Mariani v NSW Police Force, State of NSW - [2013] NSWADT 35

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Mariani v NSW Police Force, State of NSW [2013] NSWADT 35
Hearing dates: 3,4,5,6 September 2012
Decision date: 11 February 2013
Jurisdiction: Equal Opportunity Division
Before: C Huntsman, Judicial member
N Hiffernan, Non-Judicial member
D Kelleghan, Non-Judicial member
Decision:
The application is dismissed

Catchwords: Disability Discrimination in provision of services; whether services; whether respondent refused services to applicant as a vulnerable person; disability; less favourable treatment; causation
Legislation Cited: Sections 4, 49B and 49D Anti-Discrimination Act 1977 (NSW); section 112, 122, 123 Law Enforcement Powers and Responsibilities Act 2002; various clauses Law Enforcement (Powers and Responsibilities) Regulation 2005; s 5 Disability Discrimination Act 1992 (Cth)
Cases Cited: Commissioner of Police, NSW Police Service v Estate Edward John Russell and Ors. [2001] NSWSC 745 (31 August 2001); Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 (20 July 2012); - Patrick v State of South Australia (No. 2) [2009] SAEOT 1 (21 January 2009); Commissioner of Police v Mohamed [2009] NSWCA 432 (23 December 2009);
Purvis v New South Wales [2003] HCA 62; 217 CLR 92; 202 ALR 133; 78 ALJR 1
Category: Principal judgment
Parties: Adrian Mariani, (Applicant)
NSW Police Force, State of NSW, (Respondent)
Representation: Counsel
Ms Veloski (Applicant)
Ms Eastman (Respondent)
SKM Lawyers (Applicant)
Norton Rose (Respondent)

File Number(s): 111093

REASONS FOR DECISION

This was an application by Mr Adrian Mariani (the applicant) alleging disability discrimination in the provision of services, by the respondent, the NSW Police Force, State of New South Wales. The President of the Anti-Discrimination Board referred the application to the tribunal for determination. The complaint of disability discrimination was made by the applicant on 18 August 2010, pursuant to the Anti-Discrimination Act 1977 NSW (the AD Act), and was for the period 19 August 2009 to 18 August 2010.

Background

The applicant and his brother were involved in a fight at the family home on 19 August 2009. The applicant wounded his brother with a knife. The applicant telephoned for an ambulance, by making an emergency "000" call. The transcript of that call reveals that the applicant told the operator "we were in a brawl and I reacted." The operator asked whether there was a fight and the applicant stated "Between my brother and I yes". Police attended the family home at around 12.20pm, the first police to arrive were Constable Banner and Constable Bayer. Police documents refer to three stab wounds; the applicant's documents refer to two wounds, in his oral evidence the applicant referred to cutting his brother's finger/hand. Other police arrived at the family home including Detective Senior Constable Last and Detective Senior Constable Wilkins. The applicant's brother was taken to hospital for treatment and the applicant was arrested and taken to Castle Hill police station by police vehicle. A phone call was made to the applicant's father by Detective Senior Constable Wilkins en route to the police station.

Constable Banner was told by the applicant's brother, Julian, soon after police arrived, that the applicant had depression. She does not recall whether she reported this to any other police officer. The applicant at no time mentioned this to police.

At the police station the applicant was taken to the custody area and placed under the supervision of the custody manager, Sergeant Hunt, who assessed and processed the applicant according to her obligations under the Law Enforcement Powers and Responsibilities Act 2002 ("LEPR Act"). There is dispute in this matter about her compliance with her obligations and the tribunal's findings are further detailed below.

The applicant's mother, Ms Kim Mariani, arrived at the police station in the company of the applicant's sister. She visited the applicant in the cells and was allowed time with him by Sergeant Hunt. While she was there Sergeant Hunt provided a blanket to the applicant. When the applicant's mother left the cells she met her husband, Mr Gianni Mariani, who had arrived at the police station, and had a conversation with her husband and police. The content of this conversation is a matter of dispute between the parties but it is common ground that the applicant's parents told Detective Senior Constable Last and Detective Senior Constable Wilkins that the applicant had Asperger's Syndrome. They did not mention depression. The applicant's parents did not personally so advise the custody manager, Sergeant Hunt.

It is not in dispute that while at the police station the applicant's parents advised Wilkins and Last that the applicant had Asperger's syndrome, but did not advise the custody manager.

The applicant's father, Mr Gianni Mariani, visited the applicant in the cells, and sat in the dock with the applicant for at least one hour. Whilst the applicant 's father was sitting with the applicant in the dock Detective Last and Detective Senior Constable Wilkins attended and asked the applicant, in the presence of his father, whether he wished to participate in a record of interview and the applicant, after asking who would be present, declined.

The father's evidence is that when he left the applicant he was calm and sleepy.

When the applicant's mother visited the applicant in the cells she was shown a piece of paper by the applicant which the custody manager had given the applicant advising him of his rights, but she was too distressed to read it, and also did not have her reading glasses. When the applicant's father was with the applicant in the dock he was also given a copy of the piece of paper. He recalls the paper detailed the applicant's rights not to say anything and to legal representation. Mr Gianni Mariani returned the paper to the custody manager as the applicant already had a copy. He asked the applicant whether he had said anything to the police and that he advised he applicant not to say anything. The custody manger, Sergeant Hunt, had prior to this recorded on relevant paperwork the applicant's response to the caution which she had given "keep my mouth shut".

The applicant was not granted bail by police and spent the night in custody. During his time in custody, Sergeant Hunt assisted the applicant to make a phone call to a lawyer, arranged for him to receive medical attention and also obtained a meal for him.

Police applied for an apprehended violence order (AVO) to protect the victim, Julian, and at court the next morning a Magistrate granted conditional bail and made an apprehended violence order. The effect of the AVO was that the applicant was unable to live in the family home from August to November 2009 and resided at his grandmother's in this period. The AVO was subsequently varied so that he was able to return to live at home while waiting for charges to be finalised by the court. His bail was also subsequently varied to remove reporting conditions, although because the police data base was not updated, police attended his home to take action for his failure to report as required by the previous bail conditions. The police were shown papers recording the court's variation of bail and left the premises, and contacted the family subsequently to note that the bail had been so varied. After this incident the police made an entry in the police data base, known as COPS, that the applicant had Asperger's syndrome and was a vulnerable person. The wording of the COPS entry is part of the applicant's discrimination action in these proceedings.

It is not in dispute that the applicant was charged in relation to the incident: pursuant to section 33(1)(a) of the Crimes Act 1900 with wound person with intent to cause grievous bodily harm domestic violence related; and pursuant to section 35(4) of the Crimes Act 1900 - recklessly wound any other person domestic violence related. It is not in dispute that the court dealt with the charges by way of a dismissal pursuant to section 32 of the Mental Health (Forensics Procedures) Act 1990 on 16 August 2010. The decision of the court to so order was said to be based on the applicant's Asperger's syndrome.

The applicant's case

The applicant provided evidence in the form of written statements and oral evidence from the applicant's father, Gianni Mariani, the applicant's mother, Kim Mariani, and the applicant. The applicant's brother, Julian Mariani, was not called to give evidence in the proceedings by the applicant. The applicant relied on a report by Consultant Forensic Psychologist,Mr Tim Watson-Munro, dated 27 August 2012, as to pain and suffering/psychological distress.

The Points of Claim

The applicant provided points of claim which it is useful to briefly summarise. The points of claim stated that factual issues included that the applicant was diagnosed with Asperger's Syndrome in 1999 and at all material times suffered from Asperger's Syndrome and depression. The points of claim state that at the time of questioning and arrest on 19 August 2009 the respondent was required to provide special police services to the applicant as a vulnerable person and the failure to do so caused the applicant to become fearful, unwillingly compliant, and suggestible to answers provided by the police at the scene, causing the applicant to make admissions and to provide information in an inaccurate and involuntary capacity. Police officers did not caution the applicant or inform him of his rights to a support person during the arrest.

The points of claim state that at the police station the custody manager was aware or should have been made aware the applicant was depressed. The custody manager did not assist the applicant to make a call to a support person or a legal practitioner or advise the applicant he was entitled to a support person nor did the custody manager ensure the applicant understood the caution. While the applicant was in custody at the police station his parents told police that he suffered from Asperger's Syndrome and was incapable of managing stressful encounters. He was offered to participate in a record of interview with police which he declined and at no time did police inform the applicant he was entitled to have a support person present or explain anything to him about the support person at all, nor were the parents so informed. It is stated in the points of claim that police officers indicated to the applicant and his parents that mental illness was not relevant to the law. The applicant was charged, refused bail by police and remained in custody overnight which was distressing. The points of claim asserts that the custody manager declined to assist the applicant to call legal aid and informed the applicant he was not entitled to legal aid. The points of claim note that an application for a provisional Apprehended Violence Order (AVO) was made by police and granted by the court. A condition of the order was the applicant was not to reside in the family home. The application for the AVO contained the information that the applicant may be suffering from Asperger's Syndrome. The applicant resided with his grandmother until bail conditions were varied so he could return home on 5 November 2009.

The points of claim stated that the bail conditions required the applicant to report to police twice daily which was distressing and humiliating, and that on 22 April 2010 bail conditions were removed as a bail variation by the court. Subsequently police attended the premises of the applicant, on 31 July 2010, for an alleged breach of bail and after that incident the police COPS system was updated to note that "Adrian Mariani is a vulnerable person such that he suffers from Asperger's syndrome....." The points of claim assert that the COPS entry was made without consultation and may lead to future acts of discrimination. On 16 August 2010 the charge was dismissed pursuant to section 32 of the Mental Health (Forensic Procedures) Act 1990. The points of claim argue that the applicant had a disability and that the respondent was required to provide the applicant with services and failed to do so. It is asserted that Constable Banner failed to advise the custody manager that the applicant suffered depression. At paragraph 56 the points of claim the applicant details the discrimination on the grounds of disability as

"the respondent by its officers did not regard the applicant's disability as relevant to the law. The respondent by its behaviour did not regard the applicant as a vulnerable person. The respondent failed to comply with its statutory duties to provide police services to the applicant as a vulnerable person. The respondent discriminated against the applicant pursuant to section 49B of the Anti-Discrimination Act New South Wales 1977 on the basis of refusing to recognise his disability and thereby failing to comply with its statutory duty to provide special police services to the applicant. The respondent, in breach of its statutory duty under the Police Act and LEPRA failed to provide (police) services to the applicant as required pursuant to section 49M Anti-Discrimination Act New South Wales 1977. The respondent has provided an inaccurate description of the applicant in the COPS entry system which may lead to discriminatory behaviour by the respondent in future dealings with the applicant."

The respondent's case

The respondent's case consisted of witness statements and oral testimony from Constable Banner, Constable Bayer, Detective Senior Constable Last, Detective Senior Constable Wilkins, Sergeant Karen Hunt; and a written statement was provided by Senior Constable Kerrie Wilson. Photographs of the applicant's residence taken by police on the night of his arrest were also tendered. The respondent provided points of defence prior to the hearing, and made detailed written and oral submissions during the proceedings. It is noted that in the points of defence the respondent denied liability and in particular did not admit that the applicant had a disability, nor that there was a breach of police requirements to the applicant in custody, and disputed the applicant's claim that the respondent was providing services to the applicant as detailed by the applicant in the points of claim.

Discrimination Legislation

The Anti-Discrimination Act 1977 NSW (the AD Act) provides that it is unlawful to discriminate in employment on the grounds of disability. Disability is defined in s4 of the Act:

"disability" means:

(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or

(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or

(c) the malfunction, malformation or disfigurement of a part of a person's body, or

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

The AD Act provides that disability includes presumed disability (refer s49A). Section 49B of the AD Act sets out what constitutes discrimination on the ground of disability:

49B(1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability 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 who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(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.

.........

(4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

Discrimination in provision of services is made unlawful pursuant to s49M of the AD Act:

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. 49D Discrimination against applicants and employees

Section 49M therefore provides that it is unlawful to discriminate on the ground of disability by refusing to provide a service or by the terms on which the service is offered.

Judicial guidance indicates that the service in issue must be identified with precision. A summary of the authorities was undertaken by Justice Yates in Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 (20 July 2012)Robinson, stating:

In the context of alleged discrimination under s 66K(1) of the Equal Opportunity Act 1984 (WA) - a provision which is not materially different to s 24 of the Act - Brennan CJ and McHugh J said in IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17:

In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service or services the alleged discriminator provides. ...

Earlier, in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, which was a case of alleged discrimination under the similarly worded provision of s 29(1) of the Equal Opportunity Act 1984 (Vic), McHugh J said at 404:

... the goods or services which must be identified are those goods or services which are relevant to the complainant or any person or persons whom the complainant represents. Before there can be a finding of discrimination by a person in relation to the provision of goods or services, therefore, the relevant goods or services must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination. .....

......In Rainsford v Victoria [2005] FCAFC 163; (2005) 144 FCR 279, when dealing with a case of alleged discrimination arising under s 24 of the Act, Kenny J (with whom Hill and Finn JJ agreed) said (at [54]):

Section 4(1) provides an inclusive definition of services and that, amongst other things, unless the contrary intention appears, "services" includes "services of the kind provided by a government, a government authority or a local government body" (para (f)). As his Honour recognised, on account of its remedial character, [the Act] is to be generously construed and the word "services" includes all matters which ordinarily fall within that notion: see IW v City of Perth at 11-12 per Brennan CJ and McHugh J; 22-23 per Dawson and Gaudron JJ; 27 per Toohey J; 39, 41-42 per Gummow J; and 69-70 per Kirby J. The identification of the "service" at issue in any case is a question of fact for the trier of fact: see Waters at 361 per Mason CJ and Gaudron J, with whom Deane J relevantly agreed (382); 394 per Dawson and Toohey JJ; and 404-405 per McHugh J; and also Catholic Education Office at [12]-[13] per Tamberlin J and [102] per Sackville and Stone JJ. The question of whether an activity is a service for the purposes of s 24 of [the Act] is essentially a matter of characterisation. In discharging statutory duties and functions and in exercising statutory powers in the public interest, a body may also be engaged in the provision of services to particular individuals: see IW v City of Perth at 44 per Gummow J; also 12-13 per Brennan CJ and McHugh J; 24 per Dawson and Gaudron JJ; 29 per Toohey J; and 72 per Kirby J. ...

Subsequently, in Rainsford v Victoria [2007] FCA 1059; (2007) 167 FCR 1 Sundberg J (at [72]) stressed that not all government functions are services:

The judgments in IW [1997] HCA 30; 191 CLR 1 are clearly dependent on the particular fact situation of that case, but some general propositions can be identified. First, not all government functions are services, although some undoubtedly are. Second, as the difference between Dawson, Gaudron and Gummow JJ on the one hand, and Toohey and Kirby JJ on the other hand demonstrates, the way in which the service is identified is critical. It is a question of fact determined by the situation of the particular case.

As set out above, in the points of claim the applicant set out the services which the applicant asserts were either refused by police or provided on terms and conditions which were discriminatory. The provision of services by police, in the context of the Anti-Discrimination Act NSW 1977 (the AD Act) has been judicially considered - the applicant's representative referred the tribunal to judicial authorities, and the respondent's representative provided detailed submissions in relation to the authorities. The Tribunal has carefully considered the guidance provided in the authorities. The tribunal's findings on whether the respondent was providing services to the applicant at the relevant time, and applicable authorities, are discussed further below.

Law Enforcement Powers and Responsibilities Act 2002 ("LEPR Act")

Given the applicant's case was in large part based on the contention that the respondent refused services to the applicant by not providing a support person to him as a "vulnerable person" in police custody, it is relevant to set out the legislative basis for the duties of police to those in custody. Relevant provisions are contained in the Law Enforcement Powers and Responsibilities Act 2002 ("LEPR Act") and the Law Enforcement (Powers and Responsibilities) Regulation 2005 ("LEPR Regulation"). The LEPR Act provides:

112 Modification of application of Part to certain persons (Tribunal note -defined in cl 24 of LEPR Regulation as vulnerable persons)

(cf Crimes Act 1900 , s 356A)

(1) The regulations may make provision for or with respect to the modification of the application of this Part to:

(a) persons under the age of 18 years, or

(b) Aboriginal persons or Torres Strait Islanders, or

(c) persons of non-English speaking background, or

(d) persons who have a disability (whether physical, intellectual or otherwise).

(2) Without limiting subsection (1), the regulations may provide for an investigation period for a person or class of persons referred to in that subsection that is shorter than the period provided for by section 115.

122 Custody manager to caution, and give summary of Part to, detained person (Tribunal Note - Modified for vulnerable persons by s112 above):

(1) As soon as practicable after a person who is detained under this Part (a "detained person") comes into custody at a police station or other place of detention, the custody manager for the person must orally and in writing:

(a) caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence, and

(b) give the person a summary of the provisions of this Part that is to include reference to the fact that the maximum investigation period may be extended beyond 4 hours by application made to an authorised officer and that the person, or the person's legal representative, may make representations to the authorised officer about the application.

(2) The giving of a caution does not affect a requirement of any law that a person answer questions put by, or do things required by, a police officer.

(3) After being given the information referred to in subsection (1) orally and in writing, the person is to be requested to sign an acknowledgment that the information has been so given.

123 Right to communicate with friend, relative, guardian or independent person and Australian legal practitioner (Tribunal note - modified for vulnerable persons by s112 above, and see below)

(1) Before any investigative procedure in which a detained person is to participate starts, the custody manager for the person must inform the person orally and in writing that he or she may:

(a) communicate, or attempt to communicate, with a friend, relative, guardian or independent person:

(i) to inform that person of the detained person's whereabouts, and

(ii) if the detained person wishes to do so, to ask the person communicated with to attend at the place where the person is being detained to enable the detained person to consult with the person communicated with, and

(b) communicate, or attempt to communicate, with an Australian legal practitioner of the person's choice and ask that Australian legal practitioner to do either or both of the following:

(i) attend at the place where the person is being detained to enable the person to consult with the Australian legal practitioner,

(ii) be present during any such investigative procedure.

(2) If the person wishes to make any communication referred to in subsection (1), the custody manager must, as soon as practicable:

(a) give the person reasonable facilities to enable the person to do so, and

(b) allow the person to do so in circumstances in which, so far as is practicable, the communication will not be overheard.

(3) The custody manager must defer for a reasonable period any investigative procedure in which the person is to participate:

(a) to allow the person to make, or attempt to make, a communication referred to in subsection (1), and

(b) if the person has asked any person so communicated with to attend at the place where the person is being detained:

(i) to allow the person communicated with to arrive at that place, and

(ii) to allow the person to consult with the person communicated with at that place.

(4) If the person has asked a friend, relative, guardian or independent person communicated with to attend at the place where the person is being detained, the custody manager must allow the person to consult with the friend, relative, guardian or independent person in private and must provide reasonable facilities for that consultation.

(5) If the person has asked an Australian legal practitioner communicated with to attend at the place where the person is being detained, the custody manager must:

(a) allow the person to consult with the Australian legal practitioner in private and must provide reasonable facilities for that consultation, and

(b) if the person has so requested, allow the Australian legal practitioner to be present during any such investigative procedure and to give advice to the person.

(6) Anything said by the Australian legal practitioner during any such investigative procedure is to be recorded and form part of the formal record of the investigation.

(7) An investigative procedure is not required to be deferred under subsection (3) (b) (i) for more than 2 hours to allow a friend, relative, guardian, independent person or Australian legal practitioner that the person has communicated with to arrive at the place where the person is being detained.

(8) An investigative procedure is not required to be deferred to allow the person to consult with a friend, relative, guardian, independent person or Australian legal practitioner who does not arrive at the place where the person is being detained within 2 hours after the person communicated with the friend, relative, guardian, independent person or Australian legal practitioner. This does not affect the requirement to allow an Australian legal practitioner to be present during an investigative procedure and to give advice to the person.

(9) The duties of a custody manager under this section owed to a detained person who is not an Australian citizen or a permanent Australian resident are in addition to the duties of the custody manager owed to the person under section 124.

(10) After being informed orally and in writing of his or her rights under this section, the person is to be requested to sign an acknowledgment that he or she has been so informed.

Section 129 of the LEPR Act provides for the right to medical attention and section 130 provides for "reasonable refreshments" to be given to a person in custody. The Law Enforcement (Powers and Responsibilities) Regulation 2005 ("LEPR Regulation") provides for the modification of the above provisions of the LEPR Act in relation to "vulnerable persons".

LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) REGULATION 2005 - REG 23 ("LEPR Regulation")

Interpretation

23 Interpretation

(1) In this Division:

"child" means a person who is under the age of 18 years.

"impaired intellectual functioning", in relation to a person, means:

(a) a total or partial loss of the person's mental functions, or

(b) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction, or

(c) a disorder, illness or disease that affects the person's thought processes, perceptions of reality, emotions or judgement, or that results in disturbed behaviour.

Note: See clause 3 of Schedule 2 for guidance to custody managers on whether paragraph (a) or (b) applies to a person.

"impaired physical functioning", in relation to a person, means:

(a) a total or partial loss of the person's bodily functions or of part of a person's body, or

(b) a presence in the person's body of organisms causing or capable of causing disease or illness, or

(c) a malfunction, malformation or disfigurement of part of the person's body.

(2) For the purposes of this Division, a detained person who has impaired physical functioning is taken not to have impaired physical functioning if the custody manager for the person reasonably believes that the person's impairment is so minor that the person will not be significantly disadvantaged with respect to the person's participation in any investigative procedure (in comparison with members of the community generally).

Vulnerable persons

24 Vulnerable persons

(cf Crimes (Detention after Arrest) Regulation 1998 , cl 5)

(1) A reference in this Division to a vulnerable person is a reference to a person who falls within one or more of the following categories:

(a) children,

(b) persons who have impaired intellectual functioning,

(c) persons who have impaired physical functioning,

(d) persons who are Aboriginal persons or Torres Strait Islanders,

(e) persons who are of non-English speaking background,

but does not include a person whom the custody manager reasonably believes is not a person falling within any of those categories.

Note: If a person falls within more than one of the above categories, each provision of this Division relating to any category within which the person falls applies in relation to the person.

(2) Pursuant to section 112 (1) of the Act, the application of Part 9 of the Act to vulnerable persons is modified by this Division.

25 Custody manager to assist vulnerable person

(cf Crimes (Detention after Arrest) Regulation 1998 , cl 20)

The custody manager for a detained person who is a vulnerable person must, as far as practicable, assist the person in exercising the person's rights under Part 9 of the Act, including any right to make a telephone call to a legal practitioner, support person or other person.

26 Support person

(cf Crimes (Detention after Arrest) Regulation 1998 , cl 4)

A person may be a support person for a detained person who is a vulnerable person for the purposes of this Division only if the first-mentioned person is aged 18 years or over and is:

(a) in the case of a detained person who is a child:

(i) a parent or guardian, or a person who has the lawful custody of the child, but not a parent of the child if the parent has neither guardianship nor custody of the child, or

(ii) a person who is responsible for the care of the child, or

(iii) an adult (other than a police officer) who has the consent of a person referred to in subparagraph (i) or (ii) to be the support person for the child, or

(iv) if the child is aged 14 years or over-an adult (other than a police officer) who has the consent of the child to be the support person for the child, or

(v) a legal practitioner of the child's own choosing, or

(b) in the case of a detained person who is not a child:

(i) a guardian or any other person who is responsible for the care of the detained person, or

(ii) a relative, friend or any other person (other than a police officer) who has the consent of the detained person to be the support person for the detained person, or

(iii) if none of the persons mentioned in subparagraph (i) or (ii) is applicable or readily available-a person (other than a police officer) who has expertise in dealing with vulnerable persons of the category, or a category, to which the detained person belongs.

27 Support person may be present during investigative procedure

(cf Crimes (Detention after Arrest) Regulation 1998 , cl 21)

(1) A detained person who is a vulnerable person is entitled to have a support person present during any investigative procedure in which the detained person is to participate.

(2) However, a detained person who is a vulnerable person solely as a result of being a person of non-English speaking background is entitled to have a support person present only if an interpreter is not required to be arranged under section 128 (1) of the Act solely because of section 128 (3) (a) of the Act.

(3) Before any such investigative procedure starts, the custody manager for the detained person must inform the person that the person is entitled to the presence of a support person during the investigative procedure.

(4) If the detained person wishes to have a support person present, the custody manager must, as soon as practicable:

(a) give the detained person reasonable facilities to enable the person to arrange for a support person to be present, and

(b) allow the detained person to do so in circumstances in which, so far as practicable, the communication will not be overheard.

(5) The custody manager must defer for a reasonable period any such investigative procedure until a support person is present unless the detained person has expressly waived his or her right to have a support person present.

(6) An investigative procedure is not required to be deferred under subclause (5) for more than 2 hours to allow a support person to arrive at the place of detention.

(7) A custody manager is not required to comply with subclauses (3)-(5) if the custody manager believes on reasonable grounds that:

(a) doing so is likely to result in an accomplice of the detained person avoiding arrest, or

(b) doing so is likely to result in the concealment, fabrication, destruction or loss of evidence or the intimidation of a witness, or

(c) doing so is likely to result in hindering the recovery of any person or property concerned in the offence under investigation, or

(d) doing so is likely to result in bodily injury being caused to any other person, or

(e) the safety of other persons requires that the investigative procedure be carried out as a matter of urgency.

28 Relationship between entitlement to support persons and entitlement to consult

(cf Crimes (Detention after Arrest) Regulation 1998 , cl 22)

(1) A detained person who is a vulnerable person is entitled to a support person under clause 27 or to consult with a friend, relative, guardian or independent person under section 123 (4) of the Act, but not both.

(2) However, a friend, relative, guardian or independent person of the detained person who, under section 123 (1) (a) (ii) of the Act, attends the place of detention is not prevented by this clause from acting as a support person if the detained person requests it.

34 Cautions

(cf Crimes (Detention after Arrest) Regulation 1998 , cl 29)

(1) If a detained person who is a vulnerable person is given a caution, the custody manager or other person giving the caution must take appropriate steps to ensure that the detained person understands the caution.

(2) If the detained person is given a caution in the absence of a support person, the caution must be given again in the presence of a support person, if one attends during the person's detention.

(3) A reference in this clause to the giving of a caution is a reference to the giving of a caution that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

Clause 30 of the LEPR Regulation sets out the role of a support person during an interview, and clause 32 requires the custody manager to contact the person responsible for certain vulnerable person's welfare. Custody Manager is defined in the LEPR Act as:

"custody manager" means the police officer having from time to time the responsibility for the care, control and safety of a person detained at a police station or other place of detention.

Clause 13 LEPR Regulation provides for appointment of custody managers:

Appointment of custody managers for designated police stations and designated places of detention

(cf Crimes (Detention after Arrest) Regulation 1998 , cl 8)

The Commissioner of Police is to appoint one or more police officers ( "appointed custody managers") to act as custody managers at each designated police station and each designated place of detention.

It is clear from the legislation set out above that the LEPR Act provides for certain rights to be given to those in custody by custody managers, and these rights are modified for a "vulnerable person". The LEPR Regulation provides for a modification of the rights, and sets out those rights and the duties of the custody manager, in relation to a "vulnerable person". It is clear that the LEPR Regulation provides for an assessment to be made by the custody manager as to whether the person in custody is a "vulnerable person". Clause 24 of the LEPR Regulation makes clear that the definition of "vulnerable person" does not include a person whom the custody manager reasonably believes is not a person falling within any of the categories set out in the definition in the LEPR Regulation.

The Tribunal's view of the operation of the LEPR Act and LEPR Regulation, imposing duties on custody managers, is consistent with the view of Justice Yates set out in Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 (20 July 2012) (refer paragraphs 201 to 219). Justice Yates noted (at para216):

It is to be noted that cl 27 of the LER is directed to the responsibilities of custody managers, as is cl 25. In the present case, the only custody managers relevant to Mr Robinson on 21 March 2009 were Senior Constables Tomasic and Taseski. Ms El Masri is recorded in the Custody Management Record of Liverpool Police Station as being the support person who was present for Mr Robinson on that day. There is no doubt about that fact.

The applicants have not identified in specific terms how or in what respect they say the LER was breached in respect of Mr Robinson on 21 March 2009, other than, possibly, in the allegation in the amended points of claim that DC Johnson failed to contact and allow Ms El Masri to be Mr Robinson's support person inside the ambulance and at Liverpool Hospital. However, there is no evidence that any investigative procedure was sought to be undertaken while Mr Robinson was conveyed to Liverpool Hospital or while he was at the hospital. He was taken there for medical treatment, not for investigation. In any event, DC Johnson was not a custody manager for the purposes of the LER.

Furthermore, DSC Mangan did not seek to interview Mr Robinson at Liverpool Police Station. Ms El Masri was consulted in relation to that decision and agreed with it.

I am unable to divine from the evidence before me how there was any breach of the LER. Moreover, as I have already noted, the applicants have not sought to articulate how, if at all, the unidentified breach or breaches of the LER might, separately, constitute unlawful discrimination in breach of s 24 of the Act.

Findings on facts in dispute

It is clear on the evidence of the applicant and the respondent that on 19 August 2009 there was an incident at the applicant's family home resulting in the applicant's brother, Julian, being injured and taken to hospital for treatment. The applicant does not dispute that Julian's finger was cut and required stitches. It is clear on the evidence also that there was more than one wound, police evidence details a wound on the leg and the hand, the applicant admits to an injury to the hand. The applicant's points of claim filed by his legal representatives referred to 2 wounds.

It is also not in dispute that the applicant was charged in relation to the incident: pursuant to section 33 (1) (a) of the Crimes Act 1900 with wound person with intent to cause grievous bodily harm domestic violence related; and pursuant to section 35 (4) of the Crimes Act 1900 - recklessly wound any other person domestic violence related. It is not in dispute that the court dealt with the charges by way of a dismissal pursuant to section 32 of the Mental Health (Forensics Procedures) Act 1990 on 16 August 2010.

What is in dispute is whether a caution was given to the applicant by police at the time of the arrest, and in a proper fashion at the police station, and whether the applicant was refused services by police. In his written statement the applicant states that after a call to the ambulance two police officers attended his home and the applicant showed them in. Constable Bayer states that when he and Constable Banner arrived outside the applicant's premises the applicant was waiving at them to come inside. Under cross-examination the applicant agreed that he waived to the police on arrival but did not agree he invited them in. He agreed he did not tell police of any depression or that he had Asperger's syndrome. The two police entered through the front door of the house. On arrival they saw the applicant's brother, Julian, sitting on the first step to a flight of stairs leading to the second level of the home, and there was a large amount of blood on the floor in front of him. After a brief conversation with Julian about his injury Constable Bayer saw the applicant walking into the family room/lounge room area of the house on the same level. He followed the applicant and told him to sit on a stool and asked him where the weapon was. Both Constable Bayer and Constable Banner say the applicant pointed to the kitchen area in the direction of the sinks. Constable Banner says that she walked with the applicant into the kitchen where he pointed out a knife in the kitchen sink. After requesting him to sit down, police handcuffedthe applicant.

Constable Banner walked towards Julian to have a conversation with him and Constable Bayad remained with the applicant. Constable Banner records the conversation with Julian in her statement (noting Julian originally stated he stabbed himself, and that he gave a description of the fight commencing with the words "Adrian has depression and was upstairs in bed". He describes their disagreement, and the applicant wounding him with a knife). In her statement of 16 August 2012 Constable Banner states that she does not recall whether or not she relayed the information about depression to other police officers.

Constable Bayer states that at 12:27 pm he approached the applicant, introduced himself, told the applicant he was under arrest for a domestic dispute/wounding involving his brother and stated "you do not have to say or do anything if you do not want to. Do you understand that.". He says that the applicant answered "yeah". Constable Bayer says he told the applicant "I will record what you say or do I can use this recording in court. Do you understand that?" And the applicant and said "yeah". Constable Bayer then gave a version of what the applicant told him had occurred, and Constable Bayer recorded this conversation in his notebook. Under cross-examination, the conversation in the notebook was put to the applicant who stated that it sounded familiar but he was not sure if he would agree with the contents. He did however agree that he gave information to Constable Bayer voluntarily.

The applicant in his written statement states that Constable Bayer had introduced himself and that he(the applicant) paced around the foyer while they attended to Julian. He states Constable Bayer said to him "sit down" and he sat down and was handcuffed. He says Constable Bayer then asked him where the knife was and he walked to the kitchen and pointed to where the knife was located in the sink. He states Constable Bayer then pulled his right arm, he felt frightened of what might occur. Constable Bayer disputes that this occurred and he was not challenged on this part of his evidence by the applicant's legal representative during cross examination, nor were the applicant's allegations specifically put to Constable Bayer during cross examination. The applicant states that he does not recall being cautioned by anyone and remained on a chair. The applicant further states that other police arrived, started asking him questions, he does not recall specifics, and does not recall ever being cautioned by the police officers prior to being questioned at any time.

"I felt very scared and nervous and agreed with everything the police suggested. I was fearful that I would be hurt again if I did not comply with the police and the questioning. I did not know that I did not have to answer the questions. At no stage was I asked by the police officers if I had depression or if I needed a support person. I made admissions under duress. They were suggested to me by police and I agreed."

Constable Bayer in his statement of 16 August 2012 refers to the applicant's statement and denies suggesting any version of events to the applicant. At no time during his attendance at the applicant's home did he become aware that the applicant had a mental illness. Constable Bayer says that when senior police arrived, shortly after the arrival of the ambulance, he was asked to watch the applicant and did so, and shortly thereafter, after searching the applicant in the usual manner, he escorted him to the police vehicle for transport to the police station. He saw Detective Senior Constable Gardiner and another officer had left in the vehicle with the applicant in custody. A short time after all other police at the scene left with the exception of Constable Banner and Constable Bayer. A few hours later Detective Senior Constable Bracknell arrived with Senior Constable Wilson who was the crime scene officer. As Constables Bayer and Banner remained for several hours at the applicant's house they were not present at the police station when the applicant' s parents attended.

In the statement of Detective Senior Constable Wilkins ("Detective Willkins") of 16 September 2009, which attaches the officer's notebook record, he states that on arriving with Detective Alessi, Detective Last, Detective Gardiner, he entered the front door. He observed that Julian was bleeding from his left hand and left leg and ambulance officers were attending to Julian at that stage. He says he approached the applicant, who was seated and introduced himself and asked "is this your parent's house?". The applicant replied "yes". He asked "what is your dad's name?" And the applicant replied "I don't see how that is relevant". Detective Wilkins then said "as you know you don't have to say anything if you do not want to" and The applicant replied "Gianni". There was some further conversation about the whereabouts of his parents and other family members. In his oral evidence Detective Wilkins stated that if he had been told by another police officer that the applicant was depressed he would have decided he was a vulnerable person. He recorded Asperger's syndrome on the application for the apprehended violence order because he had been advised of this by then by the applicant's parents. It was when he was en route to the police station that Detective Wilkins made a call to the applicant's father, Gianni Mariani.

At the police station Detective Wilkins states that he went to the charge room where the accused was in the company of his father, Gianni Mariani, at the time. He recorded a conversation in his notebook whereby he stated "do you agree that when you were arrested that you were told by police that you did not have to say or do anything if you did not want to?" The applicant responded "I don't agree". Detective Wilson records then asking the applicant if he wished to sit to participate in an interview and that the applicant asked "with whom?" "Myself and Detective Last" and the applicant said "No" and declined to say anything further or to sign the notebook entry of the conversation. Wilkins states that he and Detective Last then left the charge room.

Detective Wilkins could not recall if he told the custody manager that the applicant suffered Asperger's syndrome - he believed the custody manager knew, because when he went into the dock area he observed that the applicant had a support person sitting there with him in the dock, being his father. When Detective Wilkins observed that there was a support person present with the applicant in the dock he believed that the custody manager had been advised that the applicant had Asperger's syndrome. When he offered the applicant the opportunity to participate in a record of interview he did not offer a support person because the support person was already present as his father was sitting beside him in the dock. When he offered the interview and the applicant asked "with whom" Detective Wilkins considered he was asking who was doing the interview and so he said that it would be himself and Detective Last.

Detective Last said he was not advised by Constable Banner of any depression although he was told of Asperger's syndrome by the applicant's parents at the police station. Detective Last could not recall who reported Asperger's syndrome to the custody officer but said one of us (himself or Wilkins) would have. When asking if the applicant wished to participate in a record of interview Detective Last did not offer the applicant a support person because he had one sitting there with him in the dock, being his father.

Because the applicant's case suggested that police had somehow been improper in refusing the applicant bail and in laying serious charges, and applying for an apprehended violence order, and that all these matters caused the applicant distress (such distress being part of the applicant's claim for damages) some evidence was presented in the proceedings to indicate what occurred between Julian and the applicant on 19 August 2009. The tribunal does not consider for the purpose of determining this matter that it is necessary to go into all of that detail. It is clear on the evidence before the tribunal that it reasonably appeared to the police that there had been a domestic violence incident between the applicant and his brother. During the incident the applicant's brother, Julian, had been injured such injuries requiring hospital treatment, a knife had been used by the applicant to cause the injuries to his brother. The tribunal is satisfied on the evidence presented overall in this matter that the police had reasonable grounds for considering that a serious offence of violence had occurred, in a domestic context, and as such had reasonable grounds for arresting the applicant, and for charging the applicant with the criminal offences. Once a criminal charge is laid it is required to be determined by a court and is subject to judicial oversight. The respondent's case was that it was consistent with the usual police procedure when there is a domestic violence incident and injury sustained by a victim, that an apprehended violence order be applied for to protect a victim.

The other major area of dispute between the parties was what occurred at the police station in relation to treatment of the applicant by police. The applicant states that he was taken to Castle Hill police station in a police vehicle and this was consistent with police evidence. The applicant states that when he arrived at the police station he was taken to the custody manager, Sergeant Hunt.

"One of the questions she asked me was "do you have any mental illness?" I recall I shook my head. I was in shock and overwhelmed. I was not thinking clearly. I recall that Sergeant Hunt did not ask if I had depression. She did not mention anything about a support person or ask me if I wanted a support person. She said words to the effect "I am now going to caution you about your rights". She cautioned me, but I was not in a state of mind able to comprehend what she was saying, and I do not remember specifics. I was placed in a cell by myself. I was scared and cold. After some time Hunt brought my mother into the cell. Hunt left. My mother gave me a hug and a blanket. She stayed with me for a short while and then left. Sometime later, my father was shown into the cell. We had a short conversation. To the best of my recollection I recall a conversation with words to the following effect: He said "Have you spoken to the police?" I said: "yes, what is going to happen now?" He said: "don't say anything to the police."

Under cross-examination the applicant agreed that on arrival at the police station at about 1:15 pm he was taken to the custody manager, Sergeant Hunt. He agreed she was polite and agreed she asked him questions. He recalls a questionnaire being administered but does not recall giving the answers which are recorded.

At paragraph 21 of his statement the applicant details the conversation in the charge room with Wilkins and Last which is largely consistent with that given by Detective Wilkins. The applicant does not mention that at the time of this conversation his father was present with him. He says that at no time did any police officer ask if he wanted a support person or if he wanted his father or mother to be a support person for him. At no time was the caution read to him a second time in front of a support person or his parents.

The applicant under cross examination recalled being cautioned by Sergeant Hunt and says in relation to the words "keep my mouth shut" that this was a question which he asked "should I keep my mouth shut" and that Sergeant Hunt said nothing. Under cross examination the contents of the Sergeant Hunt's statement at paragraph 16 were put to the applicant and he said he did not recall being advised by Sergeant Hunt of the right to a support person. He agreed that it was his signature on Annexure KH 4 but cannot now recall the particular document. He recalls reading a document given to him by Sergeant Hunt, he is not sure it is KH 4, he accepts he signed that document, but does not believe he understood at the time. It was put to him that he could have asked a question if he did not understand and he said that was not accurate.

The applicant recalled his mother visiting him in the cells but not the details of the visit, he does not recall stating to his mother "I've been given this piece of paper" . He recalls that Sergeant Hunt got a blanket for him, and gave it to his mother to give to him, because he said he was cold. He said he was with his mother in the cell in the absence of Sergeant Hunt for a period of time. He has a clear recollection of his father telling him "don't say anything to the police". It was put to the applicant that he followed that advice and he stated "yes I suppose I did". He does not recall telling his father that he received a document from the police. When asked he should disclose his medical condition, the applicant responded "It wasn't apparent to me at the time that it was relevant.... I wasn't concerned at the time." He agreed his father was present when he was asked whether he wished to participate in a record of interview. It was put to the applicant that he was not treated cruelly while at the police station and he said that that would be accurate and agreed, based on what he can recall, that he was not mistreated

Sergeant Hunt, custody manager, in her written and oral evidence said that she had read the affidavits of the applicant and his parents. On 19 August 2009 she was the custody manager at the police station. She notes her role as custody manager is to ensure that all policies and procedures are complied with, as well as relevant legislation, when someone is arrested. She ensures the arrested person's rights are looked after. She attached to her affidavit relevant paperwork records before her at the time, which included the Field Arrest Form. She noted that she conducted an assessment to determine whether or not, in her view, the applicant was a vulnerable person, in accordance with the Criminal Procedure Act 1986 and also the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRAct). She notes that a copy of the caution and summary which she administered to the applicant in accordance with Part 9 of LEPRAct is annexed to her statement and marked KH4. She noted the handwritten words on the document "keep my mouth shut" and said these words were the applicant's response to the caution she administered, confirming that he understood the caution she had provided to him. She stated that she detailed his rights to contact a lawyer or a friend or relative or Guardian . She further noted that she advised that if he was, amongst other things, intellectually or physically impaired, he could have a support person with him while in police custody and that the police would help get the support person if he asked for one.

She generally records any response by a detained person to her questions on the Part 9 form and has recorded no response to this part of her advice to the applicant, indicating to her that he did not respond. She states that at no time did the applicant indicate to her that he should have been considered a vulnerable person or that he was someone who was intellectually impaired and required a support person. She considered that during the course of reading the Part 9 summary to the applicant that she put the applicant on notice that he was entitled to have a support person if he was a vulnerable person. The Part 9 summary which she read specifically advises of the right of a vulnerable person to a support person. She states that during the course of reading out the Part 9 summary she regularly said words to the effect of "do you understand?" To which he would respond on each occasion "yes". She noted that both her signature and the applicant's signature are on the bottom of the form.

She states that no stage did it become clear to her that the applicant was, or should have been treated as, a vulnerable person. She does not recall at any point being advised he suffered from depression or Asperger's syndrome. She states she would recall being advised of Asperger's syndrome, as she has a nephew similarly diagnosed, and therefore due to the personal connection would have taken note. She states that while completing the Part 9 summary and the custody management report questionnaire, Mr Mariani's parents attended the police station. First his mother entered the room and later his father entered the room.

After going through the Part 9 summary and custody management report assessment she placed Mr Mariani in the dock and his father went into the dock with him for most, if not all, of the time that Mr Mariani was in the dock. At some time the applicant mentioned he was feeling dizzy and Sergeant Hunt states that she immediately notified an ambulance and ambulance officers attended the Police Station and attended to the applicant. She also supplied the applicant with a blanket. She recalled that the applicant said to her words to the effect of "can I call a lawyer" and she said yes.

She states her usual practice in these circumstances is to give the person in custody a copy of the phone book and let them select a solicitor, however in this instance, instead of following the usual practice she facilitated a call to legal aid for the applicant in order to assist him. At a later stage he indicated he was hungry and she arranged a car crew to attend McDonald's to pick up a meal for him and that was brought to him in custody. Sergeant Hunt states

"during the time Mr Mariani was in custody, I took steps to ensure that he received some assistance beyond that we would normally provide to a person in custody. I facilitated a call to legal aid rather than requiring that Mr Mariani make his own arrangements to obtain legal advice, I permitted him to have his father with him in the dock the whole time, I organised a meal for him when he was hungry around 4 pm, which is outside the usual arrangements made to provide meals to persons in custody. I stayed with Mr Mariani at all times while he was in custody. I spent proximally four hours with Mr Mariani and I did not leave the custody area except, for example, to make very brief enquiries....At all times I checked that Mr Mariani was okay and that his parents were providing him with the support that he required. I've read paragraph 37 of Mr Mariani's statement and deny that he was mistreated in any way during the period he was in custody."

She further states she did ask the applicant "do you have any other serious medical or mental problems?" as this is one of the questions she is required to ask as part of the custody management record, it is recorded on Annexure KH 2, at (question (d) page 2) that he answered in the negative. She said she did not ask the applicant specifically if he had depression because she had already asked him if he had any other serious medical or mental problems and he had answered that in the negative. Annexure KH 2 to Sergeant Hunt's affidavit is the custody management record, which records the applicant as arriving at the police station at 13.13 on 19 August 2009. The custody management record is a record of questions asked of the applicant and answers given, and procedures in custody, as well as a record of observations made of the person in custody by the custody manager. In the detainee inspection/assessment record part of the form it is also noted: 14-46 "seated in the dock with his father" and at 15.37 "remains seated in the dock with his father for support. Nil requests or complaints at that this time". Under the section "Visitor record" of KH2 visits are recorded as - at 14.09 "Kim Mariani, relative" and 14.36 Gianni Mariani, relative" In the Caution/Summary" part of the custody management form it is recorded that at 13.24 "Caution read - Y" "Copy given - Y" and there is a record that at 13.46 ambulance contacted and requested to attend due to complaint of dizziness. The custody management record details the visual assessment made by Sergeant Hunt (page 2 KH2), and records the initial inspection frequency as 30 mins, time/date 13.36 19/08/2009. The visual inspection record includes additional comments ("Nil complaint in relation to health, Nil adverse detected"). The questionnaire administered by the custody manager and the applicant's answers are recorded at pages 2 and 3 of KH2 and Sergeant Hunt has added an additional comment: "Appears quite distressed in relation to the condition of his brother who is the victim in this matter".

She stated that she assessed that the applicant was not a vulnerable person based on the Field Arrest Form, the custody management record and the applicant's answers. She read aloud the Part 9 caution and statement of rights. She checked at all times that the applicant understood what she was saying. She stated that if she was told that the applicant had Asperger's syndrome she may have changed her view and decided that he was a vulnerable person. The only change to the actions she had taken would have been to inform the applicant's father of the role of a support person. However, she stated that in practice she gave the applicant a support person - his father was permitted to be present with him in the dock. She talked of feeling sorry for the applicant as he was a young person for the first time in custody who had a fight with his brother at home. For this reason she allowed him the comfort of his parents while in custody, including a visit by his mother to the cells and the company of his father whilst in the dock, which is something she is not obliged to do and not her normal practice.

The applicant's father, Gianni Mariani, gave written evidence and oral evidence during the hearing. He states that on 19 August 2009 at approximately 12:30 pm he was at work when he received a phone call from Detective Alessi advising of the incident at his home, that one son had been arrested and the other son was being taken to hospital. He states he arrived at the police station at approximately 1:30 pm and was shown to an interview room adjacent to the reception counter. He met Detective Alessi and Detective Last and Detective Wilkins. He was asked whether he wanted to make a statement and said he did not want say anything, except he wanted police to make sure that they took into account that Adrian suffers from autism, a form of autism called Asperger's. He states he advised police that the applicant had seen a psychiatrist and psychologist previously but was not currently taking medication or seeing a therapist. He states police said "it doesn't matter then"... "If no medication is needed then your son's Asperger's condition is not relevant. ..Mental conditions make no difference to the law....Mental disabilities make no difference to the police or law" Gianni Mariani gave evidence of a further conversation which occurred between police and his wife, Kim Mariani, in his presence: that police said, when Kim Mariani mentioned Asperger's "it makes no difference... Is Adrian seeing a psychologist?... It makes no difference to police or the law....That's right, mental disabilities don't matter to the police or the law" .

Mr Gianni Mariani states that he was taken to see Adrian in the holding cell and was introduced to the custody manager. He was given a piece of paper by the custody manager and the custody manager said "this document describes Adrian's rights in custody. Adrian has a copy with him". Mr Mariani said he read the document, it described the right to say nothing and to request representation. He returned the document to the custody manager as he was told Adrian already had a copy. He was present when The applicant was asked for an interview and refused to be interviewed. Mr Gianni Mariani states that at no time was he asked if he would like to be a support person for Adrian or informed about the role of a support person by any police officer, nor was he asked to review custody records. He recalls receiving a phone call from a male police officer advising him that the applicant was seeking legal advice regarding the sampling of DNA evidence, and he advised the police officer to get Adrian to call legal aid. He states that the police officer said he would not be entitled to legal aid if he worked and it would be a waste of time.

Ms Kim Mariani, mother, stated under cross-examination that she had asked police whether Julian was going to be charged because she knew that Adrian and Julian had been fighting. She agreed that she assumed the Julian had done something wrong. She adhered to the version of the conversation with the police which was recorded in her written statement. She further agreed that she did not include all conversations and events in her statement. She could not recall the length of time her husband was with Adrian in the cells as she was making phone calls to see where Adrian could live if he could not return home. She recalled that her husband told her that he advised Adrian not to make any statements to the police, he told her something to the effect that he told Adrian to refuse an interview. It was clear to the tribunal that Ms Kim Mariani was very distressed while at the police station, and any inconsistencies in her written and oral versions would in the tribunal's view be due to the significant level of distress. Indeed Ms Kim Mariani spoke of her distress in her evidence and the tribunal has no reason to reject this explanation. It was conceded in part under cross-examination that her recall of events was impaired by her level of distress and the tribunal considers this is very understandable but also considers that her recall is less reliable for this reason.

The conversation as stated by Gianni Mariani and Kim Mariani as occurring at the police station were specifically put to Detective Wilkins and Detective Last, and in their written statements and in oral evidence both officers denied the conversations as stated by Mr Gianni Mariani and Ms Kim Mariani. They specifically denied stating that mental illness was not important to police or the law.

It is the evidence of Mr Gianni Mariani stated that since advice received from a lawyer when he was at school, many years ago, he had been aware that one should not speak to police, or should be careful of what one says to police. He agrees that for this reason it was one of the first things he said to the applicant when he saw him in the cells, to not say anything to police. Under cross-examination Mr Gianni Mariani adhered to the version of conversations with the police that he had put in his written statements. He noted that he made notes of what occurred at the police station some 5 to 6 months after the events, and he consulted those notes in making his statement for the Anti-Discrimination Board. When making his first statement, which was to the Anti-Discrimination Board, he also referred to the police brief of evidence in the criminal proceedings which helped him recall names. He maintained under cross-examination that his memory of events was vivid. He stated that he made a phone call to Julian at the hospital to find out that he was all right. He thought a lot about things on the way that the police station which took about one hour of travel. It was put to Mr Gianni Mariani that his statements, being his written statements, were a mixture of what he believed happened and what may have happened and he denied that this was the case.

Mr Gianni Mariani was questioned under cross-examination about whether he believed that police officers should excuse the applicant's conduct. Mr Gianni Mariani said words to the effect of "I was hoping for more understanding, he didn't have it." Under cross-examination his statements about Julian bullying Adrian were noted and he was asked whether he believed Julian had caused the conflict. Mr Gianni Mariani said "I had a conversation with Julian just four weeks before that that he should not bully Adrian, so he does bear some responsibility."

In relation to the disputed conversations occurring between Detectives Wilkins and Last and the applicant's parents, at the police station, the tribunal finds as follows. Mr Gianni Mariani and Ms Kim Mariani give similar versions as to the statements said by the police to the effect that mental illness does not matter to the police or the law. Detectives Wilkins and Last deny that they said the statements. In the tribunal's view the relevance of whether the words were said is probably, in the context of the applicant's case, that it might suggest the police disregarded the rights of a mentally impaired or mentally ill person in their custody. Given that this is part of the applicant's case then the tribunal needs to decide whether these words were said by the police. As noted above Ms Kim Mariani's recollection was impaired by her distress at the time. Mr Gianni Mariani says his memory is vivid. The police did not take contemporaneous notes of the conversations with the applicant's parents because they did not consider that there were required to do so at the time. The applicant's parents also did not take contemporaneous notes although Mr Gianni Mariani made some personal note some 5 to 6 months after the events.

Where there is a conflict in the evidence the tribunal must have some basis for preferring the evidence of one party, or one version of events, over the other. The evidence of Detective Last and Detective Wilson was consistent. Both were subject to cross-examination and their evidence remained consistent and their credibility was not impugned during cross-examination. Ms Kim Mariani's evidence indicated that her recall was affected by her distress at that time as there were a number of matters about which she had did not have recall, although she asserted that she did have recall of the disputed conversations with Detective Last and Detective Wilkins. Mr Gianni Mariani's evidence remained largely consistent and his credit was not impugned under cross-examination. The tribunal accordingly has two conflicting versions of the conversations. However, given that both versions were adhered to under cross-examination, and the witnesses' credit was not impugned under cross-examination, the tribunal has no real basis for preferring the account of one witness over the differing accounts of other witnesses. (Whilst the tribunal found the reliability of the evidence of Ms Kim Mariani was effected by her distress at the time, even if the tribunal accepted that her evidence supported Mr Gianni Mariani, there are still two conflicting versions, and the conflicting version of Detectives Wilkins and Last were not shown to lack credibility). The tribunal has no basis for preferring the applicant's version over the respondent's version. Accordingly the tribunal cannot be satisfied that the conversations detailed by Mr Gianni Mariani and Ms Kim Mariani with Detective Wilkins and Detective Last occurred in the way Mr and Mrs Mariani stated they occurred. Their accounts are disputed by two other witnesses, the tribunal has no basis for discounting the version of the two other witnesses, Detective Last and Detective Wilkins, and accordingly tribunal cannot be satisfied that Mr Gianni Mariani's version (and Ms Kim Mariani's version), which is contested, is established, on the balance of probabilities.

In relation to whether the applicant was cautioned the tribunal found the evidence of Constable Bayer to be credible. He appeared to the tribunal to be responsive, in cross-examination, to questions asked and the tribunal found him to be credible. He gave clear evidence of giving the applicant a caution and the applicant does not contest this, his evidence is that he does not recall the caution. Therefore while the applicant does not concede the caution was given, he also does not contest it his evidence is that he does not recall the caution. Constable Bayer's evidence that the caution was given was clear and credible, and it was consistent with his notebook entry, and the tribunal accepts his evidence that he cautioned the applicant when he arrested him.

The tribunal does not accept the applicant's evidence that the police mistreated him at his house, as this is not consistent with other evidence. The applicant says that he was scared and gave answers to questions as suggested to him by police. However this is not consistent with the conversations recorded by police, between police and the applicant, at the scene. The applicant agreed that he did say, when asked if it was his father's house, "I don't see how that is relevant" - in the tribunal's view this is not the answer of someone who is only answering what is suggested to him by police.

When at the police station the applicant was taken, as is appropriate, straight to the care of the custody manager and the applicant agreed that the custody manager was polite. The tribunal finds that the custody manager complied with her obligations under Part 9 of the LEPR Act. The Tribunal finds that she gave the applicant a caution and checked that the applicant understood the caution by asking him questions and eliciting positive answers from the applicant ("Do you understand?" "yes"). The tribunal accepts the custody manager's evidence that he was told that certain persons were vulnerable persons and entitled to a support person, and that the applicant did not request a support person at any time. The applicant agrees that he did not do so because he did not consider it was relevant at the time. The evidence of Gianni Mariani indicates that the custody officer gave him a piece of paper indicating the caution given to the applicant and the applicant's rights in custody.

Under cross examination Sergeant Hunt was asked about her knowledge of the custody manager's legal obligations and she demonstrated a very clear knowledge of the legislation and duties. Sergeant Hunt told the tribunal of her view as custody manager that people in custody should be treated with respect. She spoke of the importance of maintaining independence from investigating police officers, and expressed a commitment to ensuring that the rights of those in custody are upheld, and this expressed view was consistent with her clearly demonstrated knowledge of the legal obligations and duties of a custody manager. In the tribunal's view she demonstrated a commitment to diligently performing the role of custody manager and the tribunal found her to be a credible and impressive witness.

The tribunal finds on the evidence of Sergeant Hunt, and the evidence overall in this matter, that Sergeant Hunt conducted an assessment of the applicant under the LEPR Act and that such an assessment was conducted appropriately and in accordance with the legal requirements. The tribunal finds that upon making such assessment Sergeant Hunt formed a view on reasonable grounds that the applicant was not a vulnerable person.

Annexure KH4 to Sergeant Hunt's Statement is the from containing the written caution and summary of Part 9 LEPR Act, which Sergeant Hunt states was given to the applicant. Sergeant Hunt's evidence was not challenged in cross-examination and it was not put to her that any of her records were not correct. The tribunal concludes that the records are accurate on the evidence in this matter. The tribunal further concludes that the applicant was given the written Part 9 LEPR Act summary and caution (KH4) and he showed this "piece of paper" to his mother when she visited him in the cells and also his father was given a copy by Sergeant Hunt. The evidence of Mr Gianni Mariani is that he read the form and returned it to Sergeant Hunt, noting it advised of the right to not say anything and to legal representation. The applicant and his parents thought the piece of paper they recalled looked different from KH4 but on the evidence the tribunal is satisfied that it was KH4. Mr Gianni Mariani therefore had read the form which also advises of the right of a vulnerable person to a support person but did not refer in his evidence to noting that advice. He did not tell Sergeant Hunt during the hour or so that he was seated with the applicant in the dock that his son had any special needs, or that he had any medical, mental health or psychological condition. Sergeant Hunt did not formally orally advise Mr Gianni Mariani of the right of a vulnerable person to a support person, nor read the caution a second time to the applicant in the presence of a support person; and the tribunal finds that this was no breach of a custody manager's obligations given she concluded on reasonable grounds, after a proper assessment, that the applicant was not a vulnerable person as defined in the LEPR Regulation. Sergeant Hunt did permit the applicant's father to provide support by remaining with the applicant in the dock for at least one hour, and by providing a copy of the Part 9 Caution and Summary (KH4) to the applicant's father.

On the evidence the tribunal finds that police refused bail on 19 August 2009 and the applicant was subsequently granted conditional bail by the court when presented the next day. The Magistrate on that date also made an AVO, a result of which was that the applicant resided with his grandmother. The tribunal notes that the applicant was charged with a serious offence, in the context of domestic violence, wounding his brother with a knife, and that it was a reasonable decision of the police to refuse bail and present the applicant before a Magistrate as soon as reasonably practicable. It was also a reasonable police decision to apply for an apprehended violence order where the facts were that a domestic violence offence had occurred, where one brother had wounded another brother with a knife.

43 The decision in Gichura is consistent with the decision of Sully J in Commissioner of Police v Estate of Russell. Edward John Russell had been arrested by police and taken into police custody. He had complained that in arresting and detaining him police officers had discriminated on the grounds of his race, he being an Aboriginal man. The complaints were considered and upheld by the Equal Opportunity Division of the Tribunal and the Commissioner appealed against that decision to the Appeal Panel. The Appeal Panel referred several questions of law to the Supreme Court for its determination......[The judgement sets out relevant extracts from Russell and continues:]........

.........

45 The case of Russell went on appeal to this Court, but that issue was not further agitated: Commissioner of Police v Estate of Russell [2002] NSWCA 272; 55 NSWLR 232. The reasoning of Sully J, however, demonstrates the assistance which may be obtained by answering questions referable to specific findings of fact. There may be a real difficulty in identifying, in particular factual circumstances, the limits of the concept of "services" in relation to the exercise by police of their functions, both under the general law and under statute. Absent findings as to such circumstances, it would be doubtful whether this Court should reconsider the line of authority referred to above, which appears to be inconsistent with the submissions sought to be made for the Commissioner. In any event, that line of authority includes the approval of Farah by the High Court in IW

The NSW Court of Appeal, per Spigelman CJ, Basten JA, thereby declined to reconsider the authorities and in particular noted that the line of authority included approval of Farah by the High Court. The tribunal considers that it is bound to consider and apply the line of authority detailed by the Court of Appeal (such as Russell, Farah, Gichura) where it is applicable to the facts of the present case. The decision of Justice Yates in Robinson is also authority which the tribunal should have regard to. It was decided subsequently to the Court of Appeal decision in Mohamed. Counsel for the Respondent did indicate during the hearing that she believed an appeal was under consideration from that decision, however at the time of writing these reasons for decision there was no confirmation of such appeal nor an appeal decision available.

The tribunal has considered the case law as set out above as to whether the respondent, or the police, were providing the applicant with a service at the relevant time. The tribunal accepts that the authorities establish the service needs to be defined with precision by the applicant - the services defined by the applicant are set out above in the summary of the Points of Claim. The authorities as to when police may be said to be providing a service to an individual are complex, and have been carefully considered by the tribunal in the light of the objects of the Anti-Discrimination Act to prevent unlawful discrimination by public authorities. After careful consideration of the authorities and the facts of the present matter the tribunal finds as follows. The pursuit and arrest of a suspected criminal is not the provision of the service to the person being pursued or arrested. The determination of the bail application does not involve the provision of a service; and the decision to bring criminal proceedings against a person is not the provision of a service to that person. The care of a detainee may involve the provision of a service although there is some question over whether all aspects of detention involve the provision of a service. In applying these principles the tribunal finds that the handcuffing, cautioning, questioning and arrest of the applicant at about 12:20 pm on 19 August 2009 did not involve a service to the applicant; the conveyance by police vehicle to Castle Hill police station, on the facts of this case, did not involve the provision of a service to the applicant, this was proper police practice following arrest; questioning in custody did not involve a service to the applicant; the decision to apply for an AVO did not involve a service to the applicant; and the decision to charge the applicant did not involve a service to the applicant. The respondent's consideration of bail and the decision to refuse bail initially did not involve a service to the applicant but was a requirement of to law pursuant to the Bail Act; and attending the applicant's home to enquire about compliance with bail conditions did not involve a service to the applicant. The making of an entry in the police data base, the COPS entry, did not involve provision of a service to the applicant.

The tribunal also agrees with the submission of the respondent's representative that the AD Act does not require the respondent to provide special services to meet the needs of a person with a disability. The Anti-Discrimination Act is directed at equality of treatment: per, majority judgement of Gummow, Hayne and Hayden JJ at paragraphs 196 to 208, High Court of Australia judgement in Purvis the State of New South Wales (2003) 217 CLR 92 (Purvis) :

In so far as those [international] instruments were said to bear upon the proper construction of the Act, however, it is necessary to notice an important respect in which the subject of disability discrimination differs from some other forms of discrimination. Central to the operation of the Sex Discrimination Act and the Racial Discrimination Act 1975 (Cth) ("the Racial Discrimination Act") is the requirement for equality of treatment. A central purpose of each of those Acts is to require that people not be treated differently on the ground of sex or race. Difference in sex or race is identified as a generally irrelevant consideration[123].

By contrast, disability discrimination legislation necessarily focuses upon a criterion of admitted difference. The abilities of a disabled person differ in one or more respects from that range of abilities which is identified as falling within the band described as "normal". It follows that disability legislation must be understood from the premise that the criterion for its operation is difference. That has important consequences, not only for the lessons that may be learned from the way in which other legislatures or deliberative bodies have identified the problems that should be considered, but also for the proper understanding of the solutions that have been devised by those other bodies to answer the problems identified.

Since the Act was enacted in Australia, legislation enacted in other jurisdictions has sought to give effect not just to a principle requiring equality of treatment but to what is sometimes called a "substantive conception of equality"[124], in which the purpose is "to prevent or compensate for disadvantages"[125]. (Many of the international instruments to which we were taken must also be understood in that way.)

Concepts of "difference", "disability" and "disadvantage" all depend upon comparisons. They assume that there is a person, or a group of persons, with whom it is useful and relevant to draw the comparison which is implicit in describing one person as "different", or "disabled", or "disadvantaged"[126]. Obviously, the utility and relevance of the comparison depends upon why it is being made. Different comparisons may have to be drawn according to whether the purpose is limited to ensuring that persons situated similarly are treated alike, or the purpose is wider than that. In particular, if the purpose of legislation is to ensure equality of treatment, the focus of inquiry will differ from the inquiry that must be made if the relevant purposes include ensuring equality in some other sense, for example, economic, social or cultural equality.

"Substantive equality" directs attention to equality of outcome or to the reduction or elimination of barriers to participation in certain activities. It begins from the premise that "in order to treat some persons equally, we must treat them differently"[127]. Obviously there are many ways in which "substantive equality" can be defined and there are many different ways in which legislatures may seek to achieve it.

The principal focus of the Act, however, is on ensuring equality of treatment. In this respect it differs significantly from other, more recent, forms of disability discrimination legislation. In particular, for present purposes, it is important to notice that, unlike the Disability Discrimination Act 1995 (UK) ("the 1995 UK Act"), the Americans with Disabilities Act of 1990 ("the ADA")[128] or the European Community Directive for "establishing a general framework for equal treatment in employment and occupation"[129], the Act does not explicitly oblige persons to treat disabled persons differently from others in the community.[Tribunal emphasis] The Act does not, for example, contain provisions equivalent to ss 5 and 6 and ss 28B to 28G of the 1995 UK Act which expressly oblige employers and educational authorities to make "reasonable adjustments" to accommodate disabled persons[130].......

.....Considerable care must be taken, therefore, before applying what has been said about either the aims or the effect of other forms of disability discrimination legislation from other jurisdictions to the construction of the Act. Even more care must be taken before adopting the necessarily general forms of aspirational, as distinct from normative, statements found in international instruments as an aid to resolving the particular questions of construction which now arise. Aspirational statements are commonly concerned to state goals, not to identify the particular methods by which the stated goals will be achieved. Those international instruments to which we were referred took this aspirational form.

None of the considerations just mentioned denies the importance of giving full effect to the indirect disability discrimination provisions of the Act. Well before the Parliament's enactment of the Act, the Sex Discrimination Act or the Racial Discrimination Act, it had been recognised in the United States[135] that, in some cases, nominally equal treatment can disguise discrimination. As Gaudron and McHugh JJ were later to point out in Castlemaine Tooheys Ltd v South Australia[136], to proceed as if there is no difference, even though there is a relevant difference, may be discriminatory. But as later developments in connection with affirmative action and reverse discrimination legislation in the United States reveal, there is considerable room for debate about when apparently "equal" treatment is to be understood as being discriminatory and apparently unequal treatment is not[137].

With these considerations in mind, how should the issues of statutory construction which arise in this matter be resolved?

The views of the majority judgement of the High Court in Purvis case do indicate the complexity of discrimination legislation in its application to disabilities. The judgement stresses the importance of giving effect to the purpose of the Act, and the difficulties presented by nominally equal treatment which may be discriminatory. The majority judgement indicates that the focus of the legislation is directed to equality of treatment and not to provision of special treatment. In relation to the Commonwealth legislation, s 5 of the Disability Discrimination Act 1993 (Cth) was repealed and substituted with a new s5 by the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009, such substituted s5 including requirements for reasonable adjustments to be made in respect of disability (s5(2)). The wording of s5(2) as amended differs from the previous wording which was applicable at the time of the High Courts' decision in Purvis. The NSW Anti-Discrimination Act (s49B) does not contain similar provisions to the amended s5(2) of the Commonwealth Act in relation to reasonable adjustment requirements. The definition in the NSW legislation remains similar to s5(1) considered by the High Court in Purvis.

The respondent in caring for a detainee may provide services to the detainee, in terms of the AD Act. The custody manager has specific responsibilities under the LEPRAct, however it is not necessarily the case that compliance with these legal obligations is also provision of a service to the applicant. Certainly, care in custody must be provided in a non-discriminatory fashion and if a detainee was treated less favourably than another detainee on the basis of disability then the tribunal considers that this may be unlawful discrimination depending on the facts of the individual case and the evidence as to the service which is refused or supplied on less favourable terms.

In the present matter it is claimed by the applicant that the service to the applicant in custody which was refused was the offer of a support person to the applicant as a vulnerable person in breach of LEPRAct obligations. The tribunal has found as a fact that there was no breach of LEPRAct obligations. However the tribunal has also examined whether on the evidence the applicant was treated less favourably in the same circumstances as another detainee because of his disability, by the respondent, while in custody at the police station.

Differential / less favourable treatment

The majority judgement in Purvis Case (Purvis v New South Wales [2003] HCA 62; 217 CLR 92; 202 ALR 133; 78 ALJR 1 (11 November 2003)) stated that the comparator is a person without the applicant's disability in considering whether the treatment of the applicant by the respondent is less favourable in the same circumstances or circumstances which are not materially different. Section 49B of the Act indicates that for the applicant to establish disability discrimination he must establish on the evidence that the respondent treated the applicant less favourably than in the same circumstances, or in circumstances which are not materially different, the respondent treated or would treat a person who does not have that disability.

In the present case the applicant did not lead any evidence about a comparator, or a hypothetical comparator, for consideration by the tribunal in assessing whether there was less favourable treatment. The applicant was represented by solicitor and Counsel. At paragraph 213 the majority judgement in Purvis focused on the comparison to be made for the purposes of the wording of the Commonwealth Act, which is in substantially the same terms as the relevant provisions of the AD Act, NSW (s49B).

Direct disability discrimination - the comparison to be made

Section 5(1) of the Act requires comparison between the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person's disability "in circumstances that are the same or are not materially different". If that comparison reveals that the disabled person was treated less favourably, the further question which must be asked is whether that was because of the disabled person's disability. Section 5(1), therefore, requires equality of treatment between the disabled and those who are not. Attention is invited to how the discriminator "treats or would treat a person without the disability" (emphasis added). The "comparator" identified by s 5(1) is "a person without the disability".

The comparison that is to be made is of the treatment given or proposed to be given to the disabled person and the treatment of a person without the disability "in circumstances that are the same or are not materially different". Recognising that s 5(1) requires comparison with the treatment that would be given to a person without the disability is critical to the proper application of the Act. It is a comparison which is very different from the comparisons required by other forms of disability discrimination legislation.

Despite the absence of any evidence led by the applicant as to a comparator or hypothetical comparator, the tribunal has considered the hypothetical comparator of a young man in custody for the first time, who has committed an offence against a family member, wounding the family member by use of a knife, who did not have the applicant's disability or claimed disability. Having regard to the hypothetical comparator the tribunal has considered whether there was less favourable treatment of the applicant on the evidence.

The applicant was cautioned and advised of his rights by the custody manager in accordance with the custody manger's obligations under Part 9 LEPRAct, he was not treated less favourably. He was given access to legal advice, medical attention when it appeared required, and refreshment (a meal). His mother visited him in the cells and spent time with him there, and was given a blanket to give to him. He was able to show his mother paperwork given to him by the custody manager. His father was permitted to visit him in custody, to sit with him in the dock, and to be present with him in the dock when investigating police (Wilkins and Last) offered him an interview. The applicant's father was given a copy of relevant paperwork by the custody manager. There is simply no evidence of less favourable treatment of the applicant, than a hypothetical comparator in custody, on the evidence presented.

Even if it was considered that the failure of investigating officers to report to the custody manager the parent's advice of Asperger's syndrome was a refusal of a service to the applicant by denying him the designation of vulnerable person (and the tribunal is not necessarily satisfied on the evidence that there was such failure given the officers reasonable assumption that the applicant's father was sitting in the dock as a support person) - the applicant is required to prove causation to establish unlawful discrimination.

Causation

The applicant needs to prove causation to establish disability discrimination: that is, the applicant must establish that one of the real, genuine or true reasons for any less favourable treatment of the applicant by the respondent was his disability. As was pointed out by the High Court in Purvis the central question will always be why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Was any failure to communicate advice received about Asperger's syndrome to the custody manager because of the applicant's disability? The tribunal finds, on the evidence, that Wilkins and Last assumed it had been reported and that this assumption was reasonable given the presence of the applicant's father in the dock with the applicant appearing to be there as a support person. The tribunal is not satisfied that any failure to report the advice that the applicant had a disability or claimed disability, by police, if such occurred, was because of the applicant's disability. In relation to the applicant's claim that the failure to treat him as a vulnerable person while in custody under relevant legislation was discrimination against him on the grounds of his disability, the tribunal is not satisfied that the applicant has established that the respondent's actions in this regard were because of the applicant's disability or claimed disability. The tribunal has found that Sergeant Hunt assessed the applicant in a proper way and formed the view, on reasonable grounds, that he was not a vulnerable person. The reason she formed that view was not because of his disability.

When the tribunal examines the respondent's actions, as complained about by the applicant, the tribunal cannot conclude that one of the real reasons for those actions, on the evidence overall, was the applicant's disability. Why was the applicant arrested? The evidence indicates the arrest was due to the fact that the applicant appeared to police to have committed a serious criminal offence. There is no evidence that he was arrested because of a disability, whether such disability was a mental illness, mental condition or other disability. Why was the applicant taken to the police station? The evidence indicates that he was taken to the police station because he had been arrested and it was standard police procedure. He was not taken to the police station because of any disabilities. Why was he held in custody? He remained in custody, as is usual police procedure, until bail was determined. He was not in custody because of any disability. In relation to bail the question as to why police refused bail is answered by consideration of the evidence - the police considered the seriousness of the charge which included injuries to the victim, the applicant's brother, was such that bail should be refused. The next day the applicant was presented to court and a conditional bail was granted by a Magistrate under the Bail Act.

The bail conditions were a matter of judicial decision and were not actions of the police or the respondent. In relation to the application for an AVO the evidence indicates there were reasonable and appropriate considerations by the police in making the application for an AVO given the offence of violence occurred in the applicant's home, between family members, and injury was sustained. There was no evidence before the tribunal that the application for an AVO on 19 August 2009 was made by police because of the applicant's disabilities or claimed disabilities. In relation to the visit to the applicant's home due to alleged breach of bail conditions in July 2010 the police acted on information then held by police, the applicant provided the officers with updated information and no further action was taken by police. There is no evidence indicating that the enquiries by police were motivated or caused by any disability or claimed disability possessed by the applicant.

Indirect discrimination

In closing submissions the applicant's legal representative raised indirect discrimination. This was not raised in the applicant's points of claim which have been summarised above in these reasons the decision. Nor was any evidence led by the applicant in the proceedings to address such a claim. Indirect discrimination is unlawful pursuant to s 49B(1)(b) of the AD Act:

49B(1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator:

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

The tribunal is not satisfied on the evidence that the applicant has established that he was required by the respondent to comply with a condition with which a substantially higher proportion of persons who do not have that disability, comply or are able to comply. No such requirement or condition was identified by the applicant in the proceedings, nor was any evidence led that a substantially higher proportion of persons without his disability could comply with a requirement or condition imposed by the respondent on the applicant. Nor was any evidence led of the (unspecified) requirement being not reasonable having regard to the circumstances of the case. The tribunal should not be required to sift through the evidence in an attempt to establish a basis for indirect discrimination, and this is particularly so where the applicant is legally represented. However, on consideration of the evidence overall, the tribunal is not satisfied that the applicant has established that the respondent required the applicant to comply with a requirement or condition with which a substantially higher proportion of persons who do not have the disability comply or are able to comply.

Conclusion

For all of the above reasons the tribunal is not satisfied that the applicant has established that he was discriminated against, by the respondent, in provision of services, for reason of his disability. Accordingly the tribunal dismisses the application.

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Decision last updated: 11 February 2013

Medium Neutral Citation:	Mariani v NSW Police Force, State of NSW [2013] NSWADT 35
Hearing dates:	3,4,5,6 September 2012
Decision date:	11 February 2013
Jurisdiction:	Equal Opportunity Division
Before:	C Huntsman, Judicial member N Hiffernan, Non-Judicial member D Kelleghan, Non-Judicial member
Decision:	The application is dismissed
Catchwords:	Disability Discrimination in provision of services; whether services; whether respondent refused services to applicant as a vulnerable person; disability; less favourable treatment; causation
Legislation Cited:	Sections 4, 49B and 49D Anti-Discrimination Act 1977 (NSW); section 112, 122, 123 Law Enforcement Powers and Responsibilities Act 2002; various clauses Law Enforcement (Powers and Responsibilities) Regulation 2005; s 5 Disability Discrimination Act 1992 (Cth)
Cases Cited:	Commissioner of Police, NSW Police Service v Estate Edward John Russell and Ors. [2001] NSWSC 745 (31 August 2001); Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 (20 July 2012); - Patrick v State of South Australia (No. 2) [2009] SAEOT 1 (21 January 2009); Commissioner of Police v Mohamed [2009] NSWCA 432 (23 December 2009); Purvis v New South Wales [2003] HCA 62; 217 CLR 92; 202 ALR 133; 78 ALJR 1
Category:	Principal judgment
Parties:	Adrian Mariani, (Applicant) NSW Police Force, State of NSW, (Respondent)
Representation:	Counsel Ms Veloski (Applicant) Ms Eastman (Respondent) SKM Lawyers (Applicant) Norton Rose (Respondent)
File Number(s):	111093