Woodforth v State of Queensland
[2014] QCAT 680
•10 December 2014
| CITATION: | Woodforth v State of Queensland [2014] QCAT 680 |
| PARTIES: | Veronica Woodforth (Applicant) |
| v | |
| State of Queensland (Respondent) |
| APPLICATION NUMBER: | ADL123-13 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 27, 28, 29 October 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Clifford |
| DELIVERED ON: | 10 December 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The complaint alleging direct and indirect discrimination against the State of Queensland is dismissed. |
| CATCHWORDS: | DISCRIMINATION – hearing impaired – provision of services by Police – State laws and programmes – access and availability of Auslan interpreter – whether direct or indirect discrimination Anti-Discrimination Act 1991 |
REPRESENTATIVES:
| APPLICANT: | Rebetzke G, Counsel, instructed by Abbey Richards, Caxton Legal Centre |
| RESPONDENT: | Anderson S, Counsel, instructed by Julia Maccorone, Public Safety Business Agency |
REASONS FOR DECISION
Background
Veronica Woodforth is a 42 year-old woman who has had a hearing impairment since she contracted an infection when she was a baby. Ms Woodforth mostly communicates in Auslan, and this is her first language. When wearing hearing aids Ms Woodforth can hear around 50% of close conversation. Ms Woodforth has minimal lip reading and speaking skills. Ms Woodworth is able to communicate in writing, in basic English.[1]
[1]Exhibit 1 Statement of Veronica Woodforth, and attachment VW 16; Exhibit 8; Exhibit 9.
Ms Woodforth left school at age 15 years and has undertaken some post-school courses in life skills, security and health and safety. Ms Woodforth worked for the Brisbane City Council for around 11 years repairing and inspecting roads. Ms Woodforth is currently working as a cleaner part-time and is in receipt of the Disability Support Pension. Ms Woodforth has previously been married, but her recent relationship is a same sex relationship. Ms Woodforth has three brothers. Ms Woodforth is currently residing in Goodna.
In January 2011 Ms Woodforth, after returning from an overseas holiday and looking for work, moved into a house at 10 Clifton St, Booval. Ms Woodforth rented a room there on an informal basis, from head tenants Colleen and Ricky Buck. Mrs Buck is also hearing impaired.
In April 2011 a further two hearing impaired women, Natasha Howland and Kym Croad (aka Walton) moved into the house to share another room. Ms Woodforth reports she got on well with Ms Croad, who was also in a same sex relationship with a partner overseas,[2] and the other three tenants were close with one another.
[2]Exhibit 1 attachment VW16.
In the main, this matter and the consequential incidents, relate to an incident between the tenants and friends about personal matters on the evening of 13 December 2011.
Ms Woodforth states she was at home, along with Ms Croad on this particular day, when Mrs Buck, along with a friend Kim Wilson and her two children, and Ms Howland, along with a friend Lisa Fyfe, returned home from separate holidays around 8.00pm. Ms Woodforth reports she and Ms Croad were out in the backyard and Mrs Buck and Ms Howland came out and started poking at Ms Croad, and calling her liar in relation to a personal matter. A physical fight ensued between Mrs Buck, Ms Wilson, Ms Howland and Ms Croad. The fight continued into the house. Ms Woodworth reports she tried to break-up the fight but was attacked by the women, in particular Mrs Buck, who tried to strangle her. Ms Woodworth reports that she tried to get her keys and escape but was prevented from leaving. Ms Woodforth reports she screamed as best she could to call the Police.[3]
[3]Exhibit 1 paragraphs [10] – [33].
A number of Police arrived and ultimately Ms Woodforth was transported by ambulance to hospital where she was examined, and discharged about 10 hours later. Ms Woodforth’s brother took her to his home.
On 14 December 2011 Ms Woodforth wished to collect her belongings from the house. Unsuccessful to do so on her own, she sought Police assistance. Later that day Police accompanied Ms Woodforth to the house. Ms Woodforth claims Mrs Buck punched her on the jaw during this time.[4]
[4]Exhibit 1 paragraphs [33] – [43].
Later that day Ms Woodforth sought to inquire at Ipswich Police Station if the Police who had attended the house with her had reported this incident. Ms Woodforth was advised that the Criminal Investigation Bureau was handling the matter, and that they would be in contact to arrange an interview with an interpreter.[5]
[5]Exhibit 1 paragraph [46].
On 15 December 2011 Ms Woodforth attended her former neighbour’s house to collect further belongings that she had left there. The neighbour allegedly reported to Ms Woodforth that she had observed Kym Wilson, the evening before, removing some of Ms Woodforth’s belongings into her car.
Later that day Ms Woodforth attended the Police station to report this incident. Ms Woodforth reports the receptionist suggested she should wait until she had all her belongings so that she could report what was missing.
Ms Woodforth returned to the Police station a second time that day to assist Ms Croad, in relation to Ms Croad’s missing passport. Ms Woodforth reports she was again told CIB would arrange an interpreter for interview.[6]
[6]Exhibit 1 paragraph [55].
On 17 December 2011 Ms Woodforth reports that her brother organised for Police to attend the house again so that they could collect the rest of her belongings.
Following this, Ms Woodforth returned to Ipswich Police Station to report what was missing. Ms Woodforth reports the receptionist again advised her CIB would contact her.[7]
[7]Exhibit 1 paragraph [59].
On 19 December 2011 Ms Woodforth went to the Police station to drop off a bag that was mistakenly given to Kym Croad, that didn’t belong to her. Police advised they couldn’t take the bag.
On 20 December 2011 Ms Woodforth contacted Deaf Service Queensland (DSQ) to assist her, and to make a complaint about the Police not assisting her. Andrew Green of DSQ initially made contact with the Police using the National Relay Services, but later Mr Green and Ms Woodforth, attended Ipswich Police Station, with an interpreter organised by Mr Green, as they had been advised that a complaint could not be made over the telephone. Ms Woodforth and Mr Green then had a 15-minute discussion with a Police Officer, as the interpreter was only available for a short period.[8]
[8]Exhibit 1 paragraphs [64] – [69].
On 23 December 2011 Ms Woodforth, along with Ms Croad, attended the Police station to make a report of theft in relation to their missing belongings. Ms Woodforth claims Police advised her that an interpreter couldn’t be arranged because it was Christmas holidays.
On 26 December 2011 Ms Woodforth returned to the Ipswich Police Station hoping to have Mrs Buck charged, and to report a theft of her belongings.
On 6 January 2012 Ms Woodforth made a complaint to the Crime and Misconduct Commission about the Police. Ms Woodforth was advised on 6 March 2012 that no further action would be taken by it as it was satisfied appropriate action was taken, and also that investigations by Police were ongoing.
On 6 February 2012 Ms Woodforth, with the assistance of Ipswich Advocacy Services Incorporated (IRASI), attended the Ipswich Magistrates Court as Ms Woodforth had applied for a Domestic Violence Order against Mrs Buck. The matter was dismissed because there was no domestic relationship between Ms Woodforth and Mrs Buck at that time.
On 17 January 2012 Ms Woodforth, along with Ms Croad, attended the IRASI offices to meet with Rachel Farr of IRASI and two Police Officers, including DSC Rosee. IRASI organised an interpreter.[9]
[9]Exhibit 1 paragraphs [88] – [94].
On 28 March 2012 Senior Constable Fleur Rosee, formally interviewed Ms Woodforth with an Auslan Interpreter, at the Ipswich Police Station.[10]
[10]Exhibit 1 paragraphs [95] – [100].
In April 2012 Ms Woodforth lodged a complaint of discrimination, based on her hearing impairment, against the State of Queensland (Police Service) in the area of services/state laws and programmes with the Anti-Discrimination Commission, Queensland.
On 25 November 2013 the matter was referred to the Tribunal.
Contentions
In summary[11], Ms Woodforth contends that the police failed, notwithstanding her numerous requests, to provide her with an interpreter on multiple occasions. Without an interpreter, Ms Woodforth contends she was forced to communicate in English, her second language, using notes and assistance from her brother and sister-in-law. Ms Woodforth contends this resulted in confusion, misunderstanding and miscommunication.
[11]Complainant Contentions filed 31 March 2014 and Amended Contentions filed 9 October 2014.
Ms Woodforth contends ‘failure to investigate the first assault, second assault and theft in a timely manner’ constitutes direct discrimination in that this delay was less favourable treatment, in the provision of services and in a state law or program, than would have been provided to a person who did not have Ms Woodforth’s impairment and who was an alleged victim of similar crimes.
Ms Woodforth contends it is irrelevant that she required special services.
Ms Woodforth further contends that the delay in investigating the matter constitutes indirect discrimination, in that the Police imposed a term that: ‘it would only investigate a complaint in a timely manner from an alleged victim of crime if the complainant was able to communicate the details of the complaint to the Police in English by conventional speech’.
Ms Woodforth contends she was unable to comply with this term because she is hearing impaired, Auslan is her first language, her English skills are limited, she cannot lip read with confidence and is unable to communicate by conventional speech.
Ms Woodforth contends a higher proportion of people without her impairment are able to comply and the requirement is not reasonable as it contravenes policies in relation to interpreters, victims of crime and that organising an interpreter is not difficult nor is the cost excessive. Furthermore Ms Woodforth contends the Police were aware she was having difficulties understanding.
Ms Woodforth claims she was humiliated, fearful and frustrated. Ms Woodforth claims she has been isolated from the Deaf Community because of a lack of interpretation of the incident, and has suffered stress.[12]
[12]Exhibit 3 Statement of Dr Louise Munro indicates Ms Woodforth attended counseling between August – November 2012 and September – December 2013 for a ‘range of concerns’; Exhibit 1 attachment VW 16; Exhibit 9 Unsigned Affidavit of Ms Woodforth.
Ms Woodforth seeks an order declaring that the Respondent engaged in discriminatory conduct; publication of a public apology; implementation of programs to ensure compliance with polices; and compensation for hurt, injury to feelings, humiliation and distress.
The Respondent denies it has breached the Anti-Discrimination Act or that it imposed a term on Ms Woodforth. In summary[13], the Respondent contends that Police were unaware that the 13 December 2011 incident involved persons who were hearing impaired; that Police attending to the house on 14 December 2011 were also unaware persons involved were hearing impaired; that Ms Woodforth enlisted her family and support services to assist her with communications; that Police used their notebooks and notes to communicate with Ms Woodforth; that Ms Woodforth was twice advised that CIB, who were managing the matter because of cross-allegations of assault and allegations of fraud, would be contacting her for interview with an interpreter; and that an Auslan interpreter, organised and paid for by the Police, was utilised for the formal interview.
[13]Respondent Contentions filed 25 April 2014 and Supplementary Contentions filed 20 October 2014.
The Respondent denies any term was imposed on Ms Woodforth. The Respondent contends it had no difficulty paying for Auslan interpreters, but contends booking an interpreter could be difficult because of availability of interpreters, and the time limits imposed by the interpreters.
Legal framework
The Anti-Discrimination Act 1991 proscribes discrimination, direct and indirect, against a person, based on a person’s impairment, in certain areas of public life, such as the supply of goods and services or in the administration of State laws and programs.[14]
[14]Anti-Discrimination Act 1991 ss 7, 9, 10, 46, 101.
Direct discrimination happens if a persons treats a person with an impairment, less favourably than they would treat a person without an impairment, ‘in circumstances that are the same or not materially different’. The fact that a person with an impairment may require special services is irrelevant.[15]
[15]Ibid s 10.
Indirect discrimination happens when a person imposes, or proposes to impose, a term with which the person with the impairment isn’t able to comply; and which a higher proportion with the impairment are able to comply; and that the term is not reasonable.[16]
[16]Ibid s 11.
The onus of proving the case, generally, rests with Ms Woodforth, on the balance of probabilities.[17]
[17]Ibid s 204.
Issues
Has Ms Woodforth been treated less favourably than a person, without her impairment would be treated, in the same or similar circumstances?
Ms Woodforth was involved in a physical altercation involving people she lived with, and their friends. Ms Woodforth claims she was assaulted and then further assaulted by the same person a day later when trying to collect her belongings. Ms Woodforth claims some of her personal belongings were missing and she claims they were stolen by one of the persons involved in the original incident.
Constable Lea Weibel, one of the attending officers to the 13 December 2011 incident, in her statement[18] and at hearing, reports she was unaware any of the parties were hearing impaired when she attended a 000 call to the Booval house. Constable Weibel states she communicated with Ms Woodforth in writing in her notebook and took basic information about the complaint, which was recorded on the QPrime (Queensland Police Records and Information Management Exchange) reporting system.[19] The notebook indicates Ms Woodforth wanted people charged with assault.
[18]Exhibit 13 Statement of Constable Lea Weibel.
[19]Exhibit 11 QPM Policy 1.12.
Constable Weibel further states however, there were cross- accusations of assault, and an alleged fraud to the amount of $70,000.00. Constable Weibel states given the fraud allegations concerned an amount over $5,000.00 the matter was referred to the Criminal Investigation Branch (CIB). Constable Weibel states she advised Ms Woodforth that Police would contact her on a later date with an interpreter to obtain a statement. Ms Woodforth did not dispute this.
Constable Weibel also stated when Ms Woodforth attended the station on 14 December 2011 she again advised Ms Woodforth that she was not the investigating officer and that the matter had been referred to the CIB and an interpreter would be made available for a formal statement. This is recorded on A4 sheets of paper attached to Constable Weibel’s statement. Although, Ms Woodforth’s copy[20] of the Constable Weibel’s documents contain additional notations, the Tribunal accepts that it was clear Ms Woodforth had been advised that the matter had been referred to CIB, that an interpreter would be organised for a formal statement and that that may take some time organise. Furthermore Ms Woodforth does not dispute that she was so advised.
[20]Exhibit 1 attachment VW6.
Constable Peter Eleison also attended the Booval house on 13 December 2011 with Constable Weibel. Constable Eleison in his statement,[21] states Constable Weibel was the reporting officer and that he handed Ms Woodforth his notebook to communicate. He stated he spent only half to three-quarters of an hour at the premises. The notebook records ‘iced coffee in fridge’. At hearing Constable Eleison testified that although he thought Ms Woodforth had written in his notebook, he has since had some doubt in his mind that possibly it was Ms Croad who wrote in his notebook. Constable Eleison conceded there was great difficulty in communicating.
[21]Exhibit 12 Statement of Constable Peter Eleison.
Notwithstanding, the above advice on the 13 and 14 December 2011, Ms Woodforth sought further assistance from Ipswich Police on multiple occasions. These contacts concerned in essence issues that were incidental or a corollary to the initial incident. This included Ms Woodforth, assisting her friend Kym Croad, in following up about a missing passport, and Ms Woodforth seeking assistance to collect her belongings from the Booval house. Information and assistance was provided to Ms Woodforth on these occasions.
Constable Justyn Laird[22] and Constable Rebecca Fox[23] provided a ‘community assist’ job; on 14 December 2011 to accompany Ms Woodforth to collect her belongs from the Booval house. Constable Laird states Ms Woodforth and Ms Buck were hostile and agitated towards each other, but denies he observed Ms Buck punch Ms Woodforth as later alleged. Constable Fox, states she attended the house again on 17 December 2011 with another Constable to assist Ms Woodforth’s brothers, who are not hearing impaired, to collect the remaining property.
[22]Exhibit 15 and 16 Statements of Constable Laird.
[23]Exhibit 16 Statement of Constable Fox.
Constable Laird explains in his statement that ‘community assist’ jobs are generally civil disputes over property, and Police attend if available to assist keep the peace. Constable Laird testified the jobs cards are created through Police Communications. Constable Laird states they were not advised that an interpreter was required or that the job involved persons who were hearing impaired. However, he states he latter contacted Police Communications to make a note of this if future assistance was required. This is recorded on the Job Sheet 2011/12/2411 attached to Constable Laird’s statement, as is a note that Ms Woodforth’s brother had called some hours later to complain of inaction of Police on the same date.
Ms Woodforth attended Ipswich Police to assist Kym Croad about her passport on 15 December 2011 and to report an alleged theft of her belongings. Ms Woodforth asked for an interpreter but was again advised CIB would arrange for interpreters.
Ms Woodforth attended again on 19 December 2011 to return a bag, which had mistakenly been given to Ms Croad. Police advised they could not accept it.
Ms Woodforth communicated with Police via the National Relay Service with the assistance of Deaf Services Queensland on 20 December 2011, and on the same date had a short in-person discussion with Police with an interpreter, and Mr Green of Deaf Services Queensland.[24]
[24]Exhibit 5 Statement of Andrew Green, Deaf Services Qld; Exhibit 1, attachment VW11.
Notwithstanding these communications Ms Woodforth attended the Ipswich Police again on 23 and 26 December seeking to have Ms Buck charged with assault, and to report a theft of her property. Ms Woodforth states Sergeant Stephens advised her he could not organise an interpreter because it was Christmas holidays, whilst Sergeant Stephens states[25] although he was working that day he was not rostered on counter duties and does not recall speaking with Ms Woodforth.
[25]Exhibit 17 Statement of Sergeant Stephens.
On 17 January 2012 Ms Woodforth met with Detective Senior Constable Fleur Rosee, along with Kym Croad and Ms Farr. Notwithstanding the earlier communications, including those through NRS and the brief communication through an interpreter on 20 December 2011 with Mr Green and Police, Ms Woodforth states this was the first time she was able to tell Police about the assault and theft and complain about lack of availability of interpreter.[26] This meeting, and the Auslan interpreter was arranged through IRASI advocate Rachel Farr.[27]
[26]Exhibit 1 paragraph [88].
[27]Exhibit 4 Statement of Rachel Farr.
DSC Rosee states[28] and testifies that she was detailed to investigate the matter on 28 December 2011 when working ‘on loan’ to CIB for one month, 1 day prior to her returning to her usual position in Property Crime Investigations at West End. DSC Rosee testified however, she understood the file would be going back with her.
[28]Exhibit 6 Statement of DSC Fleur Rosee.
DSC Rosee noted that the matter initially concerned assault and ‘computer fraud’ but that a further alleged fraud offence had been added to the report and that that investigation was on-going. DSC Rosee stated she had unsuccessfully attempted to arrange an interpreter for the 17 January meeting[29], but later found IRASI had organised an interpreter. DSC Rosee testified that she used this meeting to introduce herself and did not want Ms Woodforth or Ms Croad to go into great depths because it was not a ‘formal’ interview, however DSC Rosee testified she advised Ms Woodforth and Ms Croad of their right to silence.
[29]Exhibit 10 QPS Enquiry Log Report, entry 16 January 2012.
Following this meeting DSC Rosee had email communications between herself, Ms Farr and/or Ms Woodforth[30] relating to arranging a date for formal interview and ongoing discussions about Ms Woodforth’s missing property.
[30]Exhibit 6, attachments FR 4–6; Exhibit 4, attachment RF7.
On 28 March 2012 DSC Rosee formally interviewed Ms Woodforth, with an Auslan interpreter. The interview was recorded[31] on video and audio disc. A transcript[32] of the interview was provided to the Tribunal.
[31]Exhibit 1 attachment VW 21.
[32]Exhibit 8 Titled: Field Recording of Search Warrant.
DSC Rosee states that following the formal interview, Ms Woodforth attended at Ipswich Police Station seeking to speak with her on 2 April 2012 about a damaged piano. DSC Rosee states she received further emails from Ms Woodforth about her property and other issues up until late May 2012.[33] After that date DSC states she was concerned with obtaining statements from the other parties involved in the assault and fraud matters. This did not appear to happen until later in the year, in the months of October, November and December 2012 with the assistance of Auslan interpreters.[34] The witness Richard Buck was also found to have died in December 2012.
[33]Exhibit 6 attachment FR 7-9.
[34]Exhibit 7 QPrime documents pages 1 – 25, Titled: Solicitors Office Report Details.
DSC Rosee testified that the length of time between being tasked with the matter on 28 December 2011, to formally interviewing Ms Woodforth on 28 March 2012, was ‘average’ especially over a Christmas period. DSC Rosee also testified that she had 15 – 20 other investigations on foot at that time, including major trafficking matters.
DSC Rosee conceded that the investigation was not exemplary, but stated that whilst the timeframe was not the best and it was not the worst. DSC Rosee also conceded that information about the piano should have been entered in QPrime, but she considered it just further information about the original incident.
DSC Rosee testified that she believed she had effective communication with Ms Woodforth either through her advocate or via email, and that Ms Woodforth could communicate through her advocate and her brother, which was cost efficient. DSC opined that email is an easy way to communicate and that it doesn’t cost either party. DSC Rosee testified she communicates via email with hearing complainants.
Considerations
Discrimination based on impairment is prohibited in particular circumstances. A claim of poor or sub-standard treatment is insufficient to make out a breach of prohibited discrimination. The onus is on Ms Woodforth to prove that she was treated less favourably than persons without a hearing impairment, in the same or similar circumstances.
Much of this complaint is undisputed. It is clear Ms Woodforth attended the Ipswich Police Station on multiple occasions following an incident on 13 December 2011 involving her and a number of other parties. Arising from this incident were cross-allegations of assault and alleged fraud involving alleged $70,000.00. The following days, in attempts to retrieve her belonging from the house, Ms Woodforth claimed she was assaulted and that some of her belongings missing.
The original incident was immediately noted as a matter for CIB for investigation, because of the cross-allegations of assault and because a fraud of over $5,000.00 was alleged.
Notwithstanding that Ms Woodforth wanted the incidents that involved her directly dealt with instantly, she was caught up in a larger investigation involving multiple parties. The Tribunal has been provided with no evidence that the referral of the combined incidents to CIB was less favourable treatment or that hearing persons in the same or similar circumstances would have been treated more favourably to Ms Woodforth.
It is undisputed Ms Woodforth was advised, on a least three occasions, that the matter was being referred to the CIB and that an interpreter would be organised for a formal statement, and that it may take some time to organise.
On the evening of the original incident, the Tribunal accepts that the Police were unaware persons with hearing impairments were involved when they attended the scene. The description of the incident by Ms Woodforth and Police indicate that it was not unfortunately a particularly unusual incident, nor did it involve any serious injury to persons. Tribunal is satisfied the use of notebooks, and speaking with Mr Buck, to communicate was appropriate in the circumstances. There was no evidence presented that the Police would not utilise other means of communication when dealing with others, who were not hearing impaired, but had communication difficulties, in the same or similar circumstances.
Ms Woodforth attended the Police Station on a number of occasions. On her own account, on some occasions she even assisted her friend Kym Croad. Although the Tribunal accepts Ms Woodforth made requests for an interpreter on multiple occasions, Ms Woodforth arrived unannounced and without appointment to the Police Station and had somewhat unrealistic expectations of immediate action in these circumstances. There was no evidence that a person without a hearing impairment would have received more favourable treatment than Ms Woodforth, as Ms Woodforth was dealt with by Police, they communicated with her using other means such a notes and providing phone contacts for Police Communications. Ms Woodforth was not being formally interviewed on those occasions. Ms Woodforth was looking to obtain assistance with retrieving her property. She received such assistance on 14 and 17 December 2011. Ms Woodforth was re-advised CIB would contact her to take a formal statement with an interpreter.
As would be the case for many people, with or without impairment, involved with matters with the Police, Ms Woodforth sought assistance. Firstly from Deaf Services Queensland and then from the advocacy service IRASI.
Mr Green of Deaf Services Qld testified that there were currently 63 Level 3 Auslan interpreters across all of Queensland, and that there were only 2 or 3 in the Ipswich region. Mr Green advised organising an Auslan interpreter is usually a collaborative approach, and that all parties decide when it suits them. He stated that the service provider meets the fees.
Mr Green testified that it was generally up to the person and Police to work out the capacity to communicate, such as lip reading, paper and pen and gestures, but he opined an interpreter should be used if there are barriers.
Mr Green assisted Ms Woodforth communicate with the Police firstly via the NRS and then briefly through an in-person meeting involving an Auslan interpreter, which he organised. However, even with this assistance Ms Woodforth continued to attend Ipswich Police to make a complaint about assault and theft.
Christmas intervened before Ms Woodforth had her first meeting with DSC Rosee on 17 January 2012, albeit organised by IRASI. There was no evidence that people without a hearing impairment in the same or similar circumstances, as Ms Woodforth would be dealt with in a more timely manner over the Christmas period.
Ms Woodforth was formally interviewed in late March 2012 with an Auslan interpreter, some three months after the original incident of cross-accusations of assault and alleged fraud, with Christmas intervening.
Although the Tribunal accepts Ms Woodforth was anxious to retrieve her belongings and was distressed by the incidents, the Tribunal is not satisfied that Ms Woodforth was treated less favourably than a person without hearing impairment in the same or similar circumstances. There is no ‘right’ to an interpreter at call under the Police policy[35] rather, there is an expectation and practice that the organisation of interpreter would be a collaborative approach as described by Andrew Green. There was no evidence provided that if a person without a hearing impairment attended the Police Station on multiple occasions within a short period of time, seeking to have a formal statement taken at their requested timing, after they had been previously informed that the matter was referred to CIB because of its complexities and to expect some delay, that they would be accommodated right there and then. It is general knowledge that Police investigations involve more than just statement-taking, they require planning, strategizing and coordination. Practically they require availability of relevant personnel and equipment to undertake the job.
[35]Exhibit 5 attachment AG8.
Most of Ms Woodforth’s attendances at the Police Station did not warrant an interpreter and they were often unannounced. Other methods of communication were utilised that were adequate to the circumstances, particularly when Ms Woodforth had previously been advised that because of the complexity of the original matter there would be delays for formal interview.
The Tribunal is satisfied Ms Woodforth was provided with adequate Police services in all the circumstances, and there is no, or insufficient evidence that a person without Ms Woodforth’s disability would have been treated differently or more favourably in the same or similar circumstance. The complaint of direct discrimination has not been made out and is dismissed. The Tribunal orders accordingly.
Was a term imposed on Ms Woodforth, which she cannot meet, and which is unreasonable?
Ms Woodforth contends that the Police imposed a term that: ‘it would only investigate a complaint in a timely manner from an alleged victim of crime if the complainant was able to communicate the details of the complaint to the Police in English by conventional speech’.
Ms Woodforth relies on the particulars outlined in the contentions, her Statement, and evidence of Mr Green and Ms Farr. These are generally described previously in these reasons.
Considerations
The onus of proving that the Respondent imposed a term as described, and that Ms Woodforth could not meet the term, whilst other could, rests with Ms Woodforth. If those elements are satisfied, the onus of proving the term was reasonable, is then reversed and rests with the Respondent[36].
[36]op.cit; section 205.
However, the Tribunal has not been persuaded that the Respondent imposed such term on Ms Woodforth. The investigation concerning the original incident was quickly identified as one involving cross-allegations of assault and allegations of fraud. It was quickly referred to the CIB and Ms Woodforth was advised of such on a number of occasions. Ms Woodforth was formally interviewed three and a half months after the original incident, Christmas intervening. Whilst DSC Rosee conceded the investigation was not exemplary, particularly in relation to some documentation on QPrime, she testified that it was an average investigation and was not the best and not the worst she had been involved in. There was no evidence to the contrary.
Whilst the Tribunal accepts that Ms Woodforth was not notified some time later about the outcome of the non-fraud part of the original incident, Ms Woodforth’s complaint centred on the formal interview and an expectation that Ms Buck would be charged, and her belongings retrieved. Her complaint concerned matters up until April 2012 when she lodged her complaint with the Anti-discrimination Commission.
Although practicalities such as organising interpreters at a time suitable to all parties, may inherently cause some delay, the Tribunal is not persuaded that this in itself constitutes an ‘imposed term’ that could disadvantage Ms Woodforth or was unreasonable. On the contrary, a more coordinated approach would have been in Ms Woodforth’s interest.
As the Tribunal is not satisfied that such a term was imposed on Ms Woodforth, it has not considered the further elements required to ground a complaint indirect discrimination, because without being satisfied such a term was imposed, the complaint must fail. The complaint of indirect discrimination is dismissed and the Tribunal orders accordingly.
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