Russell v Commissioner of Police, NSW Police Service and Nine Individual Police Officers - [2001] NSWADT 32

No judgment structure available for this case.

CITATION: Russell -v- Commissioner of Police, New South Wales Police Service & ors [2001] NSWADT 32

DIVISION: Equal Opportunity Division

PARTIES: APPLICANTS
Helen Russell and Ted Russell on behalf of the late Edward John Russell
RESPONDENTS
Commissioner of Police, New South Wales Police Service
Senior Constable Mewburn
Constable First Class Hook
Senior Constable Mountford
Senior Constable Bellamy
Sergeant Healey
Constable Gow
Senior Constable Griffiths
Detective Keogh
Constable Morris
Senior Constable Callaghan
Detective Sergeant Carter

FILE NUMBER: 001016

HEARING DATES: 20/07/00, 21/07/00, 12/10/00, 13/10/00

SUBMISSIONS CLOSED: 10/13/2000

DATE OF DECISION:
02/26/2001

BEFORE: Ireland G - Judicial Member; Farmer L - Member; Taksa L - Member

APPLICATION: Race Discrimination - Goods and Services - Racial - Vilification

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Acts Interpretation Act 1901
Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Industrial Relations Act 1988 (Cth)
Occupational Health and Safety Act 1983
Police Service Act 1990
Racial Discrimination Act 1976 (Cth)
Sex Discrimination Act 1984 (Cth)

CASES CITED: Graham J in M v R P/L (1988) (EOC 92-229)
Pillai vs Messiter (unreported NSW court of Appeal 28 July 1988)
Harou-Sourdon v TCN Channel Nine Pty Ltd [1994]EOC 92-604
Wagga Wagga Aboriginal Action Group v Eldridge [1995] 92-701
Kazak v John Fairfax Publications Limited [2000] NSWADT 77
Western Aboriginal Legal Service Limited v Jones & anor [2000] NSWADT 102
Canadian National Railway Co v Canada [1987] 1 SCR 1114
Attorney General for New South Wales v Perpetual Trustee Company Limited [1994] 92CLR113
Director General of Education & Anor v Breen & Ors [1984]EOC92-015
Sellars v Woods [1982] 45 ALR 113
Chapman v Commissioner Australian Federal Police [1983] 50 ACTR 23
Enever v the King [1906] 3 CLR 969
Baume v The Commonwealth [1906] 4CLR97
Fisher v Oldham Corporation [1930] 2KB 364
Farah v The Commissioner of Police of the Metropolis [1997]1ALLER239
IW v City of Perth [1996-1997]191 CLR 1
CIC Insurance Limited v Bankstown Football Club Limited [1997] 187 CLR 384
Saraswati v The Queen [1991] 36 ALJR 402
Trevesan v The Federal Commissioner of Taxation [1991] 101 AOR 26
Minister for Immigration & Ethnic Affairs v Teoh [1995] 128 ALR at 353
Mahmut v The NSW Department of Health (unreported, 31 October 1994)
Stephenson v HREOC (1996) 68 FCR 290

REPRESENTATION: APPLICANT
N Poynder, barrister
RESPONDENTS
W Haylen QC with G Willis barrister for 1st respondent
C Ronalds, barrister for 2nd, 23, 5th, 6th, 7th, 8th, 9th, 10th, 12th respondents

ORDERS: 1. That the complaint, brought on behalf of the late Edward Russell, that the Police Service and the Police officers named as Second to Eleventh Respondents in the Points of Claim filed in this enquiry, unlawfully discriminated against the late Mr Edward Russell on 11th December 1993, in terms of section 7(1)(a) of the Act, is substantiated; 2. That the claim, brought on behalf of the late Mr Edward Russell, that the Police Service and the Second to Eleventh Respondents named in the Points of Claim, unlawfully vilified the late Edward Russell under Section 20(C) of the Act, is substantiated ; 3. That the claim brought on behalf of the late Mr Edward Russell that on 11th December 1993, Detective Sgt Carter, the twelfth Respondent named in the Points of Claim, unlawfully discriminated against the late Edward Russell, has not been substantiated, and the Tribunal directs that that claim be dismissed; 4. That the Police Service and the Second to Eleventh Respondents, other than Senior Constable Mountford and Senior Constable Callaghan, pay to the Estate of the late Edward Russell, as compensation for the unlawful conduct, the subject of directions 1 and 2, a total amount of $30,000.00 and that the liability of each of the Police Service and the relevant Respondents be joint and several. It is noted that the effect of this Direction will be that the Estate of the late Edward Russell will be entitled to recover the amount of $30,000.00 from any one of the Respondents. The question of the rate of contribution between the Respondents for the amount awarded was not addressed to the Tribunal and the Tribunal will consider a direction as to contribution if the Respondents make an application to the Tribunal; 5. That the New South Wales Police Service and each of the police officers being the Second to Eleventh Respondents, other than Senior Constable Mountford and Senior Constable Callaghan, within twenty-eight days of the date of the date of this decision jointly cause to be published in the Oberon Review an apology to the late Mr Edward Russell and to his parents, in the form of the apology annexed to this decision and marked 'A'; 6. That the Police Service and each of the Police officers the subject of the direction 4, individually write a letter to the parents of the late Edward Russell, containing an apology in the form annexed hereto and marked with the letter 'B'; 7. That the New South Wales Police Service cause a record to be made on the file of each of the Police Officers being the Second to Eleventh Respondents, other than Senior Constable Mountford and Senior Constable Callaghan, being a record kept by the New South Wales Police Service called ‘Employee Management Record’, stating that this Tribunal, after enquiry, has found that a complaint of unlawful racial discrimination and a complaint of unlawful racial vilification under the Anti-Discrimination Act 1997, arising out of the apprehension and arrest on 11th December 1993 of the late Edward Russell, against (name of officer), was substantiated.

Introduction

1 This enquiry by the Equal Opportunity Tribunal relates to a complaint under the Anti-Discrimination Act 1997 (“the Act”) lodged by Helen and Ted Russell on behalf of their son, Edward John Russell. The complaint was lodged with the Anti-Discrimination Board on 6th February 1998. At that date Edward John Russell was alive but was in prison. He subsequently died in late 1999 in circumstances that are not the subject of this enquiry.

2 The Tribunal has assumed that the President of the Anti-Discrimination Board accepted the complaint under Section 88(2) of the Act, which permits a complaint to be made on behalf of another person if the person is under eighteen (18) years of age or has a disability. The evidence before the Tribunal would support the President of the Anti-Discrimination Board being satisfied, in accordance with that Section, that Edward John Russell was a person with a disability and that he consented to the lodgment of the complaint. No reference to this background is made in the report by the President of the Anti-Discrimination Board to the Tribunal, a document which by consent of the parties, was an exhibit for the enquiry. The Respondents did not take issue that the complaint was properly founded under Section 88(2) of the Act.

3 On the death of Edward John Russell in 1999, pursuant to Section 88A of the Act, the complaint survived and continued to be maintained by his parents, Helen and Ted Russell. Section 88A of the Act is in the following terms:

88A. Death of complainant does not terminate complaint

(1)

If a complainant dies before his or her complaint is finally determined, the complaint survives and the estate of the complainant:

(2) If a respondent dies before any complaint against him or her is finally determined, the complainant may continue to pursue the complaint (including any appeal) and any monetary sum ordered to be paid in respect of the complaint is payable from the estate of the respondent.

4 The material in the report by the Board to the Tribunal shows that the Board, in referring the complaint to the Respondents, interpreted the grounds of the complaint in terms different to the manner in which Counsel for the Applicant presented the complaint to the Tribunal. The Points of Claim filed by the Applicant were framed in terms consistent with the complaint as formulated by the Board. On the first day of hearing, Counsel for the Applicant sought leave to amend the Points of Claim. No objection was made by the Respondents to the manner in which the Applicant amended the Points of Claim. The enquiry proceeded with the evidence and arguments based on the amendment of the Claim made by the Applicant on 20th July 2000. Claims are made against 11 police officers and against the New South Wales Police Service (The Police Service) as the employer of those police officers, under Section 53 of the Act.

5 Two of the police officers, Senior Constable Mountford and Senior Constable Callaghan, are no longer member of the Police Service and they were not served notices of the Hearing of the enquiry. They did not appear at the enquiry nor were they represented, and in these circumstances the Tribunal considers that it is unable to make those two former police officers the subject of any direction or award arising out of its decision, but the two individuals may be the subject of findings by the Tribunal in relation to their conduct.

6 The remaining nine police officers who are Respondents, were represented by Counsel, as was the New South Wales Police Service.

7 Mr Haylen QC, for the Police Service, did not contest the evidence of the Applicants. He confined his presentation to the Tribunal to the questions relating to the application of Section 53 of the Act to the Police Service and questioned whether the circumstances of the complaint involved the provision of services by the police officers of the Police Service.

8 Ms Ronalds, representing the nine (9) police officers, did not cross examine the witnesses who gave evidence on behalf of the Applicants, and nor did the police officers give evidence before the Tribunal or produce evidence to the Tribunal.

CIRCUMSTANCES OF THE COMPLAINT

9 Mr and Mrs Russell allege that at approximately 2.00am on 11th December 1993, their son, Edward John Russell was apprehended and arrested at the Wisemans Creek Road in Oberon in New South Wales and that ten of the police officers who are Respondents, (who will be called “the police officers”) were in attendance at the scene of the arrest. The eleventh police officer Respondent, Detective Sergeant Carter (hereafter called “Sgt Carter”) interviewed Edward John Russell at the Bathurst Police Station on the morning of 11th December 1993. Sgt Carter was not present at the scene of the arrest.

10 It is alleged that the 11 police officers, in carrying out the apprehension and arrest of Edward John Russell (hereinafter called “Edward Russell”) unlawfully discriminated against him on the ground of his race, and on the ground of his race, subjected him to unlawful racial vilification.

11 In relation to Sgt Carter, it is alleged that in the interview of Edward Russell, Sgt Carter unlawfully discriminated against Edward Russell on the grounds of his race, by failing to notify the Police Service of a complaint by Edward Russell that he had been assaulted and injured during his arrest at Oberon. The evidence shows that the eleven police officers denied these allegations. Although Respondents Mountford and Callaghan did not participate in the hearing, they had in police internal investigations, denied the allegations.

12 The complaint further alleges that the Police Service, as the employer of the police officers, is vicariously liable for the unlawful acts of the police officers.

FORMULATION OF CLAIMS

13 Consideration needs to be given at an early stage to the application of the Act to the allegations arising out of the complaint as outlined in the introduction. Difficulty has been experienced by the Applicant, and indeed by the Board, in the determination of the precise application of the Act to the circumstances as alleged in the complaint. As a result of the amendments to the claims made by the Applicant at the beginning of the enquiry, the Tribunal sees the need to precisely formulate the claims in accordance with those amendments, in order to ensure that in examining the variety of issues that have been presented to it, those issues can be addressed within the proper framework of the claims.

14 The Tribunal has proceeded to examine the following claims:

(i) That the conduct and language of the police officers towards Edward Russell during his apprehension and arrest on 11th December 1993, contravened Section 7 (1) (a) of the Act by discriminating against him, on the ground of his race.

(ii) That Sgt Carter contravened Section 7(1)(a) of the Act, on 11th December 1993, at the Bathurst Police Station, by failing to report to the Police Service a complaint made by Edward Russell that he had been assaulted and injured during his apprehension and arrest, and that the failure of Sgt Carter discriminated against Edward Russell on the ground of his race.

(iii) That the circumstances of the conduct and language of the police officers at Oberon on 11th December 1993 during the apprehension and arrest of Edward Russell, constituted unlawful racial vilification, under Section 20(C) of the Act, as it incited hatred towards, serious contempt for, and severe ridicule of Edward Russell, on the grounds of his race.

(iv) The Police Service, as the employer of the police officers and of Sgt Carter and of Respondents Mountford and Callaghan, on 11th December 1993, under Section 53 of the Act, was deemed to have done the acts done by the Respondents on 11th December 1993 in relation to Edward John Russell, and those acts constitute contraventions of the Act.

(v) The contraventions of the Act deemed to have been done by the New South Wales Police Service, were unlawful:-

(vi) The conduct and language of the police officers towards Edward Russell during his apprehension and arrest at Oberon on 11 December 1993, was unlawful, by virtue of Section 52 of the Act, as the conduct and language caused, induced, aided and permitted the Police Service to act unlawfully in breach of the Act.

15 The claims, shortly stated, are that the police officers, Sgt Carter and the Police Service unlawfully discriminated against Edward Russell and that the police officers and the Police Service unlawfully, racially vilified Edward Russell.

16 The operation of Section 53 of the Act in relation to the discrimination provisions of the Act was canvassed by Graham J in M v R P/L (1988) (EOC 92-229) at 77174:

“In so holding, that conclusion is not based on the fifth submission made by Mr Harben. In that submission, counsel for the complainant sought to rely upon what was said by Matthews J. in O’Callaghan v. Loder (No. 1)(1984) EOC 992-022 AT 75,494 where after paraphrasing sec. 53, her Honour said:

“It preserves the liability of the agent or employee.”

Mr Harben’s submission seeks to read into her Honour’s remarks what is not there, namely an assertion that there is some pre-existing liability on the part of the employee. Those remarks should read as simply acknowledging the force of the provision in sec. 53 to the effect that the act of the employee is deemed to be done by the employer as well as by the employee. In other words, the section does not deem the act to be no longer that of the employee. It follows that any legal liability on the part of the employee arising from any other provision of the Act is still able to attach to the acts of the employee. To acknowledge that position is a far cry from asserting that sec. 53 creates some new or specific legal liability on the part of the employee.”

THE EVIDENCE

17 In the evidence available to the Tribunal, details of the occurrences of the apprehension and arrest of Edward Russell on 11th December 1993, are limited. The death of Edward Russell restricted the Tribunal to assess his evidence from two statements. Firstly, a statement prepared by an investigating police officer, for an Internal Affairs Investigation of a complaint relating to the apprehension and arrest of Edward Russell. That statement was dated 18th May 1994, approximately 6 months after the arrest. At that time Edward Russell was in Bathurst Jail serving a sentence relating to offences prior to and unconnected to the events of 11th December 1993. The other statement of Edward Russell was one taken by his Solicitor at Long Bay Jail on 1st July 1998, for the purposes of this enquiry. Both of those statements are not comprehensive in describing details of the events that occurred on 11th December 1993. Having regard to the medical reports produced to the Tribunal about Edward Russell’s limited mental capacity, his deafness and his state of illiteracy, it is clear that Edward Russell had difficulty in expressing himself in clear and logical terms. His conditions in the jails and his mental state would have made it difficult for him to concentrate and to recollect details of past events. The statements however contain information which the Tribunal has found helpful in its examination of the details of what occurred on the morning of 11th December 1993.

18 The Tribunal, in its examination of those details was not helped by the absence of evidence of the police officers. It has been submitted, and the Tribunal accepts, that it is entitled to infer from the absence of evidence from the police officers, that had they given evidence, their evidence would not have assisted them in their denial of the allegations of racial discrimination and racial vilification.

19 The Applicant called evidence of seven witnesses, each of whom had submitted written statements which were confirmed before the Tribunal. In the case of some witnesses, notably, Mr Milton Curnuck, Mrs Jennifer Curnuck and Mr Ben Curnuck, their statements were supported by oral evidence. None of the witnesses called by the Applicant were the subject of cross examination by either the First Respondent or by the police officers. In these circumstances the Tribunal is entitled to accept, as it does, that the evidence of the witnesses called by the Applicant, is truthful and reliance can be placed on the accuracy of that evidence.

20 To understand the context of the material which relates to the details of what occurred at Oberon on 11th December 1993 and on which the Tribunal has placed reliance, it is necessary to relate the events that occurred after the arrest and caused the material to be produced.

21 Mr Milton Curnuck, who with members of his family and unknown to the police officers at the time, overheard and observed portions of the language and conduct of the police officers at the scene of the arrest, was so disturbed by his experience that later on during the day of 11th December 1993, he wrote to the Editor of the local newspaper, The Oberon Review. In that letter Mr Curnuck criticised the actions of the police officers, in very strong terms. Mr Curnuck was contacted by a representative of the newspaper, which on 19th January 1994 published an article relating to the letter written by Mr Curnuck and the circumstances of the arrest described by Mr Curnuck to the newspaper representative.

22 About a month or so after the incident, Mr Curnuck was interviewed by the local television station, MTN Nine, which subsequently telecast a news segment of the interview.

23 As a result of the publicity arising out of the publication of the article in The Oberon Review, Chief Inspector Rayner, Control Commander at Bathurst, sent a copy of the newspaper article to the Commander of Internal Affairs of the Police Service and on 21st January 1994, C/I Rayner took a statement from Mr Curnuck which was then forwarded to the Internal Affairs Department. The statement of Mr Curnuck was the statement that he produced to the enquiry.

24 The Internal Affairs Department of the Police Service commenced an investigation of the activities of the police officers in relation to the incidents on 11th December 1993 and at the same time referred the matter to the New South Wales Ombudsman and reported the matter to the Independent Commission against Corruption. The Internal Affairs investigation was conducted by Detective Senior Sgt Grossmith, who reported his findings to his Senior Officer on 2nd June 1994. The Police Service produced to the enquiry a copy of that report and some of its attachments were produced to the Tribunal. However 16 attachments which comprised the reports and answers of each of the police officers and of other police officers were not produced because the Tribunal was advised by the Police Service, “Section 170 of the Police Service Act applies” to those attachments. The attachments to the report of Detective Senior Sgt Grossmith and produced to the Tribunal were:- copies of the Brief of Evidence against Edward Russell – it appears that this Brief was used when Edward Russell was brought before the Bathurst Court on charges arising out of the incidents on 11th December 1993; a series of photographs of the site of the arrest and of police vehicles; records of the Bathurst Police Station including a Police Occurrence Record made at 3.15am on 11th December 1993 and at 12.15pm on that day. Attached to the Brief of Evidence were statements of ten police officers who were present either at the arrest or at the Bathurst Police Station on 11th December 1993. Eight of the ten statements are by Respondent police officers and of those eight statements, the copies of the statements of Snr Constable Mewburn, Snr Constable Mountford, Snr Constable Bellamy and Constable Gow, are of such poor quality that they are illegible. The originals of these statements were not produced to the Tribunal and no explanation was given to the Tribunal for the unsatisfactory state of the copies. There is no explanation given to the Tribunal why the copies of the statements of the other six officers were quite legible in contrast to the condition of the copies of the statements of these four police officers. Included in the legible material are copies of statements by Sgt Carter. After the closing of submissions to the Tribunal, at the request of the judicial member of the Tribunal, the Police Service produced further copies of the statements of the six police officers, in a state, which enabled the Tribunal to read the statements.

25 The report to the Tribunal by the President of the Board, contains statements by eight of the police officers which were submitted by the Solicitor acting for the police officers, in answer to the request for information by the Board made on 8 July 1999. In his covering letter, the Solicitor states that at that time Snr Constable Griffiths was hospitalised and was on long term sick leave and was unable to complete a statement. The statements include statements from Snr Constable Gow, Snr Constable Mewburn and Sr Constable Bellamy and Sgt Carter. No statements were received by the Board in response to its request for information from Snr Constable Mountford or Snr Constable Callaghan. The Police Service produced to the enquiry the Statement of Provisional Findings and Recommendations by the NSW Ombudsman in relation to its enquiry. The Statement is dated 22nd March 1996. In the face of objections by Counsel for the police officers, the Tribunal accepted into evidence a copy of that Report but with the reservation that the Tribunal would have regard to the material in the report other than the findings of the Ombudsman. The Tribunal came to the conclusion that the issues being investigated by the Ombudsman were not necessarily identical or sufficiently similar to the issues to be addressed by the Tribunal in relation to the incidents the subject of this enquiry, to justify receiving the Ombudsman’s conclusions as evidence in this enquiry. The Ombudsman’s statement contains extracts of statements made by the police officers in the course of the Police investigation. The Tribunal has had regard to those extracts as supportive of evidence of other witnesses.

26 The investigation of the complaint of Mr Curnuck by the Internal Affairs Department of the Police Service considered two issues. Firstly, that Edward Russell was subjected to abusive and indecent language by police on 11th December 1993, and secondly, on that date he was assaulted by an unidentified police officer. On the first issue, the Report states:

“Having regard to the evidence available, I am of the belief that abusive language was used by a Police Officer who cannot be identified. The language concerned varies from that of Mr Curnuck to that of the complainant. However, the words “dickhead” are common to both complaints.

Accordingly I find that this issue is sustained against an unidentified police officer.

As the identity of the police officer remains unknown, I recommend that no further action be taken.”

27 On the second issue, the report concludes:

“25. Medical evidence from the Bathurst Jail shows that Russell was treated on 11th December 1993 for an alleged police assault. Injuries recorded are swollen left hand, swelling above left ear, handcuff marks, grazed back of shoulder, scratches to left upper chest. These injuries could be consistent with the fact that Russell was charged with two counts of Resist Arrest and three counts of Assault Police as recorded in the Brief of Evidence as attachment 21.”

“26. Having regard to all of the evidence I am of the opinion that the accounts given are conflicting and accordingly I find that the issue is not sustained.”

“27. In view of the conflicting statements, I am unable to determine where the truth lies. I therefore recommend that no further action be taken respecting this issue.”

The following paragraphs are contained in the report under the heading "General Comments":

“28. I interviewed Edward John Russell on 18th May 1994 at the Bathurst Prison. I gained the impression that he was slow, introverted and possessed a very undeveloped intelligence.”

28 The recommendations by the investigating officer were endorsed by a senior officer of the Police Service and no further action was taken at that stage, other than a copy of the report was sent to the Ombudsman under cover of a letter dated 16th June 1994.

29 By letter dated 24th November 1994, the Ombudsman wrote to the Police Service advising that he was not satisfied with the Police investigation due to deficiencies in that investigation. In relation to the first issue, the Ombudsman stated:

“I find the S146 Report deficient in that it does not address the issue arising out of this conclusion, namely, the consideration of the truthfulness or otherwise of all of the officers present at the time of the arrest of Mr Russell.”

30 The Ombudsman sets out details as to the reasons for his view of the deficiency of the investigation in relation to issue one. The Ombudsman refers to a more recent complaint received from the “Aboriginal Deaths in Custody Watch Committee” on behalf of Mr J E Russell. The Ombudsman requests that as the latter report deals with the same incident, that the two files be handled concurrently and pointed out that the latter complaint raises further points for investigation.

31 The Police Service referred the matter for further investigation by the Major Crime Squad on 12th December 1994. The Police Service supplied the Tribunal with:- a copy of the Executive Summary by Inspector A W Dick of the further investigation; a copy of a Report by Inspector Dick to the Commander of Internal Affairs North West Region dated 15th March 1995 and a list of attachments to that Report. The attachments were not produced to the Tribunal. The list shows that the attachments contain records of interviews between Inspector Dick and four of the police officers and also a record of interview between Inspector Dick and Detective Sgt Grossmith. The issues that Inspector Dick investigated were, firstly, that Sgt Carter failed to notify the Office of Internal Affairs of the complaint under the Police Service Act. Inspector Dick reported that the investigation disclosed insufficient evidence to support the allegations and he found the issue not sustained and he recommended that no criminal or departmental charges be preferred. The second issue was that the police at Bathurst, particularly Sgt Carter and Sgt Toohey failed to comply with recommendations of the Aboriginal Deaths in Custody report concerning facilitation of contact between Aboriginal persons in custody, relatives and family, particularly John Bugg who had guardianship of Russell. Inspector Dick found that the evidence is clearly contrary to the allegations made and he found the issue not sustained. He recommended that no criminal or departmental charges be preferred in relation to that matter. The third issue was that Detective Sgt Grossmith attempted to improperly obtain Edward Russell’s medical records relating to his past medical history from his parents. Inspector Dick found that the investigations failed to establish evidence to support this charge and he found that the issue was not sustained and recommended no action.

32 The fourth issue was that Detective Sgt Grossmith failed to properly investigate the alleged assault on Mr Russell on 11th December 1993. Dealing with this complaint, Inspector Dick makes the observation that Mr Curnuck “reveals that he is a person who jumps to conclusions”. Inspector Dick found that the evidence from the re-investigation of the matter does not in any way support the allegations and confirms the findings that Detective Sgt Grossmith arrived at on the first occasion and he found this issue not sustained and recommended no charges.

33 In dealing with the charge by the Ombudsman that the original investigation was deficient, Inspector Dick concludes:

“Mr Curnuck, unfortunately by the comments and conflicting information he has provided, has made himself a witness from whom little reliance could be placed. Competent cross-examination of Mr Curnuck would see his credibility destroyed.”

34 Inspector Dick does not make a specific finding in relation to the Ombudsman’s criticism of deficiencies. This report was sent to the Ombudsman by letter dated 28th March 1995. On 22nd March 1996 the Ombudsman issued his Statement of Provisional Findings and Recommendations. In October 1996, the Police Service referred to the Director of Public Prosecutions for advice as to whether criminal charges could be laid against any of the police officers and advice was sought from the legal branch of the Service on the question of departmental charges or any other action against the police officers. The Director of Public Prosecutions advised the Police Service that there was insufficient evidence to lay charges against the police officers. No departmental charges appear to have been made against the police officers.

35 The Police Service received the final report of the Ombudsman under cover of letter dated 23rd December 1997. A copy of that report is contained in the President’s Report to the Tribunal. In relation to the first issue of the use of offensive and abusive language on 11th December 1993, he states that he is unable to identify the police officers who used the language. He then states:

“I note that in arriving at this view, I have been constrained through the conflicting versions to reject the majority of the police evidence in respect of this issue of the complaint as untruthful.”

36 The second issue relating to the assault on Edward Russell, the Ombudsman stated:

“In the light of my conclusion on the previous issue relating to the abusive and offensive language, the credit of the police has been adversely affected and I do not accept their evidence on this issue.”

37 Under the heading, “Deficiencies of the Investigation”, a section headed “Possible Untruthfulness of Officers”, the Ombudsman states:

“In the circumstances, I must find that a number of police have adopted a position in respect of the allegation of abusive and indecent language which is completely at odds with my sustained finding. From the evidence of police as shown in paragraph 6.5, I note that a number of police must have been present at the time the abusive and indecent language was used.”

Later in the same section the Ombudsman states:

“To the extent that some, if not all, police were in the hearing of the abusive and indecent language, and no other explanation is available for the singular denials that such language was used, then those police must have been untruthful. Such a matter is one of credit.”

At the end of that section, the Ombudsman states:

38 The report of the Ombudsman concludes with a number of recommendations including:
“18.5 That a formal written apology be provided to Mr Curnuck in respect of the conduct of police witnessed by him and his family on 11th December 1993.
18.6 That the New South Wales Police service consider strong managerial action in respect of the officers concerned for failing to appropriately respond to the appalling treatment to which Mr Russell was subjected.
18.8 That a formal written apology be sent to Mr Russell and that the question of an ex gratia payment of compensation be raised with the legal authorised representatives of Mr Russell. Negotiations in respect of an ex gratia payment of compensation should be undertaken by police in good faith.”

39 The Police Service advised the Tribunal that a Statement of Regret was forwarded to Mr Russell on behalf of the Service and that a similar letter was forwarded to Mr Curnuck. The relevant part of the letter to Mr Russell reads:
“On behalf of the Chifley Local Area Command (formerly Bathurst Patrol), I wish to express the regret of this organisation that police exhibited a lack of professionalism for consideration during the pursuit and your apprehension on the evening of 11th December 1993”

40 By letters dated 29th May 1998, Commander Brammer of the Internal Affairs Unit of the Police Service wrote to the police officers, other than Messrs Mountford and Gow, who the Police Service advised had left the Service in 1995. The letter to Sgt Carter advised him that no formal disciplinary action was to be taken,
“However, a record of the comments at paragraph 8.7 of the report (of the Ombudsman) in relation to your involvement after this incident will be noted on your Employee Management Record.”

41 The letter to the other eight police officers was in different terms and contained the following paragraphs:
“In the course of the investigations sufficient evidence was found to support the serious allegations that an officer, or officers unknown, assaulted Mr Russell in the early hours of 11th December 1993 and directed abusive, offensive and threatening language towards him. As serious as these findings are, of equal concern is the indication that some, if not all officers present, were untruthful with the investigator and have omitted or chosen to ignore facts in order to protect the offending officer. This issue of lying by omission was raised in many instances as a consistent concern throughout the Royal Commission.
…..
A record of your involvement in this incident is recorded on the Complaints Information System.”

42 On the same day, that is 29th May 1998, Commander Brammer wrote to the Assistant Ombudsman. This letter contained the following comments:
“All officers involved in the matter have been forwarded a copy of your Report along with a letter from this Command detailing the indicted collusion which occurred and the detrimental affect this has on the Police Service

…..

….”

44 The records of the police investigations and the dealings with the Ombudsman and the subsequent police actions, were produced as annexures to an Affidavit by Detective Inspector Alan Champion of the Police Internal Affairs and Special Crime Unit. In his evidence to the Tribunal, Inspector Champion stated that a copy of the letters sent by Commander Brammer to the police officers, is attached the Complaints Investigation File which is kept in a hard copy and where a police officer applies for promotion regard is had to the information on that System. That system is distinct from the Employee Management Records, which are maintained in the Human Resources Area of the Police Service.

45 The statements supplied to the Board by seven of the police officers who were at Oberon at the site of the incidents on 11th December 1993 were forwarded to the Board under cover of the Solicitor’s letter dated 7 September 1999. Each of the statements was made at the Bathurst Police Station. Six of the statements were dated 2nd September 1999 and two of the statements were undated but were made in answer to the request from the Board of 8th July 1999. Each of the statements was therefore made after the police officers had received a copy of the Ombudsman’s Report from the Commander of Internal Affairs and had been advised by the Commander of the serious nature of the findings against the Police officers in that report, including the statement of the Commander that some, if not all officers present, were untruthful with the investigator and had omitted or chosen to ignore facts in order to protect the offending officer. Each of the police officers, in his statement to the Board, denies that he used any racist or unseemly language towards Edward Russell during his arrest and denies that he heard any other police officers at the scene of the arrest use any racist or offensive language to Edward Russell. The statements also contain a denial that either the police officer unlawfully assaulted Edward Russell or that he saw any other police officer assault Edward Russell during his arrest.

46 The Tribunal has considered this material together with the evidence of the witnesses presented by the Applicant in considering its findings of whether the police officers or one or more of them discriminated against Edward Russell in his apprehension and arrest on 11th December 1993 and whether during the apprehension and arrest of Edward Russell the police officers subjected him to unlawful racial vilification. These matters were considered by the Tribunal separately to the issue as to whether Sgt Carter at the Bathurst Police Station later in the morning of 11th December 1993 discriminated against Edward Russell on the ground of his race.

RACIAL DISCRIMINATION

47 The claim of unlawful racial discrimination against the police officers and the New South Wales Police Service, arises under Section 7(1)(a), Section 19(b), Section 53 and 52 of the Act. At the date of Hearing of the enquiry, those provisions were in the following terms:

“ 7 What constitutes discrimination on the ground of race
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, the perpetrator:

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

48 Section 19 was included in the Act, in substitution for the existing provision, by the Anti-Discrimination Amendment Act 1997 (“the Amending Act”) which commenced in 4th July 1997. The Amending Act also inserted sub-sections (3) and (4) of Section 53.

49 The question arises whether Section 19 in its present form and subsection (3) of Section 53, have application to a contravention of the Act arising out of acts done before the Amending Act, and, as in this enquiry, to a complaint under the Act made before the commencement of the Amending Act.

50 The Amending Act inserted Part 3 to Schedule 1 of the Act. Schedule 1 relates to savings and transitional provisions. Part 3 of Schedule 1 contains provisions relating to sections of the Amending Act which are expressed not to affect complaints or proceedings made before the commencement of the Amending Act. These provisions do not include the amendments relating to Section 19 and Section 53(3), about which the transitional provisions in Part 3 are silent.

51 Part 2 of Schedule 1 of the Act was inserted by the Anti-Discrimination Amendment Act 1994. That Act contained a number of amendments to the substantive provisions of the Act. Section 3 of Part 2 of the 1994 Amending Act explicitly provides for the amendments contained in the Act to not apply to anything done before the commencement of that Act and it further provides that the Act before the amendments will continue to apply as if the amendments had not been made. Part 3 of Schedule 1 does not contain a similar provision.

52 There is a sharp contrast between the transitional provisions affecting the amendments made by the 1994 and the 1997 amending legislation. In the view of the Tribunal this contrast signifies an intention by the parliament that the 1997 Amending Act was to apply to certain circumstances occurring before and to complaints made before the commencement of that Amending Act, except for the operation of the sections which are expressed not to apply retrospectively.

53 Section 30(1) of the Interpretation Act (NSW) 1987(“the Interpretation Act”) provides that an amendment of an Act does not:
“(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act.”

54 The subsection further provides that any investigation, legal proceeding, or remedy may be constituted, continued or enforced as if the Act has not been amended.

55 Section 5(2) of the Interpretation Act provides for the application of that Act to all Acts unless a contrary intention appears in the Act. McHugh J (Clarke & Rogers JA agreeing) in Pillai vs Messiter (unreported NSW court of Appeal 28 July 1988) dealt with the relation between these provisions, in these terms:
“Mr Sackar sought to rely on the well known decision of the Privy Counsel in Colonial Sugar Refining company vs Irving (1905) AC 369, the decision in Continental Liquiers Limited vs G F Heublein (1959) 103 CLR 422, and the principal enshrined in Section 30 of the Interpretation Act 1987. However, sections such as Section 30 which preserve accrued rights are always subject to any contrary legislative intention. In my view the manifest intention of the amending legislation in 1987 was to require a case such as the present to be dealt with under Section 32U of the Medical Practitioners Act 1938 and not otherwise.”

56 In the view of the Tribunal, the contrast between the transitional provisions of the 1994 and 1997 Amending Acts is a sufficient indication of a contrary intention of Parliament that the amendments in 1997, except for the exclusion of the sections expressly made to apply retrospectively, will apply to circumstances and to complaints existing before the Amending Act commenced.

57 This issue was not canvassed in any depth by Counsel who in their submissions, proceeded on the basis that Section 19 as contained in the Amending Act and subsection (3) of Section 53, inserted by the Amending Act, applied to the complaints dealt with in this enquiry. The Tribunal considers that is the correct approach and has proceeded to consider the complaints on the basis that those provisions apply to the complaints.

EVENTS AT OBERON

58 To determine the claim of racial discrimination, the Tribunal is required, from the evidence and material placed before it, to unravel the details of what occurred at 2.00am on 11th December 1993 in Wisemans Creek Road, Oberon during the process in which the police officers apprehended and arrested Edward Russell. The police officers who did not give evidence before the Tribunal, on each of the occasions when they have been required to make statements of their individual involvement in that incident, deny individually they used racist language or that they heard other police officers use racist language or that they individually or the other officers conducted themselves towards Edward Russell in a manner other than was necessary to restrain and place Edward Russell into custody. The statements of the police officers have been outlined earlier in this decision. When some of those statements have been examined independently by the Ombudsman, that official expressed doubts about the truthfulness of the statements. The Tribunal cannot ignore the Ombudsman’s opinion although it accepts that it is not bound by that opinion, particularly as the Ombudsman was examining the statements in relation to different legislation to the legislation under which the Tribunal is examining the veracity of the police officers in this enquiry. The Commander of the Internal Affairs Unit of the Police Service accepted the untruthfulness of the statements of the police officers in the Internal Affairs investigation enquiries which were considered in detail by the Ombudsman. The doubts of Commander Brammer were expressed in his letter to the Assistant Ombudsman of 29th May 1998 when he spoke of “the indicted collusion which occurred and the detrimental effect this has had on the Police Service” and he repeated his views in his letter of directions to the Commander of the local area. Despite the statement by the Ombudsman that he considered their statements to be untruthful, and notwithstanding the stricture of their conduct by Commander Brammer, the seven police officers who subsequently replied to the Board's request for a response to the complaints, maintained their denial that their actions or the actions of other police officers on 11 December 1993 involved any wrongdoing.

59 The Tribunal has formed the view that the conclusions reached by the Ombudsman and the Commander of the Internal Affairs Unit of the Police Service are correct especially when considered with the evidence of Mr and Mrs Curnuck and Mr Ben Curnuck and the statements of Mr Edward Russell. Having had the benefit of observing Mr and Mrs Curnuck and Mr Ben Curnuck in their presentation of evidence to the Tribunal, the Tribunal accepts the evidence of those witnesses including the statements of Edward Russell in preference to the denials of the police officers. Wherever the details in the evidence of the parties are in conflict, the Tribunal has given preference to the evidence of Mr and Mrs Curnuck and Mr Ben Curnuck and the statement of Edward Russell.

60 The absence of evidence before the Tribunal from the police officers, in the face of the evidence of Mr and Mrs Curnuck and Mr Ben Curnuck in particular, gives particular weight to the inference that had those police officers given evidence before the Tribunal, their evidence would not have supported their denials of the use of abusive language and unnecessary use of force in the apprehension and arrest of Edward Russell.

61 It becomes necessary to examine in detail the circumstances relating to the apprehension and arrest of Edward Russell and the evidence from the statements of Edward Russell and from Mr and Mrs Curnuck and Mr Ben Curnuck. The events leading to the arrest of Edward Russell are described in the Brief on Evidence prepared by Senior Constable Mewburn on 11th December 1993. He stated that at 1.05 am on that morning he was in Bathurst in the Patrol car 201 with Constable Hook when he observed a Holden Utility which he attempted to stop for a mobile random breath-test. The driver failed to stop and proceeded through the streets of Bathurst at considerable speed in what he be described as a reckless manner. Senior Constable Mewburn describes in detail the pursuit by Bathurst 201 through the streets of Bathurst and then onto the Mitchell Highway towards Orange. At that time Bathurst 202 with Senior Constables Mountford and Bellamy joined the chase together with Bathurst 10 with Sgt Healy and Constable Gow and Bathurst 2 with Constable Morris. Detective Sgt Mewburn describes the situation on the Rocks Creek Road when the utility diverged sharply to the left across three lanes and collided with Bathurst 202. Edward Russell gives a different account of this event and he stated that Bathurst 202 deliberately collided with the side of the utility and forced the utility to stop. He said that the police car spun around and nearly rolled over. There was also evidence that at that stage a police officer from one of the vehicles, using his baton, smashed the front windscreen of the ute. This did not stop the ute which then proceeded at reckless speed back into and through the town of Bathurst. During this stage of the pursuit Detective Sgt Mewburn describes that full bottles of beer were thrown out of the ute into the path of the pursuing police vehicles.

62 The pursuit proceeded through the township of Oberon and then headed back towards Bathurst and it finally stopped in Wisemans Creek Road when the engine failed. At that point, the utility veered to the left down an embankment. Detective Sgt Mewburn stated:
“The offender alighted from the vehicle, turned and faced Senior Constable Mountford and Constable Gow and commenced to strike out at them with closed fists. He continued to struggle violently and with the assistance of other police he was forced to the ground and handcuffed and placed into the rear of Bathurst 2 and conveyed to the Bathurst Police Station.”

63 Detective Sgt Mewburn’s statement shows that the ute had been stolen from outside the Bathurst Leagues Club by Edward Russell not long before 1.00am on 11th December 1993. That account of the police chase of Edward Russell shows that there were four police vehicles involved. In addition, there was a fifth vehicle being the Police Physical Evidence Section vehicle which Detective Sgt Keogh and Snr Constable Griffiths drove from the Bathurst Police Station when they heard on the police radio that the chase was developing. That police vehicle arrived at the Wisemans Creek Road at the time when the ute ran down the embankment.

64 There is no dispute that the evidence establishes that Edward Russell had participated in a dangerous and dramatic escapade in the stolen ute and that the vehicle containing Constables Mountford and Bellamy was involved in a collision with the ute during the chase, in circumstances where those police officers were in special danger. There is an issue, that is not relevant to be determined by the Tribunal, as to whether that collision was a result of actions instituted by Constables Mountford and Bellamy or by Edward Russell. A chase of this nature with elements of particular danger could be expected to arouse high emotion in all of those involved.

65 When the ute finally stopped, Sgt Healy described in this statement that just before the point at which the ute left the road, his Bathurst 10 vehicle was the lead vehicle in the chase closely followed by Bathurst 202 with Constables Mountford and Bellamy. Sgt Healy stated that Snr Constable Mountford was the first police officer to go down the embankment to the ute. Sgt Healy said that when he alighted from his vehicle and looked down the embankment he saw Snr Constables Mountford and Bellamy attempting to arrest Mr Russell and that he saw Constable Hook assisting them. Constable Gow, who had been in Sgt Healy’s vehicle, stated that he first saw Snr Constable Mountford as the only police officer down the embankment and that he then ran down the embankment:
“When I got to where Mr Russell was standing, he attempted to punch Senior Constable Mountford so the two of us grabbed one arm each and put him on the ground. With the assistance of Senior Constable Hook, we then handcuffed him. The embankment was fairly steep and because Mr Russell was handcuffed it was difficult to get him up the embankment.”

66 This statement is at variance with some other of the police statements who place Constable Bellamy with officers Mountford, Gow and Hook at the utility. Constable Bellamy does not state that he was at the utility. It is most likely that the four constables took part in the apprehension of Mr Russell. It is clear that there were at least 3 police officers involved, namely Constables Mountford, Gow and Hook. In his statement to Detective Senior Sgt Grossmith of the Internal Affairs Unit, Edward Russell described his apprehension at the utility in these terms:
“I couldn’t open the door and I was trying to climb out of the window. Then the coppers, they ran down the hill and ran at me. They dragged me out and a copper grabbed hold of me and a copper swung a bat at me and hit me right wrist. It’s still sore now. They put me on the ground, they held me down and two coppers trod on my leg and they handcuffed me arms behind me. They put the handcuffs on real tight and they then dragged me up the road and they left my shoes down near the car.”

67 The police officers state that Edward Russell shaped up to them and that required them to use force to subdue him. Mr Curnuck in his evidence stated that when he went the next morning to inspect the ute, he found that the driver’s side door was jammed and would not open but the window on the passenger’s side had been shattered. This is consistent with Edward Russell’s statement that the police dragged him from the ute.

68 Mr Curnuck in his statement described what he saw from the window of the house of his parents-in-law:
“I could see a Holden Rodeo utility down the embankment, there were at least 5 other vehicles on the road, and I was able to identify them as Police vehicles from their flashing lights and markings. They were at both the front and rear of the utility down the embankment. I then saw a person being taken up the steep embankment from the passenger side of the utility, and from where I was standing, I formed the impression at first the person was on a stretcher, as they appeared to be lying down, as though they had been injured in an accident, although I could not work out in my mind why there was so many police cars present. It appeared to me there was at least four persons, I believed to be police, taking the person up the embankment, and as I walked out the door of the house I realised the person was not on a stretcher but appeared to be held by his wrists.”

69 Mr Curnuck, his wife and his son Ben, were staying with Mrs Curnuck’s parents at their house on Wisemans Creek Road, Oberon on the night of 10th and 11th of December 1993. The house is set back off the road about 40 metres. Mr Curnuck was woken at about 2.00am on 11th December 1993 by the sound of a siren. He observed from the window of the house headlights of vehicles lighting up the area along the road about 60 metres from where he was standing in the house. After observing the apprehension of Edward Russell down the embankment, he could hear a lot of yelling and raised voices coming from the area around the vehicles on the road and he stated that the yelling was loud but he could not understand what was said. He then walked outside the house, stood near the back gate at a distance of about 20-30 feet from the house. He then heard more loud yelling and he heard a person scream. He was able to recall vividly abusive language that was being used by persons standing near the police vehicles, although he was unable to distinguish which person was using the language. He said that one particular voice was extremely loud and he had the impression that that person was out of control and he heard him yell out in a deep voice:
“Dickhead” and then said, “You black bastards are causing all the trouble around here.” The same voice then shortly after called out, “Blow harder or I’ll tear these balls out and [sic: "they"] will fall to the ground like a brick.”

70 Most of the other conversation that he heard was bad language with the words, “black cunt” and “fucking” being used frequently. He then observed a person being carried by at least three police officers. They were placed one on either side of the person with one officer behind the person who had his knees bent up and was being held under the arms. Mr Curnuck stated:
“They walked from the back of the utility towards the twin cab van and they came closer to where I was standing."

71 Mr Curnuck was then able to describe the clothes that the person was wearing. He then stated:
“One of the police officers carrying the person, he was the one on the person’s right-hand side nearest to me, was punching the person down the side with his right hand. I focused on what the officer was doing, I could not see what the other police were doing because of the angle I was at.
These people were clearly visible to me as they walked down the road and would have been no more than 50 metres away when I saw the person being carried to the rear of the police van. I then saw the person having his head rammed into the closed back door of the van, and then allowed to drop to the ground, the person had been crying out up until then, and then went quiet. One of the police officers called out loudly:

‘He’s trying to escape.’

72 In his evidence Mr Curnuck describes what he saw when he got to the gate, as follows:
“They had him around a circle. I could not see anything, he was completely surrounded by police. All you could see was like a circle of police. This is at the back of the ute in front of the police vehicle in the lights. That is where I heard them calling him a ‘dickhead’ and ‘you black bastards are causing all the trouble around here’. Up to that point I did not know, that is when I started to think, hello it wasn’t an accident.
I heard the fellow yelling at him that if he didn’t blow harder in the bag he would tear his balls out and they would drop to the ground like a brick. I started to think, they’re getting a bit rough. And then when they started taking him down and all the way he was going with him he’s belting him in the stomach, he’s got his hands handcuffed.”

73 Mr Curnuck also described in his evidence that the next morning he found a shoe from a right foot and that he placed the shoe on a gate post and said that his father in law, quite some time later found the left foot shoe out in the paddock. Mr Curnuck kept the shoes and they were produced in evidence as an exhibit to the Tribunal.

74 Mr Curnuck also had taken some photographs of the utility and the site of the incidents and those photographs were exhibited to the Tribunal.

75 Mrs Curnuck in her statement described that she was also woken on the morning of 11th December 1993. She did not accompany Mr Curnuck to the gate of the property. She remained in the house and looked out the kitchen window. The view from that window was partially blocked by an untrimmed front hedge. She stated that she did catch a glimpse of two or three people carrying a man who appeared to be limp. He had his legs off the ground. She said that although the door of the kitchen was closed, she could still hear voices of male persons, although she could not distinguish what was said, but the voices were getting angry. She said that she then opened the kitchen door to hear what was going on and that she heard a male voice say:
“He’s escaping, he’s escaping, grab him quick.”

76 She then said she heard some loud banging noises which sounded like metallic noises. She then heard male voices laughing. She then heard the vehicles taking off speedily.

77 Mr Ben Curnuck is the son of Mr and Mrs Curnuck and he was sleeping in the kitchen/lounge area on a sofa bed in the house of his grandparents. He was woken at about 2.00am on 11th December 1993. He heard a wailing, crying sort of noise and lots of yelling and he stated that he thought someone must have been hurt very badly. He looked out the kitchen window and saw a number of police cars parked on the shoulder of the road. He stated that he could still hear the crying noise and it was coming from the lock-up vehicle. He said that he saw police men standing around in a sort of semi circle across from the smashed ute facing towards the lock up vehicle and he could hear them laughing. He saw the lock up vehicle drive off and he could still hear a slight crying noise coming from that vehicle. He and his sister inspected the ute the next morning and noticed that the windscreen had been smashed in one place and that the passenger side window had been completely smashed out.

78 In the statement made by Edward Russell at the Long Bay Jail on 1st July 1998, a statement taken by his Solicitor, he said that he jumped out of the window of the vehicle and somewhere between four and six police men dragged him ramming his head into the door of the vehicle and that while they were doing this he could clearly remember some of them shouting abuse at him yelling, “black cunt.” He stated that the police called him lots of names,
“but, ‘black cunt’ was what I recall most strongly.”

79 He said:
“I recall that the one or two police officers had pinned me down as I cried out ‘help help’. Whilst I was lying face down on the road, they trod on both of my hands which were at my side. They then placed my hands behind my back in the middle of my back. They dragged me up and said, ‘Get up you black cunt’. I recall saying, ‘Yes I’m getting up. Don’t force me to get up. I’m getting up.’ Handcuffs were placed on me whilst I was getting up and I was dragged 50 metres up a hill. The handcuffs were placed with my hands behind my back. One policeman hit me in the ribs towards the right rib and wounded me. I recall saying, ‘What did you do that for?’ The right arm was used in the assault. Two policemen dragged me up to the car and forced me into the car. I then asked them for my shoes but they said, ‘We’re not getting your shoes’. They took me to the police station.”

80 His statement included the following:-
“I had continued nightmares about the events of that night for quite a long period of time. My nightmares were worse when I was in jail. The events terrified me because I thought that I could have been dead, because I was on my own. I had no help. The terror that I felt kept recurring, in the continuing nightmares that I had. The events also caused me a loss of self esteem, because I was treated so badly, as if I were barely human. The knowledge that people could treat another human being in this way was deeply shocking and offensive to me.”

81 In normal circumstances it would be expected that a person who had been subjected to abuse and excessive use of force of the nature alleged, would have related the details of that experience in more specific terms than the description in these statements. The lack of detail is explicable by Edward Russell’s illiteracy, his limited mental capacity and his deafness. Both statements were taken while Edward Russell was in jail. The first statement was made six months after the events and the second statement four and a half years after the events. Any inconsistencies and vagueness in the statements is not taken as an indication of lack of veracity in Edward Russell’s allegations. It demonstrates an inability on his part to communicate his experience in a lucid manner.

82 The Tribunal has analysed the statements of the police officers and the evidence of Mr and Mrs Curnuck and Mr Ben Curnuck and the statements of Edward Russell. The tribunal is satisfied that the police officers have not been truthful in their denial, that one or more or all of them used racially abusive language and used excessive force in the apprehension and arrest of Edward Russell on 11th December 1993. The Tribunal prefers to accept the evidence of the members of the Curnuck family and the statements of Edward Russell where they describe the racially abusive language that they heard and that was used and when they describe the excessive use of force that was applied that night to Edward Russell.

DISCRIMINATORY CONDUCT OF POLICE OFFICERS

83 It has been submitted by Counsel for the police officers that the Tribunal is unable to make a finding of discriminatory conduct against the police officers as the evidence is insufficient to identify individually any one of the police officers as the perpetrator of less favourable treatment of Edward Russell, and Section 7(1)(a) of the Act cannot be applied. The submission proceeds on the basis that the section is expressed in terms that is relevant only to the commission of a discriminatory act by an individual and unless the discriminatory act is perpetuated by 'a person' who is identified, the section does not apply.

84 As the Act is beneficial and remedial legislation, the Tribunal is entitled to give it a broad interpretation. The Tribunal is also entitled to apply Section 8(b) of the Interpretation Act:
“A reference to a word or expression in the singular form includes a reference to a word or expression in the plural form.”

85 The Tribunal can see no justification in the context of Section 7(1)(a) why such an interpretation should not be applied. Where, as is the case in this enquiry, a group of persons who discriminate against another person, act in concert, there is no reason in principle why Section 7(1)(a) should not apply so that each of those persons perpetrates the discrimination within the meaning of that section. The application of the section in this way should not be affected if the evidence does not enable identification of a particular person to particular acts carried out during the concerted exercise. Each of the persons in the group would be perpetrators of the less favourable treatment and would each discriminate against the other person (the aggrieved person).

86 In this complaint, the Tribunal is of the view that each of the police officers, other than Sgt Carter, acted together in concert in supporting each other, and in failing individually to prevent the actions of others, in the acts of discrimination that occurred on that occasion.

87 The Tribunal is satisfied that the evidence establishes that the concerted action of the police officers constitutes discrimination against Edward Russell in the following circumstances. Officer Mountford was the first officer to reach the utility down the embankment of Wisemans Creek Road. Officer Mountford and Officer Bellamy had undertaken most of the active pursuit of Edward Russell’s ute and their police vehicle had run into the side of the ute during the police chase. It is most likely that that incident was a result of action taken by Officer Mountford. Officer Mountford drove his vehicle ahead of the first policing pursuit vehicle which stopped at the site on Wisemans Creek Road. Mr Russell said he was trying to open the door of the ute but was unable to do so and he was trying to climb out of the window. He said that the police officers dragged him out of the ute. This would explain the broken window on the passenger side door. Officer Mountford used his baton to strike Edward Russell on the arm. It is said by some of the police officers that this was necessary in order to subdue Mr Russell who was attempting to resist police officers. The Tribunal is not satisfied that Mr Russell did attempt to resist the police officers. It was more likely that Officer Mountford, in a state of excitement following the police chase and his participation in it, thought to subdue Edward Russell by using his baton and hitting him. Messrs Gow, Bellamy and Hook closely followed Officer Mountford to the site of the ute. They forced Edward Russell to the ground, they handcuffed his hands behind his back. They then carried him, by holding his arms, up the steep embankment to the road. Edward Russell was then dragged by the elbows by three police officers, one on either side and one holding his feet to the back of the police utility. All of the police officers were standing around at that stage. One of the police officers forced Edward Russell to have a breathalyser test and threatened him if he didn’t do so, in the strongest terms. Whilst he was being carried to the back of the police van, at least one of the police officers punched Edward Russell several times. Edward Russell says:
“The bloke that hit me come from a group of police.”

88 Before placing Edward Russell in the police utility, some of the police officers forcibly pushed his head into the back of the utility. Edward Russell was severely stunned and had a large lump on his head as a result of this action. He was then thrown into the utility which drove him to the Bathurst Police Station. During this process and probably starting at the time of Edward Russell’s removal from the ute, he was subjected to abusive and foul language. This continued right through the episode. At the ute, during the time that Edward Russell was pulled out and handcuffed, he was told:
“You black bastards are causing all the trouble around here.”

89 The abusive and foul language included the terms ‘black cunt’, ‘fucking dog’, ‘fucking idiot’, ‘fucking dickhead’. At some stage during the process whilst Edward Russell was lying on the ground police officers deliberately trod on his hands. The witnesses describe the yelling and shouting of the police officers during the process. It should be recorded that the breathalyser test carried out on Edward Russell was negative. Evidence shows that when he stole the ute from outside the Bathurst Leagues Club there was a case of beer on the front seat. He used some of the bottles from the carton of beer to throw at the police during the pursuit. There is no evidence to suggest that he consumed any of this alcohol.

90 Mr Curnuck stated that he estimated the time taken from the apprehension of Edward Russell at the ute to the time he was driven away from the scene was approximately 15 minutes.

91 The Tribunal is satisfied that the police officers at the scene subjected Edward Russell to unfavourable treatment which in the same or similar circumstances the police officers would not have treated a person of a different race. The excessive force used against Edward Russell and the abusive language shouted at him were in, in the opinion of the Tribunal, causally connected with Edward Russell’s aboriginality. This connection is demonstrated by the use of the phrases ‘you black bastards are causing all the trouble around here’ and ‘black cunt’. These phrases in the context of the unfavourable treatment to which Edward Russell was subjected demonstrates that the actions of the police officers toward Edward Russell are explicable not only by a reaction to the arduous chase to apprehend him but also by Edward Russell’s Aboriginal race.

92 Applying Section 4A of the Act, the racial connotation of the actions of the police officers, is to be taken, as the reasons for the conduct of the police officers.

EVENTS AT BATHURST POLICE STATION

93 Sgt Carter was not present at the site at Oberon. He first came in contact with Edward Russell when Edward Russell was brought to the Bathurst Police Station. At 6.00am on 11th December 1993, Sgt Carter and Constable Steven interviewed Edward Russell. The Tribunal has heard an audio tape of that interview and has read a transcription of the interview. It is alleged that in the interview Edward Russell complained of an assault by the police. The interview lasted for about 15 minutes. Edward Russell’s answer to the questions put to him were in most cases, unresponsive. At one stage he was asked what his concentration span was and he replied,
“Coppers just hit me in the head mate.”

94 He repeats that statement two questions later and he goes on to say that he just can’t remember. Later in the interview he was asked to write a statement and he responded:
“Can’t write down, gotta sore arm. I can’t even write anyway.”

95 It is claimed that Detective Sgt Carter took no action in relation to the statement by Edward Russell that he had been hit on the head and that he had been hit on the arm. It is claimed that Sgt Carter had a duty to regard those statements as complaints against the police officers and that Sgt Carter should have taken immediate action to have those complaints investigated and should have immediately referred Edward Russell for medical advice. Sgt Carter at that stage took no action in relation to those statements of Edward Russell.

96 It was submitted that the failure of Sgt Carter to respond properly to Edward Russell’s statements in the interview were part of the mind set of the police officers at the Bathurst Police Station, including Sgt Carter, which reflected the events at the scene of the discrimination against Edward Russell at Oberon. It is claimed that mind set caused Sgt Carter not to have regard to the complaints made by Edward Russell and that that failure was also on the ground of Edward Russell’s race in the same way the discriminatory actions against Edward Russell at Oberon were on the ground of his race.

97 The Tribunal is not satisfied that the failure by Sgt Carter to treat the comments made by Edward Russell in the interview, as formal complaints of police action towards him, constitutes less favourable treatment of Edward Russell in the circumstances. The audio record and the transcript of that interview shows that Edward Russell was not able to adequately respond to the questions that he was being asked. It is understandable in those circumstances that Sgt Carter would have given little regard to the comments that Edward Russell made of being hit on the head and having a sore arm. The Tribunal is also not satisfied that any failure by Sgt Carter to respond to those comments was because Edward Russell was an Aboriginal.

There was no direct evidence to show that Sgt Carter’s failure to respond to Edward Russell’s comments was connected to the discriminatory conduct to which Edward Russell had been subjected at Oberon.

99 The Tribunal can find no evidence of a mindset adverse to Mr. Russell in the content or in the manner of the conduct of the interview of Mr. Russell by Sgt. Carter. Mr. Russell in the interview did not emphasise his injuries. He referred to the injuries in answer to questions by Sgt. Carter about his lack of response to questions but not in a manner that would suggest that he was making a complaint about the cause of the injuries or that the injuries were causing him particular discomfort. The Tribunal is unable to draw an inference that Sgt. Carter treated Mr. Russell less favourably than in the same or similar circumstances he would have treated a person who was not an aboriginal.

100 The Tribunal accordingly directs that the complaint against Sgt Carter be dismissed.

ONUS OF PROOF

101 In considering the findings of discriminatory conduct against the police officers, the Tribunal has applied the civil onus of proof, namely that the Tribunal should be satisfied on the balance of probability and having regard to the serious nature of the allegations and of findings of discrimination, that the abusive language and excessive force used against Edward Russell occurred. The Tribunal has applied the same test in relation to the complaint against Sgt Carter. It has also applied that test in determining the question of whether Edward Russell was subjected to unlawful racial vilification.

RACIAL VILIFICATION

102 It is claimed that the circumstances and the actions and language of the police officers in the apprehension and arrest of Edward Russell on 11th December 1993, constituted unlawful racial vilification. Racial vilification is rendered unlawful under Section 20C(1) of the Act. In considering that section, it is necessary to have regard to Section 20B which defines “public act”. So far as they are relevant to this enquiry, the terms of those sections are as follows:

164 The Tribunal finds that the New South Wales Police Service has not discharged the onus of satisfying the Tribunal under Section 53 of the Act that it did not authorise the unlawful discriminatory conduct and the racial vilification directed by the police officers to Edward Russell on 13th December 1993. In addition, the Tribunal finds that the Police Service has not taken all reasonable steps to prevent those police officers from contravening the Act in relation to their conduct on that occasion.

SECTION 19 - “SERVICES”

165 In considering Section 19 of the Act there is a preliminary question as to whether, for the purposes of this enquiry, the appropriate provisions of Section 19 are those contained in the more recent amendment of that Section, under the Amending Act of 1997, being the provisions in their current form, or the provisions of the Section in the terms of the section at the time of the complaint or the time of the incidents. For the reasons that the Tribunal has given earlier dealing with the application of Section 53(3) to this enquiry, the Tribunal considers that the Amending Act sufficiently demonstrated the intention of Parliament that Section 19 as amended by that Act would not be confined to acts and things done after that act came into operation and that it would apply to circumstances and resulting complaints which have not been disposed of at the time the amending Act came into effect on 4th July 1997. The Tribunal has accordingly considered this complaint under the terms of the current provisions of Section 19. The Tribunal would observe that had the provisions of Section 19 in its original form been applied to these complaints, the issues arising under that Section would be different from the issues that have been raised for determination by the Tribunal.

166 The Act defines "services" as including:
“services provided by a council or public authority.”

It was accepted for this enquiry that the Police Service is a public authority.

IW v City of Perth

168 The Respondents' argument also relied on the decision of the Court of Appeal in Farah v Commissioner of Police of the Metropolis [Supra]. That case involved allegations of unlawful racial discrimination under the Race Relations Act (UK) where police officers were found not guilty of unlawful conduct under that Act when in answer to a call for assistance they detained and arrested a female who sought their assistance. The Plaintiff, in that case, did not suggest that pursuing, arresting and charging an alleged criminal was the provision of a service, but rather the argument was put that the service sought by the Plaintiff was that of protection and that she did not, because of her race, obtain the protection that others would have been offered. In seeking the protection of the police force in the arrest of those who assaulted her, the police force, it was held, had not provided a service to the Plaintiff. The Respondents described the Farah decision as adopting a traditional approach to the provision of a service and, focussed upon identifying the specific service being provided to the Plaintiff rather than merely stopping at the point where the provision of the service in a general sense can be identified. They emphasise that the focus is upon the person who is receiving the service, for the purpose of constructing the provision.

169 In IW v City of Perth, some of the justices of the High Court stated that Farah was correctly decided while other justices referred to Farah with approval.

170 The submissions of the Respondents alternatively submit that if the Tribunal should hold that the pursuit and arrest of Edward Russell was a service, it was not a service provided to him but rather a service provided to the community at large.

171 It was conceded by the Respondents that the definition includes the services provided by a public authority. This gives weight, in the view of the Tribunal, to the submissions of the Applicant that in construing the application of Section 19 to the terms of the apprehension and arrest of Edward Russell on 11th December 1993, it is not appropriate to confine that application to the singular service provided by the police constables to Edward Russell on that occasion. The Tribunal has found that through the application of Section 53 of the Act, the police service was deemed to have done the acts of racial discrimination and the acts of unlawful racial vilification about which Edward Russell complained. In the view of the Tribunal, it is accordingly the nature of the services provided by the Police Service rather than the individual service provided by the police constables to Edward Russell, that requires consideration in the context of the liability of the Police Service in this complaint.

172 Section 6 of the Police Act is in the following terms:
“6.(1) The mission of the Police Service is to have the police and the community working together to establish a safer environment by reducing violence, crime and fear.
(2) The Police Service has the following functions:

173 The mission of the Police Service and the functions of the Police Service as set out in that section demonstrate that the responsibilities of the Police Service include the protection of persons and property from injury and damage, “whether arising from criminal acts or in any other way”, and to do so in a safer environment for the community by reducing violence, crime and fear. In the view of the Tribunal, this section makes it apparent that the New South Wales Police Service, for the purposes of the application of Section 19, will act unlawfully when it provides those services, inter alia, in terms which discriminate against a person on the grounds of race. The function of the Police Service in the provision of services to prevent injury to persons and damage to property would often, as was the case in these incidents, be carried out by police constables whose acts are deemed by Section 53 of the Act, to be acts of the Police Service. Under the Act, the Police Service has responsibility for the acts of police constables carrying out a function of the Police Service. In this complaint, the Police Service, through the actions of the police officers at the scene of the apprehension and arrest, were carrying out one of the functions for which the Police Service is responsible under the Police Act. The Police Service had a responsibility to Edward Russell, in accordance with its responsibilities under the Police Act, to carry out its functions without injury or damage to person or property. Edward Russell suffered injury during the apprehension and arrest. His property was damaged. His shoes were removed and discarded by the police officers or one or more of them. In these circumstances, the services of the Police Service were provided to a member of the community in terms which were discriminatory and which constituted unlawful racial discrimination and unlawful racial vilification. For reasons expressed earlier, the Tribunal considers that those unlawful acts were carried out by the Police Service on the grounds of Edward Russell’s Aboriginal race.

174 In the view of the Tribunal, this construction and application of Section 19, conforms to the canon of construction which require the Act to be interpreted not on a narrow basis and it distinguishes the approach adopted in IW v City of Perth and the Farrer decision, because in this complaint the unlawful conduct which has been found to have occurred is unlawful conduct provided by the Police Service to Edward Russell in the context of the responsibilities and functions of the Police Service.

175 The approach adopted by this Tribunal in its consideration of the application of Section 19 to the functions of the Police Service and its officers, is consistent with the approach adopted by the Tribunal in Mahmut v The NSW Department of Health (unreported, 31 October 1994). In that enquiry, the Tribunal considered the application of Section 19, in the form prior to its amendment in 1997, in relation to the services of food inspectors in the Department of Health carrying out inspections of the complainant's shop and his subsequent prosecution. That Tribunal applied a broad interpretation of 'services' and found that the Department of Health provided services for the purposes of Section 19.

176 In the view of the Tribunal, section 19 of the Act applies to the circumstances that affected Edward Russell on 11th December 1993.

177 It follows that the Tribunal finds that the Police Service acted unlawfully in breach of Section 19 of the Act, by reason of the contravention of Section 7 (1) (a) and Section 20C (1), by the police officers.

THE UNLAWFUL CONDUCT OF THE POLICE OFFICERS - SECTION 52

178 It is then necessary to consider the liability of the police officers for the contraventions of the Act perpetrated by their actions.

179 In M -v- R Pty Ltd (supra) the Equal Opportunity Tribunal considered a similar situation. That enquiry involved a complaint where the Tribunal had found, by the application of Section 53, that an employer acted unlawfully in a sex discrimination claim. The Tribunal applied Section 52 to determine that an employee whose actions towards a fellow employee were discriminatory, were liable for those actions. Graham J at p. 77175 said:
"It follows from what has already been said, that, where an employer is liable, personally …….. vicariously (by virtue of Sec. 53) for an act of unlawful discrimination, the provisions of Sec. 52 are applicable to any person who "causes, instructs, induces, aids or permits" the employer to do an act "that is unlawful by reason of the Act."
………………
Accordingly, once principal liability is established as against the employer, the complainant is able to proceed against the second respondent jointly and severally."

180 The same principle applies to the complaints in this enquiry. The conduct and language of the police officers towards Mr. Russell during his apprehension and arrest at Oberon on 11 December 1993, caused, induced, aided and permitted the Police Service to be in breach of Section 19 of the Act.

181 In the view of the Tribunal, the police officers are liable under Sec. 52 for their unlawful actions on that occasion.

SECTION 113 and SECTION 88A (1)

182 In the introduction to this decision, the Tribunal described the background of the complaint and noted that the complaint had been made to the Board by the parents of the late Edward Russell, pursuant to Section 88A (1) of the Act. Edward Russell died in late 1999. Section 88A (1) of the Act enables the complaint to survive if the Complainant dies before the complaint is finally determined. The section provides that the estate of the Complainant may continue the carriage of the complaint, and:
“(b) is entitled to the benefit of any monetary sum ordered to be paid by the Respondent in respect of the complaint.”

183 It was submitted by Counsel for the police officers that Section 88A(1)(b) is limited in its operation and entitles the estate of the Complainant to the benefit of any sum ordered to be paid only where the order for payment had been made prior to the Complainant’s death. The effect of the submission in this complaint would be to prevent the making of an order for monetary compensation, as no order has been made prior to Edward Russell’s death.

184 The submission relies on the development of the law prior to the introduction of this section and in particular on the decision in Stephenson v HREOC (1996) 68 FCR 290 where the full Court of the Federal Court held that a complaint made to HREOC under the Sex Discrimination Act 1984 (CTH) does not abate upon the death of the Complainant. That decision relied on a broad interpretation of the Sex Discrimination Act. In order to ensure a similar application under the Act, the Attorney General, the Honourable JW Shaw, included in the Amending Act in 1997, Section 88A about which he said in his Second Reading Speech:
“There is a public need to encourage non-discriminatory behaviour, notwithstanding the death of an individual. This amendment will make sure an executor of the Complainant’s estate may continue the complaint, although there would be no personal benefit to the Complainant.”

185 The argument of Counsel for the Police Officers is to attach to the interpretation of Section 88A(1)(b) a prohibition against the payment of personal benefits to the complainant and to restrict the operation of that sub-section to the situation where an order for payment has already been made prior to the death of the complainant.

186 The Tribunal does not agree with this proposition. The words of the sub-section should be given their natural meaning. There is no ambiguity in the application of the section, as in this complaint, where there has been no monetary award prior to the death of the Complainant. The estate of the late Edward Russell can be awarded a monetary sum by way of compensation without distorting the words of the sub-section.

REMEDIES

187 The effect of the decisions of the Tribunal is that the Police Service and each of the police officers named as Respondents has acted unlawfully in breach of Section 19 and Section 20C of the Act.

188 The Applicant has sought from the Tribunal a number of remedies. Firstly, a direction that the Police Service and the police officers publish an apology to the mother and father of the late Edward Russell. Secondly, a direction for the holding of an enquiry into the failure of the Police Service to adequately investigate the complaints relating to the treatment by the police officers of the late Edward Russell at the scene of his apprehension and arrest on 11 December 1993. Thirdly, an award of compensation to the Estate of the late Edward Russell.

189 The New South Wales Ombudsman, in his final report of his investigation of the complaints by Mr Curnuck and Mr and Mrs Russell, included in his recommendations, that a formal written apology be sent to Mr Russell. Pursuant to that recommendation, the Police Service wrote to Mr Curnuck and toMr Russell a letter which expressed the regret of the organisation that police exhibited a lack of professionalism and consideration during the pursuit and the apprehension of Edward Russell on the evening of 11th December 1993. In the view of the Tribunal, that expression of regret does not constitute a sufficient apology for the discriminatory conduct of the police officers.

190 In relation to the claim that a further enquiry be held to ascertain the specific involvement of the police officers in the incident on 11th December 1993, the Tribunal considers that it does not have the authority under the Act to order such a broad-based enquiry nor has there been sufficient proposals put before the Tribunal that would enable the Tribunal to formulate a specific direction for the holding of an enquiry of this nature. As a considerable time has elapsed since these incidents on 11th December 1993, the Tribunal would doubt that an effective enquiry to ascertain more details of those incidents could be held. The Tribunal therefore declines to give a direction for the holding of such enquiry.

191 The Tribunal needs to consider the extent to which and the manner in which monetary compensation should be awarded for the consequences of the unlawful conduct to which Edward Russell was subjected. It has been submitted by the Applicant that the Tribunal is entitled to make separate awards of compensation in respect to the findings of unlawful racial discrimination and unlawful vilification. Counsel for the police officers disputes that the Tribunal can make separate awards because the claims arise out of the one incident and the one complaint. It is the view of the Tribunal that it is not constrained to make one award for compensation where a number of claims are made under one complaint. Nor, in the view of the Tribunal, should the question of separate awards be governed by the number of separate incidents giving rise to separate claims. The relevant consideration is the distinct breaches of the Act arising out of the findings of separate and distinct unlawful conduct. As in this complaint, the Police Service and the police officers have acted unlawfully in breach of two separate divisions of the Act. Edward Russell, the victim of those unlawful breaches of the Act, has suffered separate and distinct damage.

192 The evidence shows that Edward Russell suffered physical damage and stress, hurt and humiliation in the incidents. The Occurrence Report filed at the Bathurst Police Station, a document that was part of the material submitted to the Tribunal, includes a notation by Sgt Borland, that at 10.32am on 11th December 1993 he took Edward Russell to the Bathurst Jail where he was examined by the medical staff of the Jail Hospital. That Hospital refused to accept Edward Russell and he was then taken by Sgt Borland to Bathurst District Hospital. Edward Russell was complaining of a sore left hand which the Hospital staff at the Bathurst Jail stated should be x-rayed. At the Bathurst Hospital where Mr Russell was examined by Dr Scott, who examined his hand which he noted was bruised and swollen and he placed a bandage on the hand and he was allowed to leave. It appears however from the Hospital records that was included in the material, that Edward Russell had his hand x-rayed and it was not until the following Monday when another medical officer at the Hospital examined the x-ray that it was discovered that there was a slight fracture of the left wrist. It seems that that fracture was never treated as Edward Russell in the meantime had been conveyed back to the Bathurst Jail. The clinical records of the Hospital at the Jail show that the examination of Edward Russell on 11th December 1993 resulted in a record being kept which stated:
“alleges police assault. Swollen (L) hand. Swelling above (L) ear, handcuff marks, grazed back shoulder, scratches (C), upper chest CMO trauma (LI) SCLERA.”

193 The clinical records of the Jail Hospital also shows that Edward Russell was examined at the Hospital on 15th December 1993 and the record is in the following terms:
“Claims assault by police with tendered L Hand, residual small ………. Red mark L wrist …….. Also had a lump over L ear.”

194 There was a notation in the clinical notes on 18th December 1993 “to stay permanently in remand, not to go to Hospital.”.

195 In his statement of 1st July 1998, Edward Russell described at that time that he was still having nightmares about the events of the arrest on 11th December 1993 and that he was terrified because he felt he could have been dead.
“The terror that I felt kept recurring, in the continuing nightmares that I had.”

196 He described the effect on him at the time in these terms:
“The events also caused me a loss of self esteem because I was treated so badly as if I were barely human. The knowledge that people could treat another human being this way would be shocking and offensive to me.”

197 It is clear to the Tribunal that the language used in that part of the declaration was unlikely to be the actual words of Edward Russell whose other statements indicate that he did not have the literary ability to express himself in such a vivid way. Nevertheless, the Tribunal accepts that the declaration does convey an intention on Edward Russell’s part to express his continued post event stress arising out of the incidents.

198 Mr and Mrs Russell, the parents of Edward Russell, in their evidence describe their shock when they first saw Edward Russell after the incident. Mr and Mrs Russell reside in Walgett. At the time of the assault they were in Sydney. They were not advised by the Police that their son had been charged or was being held in custody. It was not until approximately a week after they returned to Walgett that they were advised by relatives in Bathurst that Edward Russell was going to Court. Mr and Mrs Russell attended at the Court at Bathurst. This would have been approximately 10 days after the 11th December 1993. Mrs Russell stated that when she saw her son she could see a very large lump on his head and that it was towards the middle of the head and a little to the left. She said that she could see the lump very clearly and that her son said to her:
“That was when they fucking rammed my head into the bullbar.”

199 Edward Russell also complained to his mother that the Police had put the handcuffs on his wrists very tightly. She said that he showed her the marks still on his wrists and that those marks went about half way around the wrist on the inside and sides of the wrist. Mrs Russell described that she saw that on one of his hands the palm on one side and the wrist on that side were very swollen. She said that her son said to her:
“The coppers did that to me.”

200 Mrs Russell also said that her son was not the same as he had been in terms of his personality before the incidents. She said that she noticed the following:
He complained often that his eyes were watering and he needed glasses;
When she visited him in jail he would say: “Mum is anything happening about those coppers who bashed me?”
He complained often that he could not sleep and said: “They are going to kill me.”
He also said: “The coppers. They threatened to shoot me and kill me.”
He complained that he frequently had nightmares about the police. She recalled him saying words on a number of occasions to the effect: “Mum I’ve had a nightmare. The police said they are going to kill me. They are going to shoot me.”
He would get very angry when he talked about the police.
He would get angry easily whereas before the assault he was fairly even tempered.

201 Mr Edward Jack Russell confirmed the observations of Mrs Russell about their son. Medical reports from Psychologists who examined Edward Russell in December 1993 and April 1994, were produced. It appears that these reports were prepared for the purposes of the criminal charges that were pending against him. The medical description by the Psychologists vary in their description of the degree of his intellectual disability. The only report that specifically deals with the effect on him of his experiences of 11th December 1993 was a report from Dr Michael Paton, Psychiatrist, who is currently the Consultant Psychiatrist with the South East Area Health Service and was formerly of the Aboriginal Mental Health Service, Central Sydney. He examined Edward Russell on three occasions, twice in August 1998 and on the last occasion on 3rd June 1999. Dr Paton stated:
“In terms of the psychological consequences of this incident (the incident on 11th December 1993) it is clear that Edward Russell developed a post traumatic stress disorder although it is unclear to me as to the exact timing and duration of these symptoms.”

202 He stated that it was clear to him that the post traumatic stress disorder symptoms had persisted intermittently since that time.

203 The Tribunal is satisfied that the evidence establishes that Edward Russell suffered some physical injury, namely a fracture of his wrist and severe lump on his head as a consequence of the excessive force used in his apprehension and arrest, and that he suffered psychological reactions to his experiences on 11th December 1993, such as post traumatic stress, continuing severe nightmares and severe fear of police reactions towards him.

204 The Tribunal notes that there is no claim on behalf of Edward Russell for economic loss.

205 It is the view of the Tribunal that an appropriate award of compensation should be made to the estate of the late Edward Russell, pursuant to Section 88A (1) of the Act in respect to the finding of unlawful racial discrimination and the finding of unlawful victimisation. On each claim, the Tribunal assesses an appropriate award of compensation at $15,000.00, making a total compensation award of $30,000.00

206 As Senior Constable Mountford and Senior Constable Callaghan were not served with notice of the claims or notice of the hearing of the enquiry, the Tribunal agrees with the submissions made to it that the Tribunal is unable in those circumstances to include those two officers in the directions to be made by the Tribunal.

COSTS

207 Counsel for the Applicant indicated that in the event that the Tribunal found the complaints substantiated, that the Applicant sought an order of costs in favour of the Applicant in relation to this enquiry. The Tribunal would wish to give all the parties a further opportunity to make representations as to whether an order for costs should be made in this enquiry in favour of the Applicant. The Tribunal would direct that the Applicant arrange for the matter to be re-listed for the purposes of argument as to whether the Tribunal is justified in making an order for costs in its favour and it will reserve that question for consideration after hearing such argument that the parties wish the Tribunal to consider.

THE DIRECTIONS OF THE TRIBUNAL

208 Pursuant to Section 113 of the Act, the Tribunal makes the following directions:
1. That the complaint, brought on behalf of the late Edward Russell, that the Police Service and the Police officers named as Second to Eleventh Respondents in the Points of Claim filed in this enquiry, unlawfully discriminated against the late Mr Edward Russell on 11th December 1993, in terms of section 7(1)(a) of the Act, is substantiated.
2. That the claim, brought on behalf of the late Mr Edward Russell, that the Police Service and the Second to Eleventh Respondents named in the Points of Claim, unlawfully vilified the late Edward Russell under Section 20(C) of the Act, is substantiated.
3. That the claim brought on behalf of the late Mr Edward Russell that on 11th December 1993, Detective Sgt Carter, the twelfth Respondent named in the Points of Claim, unlawfully discriminated against the late Edward Russell, has not been substantiated, and the Tribunal directs that that claim be dismissed.
4. That the Police Service and the Second to Eleventh Respondents, other than Senior Constable Mountford and Senior Constable Callaghan, pay to the Estate of the late Edward Russell, as compensation for the unlawful conduct, the subject of directions 1 and 2, a total amount of $30,000.00 and that the liability of each of the Police Service and the relevant Respondents be joint and several. It is noted that the effect of this Direction will be that the Estate of the late Edward Russell will be entitled to recover the amount of $30,000.00 from any one of the Respondents. The question of the rate of contribution between the Respondents for the amount awarded was not addressed to the Tribunal and the Tribunal will consider a direction as to contribution if the Respondents make an application to the Tribunal.
5. That the New South Wales Police Service and each of the police officers being the Second to Eleventh Respondents, other than Senior Constable Mountford and Senior Constable Callaghan, within twenty-eight days of the date of the date of this decision jointly cause to be published in the Oberon Review an apology to the late Mr Edward Russell and to his parents, in the form of the apology annexed to this decision and marked “A”.
6. That the Police Service and each of the Police officers the subject of the direction 4, individually write a letter to the parents of the late Edward Russell, containing an apology in the form annexed hereto and marked with the letter “B”.
7. That the New South Wales Police Service cause a record to be made on the file of each of the Police Officers being the Second to Eleventh Respondents, other than Senior Constable Mountford and Senior Constable Callaghan, being a record kept by the New South Wales Police Service called ‘Employee Management Record’, stating that this Tribunal, after enquiry, has found that a complaint of unlawful racial discrimination and a complaint of unlawful racial vilification under the Anti-Discrimination Act 1997, arising out of the apprehension and arrest on 11th December 1993 of the late Edward Russell, against (name of officer), was substantiated.

"A"

2 The Equal Opportunity Division of the Administrative Decisions Tribunal has found that the conduct of the police officers, and the language used by them, towards Mr Russell during his arrest, were in breach of the racial discrimination and the racial vilification provisions of the Anti Discrimination Act.

3 The Tribunal also found that the NSW Police Service was liable under the Act for the conduct of the officers on that occasion.

The NSW Police Service and we, the officers involved who are still members of the police service, apologise to the parents of the late Mr Russell, for the conduct of the police officers on that occasion.

"B"

(To: Mr and Mrs Russell)

I am a member of the NSW Police Service who was involved in the apprehension and arrest of your son, Edward John Russell, on the Wisemans Creek Road, at Oberon, on 11 December 1993.

The Equal Opportunity Division of the Administrative Decisions Tribunal has found that the conduct of the police officers, and the language used by them, towards your sonduring his arrest, were in breach of the racial discrimination and the racial vilification provisions of the Anti Discrimination Act.

I wish to apologise to you for my conduct on that occasion.

"B"

(To: Mr and Mrs Russell)

On the 11 December 1993, eleven police officers stationed at the Bathurst Police Station apprehended and arrested Edward John Russell, an aboriginal person, on the Wisemans Creek Road at Oberon.

The Equal Opportunity Division of the Administrative Decisions Tribunal has found that the conduct of the police officers, and the language used by them, towards Mr Russell during his arrest, were in breach of the racial discrimination and the racial vilification provisions of the Anti Discrimination Act.

The Tribunal also found that the NSW Police Service was liable under the Act for the conduct of the officers on that occasion.

On behalf of the NSW Police Service I wish to apologise to you for the conduct of the police officers on that occasion.

Citations

Russell v Commissioner of Police, NSW Police Service and Nine Individual Police Officers [2001] NSWADT 32

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CITATION:	Russell -v- Commissioner of Police, New South Wales Police Service & ors [2001] NSWADT 32
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANTS Helen Russell and Ted Russell on behalf of the late Edward John Russell RESPONDENTS Commissioner of Police, New South Wales Police Service Senior Constable Mewburn Constable First Class Hook Senior Constable Mountford Senior Constable Bellamy Sergeant Healey Constable Gow Senior Constable Griffiths Detective Keogh Constable Morris Senior Constable Callaghan Detective Sergeant Carter
FILE NUMBER:	001016
HEARING DATES:	20/07/00, 21/07/00, 12/10/00, 13/10/00
SUBMISSIONS CLOSED:	10/13/2000
DATE OF DECISION:	02/26/2001
BEFORE:	Ireland G - Judicial Member; Farmer L - Member; Taksa L - Member
APPLICATION:	Race Discrimination - Goods and Services - Racial - Vilification
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Acts Interpretation Act 1901 Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Industrial Relations Act 1988 (Cth) Occupational Health and Safety Act 1983 Police Service Act 1990 Racial Discrimination Act 1976 (Cth) Sex Discrimination Act 1984 (Cth)
CASES CITED:	Graham J in M v R P/L (1988) (EOC 92-229) Pillai vs Messiter (unreported NSW court of Appeal 28 July 1988) Harou-Sourdon v TCN Channel Nine Pty Ltd [1994]EOC 92-604 Wagga Wagga Aboriginal Action Group v Eldridge [1995] 92-701 Kazak v John Fairfax Publications Limited [2000] NSWADT 77 Western Aboriginal Legal Service Limited v Jones & anor [2000] NSWADT 102 Canadian National Railway Co v Canada [1987] 1 SCR 1114 Attorney General for New South Wales v Perpetual Trustee Company Limited [1994] 92CLR113 Director General of Education & Anor v Breen & Ors [1984]EOC92-015 Sellars v Woods [1982] 45 ALR 113 Chapman v Commissioner Australian Federal Police [1983] 50 ACTR 23 Enever v the King [1906] 3 CLR 969 Baume v The Commonwealth [1906] 4CLR97 Fisher v Oldham Corporation [1930] 2KB 364 Farah v The Commissioner of Police of the Metropolis [1997]1ALLER239 IW v City of Perth [1996-1997]191 CLR 1 CIC Insurance Limited v Bankstown Football Club Limited [1997] 187 CLR 384 Saraswati v The Queen [1991] 36 ALJR 402 Trevesan v The Federal Commissioner of Taxation [1991] 101 AOR 26 Minister for Immigration & Ethnic Affairs v Teoh [1995] 128 ALR at 353 Mahmut v The NSW Department of Health (unreported, 31 October 1994) Stephenson v HREOC (1996) 68 FCR 290
REPRESENTATION:	APPLICANT N Poynder, barrister RESPONDENTS W Haylen QC with G Willis barrister for 1st respondent C Ronalds, barrister for 2nd, 23, 5th, 6th, 7th, 8th, 9th, 10th, 12th respondents
ORDERS:	1. That the complaint, brought on behalf of the late Edward Russell, that the Police Service and the Police officers named as Second to Eleventh Respondents in the Points of Claim filed in this enquiry, unlawfully discriminated against the late Mr Edward Russell on 11th December 1993, in terms of section 7(1)(a) of the Act, is substantiated; 2. That the claim, brought on behalf of the late Mr Edward Russell, that the Police Service and the Second to Eleventh Respondents named in the Points of Claim, unlawfully vilified the late Edward Russell under Section 20(C) of the Act, is substantiated ; 3. That the claim brought on behalf of the late Mr Edward Russell that on 11th December 1993, Detective Sgt Carter, the twelfth Respondent named in the Points of Claim, unlawfully discriminated against the late Edward Russell, has not been substantiated, and the Tribunal directs that that claim be dismissed; 4. That the Police Service and the Second to Eleventh Respondents, other than Senior Constable Mountford and Senior Constable Callaghan, pay to the Estate of the late Edward Russell, as compensation for the unlawful conduct, the subject of directions 1 and 2, a total amount of $30,000.00 and that the liability of each of the Police Service and the relevant Respondents be joint and several. It is noted that the effect of this Direction will be that the Estate of the late Edward Russell will be entitled to recover the amount of $30,000.00 from any one of the Respondents. The question of the rate of contribution between the Respondents for the amount awarded was not addressed to the Tribunal and the Tribunal will consider a direction as to contribution if the Respondents make an application to the Tribunal; 5. That the New South Wales Police Service and each of the police officers being the Second to Eleventh Respondents, other than Senior Constable Mountford and Senior Constable Callaghan, within twenty-eight days of the date of the date of this decision jointly cause to be published in the Oberon Review an apology to the late Mr Edward Russell and to his parents, in the form of the apology annexed to this decision and marked 'A'; 6. That the Police Service and each of the Police officers the subject of the direction 4, individually write a letter to the parents of the late Edward Russell, containing an apology in the form annexed hereto and marked with the letter 'B'; 7. That the New South Wales Police Service cause a record to be made on the file of each of the Police Officers being the Second to Eleventh Respondents, other than Senior Constable Mountford and Senior Constable Callaghan, being a record kept by the New South Wales Police Service called ‘Employee Management Record’, stating that this Tribunal, after enquiry, has found that a complaint of unlawful racial discrimination and a complaint of unlawful racial vilification under the Anti-Discrimination Act 1997, arising out of the apprehension and arrest on 11th December 1993 of the late Edward Russell, against (name of officer), was substantiated.