Maghiar v State of WA
[2001] FMCA 98
•11 October 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
MAGHIAR v STATE OF WA [2001] FMCA 98
HUMAN RIGHTS – Anti-discrimination – allegations of discrimination on the grounds of race and disability against W.A. Police Department – allegations of improper conduct made – application to dismiss as no case to answer – application granted.
Awad Saddi v Active Employment [2001] FMCA 73 Followed.
| Applicant: | GEORGE MAGHIAR |
| Respondent: | STATE OF WESTERN AUSTRALIA |
| File No: | WZ 28 of 2001 |
| Delivered on: | 11 October 2001 |
| Delivered at: | Perth |
| Hearing Date: | 9 October 2001 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Mr George Maghiar in person |
| Solicitors for the Respondent: | Mr A Sefton of Crown Solicitors Office |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs pursuant to the Federal Magistrates Court Rules Pt 21 R 21.10.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH
WZ 28 of 2001
GEORGE MAGHIAR
Applicant
And
STATE OF WESTERN AUSTRALIA
Respondent
REASONS FOR JUDGMENT
This claim is brought pursuant to s.46 PO Human Rights and Equal Opportunity Commission Act 1986 following the termination of the complaint brought by the Applicant, Mr GEORGE MAGHIAR in the Commission on 22 March 2001. The complaint alleged that various officers of the West Australian Police Force had on three separate occasions acted in a manner that discriminated against him on the grounds of race and of disability. The President terminated both classes of complaint pursuant to ss 46PH(1)(c) and 46PH(1)(f) of the HREOC Act.
When the matter came before this court some confusion about the first of the three incidents, that of 2 July 1999, was resolved by Mr Maghiar’s evidence. According to Mr Maghiar on that day two police came to his home and arrested him in response to a warrant from Victoria where it was alleged he had breached the traffic regulations. Mr Maghiar said that the officers grabbed him and forced him into their car. They forced his hands behind his back and drove in a frightening manner. When they arrived at the lock up they made him remove his shoes and made him stand and lie on icy concrete. They treated him like an animal. They laughed at him. The police had refused to allow him to bring any medication with him.
Mr Maghiar tendered to the court a copy of the warrant and a copy of a letter from the Victorian police dated 29 April 1998 (Ex “E”) which indicated that at that date the matter between the police and the Applicant was NOT proceeding. Obviously the arrest was mistaken.
In cross-examination Mr Maghiar agreed that he had been told by police that no medications were allowed in the lock-up and any medication needed could be obtained there. He also agreed that the reason his shoes had been removed was because the police told him they did not think he was ‘safe’. “They took from me everything because I might be crazy, that was their reason.”
This incident was not, so far as I could see from the papers, dealt with by the Commission, which confused it with one that took place on 16 June 2000. That problem might have excited an application under s46 PO (3) of the HREOC Act but Mr Sefton for the State was content to allow it to remain as part of the case pending his application for dismissal with which this judgment deals. In the event that this decision is found to be in error he reserves his rights under the previously quoted section.
The second incident occurred on 5 November 1999. Mr Maghiar recounted that he had received a speeding ticket in October. He had been travelling through a junction following his neighbour Mr Nistor. Both men had trailers attached to their vehicles. They had both been through the junction earlier that day and they both knew that it was overseen by a speed camera. Mr Nistor went through successfully. Mr Maghiar saw on his right a red car overtaking him at speed, as that happened he saw the light flash. His case was that he did not speed, he was following Mr Nistor who did not speed. The person who speeded was in the red car.
Upon receiving the ticket Mr Maghiar went to the police station. He asked to see the photograph. He was shown one with the trailer drawn by Mr Nistor clearly visible. He later telephoned the police to ask for a copy of the photo. He was told to come to the station on 5 November and to bring with him $11.40. He did that and was handed an envelope, which he did not open at the time. He was with his son. He opened the envelope in St George’s Terrace. He saw that the photograph inside did not show Mr Nistor’s trailer although it did show his own. Mr Maghiar immediately returned to the police station. He accused the police of forging the photo, of manufacturing it “in Honolulu or Hong Kong. He became loud and intimidating. The sergeant was called; he attempted to restrain Mr Maghiar. He allegedly twisted Mr Maghiar’s arm behind his back. The applicant was escorted out of the premises. He returned. He was arrested and charged with various offences arising out of the occurrence. He remains adamant that the police have conspired to use false evidence, to destroy evidence (the negative of the photograph) and to deny him access to a public building.
The third incident took place on 16 June 2000. He was arrested at his home for breach of a restraining order taken out by his wife. He claims he was called a criminal and verbally abused by the police in the car on the way to the lock up. When he got there he says that his photo was taken by Constable Moore. He tendered a photo, which he said was a copy made by him of the photograph (Exhibit “B”). It shows the Applicant with a card on his chest held by a chain around his neck. The card says “George Maghiar – I am a criminal”. The actual photograph has never been found.
Mr Maghiar claims that he then sat down on a bench, he felt ill and lay on the floor. He says that whilst he was lying on the floor he was kicked in the ribs and leg and shoulder. He blacked out. He thought he was having a heart attack. He woke up in hospital where a bedside hearing was being conducted. He signed papers, he was given bail. In cross-examination Mr Maghiar agreed that he had started screaming when the policeman had told him that he could not be bailed at the police station and would have to go to the lock-up. He also did not remember whether he told the doctors about the incident. He produced some ECG graphs, which he claimed showed he had had an angina attack on that day and on the subsequent days. (Exs “H”, “I”, “J”, “K”). He says the officers danced around him and abused him.
Mr Maghiar then tendered in evidence 3 statements. (Exhibits “L”, “M”, “N”). One was from Mr Nistor confirming that he too had seen the first photograph with the trailer in it. The second was from his son corroborating the incidents in the police station on 5 November and the final one from his wife corroborating that he was not permitted to take his medication with him to the lock up. These were all dated in November 1999 and formed part of the applicant’s complaint against the police.
After Mr Maghiar had concluded his case Mr Sefton made an application that there was no case to answer. For this purpose he conceded that I would have to accept the truth of the applicant’s allegations so far as they were relevant to a claim under the Disability Discrimination Act or the Racial Discrimination Act. However, it should be noted for the record that these complaints have been investigated by the Police, the Ombudsman and HREOC and have not been substantiated. This does not influence me in my decision but is mentioned in fairness to the police, the subject of the allegations.
This is not the first case and regrettably it will not be the last to come before this court in which the Applicant is able to establish the existence of a disability or ethnicity and conduct which treats that person less favourably than another but does not establish on the balance of probabilities, or as in this case at all, any connection between the two.
Mr Sefton argued that it was incumbent upon the applicant to put before the court sufficient evidence to allow the court to infer that discrimination has occurred on the basis of the evidence produced by the applicant. It was also necessary to infer that the discriminatory treatment came about because of the applicant’s race or disability. This, he says, has not happened. Mr Sefton argues that no explanation was put by the applicant linking the incidents to his race or disability. He says in relation to the refusal to allow medication to be taken to the lock up that an explanation was provided that appears inherently reasonable. Mr Maghiar accepted that he was told that he could get medication at the lock up and produced no evidence that he could not. Given the risks involved in allowing every person arrested to bring his or her medication into prison, I am unable to see any evidence of disability discrimination in what occurred. The same argument goes for the removal of shoes. It is notorious that prisoners intent on self-harm use laces to assist them. Mr Maghiar admitted that the police thought he might “be crazy”. His behaviour as admitted was such as to induce that concern. I can find no hint of disability discrimination in this.
Mr Maghiar responded to Mr Sefton at length and with emotion. There is no doubt that he genuinely feels that he has been wronged by the West Australian Police Department. He cannot understand why no investigative authority has agreed with him. He fears a cover up by police. He blames his current poor health including the need for a bypass operation in a few days on these incidents. He is dismayed. In his argument he made two important statements. He said, “ I didn’t come here because I am ethnic. I came to see if I have rights in Australia.” And then he said, “If I was born in Australia these problems would be fixed”. The first statement seemed to me to be an acknowledgment that his claim of racial discrimination was not well founded. The second seemed a last plea for that most Australian of attributes “the fair go”. The court is here to give all applicants “a fair go” but that cannot extend to substituting suspicion for evidence or surmise for fact in order to find an inference that is really no more than conjecture.
In Awad Saddi v Active Employment [2001] FMCA 73, Awad Saddi v Break Thru Personnel Inc [2001] FMCA 73, Awad Saddi v Care Employment [2001] FMCA 73 and Awad Saddi v Commonwealth of Australia [2001] FMCA 73 I was faced with a similar problem and said, before dismissing the claim:
Cases may be proved either directly from the evidence or from inferences available from the evidence.
“The principle to be applied was stated by this Court in Bradshaw v McEwans Pty Limited (1951; unreported) in a passage cited in Luxton v Vines (1952) 85 CLR 352 at 358: “… The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts much be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture…” (TNT v Brooks (1979) 23 ALR 345 at 349 per Gibbs J).
The situation is no different for Mr Maghiar. If I cannot do more than merely conjecture upon the nexus between the alleged conduct and the accepted disability or racial characteristic, I cannot find for the Applicant. I have heard the evidence and putting it at its highest find no such nexus. It is proper in those circumstances to dismiss the claim.
I order that the claim be dismissed. I order the Applicant to pay the respondent’s costs pursuant to the Federal Magistrates Court Rules Pt 21 R 21.10. I grant the Respondent an advocacy certificate under R.21.15.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM
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