Weldon-Bowen v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 71

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Weldon-Bowen v Commissioner of Police, NSW Police Force [2024] NSWCATAD 71

Hearing dates:

14 -16 August 2023, 14 November 2023

Date of orders:

14 March 2024

Decision date:

14 March 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Andelman, Senior Member
J Herberte, General Member

Decision:

Application Dismissed

Catchwords:

HUMAN RIGHTS – discrimination – on the ground of a person’s race – on the ground of a person’s gender - direct discrimination - provision of goods and services – police investigate alleged incidents of damage to vehicle and abusive behaviour – issue of infringement notice – alleged failure to respond to complaints and requests for assistance – conduct of an investigation - expert evidence as to ‘structural racism’ – making of inferences

Legislation Cited:

Anti-Discrimination Act 1977

Police Act 1900

Cases Cited:

Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; 168 CLR 165

Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324; 75 NSWLR 503

Bickle v State of Victoria (Victoria Police) [2020] FCA 168

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Commissioner of Police, NSW Police Force v Estate of Edward John Russell [2001] NSWSC 745

Commissioner of Police v Mohamed [2009] NSWCA 432; 262 ALR 519

Director-General, Department of Community Services v MM [2003] NSWSC 1241; (2007) EOC ¶93–464

Djime v Kearnes [2019] VSC 117

Eatock v Bolt [2011] FCA 1103; 197 FCR 261

Farah v NSW Police Force of Police of the Metropolis [1998] QB 65

Faulkner v ACE Insurance Limited [2011] NSWADT 36

Gichura v Home Office [2008] EWCA Civ 697

Gupta v State of South Australia [2022] FCA 1598

IW v City of Perth [1997] HCA 30; (1997) 191 CLR Jones v Dunkel (1958-59) 101 CLR 298

JQ v Double Bay Out of School Hours Inc (2) [2010] NSWADT 257

Kitoko v Sydney Local Health District [2017] NSWCATAD 209

Kitoko v Sydney Local Health District [2018] NSWCATAP 38

Nicolaou v New South Wales (NSW Police Force) [2015] NSWCATAD 142

Purvis v State of New South Wales [2003] HCA 62;

(2003) 217 CLR 92

R v Secretary of State for Transport Ex p. Factortame Ltd (No. 6) [2001] 1 CMLR 47

R v The Secretary of State for Transport ex parte Factortame Limited (No. 7) [2000] EWHC Technology 179

Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770

Savjani v Inland Revenue NSW Police Forces [1981] 2 AC 818

Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262

Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 1 All ER 26

Smith v Department of Education and Communities [2013] NSWADT 162

Soliman v New South Wales (NSW Police Force) [2011] NSWADT 42

New South Wales v Whiteoak [2014] NSWCATAP 99

New South Wales (NSW Police Force) v Whitfield [2012] NSWADTAP 27

Waterhouse v Bell (1991) 25 NSWLR 99

Watts v Australian Postal Corporation [2014] FCA 370; 222 FCR 220

Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349

Whitfield v NSW (NSW Police Force) [2011] NSWADT 265

Wotton v State of Queensland (No 5) [2016] FCA 1457; 157 ALD 14

Category:

Principal judgment

Parties:

Pauline Weldon-Bowen (Applicant)
Commissioner of Police – NSW Police Force (Respondent)

Representation:

Counsel:
T Brennan SC (Applicant)
V Bulut (Respondent)

Solicitors:
Racial Justice Centre (Applicant)
Kingston Reid (Respondent)

File Number(s):

2022/00234337

Publication restriction:

NIL

REASONS FOR DECISION

The complaint

1. Ms Weldon-Bowen, the applicant in this proceeding, brought a discrimination claim pursuant to sections 19 and 33 the Anti-Discrimination Act (NSW) (the Act) against Commissioner of Police, NSW Police Force of Police (referred to as the respondent or the NSW Police Force). The complaint is about the way she was treated by the NSW Police Force on 8 December 2020 when she made a complaint of criminal conduct and sought the assistance of the NSW Police Force in protecting her and her child from injury and protecting her property from damage. The complaint was regarding the conduct of a bike rider she interacted with on the road that morning.

2. Ms Weldon-Bowen is an Aboriginal woman from Wiradjuri country, Western New South Wales. Her claim is that the NSW Police Force discriminated against her on the ground of race and or gender in that the respondent refused to provide her with services or that discrimination occurred in the terms on which she provided her with the services.

3. The Tribunal has found that the NSW Police Force failed to investigate Ms Weldon-Bowen’s complaint on 8 December 2020 and issued her with a Traffic Infringement Notice (TIN) for negligent driving.

4. NSW Police Force failed to collect the relevant evidence. NSW Police Force mischaracterised the evidence Ms Weldon-Bowen provided to the NSW Police Force and ultimately the evidence was misrepresented within the chain of command. Before the Tribunal the NSW Police Force led evidence which sought to justify its position as reasonable. Ms Weldon-Bowen’s shock at the service she received from NSW Police Force including the issue of the TIN is understandable. However, based on the evidence and the material before the Tribunal, we are not satisfied that she was treated less favourably on the ground of her race and or sex. We are not satisfied that the respondent treated Ms Weldon-Bowen less favourably than in the same circumstances, or in circumstances which are not materially different, the NSW Police Force treats or would treat a person who is not an Aboriginal person or an Aboriginal woman or a woman.

5. For the reasons that follow, we have decided that Ms Weldon-Bowen application that the NSW Police Force discriminated against her pursuant to ss 19 or 33 of the Act are not made out.

Background

6. On 8 December 2020 at about 8am, Ms Weldon-Bowen was driving her car with her child in the backseat in a child seat, then aged 18 months along Dunning Lane in Roseberry.

7. Ms Weldon-Bowen saw two cyclists ahead of her in the lane riding side by side. There was a separate bicycle lane on the left hand side of the road between parked cars and the single lane road. Ms Weldon-Bowen’s driving was slowed by the two cyclists. She beeped her horn and signalled to them to move into the bicycle lane and overtook the riders.

8. One of the bike riders, Mr Stummer, considered that Ms Weldon-Bowen did not leave him much space when she swerved back into the lane on overtaking him. Ms Weldon-Bowen considered that she changed lanes safely and left adequate space for the bike riders when she merged back into the lane.

9. The bike-riders were now behind Ms Weldon-Bowen’s vehicle. Dunning Avenue had a number of roundabouts. Mr Stummer considered that Ms Weldon-Bowen deliberately slammed on the brakes (‘brake checking’ him) so as to cause him to fear for his safety. He was angry and he threw his water bottle at her vehicle, then stuck his middle finger in her direction and began to tailgate her car. He yelled for her to pull over. Ms Weldon-Bowen took out her mobile phone from the capsule and commenced to take a video of Mr Stummer.

10. Ms Weldon-Bowen continued driving and could no longer see the riders in her view. At the intersection at the corner of Burke Street and Elizabeth Street she saw the bike riders behind her. Mr Stummer said words to Ms Weldon-Bowen that caused her to fear that he would be abusive to her again. She contacted Mascot police by telephone and sought assistance. The police records characterised the incident as ‘road rage’.

11. She turned off into Navins Lane to avoid the cyclists. She was driving slowly in the lane way. Navins Lane has a very sharp turn into McPherson Lane. She saw in front of her that McPherson Lane was closed due to road work and there was a right hand turn into Cook Lane.

12. The cyclists followed her into the lane way. There was a physical altercation between the vehicle and Mr Stummer. Ms Weldon-Bowen stated that the bike rider punched her car three times just above the rear left tire while she was driving the car. The bike rider claimed that because Ms Weldon-Bowen’s vehicle stopped suddenly he could not stop in time and his bike collided with the car. The cyclist proceeded to yell at Ms Weldon-Bowen to get out the car. At this time Ms Weldon-Bowen remained talking to Mascot police on the mobile telephone. The second bike rider was present at McPherson Lane.

13. Ms Weldon-Bowen drove to the Redfern Police Station. She saw the bike riders’ cycles outside the Police Station. Ms Weldon-Bowen telephoned Redfern Police Station and spoke to Probationary Constable Willis (Mr Willis). She told him that she was frightened to go into the police station because the bike rider who had attacked her and punched her car was inside. Mr Willis advised Ms Weldon-Bowen to drive into the police station’s car park, which she did. Ms Weldon-Bowen spoke to another police officer in the car park who told her that Mr Stummer was inside. She left to drop off her child to school and returned to the police station sometime later in the morning.

14. Mr Willis commenced as a Probationary Constable on 26 February 2019. There is a 12 months minimum on the job training to progress to Constable, however Mr Willis was still a Probationary Constable as at 8 December 2020 and at the time he ceased engagement with the respondent on 21 April 2021. On or around 8 December 2020 Mr Willis was restrained to desk duties at the Redfern Police Station because of disciplinary issues. Because Mr Willis was a Probationary Constable, every matter he worked on had to be checked off by a supervisor, Sergeant Donovan.

15. Mr Willis interviewed Mr Stummer first. Mr Willis understood at this time that Mr Stummer was the cyclist against whom Ms Weldon-Bowen had complained. Mr Stummer was ‘yelling’ during the interview. He admitted to Mr Willis that he threw a water bottle at Ms Weldon-Bowen’s vehicle. Mr Willis decided to not take a statement from Mr Stummer or interview the second cyclist and determined to take a ‘form of demand’.

16. On her return to the police station, Ms Weldon-Bowen was met by Mr Willis. On seeing Ms Weldon-Bowen, Mr Willis assumed that she was an Indigenous woman. Mr Willis directed Ms Weldon-Bowen into a conference room and Ms Weldon-Bowen explained to Mr Willis what had occurred that morning. She told him that she was scared for her safety and that of her child. She also showed him photographs of the damaged car and video footage of Mr Stummer tailgating her and gesturing to her. Mr Willis took notes of the incident.

17. Ms Weldon-Bowen wished to make a statement. Mr Willis did not agree that a statement should be made. Mr Willis said to Ms Weldon-Bowen words to the effect, if I give Mr Stummer a fine for damaging your car, I can give you a fine for using your mobile phone while driving.

18. Ms Weldon-Bowen told Mr Willis that she wished to speak to the Aboriginal Community Liaison Officer (ACLO). As Mr Willis was leaving the interview room, he said to Ms Weldon-Bowen words to the effect of this has nothing to do with race. He returned to say that he had made inquiries and that an ACLO was not available and that he would take a statement from her.

19. Following the interview, Mr Willis inspected Ms Weldon-Bowen’s car. Mr Willis told Ms Weldon-Bowen that he would send her an ‘event number’ but this did not occur.

20. Mr Willis failed to retain the photographs and video footage shown to him by Ms Weldon-Bowen during the interview.

21. Mr Willis then telephoned Mr Stummer and asked him to come in to make a statement.

22. In March 2021, Ms Weldon-Bowen received a TIN for negligent driving for stopping suddenly in the lane way and causing the bike rider to collide with her car.

23. The TIN was issued by Mr Willis based on Mr Stummer’s statement that Ms Weldon-Bowen braked suddenly in the lane way causing his bike to collide with the car.

24. Ms Weldon-Bowen contested the fine. The charge was withdrawn and dismissed with costs on 25 July 2022. Mr Stummer was also issued with a TIN for negligent riding.

The Evidence

25. Ms Weldon-Bowen relied on her affidavits, photographs, some documents produced pursuant to a summons and an expert report by five academics from the Institute of Collaborative Race Research (ICRR) attached to an affidavit of Dr Elizabeth Strakosch.

26. The respondent called evidence from Mr Willis who is no longer an agent of the respondent, Mr Bryan who is a Sergeant and Mr Stummer, one of the two bike riders. The applicant, Dr Strakosch, Mr Willis, Mr Bryant and Mr Stummer were cross examined.

27. The evidence of what occurred between Ms Weldon-Bowen and Mr Willis during the interview and following when the two went to inspect Ms Weldon-Bowen’s car is in some parts in significant dispute. Credit findings have been made by the Tribunal. The Tribunal has found that Ms Weldon-Bowen was a careful and cautious witness. She had a good recollection of the events on 8 December 2020. The Tribunal found that Mr Willis was a highly agitated and confused witness. On numerous occasions during his evidence he started off by defending his decisions but over time conceding that his recollections, notes in COPS events, statement to his manager were factually incorrect. Unsurprisingly Mr Willis did not have a clear recollection of what occurred on 8 December 2020 and in the following month involving this investigation.

28. The respondent sought to impugn Ms Weldon-Bowen’s credit by putting Mr Stummer’s version of events to her and suggesting that her evidence was wrong. The respondent also put to Ms Weldon-Bowen that her evidence in regard to her interactions with Mr Willis was incorrect.

29. The resolution of what was and what was not said during 8 December 2020 has centred entirely on the evidence of Ms Weldon-Bowen and Mr Willis. This is not a case where the Tribunal could have relied on reliable documentary evidence of what occurred where there are conflicting recollections of the witnesses.

30. Ms Weldon-Bowen gave evidence in regard to damages for non-economic loss. She stated that as a result of the events subject to this complaint she is anxious and frightened about driving alone. At times she has been overwhelmed with trauma and helplessness. She thinks about the risks of driving her son in the car. She also felt unsettled, humiliated and distressed as an Aboriginal woman being fined for an offence she did not commit and unable to receive the help from police when she needed it.

The events on the road between Ms Weldon-Bowen and the two bike riders

31. First, it is necessary to make some introductory remarks before we set out the evidence. It is not the Tribunal’s role to determine whether there were any offences committed by Ms Weldon-Bowen or Mr Stummer or the other bike rider on the morning of 8 December 2020. The details of what occurred that morning is background to the issues to be determined by the Tribunal, which is whether the respondent contravened ss 19 or 33 of the Act.

32. The respondent relied on Mr Stummer’s evidence for the purpose of impugning the credibility of Ms Weldon-Bowen. During Mr Stummer’s cross examination it came to light that he was in possession of a file of GPS data that recorded numerous matters such as his heart rate, speed traveling and course of travel. Both parties relied on the GPS data to submit that it supported their narrative of events and the credit of Mr Stummer and Ms Weldon-Bowen. The applicant also relied on the GPS data to submit that it was relevant in assessing the inadequacy of the investigation into Ms Weldon-Bowen’s complaint against Mr Stummer.

33. Having the GPS data recording before the Tribunal means that a number of the disputed matters can be assessed by the contemporaneous material, which was not used by the respondent during the investigation. The GPS data is most useful in demonstrating the route taken by Mr Stummer and whether or not he had to slow down or stop as alleged due to being ‘brake checked’ by Ms Weldon-Bowen. However as set out above the disputed matters are of a peripheral importance.

34. Coming first to Ms Weldon-Bowen’s evidence, she stated that when she overtook Mr Stummer and the other bike rider, she did so safely. She did not at any time brake harshly or ‘brake check’ them. She indicated to them that they should use the lane for bike riders. She did not swerve on the road. She turned into Navins Lane to get away from the bike riders because she was fearful that she would be yelled at and abused again. She did not raise her voice at the bike riders or swear at them. She believed that Mr Stummer threw his water bottle at her car and punched the back of her car three times.

35. Ms Weldon-Bowen used her mobile phone to make a video of Mr Stummer traveling close behind her car, and attempting to communicate with her with words and gestures on Dunning Avenue because the chasing caused her to feel fearful for her and her child.

36. Ms Weldon-Bowen saw the bike riders again at the intersection of Bourke Street and Elizabeth Street and the bike rider was yelling at her to pull over. To get away from the bike rider she turned into Navins Lane which connected to McPherson Lane. Mr Stummer followed her into McPherson Lane and punched her car three times just above the rear left tire. He was yelling at her to get out of the car. He approached her window and continued yelling. She was still on the phone with the police. The other rider arrived.

37. The riders left the area. Ms Weldon-Bowen turned her car back towards Elizabeth Street and saw the bike riders in front of her. There were no further interactions with the bike riders.

38. Mr Stummer’s evidence was that Ms Weldon-Bowen overtook him and his friend in a manner which was unsafe and nearly caused him to collide with cars. That Ms Weldon-Bowen braked heavily for what seemed to be no reason (brake checked) them so as to again cause him to fear for his safety. As a result of which, Mr Stummer became angry and threw a water bottle at her car. Mr Stummer chased Ms Weldon-Bowen’s car, shouting at her to pull over. Ms Weldon-Bowen was swerving on the road when she was holding a mobile phone in her hand. They thought that she tried to run them over again a little further down the road and so they followed her into the lane way. They were shouting for her to stop. In the lane way she suddenly braked, coming to a complete stop causing Mr Stummer to nearly come off his bike and to stop the fall he used his hands and bike on her car. Mr Stummer swore and shouted at Ms Weldon-Bowen to get out of the car. Ms Weldon-Bowen was also heated.

39. Mr Stummer was fearful for his personal safety and that of other road users because of the reckless manner in which Ms Weldon-Bowen was driving.

The evidence of Ms Weldon-Bowen making an emergency phone call to the police while she was on the road and initial attendance at Redfern police station

40. There is no dispute that Ms Weldon-Bowen called Mascot police station after the incident on Dunning Avenue and at the intersection of Elizabeth Street. She was speaking to Constable Buckley and stayed on the phone until she reached Redfern police station.

41. Constable Buckley created a Computer Aided Dispatch System (CAD) event and caused an unmarked police car to be sent to the location as reported by Ms Weldon-Bowen. The incident was characterised by the police as ‘road rage’. The transcript of the CAD was in evidence.

42. Mr Willis had the task of monitoring the CAD and radio broadcasts that morning and had some awareness of Ms Weldon-Bowen’s complaint of being ‘attacked by a guy on a bike’ before he met her.

43. Mr Willis answered a phone call from Ms Weldon-Bowen, he recalled that she said words to the effect of I am being attacked by a guy on a bike. Mr Willis told her to come into the station to make a statement. Mr Willis was aware at the time that there was a job logged into the CAD which stated that a female caller was being harassed by a bike rider and that at least one unmarked police car had responded to the job which meant they were looking for the people involved.

40. When Ms Weldon-Bowen arrived at the police station she was ‘crying, shaking and frightened’ to go into the police station knowing that the bike rider was inside. A police officer told her that the bike rider was inside the police station and that he was ‘angry, aggressive and yelling’. Ms Weldon-Bowen decided to take her child to school and return to the police station later.

Interview of Ms Weldon-Bowen by Mr Willis

45. As stated above, Ms Weldon-Bowen’s evidence as to what was said by Mr Willis during the interview differed in significant regard to Mr Willis’ evidence as to what was said.

Ms Weldon-Bowen’s evidence

46. When Ms Weldon-Bowen returned to the Redfern police station she was greeted by Mr Willis. She said to him that she would like to make a statement about the bike rider. She was taken into the interview room and proceeded to describe the events of the morning to Mr Willis. Words to the following effect were exchanged.

WB: I would like to make a statement about the bike rider.

Mr Willis: He was in here and admitted to punching and throwing something at your car I'm not saying what he did was OK but maybe you were the driver that broke the camel’s back. I'm not saying what he did was OK. I told him that punching your car is some anger issues.

Mr Willis: It is up to me whether I allow you to make the statement.

WB: I will be making a statement because he has damaged my car.

Mr Willis: Do you know it's an offence to give a false statement do you know you could go to prison. This situation is a tit for tat. I am not here for tit for tat.

WB: But the bike rider admitted to you that he punched my car.

Mr Willis: it's he said she said situation. I have footage from the bike rider that shows you using your mobile phone while driving.

WB: I feared for my life and that of my child’s, our safety was at risk I was in the car by myself with my son and I felt I had no other choice. He was tailgating me, screaming abuse and damaged my car. He doesn’t have a number plate how could I hold him to account for what happened?

47. Ms Weldon-Bowen stated that she held out her phone showing Mr Willis the video but that he was dismissive, continued to keep eye contact with her while talking and did not watch the video. She also showed Mr Willis photographs of the damage to the car. After further insistence by Ms Weldon-Bowen to make a statement, words to the following effect were said:

Mr Willis: If I give him a fine for damaging your car I can give you a fine for using your mobile phone could you afford to pay the fine can you afford to lose the points?

WB: Can you please get an Aboriginal Liaison Officer (ALO) I don't feel comfortable.

Mr Willis: By the way, this has nothing to do with race.

48. On returning to the interview room, Mr Willis stated words to the effect:

Mr Willis There is no one (ALO) available. I will take your statement.

Mr Willis: I ride my bike to work regularly and sometimes bike-riders can get frustrated with drivers. Again, I am not saying what he did was okay. I am also a father so I can understand how that would have felt with your son in the car.

I was also a mechanic, so I'll be able to see where he punched your car. I'll go out and have a look. Just give the event number to your insurance and they will call us for his details.

49. Ms Weldon-Bowen’s evidence was that she asked for an ALO following Mr Willis’ statement that he could fine her for using her mobile phone which he has evidence of and inquiring whether she could afford to pay the fine.

50. Ms Weldon-Bowen stated that the reason she attended the police station was because she was afraid of the rider, wanted protection for herself and her son and wanted the police to hold the rider accountable for his behaviour and damage to her car.

Evidence given by Mr Willis

51. Mr Willis recalled that Ms Weldon-Bowen told him that she wanted to provide a statement. He told her that he was still deciding whether he take a statement from her as he had already spoken to the bike rider.

52. Mr Willis stated that while he could not recall what Ms Weldon-Bowen said, she was ‘upset and aggressive’ toward him ‘in the manner in which she was speaking’ and telling him what he should do.

53. At [26] (of his first affidavit):

Specifically I thought she was being accusatory towards me because I was trying to do my job and collect the facts in the way that I wanted to. As a police officer I did not let anyone outside my chain of command tell me how to do my job.

54. While taking Ms Weldon-Bowen’s statement she showed Mr Willis video footage of the incident with the bike rider.

55. Mr Willis told Ms Weldon-Bowen that he could give her a fine for using her mobile phone if he gave a fine to Mr Stummer for damaging her car.

56. Ms Weldon-Bowen told Mr Willis that she did not feel comfortable and wanted to speak to an ACLO. In response Mr Willis told her that he would see if one was available and said, ‘however this has nothing to do with race.’

57. Mr Willis stated that Ms Weldon-Bowen was being argumentative with him about the way in which he took her evidence and he ‘wanted her to know that race had nothing to do’ with whether he took a statement or a form of demand.

58. Mr Willis told Ms Weldon-Bowen that he used to ride his bike to work and understood their frustrations. He also said ‘I am not saying its ok what he did. I am a father and can understand how unsafe you would have felt.’

59. Mr Willis was told by Sergeant Donovan to take a statement, so he proceeded to do so. Mr Willis stated that he summarised the JURAT to Ms Weldon-Bowen as ‘the statement you’re about to give is true to the best of your knowledge. If you say anything you know is untruthful, I can prosecute you.’

Inspection of the car by Mr Willis

60. Ms Weldon-Bowen‘s evidence was that once outside on inspecting the vehicle, Mr Willis stated words to the effect: Yes I can see where he's punched your car I'll contact him for a statement you'll receive a text message for the event number, and I'll be in contact with you soon.

61. Mr Willis’ evidence was that they went outside to look at the car. Mr Willis observed a ‘dint’ and formed a view that the height of the dint was consistent with Mr Stummer’s evidence that his handlebar collided with the car, and he had to use his arm to brace the impact. He did not consider it plausible for the dint to be caused by a punch because it was ‘so low’.

62. Mr Willis denied that he said to Ms Weldon-Bowen that he could see where the car was punched.

First interview of Mr Stummer by Mr Willis

63. Mr Stummer arrived at the police station at about 8.25 am. Mr Willis stated that Mr Stummer was yelling and was angry because he was almost run off the road and had a scrape or sore arm. Mr Stummer stated that Mr Willis ‘blew’ up at him, that he was raising his voice at him and said, ‘you are the guy with the backpack who was abusing a driver.’ Mr Stummer denied this and said ‘I am here to get your help. I am being chased. If you are not going to help me I am going to leave’, to which Mr Willis stated: ‘if you leave the police station, I will place you under arrest.’

64. Mr Willis proceeded to interview Mr Stummer, who told him that he threw a water bottle at the car. Mr Willis told Mr Stummer: ‘mate you are not in trouble, but I can issue you with a ticket.’ Mr Stummer did not think that Mr Willis was taking him seriously and thought that he was the one causing the issue.

65. Mr Stummer showed Mr Willis photos he took while riding. Mr Stummer told Mr Willis that he was riding with his friend Mr Douglas.

66. At about 10.30am Mr Willis telephoned Mr Stummer and told him that he had to come in and give a statement because it was an incident he needed to investigate.

67. Mr Willis’ evidence was that he formed the view that Mr Douglas was not an independent witness and that at the time he was speaking with Mr Stummer for the first time he was proposing to prepare a ‘form of demand’ which is a factual statement the police use specifically for traffic offences.

68. Mr Willis stated at [21]:

On the information I had already obtained from Mr Stummer, I had formed a view that the applicant and the bike rider had been involved in a traffic incident. The matter was essentially classed as a fail to exchange details because the parties involved in the traffic incident did not exchange details. As such, it was usual practise to prepare form of demand for each person involved so that in the event the insurance company contacted police we could provide the insurer with their details.

69. Mr Willis stated that prior to interviewing Ms Weldon-Bowen he did not believe that Ms Weldon-Bowen was a victim of crime ‘because I believed (they were) both persons of interest.’

70. Mr Stummer’s evidence was that when he returned to the police station to make a statement later that day, the way in which Mr Willis was talking to him was ‘completely unacceptable’ as he was not listening, kept interjecting and was putting words in his mouth. Mr Stummer formed the view that Mr Willis had a negative attitude towards cyclists and believed that they should not be on the road.

71. Mr Willis stated that he did not ask Mr Stummer if he had punched the car because ‘by taking a person's version of events I would not ask questions other than to seek to obtain that person's version of events’.

72. Mr Stummer stated that he was ‘shocked’ to be issued with a fine for negligent riding.

Ongoing investigation of the complaints

73. Following the interviews with Mr Stummer and Ms Weldon-Bowen, Sergeant Donovan told Mr Willis that further investigation was required. CCTV was canvassed for the intersection of McPherson and Cook Lanes. However no footage was available.

74. Mr Willis made a COPS Event. The COPS event created by Mr Willis stated that there was conflicting evidence as to how there was contact between Ms Weldon-Bowen’s vehicle and Mr Stummer’s cycle.

75. The COPS Event also recorded that:

1. Mr Stummer claimed that Ms Weldon-Bowen’s vehicle caused him to almost collide with parked cars and that Ms Weldon-Bowen stated that she maintained appropriate distance with the bike riders.

2. Both parties stated that the interactions between them were heated, and they swore at each other

3. Both travelled on Nevins (Navins sic) Lane into McPherson Lane. Ms Weldon-Bowen stated that Mr Stummer punched her car three times. Mr Stummer stated that she braked suddenly blocking the road causing him to apply the brakes suddenly himself, that he was unable to stop and used the car to brace him impact.

4. Both attended the police station alleging that the other had committed an offence.

5. Photos received from Mr Stummer

6. Due to conflicting versions of the collision, further investigation is required for possible CCTV of the incident site.

7. No CCTV footage could be accessed.

8. After discussions with supervisor, both parties issued with infringement notice. Mr Stummer for throwing the water bottle at the vehicle and Ms Weldon-Bowen for braking harshly with need to causing a collision with the rider.

76. A number of photos provided by Mr Stummer and taken by Mr Willis were added to the file.

77. Mr Willis’ evidence was that in analysing the evidence he considered that he received conflicting version of events. He believed that he had received video footage that both the applicant and Mr Stummer were driving/riding negligently.

78. Mr Bryant, who is a Sergeant was not Mr Willis’ supervisor. His evidence was that Sergeant Donovan had been away from work for over 12 months. Mr Bryant considered that a separate malicious damage incident should have been recorded on the COPS event, however this would not have affected the outcome of the investigation.

79. Mr Bryant concluded that the dint on the car was more consistent with the contact by the bike than that of a fist.

80. In the weeks following the incident, Ms Weldon-Bowen made numerous phone calls to Mr Willis but was told that he was not available. She asked to speak to his manager and was informed that the police were unable to get any evidence that Mr Stummer punched her car.

Respondent’s decision to issue fines of equal value to Mr Stummer and Ms Weldon-Bowen

81. Mr Willis told Sergeant Donovan that:

I want to issue the applicant with an infringement notice for using her mobile phone while driving and changing lanes unsafely. I've seen the video footage which proved both of those offences. I also want to issue Mr Stummer with an infringement notice for launching a projectile at the vehicle because he admitted to throwing a water bottle at her car.

82. Sergeant Donovan told Mr Willis; ‘it's better to charge both of them with negligent driving and negligent riding as they are catchable offences and easier to prove in court then the specific offences.’

83. Mr Willis provided justification for his decisions and explanations as to why other decisions were not made in paragraphs [72]-[75] of his first affidavit:

When issuing infringement notices, police are always conscious that they have enough evidence to ensure a conviction is made. That is why a catch all offence of negligent driving with video evidence is a convincing charge.

In hindsight, on the available evidence I probably could have charged Mr Stummer with intimidation. At the time that charge did not cross my mind it was not suggested to me by Sergeant Donovan or any other more senior officer.

In my opinion I could not have charged Mr Stummer with assault for the damage to the applicant's car and the only plausible charge would have been malicious damage to property which I considered at the time. However, for such a charge to satisfy the elements of malicious damage to property there needs to be a level of intent or recklessness. I formed a view that Mr Stummer had not intended and was not reckless in causing damage to the applicant's car. I formed this view because of the height of the mark shown to me on the car which I considered the only plausible explanation was that the bike’s handlebars had collided with a car. I could have recorded a separate malicious damage incident and reported that there was not enough evidence to substantiate this.

I considered that launching projectile at the applicant’s vehicle was the most appropriate offence for Mr Stummer throwing his water bottle at the car, however my supervisor Sergeant Donovan recommended that I instead proceed with the ‘catch all’ offensive negligent riding.

84. Mr Bryant’s view was that there was conflicting versions of the collision which warranted issuing an infringement notice as the ‘conduct of both parties was such that it was not done with due care and attention reasonably expected of a driver or rider.’

85. Mr Willis gave evidence that the issuing of an infringement notice is not a charge, but ‘a notice issued by police setting out the particulars of an alleged contravention of a traffic offence or civil penalty provision’.

86. In March 2021, Ms Weldon-Bowen was shocked to receive a penalty notice for Negligent Driving (no death or grievous bodily harm). She telephoned Redfern Police Station and was informed that Mr Willis was not available and that the penalty notice was issued for harshly slamming her foot on the brakes forcing the bike rider to collide with the car. She was also informed that the bike rider was not charged with damage to her car and that her photos were not uploaded to the police file.

87. Sergeant Bryant’s evidence was given in support of the respondent’s decision to issue a fine to Ms Weldon-Bowen for negligent driving for stopping her vehicle suddenly. Mr Bryant’s evidence was that despite there being no evidence that Ms Weldon-Bowen stopped the vehicle without due care and attention reasonably expected of a driver in the lane way, it was reasonable to issue her with a fine because her prior poor driving that morning (changing lanes in an unsafe manner on Dunning Lane), for which there was no evidence but was to be considered as it was indicative of the manner of her driving and an inference was made considering the totality of the circumstances. Sergeant Bryant assumed that Ms Weldon-Bowen stopped her vehicle suddenly so as to ‘brake check’ Mr Stummer. For this reason, Sergeant Bryant’s opinion was that it was not reasonable to charge only one of them.

Applicant’s Expert Evidence

88. Dr Elizabeth Strakosch is a Senior Lecturer in Politics and Policy at the School of Political Science and International Studies, University of Queensland and is the founding Co-Director and Principal Researcher at the Institute of Collaborative Race Research (ICRR). Dr Strakosch together with four other academics prepared an export report.

89. The other four academics involved in preparing the expert report were Professor Watego, Dr Singh, Dr Macoun and Ms Cerreto of the ICRR. The academics are described in the report as having ‘extensive expertise in the structural and political dynamics that can impact on policing and other forms of official decision making. They research how race, gender, colonialism and Aboriginal sovereignty intersect in the areas of justice, health, social policy and policing’.

90. Professor Watego is the Executive Director, Carumba Institute and Professor of Indigenous Health School of Public Health and Social Work, Queensland University of Technology (QUT). Dr Singh is the Indigenist Health Humanities Director and the School of Public Health and Social Work at QUT and Dr Macoun is the Director at the ICRR. Dr Macoun described the ICRR as an ‘independent Indigenous-led Institute dedicated to fighting white supremacy and racial violence through antiracist intellectual work grounded in sovereignty, community and dignity.’ Ms Cerreto is the Research and Communications Manager at ICRR and Strategic Communications Advisor at the Justice Map.

91. The report introduced the concept of ‘structural racism’ as:

…a system that allocates different groups to different places in a social hierarchy and legitimises this ongoing inequality as natural or self-imposed. While some distinguish between racism expressed by individuals in their actions or attitudes, encoded by institutions in their policies, patterns and procedures, or distributed throughout broader bureaucratic or cultural systems in their allocation of resources and violence, these forms of racism can be understood as parts of a connected, interrelated and mutually reinforcing structure.

92. In regard to ‘structural racism’ and policing the report stated:

Extensive scholarship has demonstrated a long history of police minimising or ignoring violence against Aboriginal and Torres Strait Islander women, particularly that committed by white men. When violence against Aboriginal women is noted by police, Aboriginal women are extensively and systematically mis identified as aggressors or perpetrators. (footnotes excluded)

93. Under the heading ‘NSW Police Force and racialised credibility’ the academics opined that ‘police and other authorities are more likely to accept the evidence of white witnesses and stereotype Aboriginal women’. The authors stated that:

The aggressive or angry Aboriginal woman is a dehumanising racist trope, commonly deployed to legitimise violence against Aboriginal women to imply that they do not require protection. Research shows that Australian police routinely rely on this trope in matters of violence against Aboriginal women, where victims of crime are ‘misidentified’ as perpetrators because they do not fit the stereotype of the ‘ideal white victim’ held by police.

94. In relation to Ms Weldon-Bowen’ circumstances, the ICRR report stated that the respondent’s argument that both Mr Stummer and Ms Weldon-Bowen were treated and penalised in the same way is an important demonstration of racism in operation in this case because the evidence did not support a ‘conflicting version collision’ as described by Sergeant Bryant. To have come to this conclusion the respondent preferred all of Mr Stummer’s evidence, minimised Mr Stummer’s admitted violence and ignored Ms Weldon-Bowen’s evidence.

95. The authors are critical that an ACLO was not available at Redfern Police Station at about 9 am on a weekday and that Ms Weldon-Bowen was not informed that an ACLO would be available at 9.30am. The authors make an assumption that Mr Willis’ statement that ‘this has nothing to do with race’ when Ms Weldon-Bowen requested an ACLO indicated his feeling that the request was unjustified.

94. The authors characterise Mr Willis’ statement to the effect that she broke the camel’s back ‘as sympathetically excusing Mr Stummer’s regrettable behaviour by an otherwise ‘good bloke’ as a single out of character unfortunate incident, reflecting ‘systematic sexism of police responses to violence against women’ that ‘blames women for men’s violence’.

95. The report refers to scholarship that people do not act with conscious ‘racist intentions’ in reinforcing racist structures but that ‘racism now operates in a ‘post-racial’ mode, in which the reality of racism is denied even as its inequalities are reproduced.’

96. The expert evidence was admitted over objection from the respondent. The key objections to the evidence were that there was no recognised area of expertise, the evidence was not relevant, that the academics lacked expertise and that there was no identification of assumptions or reasoning.

97. We accept that the authors of the report do have specialised knowledge regarding systematic racism in government systems, particularly in regard to approaches to health, justice, policing and policy responses. Relevantly to this claim, the authors used methodology examining intersectional racial and gender stereotypes.

98. The authors relied on research from Australia and United States of America about the manner in which Indigenous women are seen as witnesses and victims in the policing context (footnote 16 to the report).

99. The authors made numerous explicit assumptions about Mr Willis’ conduct. The authors assumed that Mr Willis initially refused to take a statement from Ms Weldon-Bowen because he adopted Mr Stummer’s version of events and more critically had already predetermined that it was a traffic incident before talking to Ms Weldon-Bowen. The authors assumed that Mr Willis made these decisions based on a ‘prevailing racialised assumption.’

100. The cross examination of Dr Strakosch focused on methodology and assumptions made by the authors of the report as well as the manner in which the report was finalised. Dr Strakosch agreed that she accepted Ms Weldon-Bowen’s evidence at face value and did not make an assessment of the conflicting evidence.

Relevant legislation

103. It is not in contest that the respondent is a public authority established under the Police Act 1900 (NSW) (“Police Act”) and that police officers are agents of the respondent within the meaning of s53 of the Act.

104. Section 6 of the Police Act is in the following terms:

(1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear.

(2) The NSW Police Force has the following functions--

(a) to provide police services for New South Wales,

(b) to exercise any other function conferred on it by or under this or any other Act,

(c) to do anything necessary for, or incidental to, the exercise of its functions.

(3) In this section--

"police services" includes--

(a) services by way of prevention and detection of crime, and

(b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and

(c) the provision of essential services in emergencies, and

(d) any other service prescribed by the regulations.

(4) A reference in this section to the functions of the NSW Police Force includes a reference to the functions of members of the NSW Police Force.

(5) The provision of police services in emergencies and rescue operations is subject to the State Emergency and Rescue Management Act 1989 and to the Essential Services Act 1988 .

(6) Nothing in this section confers on the NSW Police Force a power to provide a police service in a way that is inconsistent with any provisions applicable to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002 .

1. Section 7 of the Police Act states:

Each member of the NSW Police Force is to act in a manner which--

(a) places integrity above all,

(b) upholds the rule of law,

(c) preserves the rights and freedoms of individuals,

(d) seeks to improve the quality of life by community involvement in policing,

(e) strives for citizen and police personal satisfaction,

(f) capitalises on the wealth of human resources,

(g) makes efficient and economical use of public resources, and

(h) ensures that authority is exercised responsibly.

105. The term ‘services’ is defined in s 4 to include:

(a) services relating to banking, insurance and the provision of grants, loans, credit or finance,

(b) services relating to entertainment, recreation or refreshment,

(c) services relating to transport or travel,

(d) services of any profession or trade,

(e) services provided by a council or public authority,

(f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.

106. Discrimination is defined in ss 7 and 24 of the Act to be where a person, the perpetrator treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that sex or race on the ground of the aggrieved person's sex or race.

107. Sections 19 and 33 makes it unlawful for a person to discriminate against a person on the grounds of race and or sex by:

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

The Parties’ Submissions

108. This case requires the resolution of a number of factual and legal issues. These issues are connected but for convenience we have separated them into three distinct issues. These include the assessment of conflicting evidence, the nature and scope of any services provided by the respondent to the applicant and relevant legal principles as to what constitutes direct discrimination on the ground of race and or sex.

Ms Weldon-Bowen’s submissions

Evidence

109. The evidence of what occurred between Ms Weldon-Bowen and Mr Willis during the interview and following when the two went to inspect Ms Weldon-Bowen’s car is in some parts in significant dispute. Ms Weldon-Bowen alleged that Mr Willis made a number of statements which he denied. Also some of the statements made by Mr Willis while admitted by him are differently described by Ms Weldon-Bowen.

110. The applicant’s submission was that where the evidence differs, the Tribunal should accept Ms Weldon-Bowen’s account as she was an honest witness, and that Mr Willis’ evidence was incorrect and in parts absurd or irrational. The applicant points to the following evidence:

1. COPS entry that ‘both drivers state that the interaction between them got heated with both drivers swearing at each other’. Mr Willis agreed that this was a mistake and that Ms Weldon-Bowen stated that Mr Stummer was swearing. Ms Weldon-Bowen did not state that she was heated and swearing.

2. Mr Willis said to Sergeant Donovan ‘I want to issue the applicant with an infringement notice for using her mobile phone while driving and changing lanes unsafely. I have seen the video footage which prove both those offences. Mr Willis admitted that this was wrong, there was no video showing that the applicant was changing lanes unsafely and that the only evidence of such an allegation was from Mr Stummer. The only video was that taken by Ms Weldon-Bowen which did not show her changing lanes unsafely.

111. Sergeant Bryant gave evidence that in his opinion it was reasonable to conclude that Ms Weldon-Bowen caused the collision at the end of McPherson Lane with Mr Stummer because there was some evidence that earlier that morning in a different location she could have exercised greater care.

112. Based on this conclusion, Sergeant Bryant opined that as both of them committed offences they should have both been issued with fines so that their credibility could be tested in court, which in the applicant’s submission was also devoid of merit as both infringement notices were based on Mr Stummer’s allegations. It was submitted that this opinion was unreasonable as there was no rational connection to be drawn from the material before him and the conclusion reached was absurd.

113. The applicant relied on Mr Stummer’s GPS file and his evidence under cross examination to submit that based on the speeds he was travelling and the bike ride path, the objective evidence supported Ms Weldon-Bowen’s account and not his in regard to critical events:

1. That by Ms Weldon-Bowen overtaking him, she did leave him with sufficient room behind her and he was not caused to change his position suddenly or to slow down.

2. That she did not ‘brake check’ him on Dunning Avenue causing him to come to a sudden stop

3. That Ms Weldon-Bowen did not drive into him at the roundabout at the intersection of Merton Street and Elizabeth Street as they were both travelled to the roundabout down the same street and Ms Weldon-Bowen could not have been to Mr Stummer’s right at the roundabout.

4. That Mr Stummer turned into Navins Lane at high speed and into McPherson Lane which is a sharp turn across a two way street at about 20km an hour and increased his speed to nearly 29km an hour down the narrow lane, Ms Weldon-Bowen’s car was at the corner of McPherson Lane and Cook Lane. Mr Stummer did not have the time to stop because he was riding too fast chasing Ms Weldon-Bowen. He used his arm on the car to slow down. The collision was at the rear panel of the car behind the passenger door.

114. Whether the cause of contact between Mr Stummer’s forearm or fist was a punch to the car or whether Mr Stummer’s forearm or fist collided with the car to brace against impact does not matter on the applicant’s case as what was undisputed was that there was a collision and Ms Weldon-Bowen perceived it as an aggressive act.

115. Mr Stummer did not deny that he said to Ms Weldon-Bowen words to the effect, get the fuck out of the car and when Ms Weldon-Bowen said words to the effect; you threw something at my car and now you have punched my car with my son in the back. Mr Stummer said words to the effect: I don’t give a fuck.

116. The applicant submitted that the Tribunal ought to find the following findings of fact:

1. The respondent’s response to Ms Weldon-Bowen’s complaint was on ‘its face inexplicable’ because her account was corroborated by video footage and the cyclist’s admissions. Mr Willis observed the cyclist’s aggressive demeaner and evidence of damage to the car.

2. The cyclist’s complaints against Ms Weldon-Bowen were contrary to the evidence before Mr Willis. The assertion that she braked suddenly to cause the cyclist to collide into her car was inconsistent with the reason Ms Weldon-Bowen gave for braking the car.

3. Mr Willis’ unwarranted scepticism and threats to fine her was ‘inexplicable’.

4. The NSW Police Force’s decision to treat Ms Weldon-Bowen and Mr Stummer as equally culpable and to charge both with an offence was ‘inexplicable’.

117. The applicant submitted that these findings warrant a drawing of an inference that Ms Weldon-Bowen’s treatment was on the ground of race or on the ground of sex. Ms Weldon-Bowen submitted that in drawing inferences, it is immaterial that Mr Willis thought that he was acting impartially.

Services

118. Ms Weldon-Bowen relied on the decision in Commissioner of Police v Mohamed [2009] NSWCA 432; 262 ALR 519 (“Mohamed”) and submitted that the facts in Mohamed were closely analogous to this case in that the applicant alleged that when the police attended to investigate a complaint, the police yelled at the family, police failed to take their statement and failed to take their complaint seriously. When Ms Mohamed and members of her family attended the police station to give their statements, one of her brothers was arrested and placed in a cell. It was alleged that police did not take any action against the neighbours alleged to have been responsible for the abuse and assault and there was no evidence of any ongoing abuse or assault by the neighbours.

119. Ms Weldon-Bowen submitted that these facts were found to be part of the investigation by the police within the meaning of the Police Act and the Act and that the services are those that were actually provided or refused to the applicant.

120. In regard to the comparison required in the Act, Ms Weldon-Bowen relied on Basten J’s judgement that the comparison is between the treatment of the aggrieved person and ‘the manner’ of treatment of a person without the characteristics of the attribute:

What will be required of the tribunal is to compare evidence of what actually happened in relation to the complainant and her family with hypothetical circumstances which may be based on little more than an abstract understanding of appropriate conduct of police in similar circumstances which involve, for example, two Caucasian families [26].

121. The applicant did not dispute that Mr Willis was less than competent in carrying out the investigation, although is critical of the respondent for failing to raise this in the amended points of defence and that it was only raised in the closing submissions but submitted that an inference should be made that there were other reasons for his actions which were based on the applicant’s sex and or race.

122. The applicant submitted that based on her complaint to Mr Willis, the cyclist ‘was likely’ to have committed the offences of intimidation, malicious damage to property and negligent riding.

Discrimination

123. Ms Weldon-Bowen pleaded in the Amended Points of Claim that on 8 December 2020 she made a complaint to the police and sought their assistance in protecting her, her child, her property and detecting and preventing crime by holding Mr Stummer to account for his actions. She submitted that in responding to the complaints and requests for assistance, the NSW Police Force was providing her with services within the meaning of s 6 of the Police Act and ss 19 and 33 of the Act.

124. Ms Weldon-Bowen alleged that the NSW Police Force discriminated against her on the basis of race and or gender on 8 December 2020 in that the NSW Police Force refused to provide her with the services or alternatively the terms on which it provided services to her. It was pleaded in paragraph 23D and 23F of the Amended Points of Claim that the services were either refused or provided on different terms because the response to the complaint and request for assistance:

1. Was not appropriately sympathetic and supportive to an apparent victim of crime,

2. Treated the applicant as a perpetrator of crime;

3. Not adapted to the need of the applicant – no provision of support mechanisms;

4. Did not resolve the applicant’s complaint;

5. Failed to provide her with an events number;

6. Failed to take out an apprehended violence order or another protective measure;

7. Failed to conduct a proper investigation;

8. Charging Mr Stummer was not commensurate with the objective seriousness of his conduct;

9. Charging the applicant with an offence because she made a complaint.

125. Ms Weldon-Bowen submitted that the causation element was demonstrated by a comparator whereby:

1. Police receive and consider a complaint by a car driver against a bike rider and

2. The bike rider has:

1. tailgated the car.

2. thrown an object at the car.

3. followed the car down an alley.

4. ridden in a manner to collide with the car and

5. engaged in an animated and foul mouthed attack on the driver.

126. In those circumstances it was submitted that had Ms Weldon-Bowen not been an Indigenous woman, the response of the police would have been:

1. an appropriately sympathetic and supportive response to an apparent victim of crime;

2. the treatment of the complainant as a victim rather than perpetrator of a crime;

3. provision of available support mechanisms adapted to the needs of the complainant;

4. assistance in remedying the financial consequences of the rider’s conduct, including by supplying the complainant with an event number;

5. the taking out of an apprehended violence order or other protective measure in favour of the complainant;

6. a proper investigation of the complaint including by including photographs and other evidence on the case file providing the complainant with an event number and communicating with the applicant about the course of the investigation;

7. the charging of the offender with an offence or offence is commensurate to the objective seriousness of his conduct, and

8. providing her with an ACLO or ensuring that her statement is taken when an ACLO is available.

127. Ms Weldon-Bowen submitted that the expert evidence was based on extensive academic research and study and demonstrated that in Australia police commonly treat Indigenous complainants and Indigenous woman complainants less favourably than others and police responses to complaints made by Indigenous women are characterised by a series of particular and well-pronounced features.

The NSW Police Force submissions

Evidence

128. In regard to the evidence, the respondent submitted that the Tribunal should not accept the applicant’s evidence where it differs from the evidence of Mr Stummer or Mr Willis. The respondent submitted that the Tribunal should accept on Mr Stummer’s evidence because he was ‘an entirely impartial witness’.

129. The respondent relied on two examples of differing accounts of evidence that demonstrated that Ms Weldon-Bowen’s evidence was inaccurate and unreliable based on the Mr Stummer’s evidence and the GPS data.

130. The first piece of evidence surrounded what occurred at the corner of Elizabeth Street and Bourke Street. The applicant’s evidence was that Mr Stummer pulled up to her car, knocked on the boot and said words to the effect; pull up now and get out of the fucking car. Ms Weldon-Bowen’s evidence was that this caused her great distress and that as a result she turned off into the lane to get away from Mr Stummer. The respondent relied on the GPS data that Mr Stummer’s bike does not stop on Elizabeth Street travelling at all times faster than 20km an hour.

131. The second point of disagreement is what occurred in the lane. Ms Weldon-Bowen’s evidence was that as she began turning into Cook Lane, Mr Stummer punched the car door side three times hitting the panel next to the door above the petrol section. Mr Stummer’s evidence was that his arm (between his first and elbow) and possibly the handlebars of his bike collided with Ms Weldon-Bowen’s car as he could not come a complete stop as her car stopped suddenly. The respondent relies on GPS data that demonstrates that Mr Stummer came to a complete stop on McPherson Lane and not on Cook Lane.

132. The respondent submitted that because of Ms Weldon-Bowen’s unreliability as to what occurred between her and Mr Stummer, the Tribunal should prefer the evidence of Mr Willis as to what occurred at the Redfern Police Station.

133. The respondent submitted that Mr Willis gave honest evidence and made appropriate concessions. Mr Willis was an impartial witness as he was no longer a member of the NSW Police Force and that there was no significant disparity between the evidence of Mr Stummer and Mr Willis as to what occurred at the Redfern Police Station.

Services

134. The respondent submitted that her conduct did not constitute the provision of a ‘service’ within the meaning of ss 19 and 33 of the Act and that there was no refusal to provide a service and there was no less favourable treatment. The NSW Police also admitted that the service Ms Weldon-Bowen received was not of a high standard and could have been performed better but sought to justify Mr Willis’ conduct by leading evidence from Sergeant Bryant.

135. The respondent relied on the decisions in Bickle v State of Victoria (Victoria Police) [2020] FCA 168 (“Bickie”); Gupta v State of South Australia [2022] FCA 1598 (“Gupta”) and Djime v Kearnes [2019] VSC 117 (“Djime”).

136. In Bickie, at [19]-[20] (Snaden J) found that a police investigation into a criminal offence was not a service within the meaning of s 24 of the Disability Discrimination Act 1992 (Cth) (“DDA”) because it was not a ‘benefit upon any particular individual (including those claiming to be the victims of the conduct under investigation) for the alleged victim’.

252. We consider that the hypothetical comparison is a car driver who is not Aboriginal and or a woman who made a complaint and sought the assistance of the Police in regard to a traffic incident with a bike rider and the bike rider at the same time made a complaint and sought assistance of the Police in regard to a traffic incident with the car driver.

253. The car driver alleged that the bike rider:

1. tailgated the car;

2. threw an object at the car;

3. followed the car down an alley;

4. rode in a manner to collide with the car;

5. punched the car and

6. engaged in an animated and foul mouthed attack on the driver.

260. The bike rider alleged that the car driver:

1. tailgated the bike rider;

2. swerved on the road in an unsafe manner causing fear to the bike rider;

3. driven in a manner to collide with the bike and

4. engaged in a heated conversation including swearing.

261. The question is; how Mr Willis would treat another person without Ms Weldon-Bowen’s attributes in the same circumstances or those that are not materially different as set out in paragraphs [258]-[260] above. The applicant carries the legal and the evidential burden to prove that she would have been treated differently if she was not Aboriginal or a female and that the differential treatment was because of her race and or sex.

262. Prior to considering whether there has been less favourable treatment of Ms Weldon-Bowen by the NSW Police Force and if so whether it was because of her race and or sex, the treatment complained of and the respondent’s reasons or grounds for treating Ms Weldon-Bowen in the way that it did must be made clear.

263. Whether NSW Police Force’s treatment of Ms Weldon-Bowen was objectively less favourable than the respondent’s treatment of the ‘comparator’ is a question of fact.

264. Conducting a differential treatment assessment is a fact finding exercise. First, factual findings must be made as to the treatment received by Ms Weldon-Bowen during the investigation conducted by Mr Willis. The second aspect is making factual findings as to how Mr Willis would have treated a non-Aboriginal male during the investigation he was responsible in conducting.

265. In this case, there is no objective evidence as to how the respondent treated a man who was not Aboriginal in the same or similar circumstances as the applicant. There was no evidence of policy or procedure or of any system used to investigate complaints made to the police. The analysis is made substantially more difficult by the fact that there are multiple causes being alleged of which the respondent became aware of at different points in time.

266. The most appropriate and convenient way to tackle the issues arising in this claim is to ask why the applicant was afforded the treatment she received, taking into account all the circumstances of the case.

267. The Tribunal has made findings of fact that the applicant was entitled to but was not afforded an investigation into her complaint. If any of the reasons why an investigation was not afforded to the applicant involved her gender or race, her complaint will be made out. If the investigation was not afforded to her because of a reason that does not include the proscribed ground, her complaint of discrimination will not be made out.

268. The applicant’s case is that an inference is available based on the evidence in the IRCC Report that the conduct of the NSW Police Force was discriminatory towards Ms Weldon-Bowen. The applicant submitted that it was irrelevant that Mr Willis did not recognise his own biases consistent with the Victorian Supreme Court of Appeal’s decision in Austin Health v Tsikos [2023] VSCA 82; 324 IR 1.

269. The applicant submitted that there is no requirement on her to prove that Mr Willis was intentionally or consciously discriminating against Ms Weldon-Bowen in carrying out the investigation and that in fact the Tribunal could rely on the IRCC Report attached to the affidavit of Dr Strakosch concerning past bias conduct against Aboriginal persons to find that Mr Willis was not or may not have been conscious of his bias towards Aboriginal people or women or Aboriginal women but that he acted on that ground or on those grounds.

270. The applicant submitted that the Tribunal ought to make an inference that Mr Willis’ responses and that of his supervisor, Mr Donovan were made during the investigation for a reason or reasons consisting of unlawful discrimination as they ‘had the well-recognised hallmarks of racialized and gendered responses’ including:

1. A scepticism of the accounts of Indigenous women, especially where these accounts are contradicted by white men – ‘…I did not believe she had been the victim of crime…’ Mr Willis [22] first affidavit;

2. A view of Indigenous women complainants being aggressive and angry – ‘… the Applicant was upset and aggressive towards me … I thought she was being accusatory towards me because I was trying to do my job…’ Mr Willis [26] first affidavit;

3. Deeming Indigenous women responsible for violence perpetrated against them and deeming male violence as one off unfortunate incidents – ‘… I probably did say something about the Applicant being the ‘driver that broke the camel’s back’ Mr Willis [54] first affidavit;

4. Exercise of discretion in a manner that is prejudicial to Indigenous people and beneficial to white persons – ‘… In hindsight on the available evidence I probably could have charged Mr Stummer with intimidation. At the time the charge did not cross my mind. It was not suggested to me by Sergeant Donovan or any other more senior officer…’ Mr Willis [73] first affidavit.

271. Addressing each of these submissions in turn. Mr Willis stated that he did not believe that Ms Weldon-Bowen ‘was a victim of crime because I believed’ that both Mr Stummer and Ms Weldon-Bowen ‘were both persons of interest.’ The context was that Mr Willis formed a view based on the conversation he had with Mr Stummer, prior to meeting Ms Weldon-Bowen that the matter ‘was essentially classed as a fail to exchange details’ in a traffic incident. This belief formed the basis of Mr Willis’ decision to not take a statement from Mr Stummer but use a ‘form of demand’. A form of demand is not used on someone who is a victim of a crime.

272. The inference that Mr Willis formed the belief that Ms Weldon-Bowen, an Aboriginal woman was not a victim of crime because it was denied by Mr Stummer, a white man is not able to be reasonably drawn from the facts. First, Mr Willis’ evidence was that he was not aware of Ms Weldon-Bowen’s race at the time he formed this belief. Secondly, the fact that he formed this belief at that time was not contradicted by any other evidence and it was not submitted that the evidence should be rejected.

273. The second contention is that Mr Willis stated that he thought Ms Weldon-Bowen ‘was being accusatory’ towards him because he was trying to do his job and ‘collect the facts in the way that I wanted to. As a police officer, I did not let anyone outside my chain of command tell me how to do my job’.

274. The context for this statement was that Mr Willis believed that Ms Weldon-Bowen was ‘upset and aggressive towards’ him because she told him that she wanted to make a statement. During cross examination Mr Willis agreed that Ms Weldon-Bowen did not say or do anything that was aggressive or hostile. His evidence was that she was quietly determined to make a statement and that she was not aggressive or hostile towards him. Mr Willis gave evidence as to his state of mind at the time of the interview, explaining that he did not initially plan to take a statement from Ms Weldon-Bowen.

275. The inference that Indigenous women complainants are aggressive and angry is not open on these facts. Mr Willis’ evidence was that he considered that Ms Weldon-Bowen was telling him how to do his job and he reacted accordingly. That is the reason why Mr Willis stated to Ms Weldon-Bowen ‘I’m still deciding whether I take a statement from you or not.’ Ms Weldon-Bowen’s account, which we accept, is that Mr Willis stated words to the effect: It’s up to me whether I allow you to make a statement and she stated: I will be making a statement because he damaged my car.

276. Mr Willis’ belief that Ms Weldon-Bowen was aggressive was made on the basis that he believed that she was telling him what to do and how to do his job and not because she was an that Indigenous woman This is drawn from the primary facts and provides a rational explanation for his conduct.

277. The third contention is that an inference ought to be made that the respondent acted against the applicant for reasons that included a belief that Indigenous women are responsible for violence perpetrated against them by men and men’s violence against women are one off unfortunate incidents.

278. The context for Mr Willis’ statement is set out in Ms Weldon-Bowen’s statement. Mr Willis stated words to the effect: look he was in here and admitted to punching and throwing something at your car. I'm not saying what he did was OK but maybe you were the driver that broke the camel’s back. It's up to me whether I allow you to make a statement.

279. Mr Willis also stated words to the effect: I ride my bike to work regularly and sometimes bike riders can get frustrated with drivers. Again I'm not saying what he did was OK I'm also a father so I can understand how that would have felt with your son in the car.

280. Mr Willis during cross examination also stated that he believed that all car drivers at some stage ‘brake check’ a bike rider and he assumed that Ms Weldon-Bowen ‘brake checked’ Mr Stummer.

281. The context for Mr Willis’ statements to Ms Weldon-Bowen was that as a bike rider he could sympathise with Mr Stummer as he believed that car drivers put bike riders in danger. This is the logical inference of Mr Willis’ entire evidence.

282. We do not consider that there is primary evidence to ground an inference that Mr Willis said those words because he believed consciously or unconsciously that Indigenous women are responsible for violence perpetrated against them by men and men’s violence against women are one off unfortunate incidents.

283. The fourth contention is that an inference must be reasonably drawn that Mr Willis failed to exercise discretion in a manner that was prejudicial to Indigenous people and beneficial to white persons by failing to consider the charge of intimidation against Mr Stummer.

284. Mr Willis’ evidence was that at the time the charge of intimidation did not cross his mind and it was not suggested to him by Sergeant Donovan, his supervisor or any other more senior officer. Mr Bryant’s evidence was that a separate malicious damage incident should have been recorded in the COPS Event as this would have been a more accurate categorisation of the event. Mr Bryant’s evidence was also that this was an issue of best practice and did not affect the investigation.

285. The question is why during the investigation, the charge did not cross Mr Willis’ mind. Was it because he was acting on the ground of race and or sex or for another reason. We have already made findings in regard to Mr Willis’ lack of competence in conducting the investigation. His failure to consider a charge is consistent with his failure to consider gaining and securing critical evidence from a witness and from Ms Weldon-Bowen. There was no evidence contradicting Mr Willis’ evidence that he did not consider the charge because he did not think of it, and it was not suggested to him by any other person including his supervisor. There is no reason to reject Mr Willis’ evidence in this regard.

286. We do not consider that this inference is a logical one or one that can be reasonably drawn from the primary evidence.

287. Mr Willis gave evidence both in his affidavits and orally about why he acted as he did. Critically, Mr Willis gave evidence that he believed that all vehicle drivers at some stage ‘brake check’ bike riders on the road and that he believed that Ms Weldon-Bowen ‘brake checked’ Mr Stummer in McPherson Lane. He made this judgement prior to meeting her and becoming aware that she was an Aboriginal person.

288. In the present case, this was a decisive reason why Ms Weldon-Bowen was treated as a potential person of interest even though she was making a complaint against Mr Stummer. We do not find that the ground of sex was a reason why Mr Willis formed the opinion that she was a person of interest as there is no evidence to ground such an inference.

289. Mr Willis agreed that he made mistakes in the investigation such as the failure to interview the other bike rider or consider more serious charges against Mr Stummer.

290. Mr Willis failed to secure evidence of a video Ms Weldon-Bowen took while she was driving filming Mr Stummer behind her, showing that he was hostile, that he was tailgating her and showing that her car was not swerving on the road. Mr Willis agreed that he was required to secure the evidence as part of his job, and he could not explain why he failed to do so. There is also evidence of him securing evidence provided by Mr Stummer via email.

291. In observing Mr Willis give evidence, we are satisfied that Mr Willis was an inept police officer. He either forgot or did not understand the criticality of collecting and securing evidence in an investigation. It is as likely that the reason why Mr Stummer’s evidence made it to the police file was because he emailed the documents to Mr Willis and Ms Weldon-Bowen did not. We do not consider it is open on the evidence to find that Mr Willis failed to secure the evidence because of Ms Weldon-Bowen’s gender or race. There is no evidence to ground an inference that Mr Willis purposely failed to secure the evidence because of Ms Weldon-Bowen’s gender or race so that he could issue her with a TIN or give her some other unfavourable treatment.

292. Mr Willis also misrepresented the evidence to his supervisor. He told Mr Donovan that he had seen evidence that Ms Weldon-Bowen changed lanes unsafely. During cross examination Mr Willis admitted that this was incorrect and there was no evidence of Ms Weldon-Bowen driving in an unsafe manner.

293. Again Mr Willis admitted that he had made a mistake. Why did he misrepresent the evidence to his supervisor? Was it because Ms Weldon-Bowen was an Aboriginal woman? To have made the series of mistakes that he made would have taken a conscious effort, but this was not the applicant’s case. There was no evidence or submission that Mr Willis deliberately set out to discriminate against Ms Weldon-Bowen by failing to undertake critical aspects of his role of carrying out an investigation.

294. The following facts are also relevant and were not challenged by the applicant. First Mr Willis intended to issue Ms Weldon-Bowen with a TIN about using a mobile phone while driving. It was Mr Donovan’s idea to issue Ms Weldon-Bowen with a TIN for negligent driving for braking harshly with the need to cause a collision with the rider. Secondly, Mr Willis continued to be a Probationary Constable after 12 months. Probation can end after 12 months. Thirdly, on 8 December 2020 Mr Willis was being disciplined. He was not permitted to leave the police station. There was no evidence as to why Mr Willis was being disciplined. Fourthly, Mr Stummer, like Ms Weldon-Bowen also found Mr Willis unprofessional and inappropriate. All this unchallenged evidence supports the inference that Mr Willis failed to conduct the investigation because he was not competent to do so and conducted himself unprofessionally with persons who made complaints to the police.

295. Furthermore, it is clear on the evidence that Mr Willis formed his ill-judged opinions prior to meeting Ms Weldon-Bowen or knowing that she was an Aboriginal woman. He decided that he would not be taking witness statements, that he would not interview the eyewitness, and critically that Ms Weldon-Bowen ‘brake checked’ Mr Stummer.

296. Inferences that the respondent’s failure to provide her with a service was because of her race or sex cannot be made in this particular case as it is contrary to the direct evidence and material before the Tribunal which we have considered separately and in its entirety.

297. The Tribunal is not satisfied that the NSW Police Force refused to provide Ms Weldon-Bowen with services on the ground of her sex and or race.

298. The Tribunal makes the following order:

1. The application is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

11 April 2024 - In the case title the words 'of Police' have been deleted.

Decision last updated: 11 April 2024