to be that Constable Semaan refused to investigate the broken leg allegation. Even after Inspector Stiles spoke to Mr Jamal on the phone and in person, he did not understand Mr Jamal to be complaining about that matter. Based on the material before us, we agree with Inspector Stiles that while he mentioned his son's broken leg in the written complaint, he did not specifically complain that Constable Semaan had not investigated that allegation.
Inspector Stiles understood Mr Jamal's complaints, read together, to be about two things: firstly that Constable Seaman misled the court in relation to the assault charge and secondly that Constable Semaan had threatened to put him in gaol. After examining Mr Jamal's complaint, and speaking to him on the phone and in person, Inspector Stiles declined to investigate it further.
In the file note relating to the 14 September meeting Inspector Stiles wrote:
As scheduled I met with the complainant at 10.00 am Wednesday 14/9/2011. I explained to him the legislation surrounding Domestic violence and why police apply for Interim Apprehended Violence Orders. I explained the legal process and that this matter is set down for hearing at Burwood Local Court on 10 November 2011.
The complainant had trouble accepting that he was charged and believed he has done nothing wrong. I advised him he should seek legal advice and further explanation of the process from his solicitor . .
He thanked me for my time and the advice provided and will have the matter heard at Burwood Court on the 10 November 2011.
Mr Jamal's complaint about his interactions with Inspector Stiles were that he:
(1) treated him as if he was naive,
(2) did not deal fairly with his complaint about Constable Semaan; and
(3) did not organise an interpreter.
Mr Jamal wrote in his statement that when he was talking to Inspector Stiles he thought he was making fun of him. Mr Jamal clarified in oral evidence that he thought Inspector Stiles was speaking to him as if he was naive. He gained that impression because Inspector Stiles explained the conditions of the ADVO when he knew very well that he could not approach or contact his ex-wife or his children. Inspector Stiles denied making fun of Mr Jamal or speaking to him as if he were naïve. Inspector Stiles agreed that he had great difficulty understanding Mr Jamal but says he treated him with the utmost respect. He believes that Mr Jamal was having difficulty understanding the ADVO process and recommended that he seek legal advice.
We accept that Mr Jamal felt that Inspector Stiles was treating him as if he did not understand the consequences of an ADVO but we are not satisfied that Inspector Stiles treated Mr Jamal in a demeaning or otherwise detrimental manner. We accept Inspector Stiles' evidence that he treated Mr Jamal in a respectful manner, even though Mr Jamal perceives otherwise. Having made those findings, it is not necessary to decide whether the manner in which Inspector Stiles treated Mr Jamal breaches the AD Act. That part of Mr Jamal's complaint that alleges that he was treated as if he were naïve is dismissed.
We are also satisfied that Inspector Stiles dealt with Mr Jamal's allegations against Constable Semaan on their merits. That part of Mr Jamal's complaint that alleges that Inspector Stiles treated him as if he was naïve and did not deal fairly with his complaint against Constable Semaan is dismissed.
Despite saying that he had difficulty understanding what Mr Jamal was saying, Inspector Stiles did not organise for Mr Jamal to have an interpreter present or write his complaint in Arabic. Inspector Stiles said that it was not his role to explain the conditions of the ADVO to him and that Mr Jamal should have sought advice from a solicitor who could have organised an interpreter.
As with Mr Jamal's other complaints, In order to prove his complaint of race discrimination by refusing to provide an interpreter, Mr Jamal would have to prove that:
(a) Inspector Stiles refused to provide him with a service or provided him with a service on unfavourable terms;
(b) police would not have treated a person of a different race in that way in the same or similar circumstances; (differential treatment) and
(c) at least one of the reasons for the treatment was Mr Jamal's race (causation).
Inspector Stiles was providing Mr Jamal with the service of responding to a complaint about a police officer. That service is incidental to the exercise of NSW Police Force's function to prevent and detect crime: Police Act 1990 s 6. Inspector Stiles provided this service on the term that Mr Jamal make his complaint without the assistance of an interpreter.
The failure of Inspector Stiles to provide Mr Jamal with an interpreter does not amount to direct race discrimination. That is so firstly because despite having difficulty understanding Mr Jamal, Inspector Stiles persevered. He spoke to Mr Jamal on the phone and in person and eventually understood his complaints. Mr Jamal suffered no detriment from the failure to provide an interpreter.
Even if Mr Jamal did suffer a detriment, the refusal to provide an interpreter does not amount to direct discrimination. In the same or similar circumstances Inspector Stiles would have refused to provide an interpreter to a person of a different race. Mr Jamal has not proven the differential treatment element of direct discrimination. In relation to the causation element, Inspector Stiles did not fail to provide an interpreter because Mr Jamal is Egyptian. That part of Mr Jamal's complaint that relates to a refusal of Inspector Stiles to provide an interpreter is dismissed.
Constable Collings and Sergeants Scifleet and Stone failed to investigate the broken leg allegation or provide him with an interpreter
Mr Jamal attended Burwood Police Station on 16 September 2011 and told Constable Collings that he wanted to report an assault on his son. According to Constable Collings, Mr Jamal spoke in broken English but for the most part he could understand him.
Constable Collings listened to Mr Jamal and reviewed the documents he provided. He told Mr Jamal that police would not be investigating his allegations because there was nothing to suggest that his son had been assaulted. Mr Jamal demanded that Constable Collings obtain medical records. Mr Jamal said that if the matter was not investigated, he would complain to the Burwood Commander.
Constable Collings spoke to the shift supervisor, Sergeant Scifleet. He recommended that Constable Collings record an occurrence on the COPS data base. Constable Collings did so and gave Mr Jamal a copy of a card with the event number written on it for his records. That card contained the following information:
11.30 16/9/2100 Burwood Police Station
Mr Jamal attended the Burwood Police Station wanting to report an assault on his 11 year old child (name deleted). At present it is understood that child is currently residing with the P/R's ex partner (name deleted) at an unknown women's refuge. The P/R claims that he received a statement made by (his ex wife) stating that (name of child deleted) broke his leg back on the 14/5/11 at the women's' refuge whilst in the care of (his ex wife -name deleted.) The statement states that the broken leg was received from the child accidentally falling from play equipment. The P/R believes that his child was assaulted and that his leg was broken by (name deleted) and/or by other Women's Refuge staff for punishment. The P/R could not offer any evidence or good reason as to why he believed this. The P/R then wanted police to obtain medical records for his child's injury to prove that the incident was not an accident. Police informed the P/R that this accusation was insufficient to warrant any police investigation as there was no proof of this and only speculation on behalf of the P/R. The P/R became irate at hearing this and threatened to complain to the Burwood Commander Station Supervisor. Sergeant Scifleet spoke with the P/R also advising that this did not warrant a police report or investigation. The P/R remained convinced that it was and wanted it reported. Police advised him that the incident would be reported as an occurrence and no police investigation would be carried out. It is understood that P/R is currently awaiting trial for domestic related offences on (name deleted) and is the subject of being a defendant in an AVO.
Sergeant Scifleet said that he spoke to Mr Jamal for between 15 and 20 minutes attempting to explain to him that without any evidence of an assault on his son, the police would not be investigating.
On 27 September 2011 Mr Jamal went to Burwood Police Station again complaining about the broken leg allegation. Constable Collings suggested that Mr Jamal write down his concerns so he could see whether he had any new information. Mr Jamal's version is that Constable Collings told him that he needed a formal complaint and that he could not understand what he was saying. Mr Jamal also says that he asked Constable Collings for a telephone interpreter. He says Constable Collings said, " It is too expensive, you will have to get your own interpreter or get someone to translate your complaint."
Mr Jamal returned to the police station that afternoon with a written statement. The document concludes with the words:
I know my English was limited so pleas provide me by Arabic interpreter.
Constable Collings spoke to the new shift supervisor, Sergeant Stone. Both Sergeant Stone and Constable Collings took Mr Jamal to an interview room because they said he was becoming upset and they thought sitting him down in the interview room would help calm him down. Mr Jamal alleges that Sergeant Stone did not have his badge on when he spoke to him. Sergeant Stone says that he normally wears his badge and that his practice is to introduce himself by name and rank to any person he is talking to for the first time. We do not understand this to be a complaint of discrimination but even if it is, it is not sex or race discrimination to fail to wear a police badge while on duty.
Mr Jamal says he showed Sergeant Stone the documents supporting his allegations that his son had been assaulted. Mr Jamal gave the following version of events when he provided the document to Constable Collings:
I write what I want in written and I back to him he take the paper from me at 2 pm and went to the supervisor after 2 hours he come out and he invited me to the interview room and some one come on I think the supervisor and he going to make the report for me.
I said to him I received call from my solicitor now he informed me the Waverley police officer contact him again to hold me give me your solicitor number I give it to him and he talk to him in the middle he told me go out the room now after 20 mints he call me back and he told me you should to look for some one to assist you. This talk gets me angry he told me if you did not listen to me I throw you out the door. I told him I will know how I get my right why now you deny to do the report I get off and I decided to write to you.
So pleas help me to make formally report concern what happen with my children to try to protect the kids.
Sergeant Stone agrees that he spoke to Mr Jamal's solicitor by phone and that he asked Mr Jamal to leave the room. He says he did that because Mr Jamal was speaking over the top of him and he could not hear what the solicitor was saying. After discussing Mr Jamal's request, Sergeant Stone put the solicitor on to Mr Jamal. His solicitor told him that the police have the right to refuse to investigate his complaints and he should leave the police station. Mr Jamal refused and insisted that police investigate the matter.
He alleges that Sergeant Stone then said "You came here as a refugee and now you want to tell us how to do our job. Go outside or I will throw you on the street." Mr Jamal says he felt scared and he left. He also alleges that unnamed police officers said to him, "We do not do any report for you as your are man and you are Middle Eastern person and your English is bad go back to where you came from."
On 7 October 2011, Constable Collings made the following entry on the COPS system recording what happened on 27 September 2011:
In the afternoon of Tuesday the 27th of September 2011 Jon Jamal attended Burwood Police Station and expressed his disapproval of the non police investigation into the injury sustained by his child. Jon Jamal stated he now wanted police to investigate how his child sustained his broken leg alleging that it was either his ex wife or a staff member from the women's refuge centre the children where staying who broke his leg as some form of punishment. Jon Jamal could not offer police any further new evidence to suggest that his child was assaulted by anyone. Jamal stated he believed his child was being abused because an affidavit he received stated that his children were apparently unhappy to be with their mother at the women's refuge centre and that he children were being punished as a result of their apparent reluctance to stay with their mother.
Police tried to explain to Jamal that this was not enough to warrant a police investigation. Jamal persisted that police needed to obtain x rays of his child's broken leg and investigate whether the injuries were caused by a fall or an assault. When police told Jamal that police would not be investigating the matter he kept became angry and upset towards police. Jamal began telling police about recently having a Constable from Waverley police station being investigated for hiding evidence and stated he would go to the Burwood Commander if police did not carry out an investigation. Jamal told police he was a practising solicitor back in Egypt and claimed to know the law. Day shift supervisor Sergeant Stone spoke to Jamal and also advised him that police would not be investigating the matter.
We find that the police failed to investigate Mr Jamal's broken leg allegation on this occasion. Was that failure a breach of the AD Act?
As with the complaint against Constable Semaan, Mr Jamal was requesting services "by way of prevention and detection of crime" and "the protection of persons from injury or death" when he asked police to investigate the broken leg allegation. We have rejected Mr Jamal's submission that because police investigated his ex wife's allegations of assault against him their refusal to investigate the broken leg allegation constitutes sex discrimination. Mr Jamal did not nominate any person of a different race as a comparator in order to establish the "differential treatment" element of the test for direct race discrimination. In those circumstances the test must be applied to a person from another race. To be unlawful at least one of the reasons for refusing to investigate the broken leg allegation must be Mr Jamal's race or sex. That inference could only be drawn if the reason police gave for refusing to investigate is not plausible.
The reason the police gave for not investigating the broken leg allegation was that there was evidence that the accident had happened when the child fell from play equipment. There was not evidence that the accident happened in any other way. Although Mr Jamal provided further "evidence" of the broken leg allegation to Constable Collings and the shift supervisors, none of that evidence directly supports his assertion. One piece of evidence on which Mr Jamal placed great significance, was a phone call which he says he received from a friend of his ex wife on 11 May 2011. He says that she threatened that "they" will hit the children so that the children will say things against him and he will then be imprisoned. Mr Jamal said that at first he did not know who was ringing but she had an Egyptian accent. He said that later he found out her name. It is not surprising that police did not regard this 'evidence' as providing any support for Mr Jamal's broken leg allegation. There is no statement from the woman who allegedly made the phone call.
Another piece of evidence on which Mr Jamal relied to support the broken leg allegation was affidavit evidence given by his ex wife in June 2011, only 1 page of which was in evidence:
The children have remained in my care since 10 May 2011. For the first couple of hours the children were upset and quite rude to me. The children were saying to me words to the effect of, "Go back to family. You stole our father's money." After two hours of me comforting the children and diverting the attention the children calmed down.
Since that initial night the children are now settled and happy.
Again, Mr Jamal places great significance on this passage in support of his allegation that his ex-wife or someone caring for them, deliberately broke his son's leg on 14 May 2011. As we have said, this evidence is not strong enough to infer that a reason police did not investigate the broken leg allegation was because of Mr Jamal's sex.
We also find that the police officers' refusal to investigate the broken leg allegation was not race discrimination. The police officers deny making the racist comments Mr Jamal attributes to them. We do not accept Mr Jamal's version of events because if any of those police officers had made those comments, Mr Jamal would have complained earlier.
In his hand written complaint to the Anti-Discrimination Board Mr Jamal does not attribute any racist or sexist comments to any officer. He merely asserts that the reason his allegations of assault were not investigated is because he is a man of Middle Eastern background, he is male and English is his second language. In his typed complaint, also provided in March 2012, Mr Jamal alleges that police officers made specific racist or sexist comments. He says Constable Semaan told him, "you are migrant and you equal zero." Later, in a document translated on 13 July 2012, Mr Jamal complains to the ADB that:
The police said things to me also, some of them were: you're a refugee, what have you come to do in Australia? You don't speak English well. Go back to your place in the Middle East. I said to them that you wrote a report for the children's mother without evidence and regarding an event from 2006, and now you refuse to write a report for children that where physically assaulted 2 months ago. He said to me that you are a man, and she is a woman. I said to him that I am not asking for a report for me, I'm asking for a report for the protection of the children. He replied to me that don't you understand, she is a women and you're a man. I left and searched for more evidence.
The allegations were expressed again without any details of who said the words or the date they were said. In a letter to the Anti-Discrimination Board on 1 August 2012:
The police officers when I was trying to make police report at Burwood police station they told me clearly we did not do any report for you as you are man and your are middle eastern person and you English is bad go back to where you come from, but they impress me when said to you are refugee . . .
Again on 8 August 2012 when writing to the Anti-Discrimination Board, Mr Jamal alleges that police officers made sexist and racist remarks. But, when complaining to Inspector Stiles about Constable Semaan's treatment of him and to the Burwood Command about Constable Collings' treatment, Mr Jamal did not mention any racist or sexist remarks having been made. Nor are those alleged remarks mentioned in complaints Mr Jamal made to the Police Integrity Commission on 15 November 2011 or the Ombudsman on 22 December 2011.
In our view, given the history of Mr Jamal's complaints, if any police officer had made any such remarks Mr Jamal would have complained about it well before he complained to the Anti-Discrimination Board in March 2012. It was only after NSW Police Force, the NSW Ombudsman and Police Integrity Commission all refused to investigate his complaints that Mr Jamal complained to the Anti-Discrimination Board about sexist or racist comments.
Mr Jamal's only response to this point is that his English is not good and he is required to write his complaints in English. Having read Mr Jamal's complaints, he is able to communicate his viewpoint in writing. Nothing about Mr Jamal's lack of skills in oral or written English prevented him from alleging that police had made racist or sexist comments if that had in fact occurred.
That part of Mr Jamal's complaint which alleges that Constable Collings or Sergeants Scifleet and Stone failed to investigate his broken leg allegation is dismissed. We also dismiss that part of Mr Jamal's complaint that relates to not providing an interpreter for the reasons already given.
Orders
The applicant's complaints of sex and race discrimination against NSW Police Force are dismissed.
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Decision last updated: 29 July 2013
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