Offensive behavior because of race, colour or national or ethnic origin

Mr Colin Hogan Solicitor of Colin A Hogan & Co, Solicitors, Newcastle

Mr Geoffrey Meadows of Bailey Meadows Solicitors, Sydney

1 This application is brought by Warwick Howard McMahon against Ronald Maxwell Bowman pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cwth) [HREOC Act] claiming that he was the subject of racial vilification contrary to s.18C of the Race Discrimination Act 1975 (Cwth) [RDA].

2 It is alleged by the applicant that after his children hit a ball from their property into the neighbouring property owned by the respondent that the respondent made a series of racially offensive remarks addressed to the occupants of the applicant's house and made further remarks addressed to the applicant himself when the applicant walked over the respondent's property to retrieve the ball.

3 The respondent disputes the evidence of the applicant and the applicant's witnesses concerning the words alleged to have been uttered and denies that in all the circumstances the allegations are unlawful within the provisions of s.18C(1) or 18C(2).

WHAT FACTS DOES THE APPLICANT RELY ON TO ESTABLISH HIS CLAIM?

4 The applicant, his wife and his two sons all gave evidence. The applicant stated that he was a man of Aboriginal descent married to an ethnic Fijian woman. He was a seaman although for some time now he had not been at sea because of his health.

5 Mr McMahon alleges that on 12 January 1999 between 6.30 and 7.00p.m. he was in the loungeroom of his home whilst his children and two friends were playing outside. He became aware that a ball with which they were playing had been hit from his front garden into the front yard of the respondent and on to his front verandah. He heard the respondent calling to one of the female children "Come and get it" and "you come and get the ball you black bastard, youse are all the fucken same". The applicant told the children that he would go and collect their ball and he went over into the respondent's property. When he entered onto the respondent's property the respondent said words to the effect:

6 The applicant states that he approached the respondent and asked politely for the ball back. He said that the children had apologised for putting the ball over onto the respondent's verandah and that as they were sorry the respondent should return the ball. He stated that because the respondent continued to racially insult him he assaulted the respondent, punching him (having pushed away his glasses) until Mrs McMahon intervened and pulled him away. He stated that during the course of the fight his wife was grabbed by Mr Bowman and hurled towards a verandah rail.

7 Mrs McMahon gave evidence that she became aware that a fight was in progress between her husband and the respondent and went over to separate them. She thought Mr Bowman was intoxicated and said he was unsteady and swaying. She smelt alcohol on his breath. She had heard Mr Bowman say to Mr McMahon:

At that time her husband only had one foot in the yard.

8 She stated that when she went to separate the two men Mr Bowman grabbed hold of her right arm and pulled her, swung her around anti-clockwise so that she hit the railing with her back. She then pushed her husband away and took him home.

9 Rosh McMahon, the elder of the two children, gave evidence that he heard Mr Bowman say the words:

and heard his father ask for the ball back and Mr Bowman responding:

He didn't see the fight and he did not have a conversation with Mr Bowman. He could hear the fight taking place.

10 Tristan McMahon, the younger son, also gave evidence. He claims that he saw the fight between his father and Mr Bowman. He gave evidence that prior to his father crossing on to the land Mr Bowman had called out to the children:

He appears to have seen some of the fight and corroborated the evidence of his mother that she was grabbed by Mr Bowman and was pushed on to the verandah rail.

11 The events of this fight assumed an enormous importance in the running of the case and took up a considerable amount of time. The fight was subsequent to the allegedly discriminatory statements and was only a relevant subject of cross-examination on the question of credit. In this regard some use was made of the recording of evidence given in the Raymond Terrace Local Court where charges had been laid against the applicant arising out of the assault. No transcript was tendered.

WHAT FACTS DOES THE RESPONDENT DISPUTE AND HOW IS THAT DONE?

12 The respondent denies absolutely making the racial remarks attributed to him. He accepts that a ball was hit over to his verandah and he accepts that Mr McMahon came to recover it and that a fight ensued between them. He gave evidence himself and he called two character witnesses, Ms Laurel Lilley and Mr Athol Smith.

13 Ms Lilley gave evidence that she was an Aboriginal woman of the Worimi Tribe who had known Mr Bowman for approximately six years. She stated that he was a happy and polite person with whom she had discussed her Aboriginality and she had never heard him make any remarks of a racist or anti-Aboriginal nature. Like Mr Bowman she was a member of the Lemon Tree Passage Bowling Club which is where she had met him through his mother. She stated that sometimes Mr Bowman would prefer to sit in the club with Aboriginal members rather than with the white members. She stated that she had been to Mr Bowman's home on a number of occasions.

14 Mr Smith had also known Mr Bowman for about six and a half years. He had known Mr Bowman's brother, Buddy, for much longer. Mr Smith was the senior Vice President of the Lemon Tree Passage Bowling Club and said that he and Mr Bowman shared an interested in racing and fishing. He stated that Mr Bowman was not a noisy friend, he didn't use bad language and he didn't recall ever hearing him swear. Mr Smith had seen Mr Bowman have a few drinks and stated that his personality did not change and that he did not then become obnoxious. He had never heard Mr Bowman make a racist remark or even tell a racist joke.

15 Mr Bowman stated that on the night in question he had been to his doctor for a follow up following an operation which he had had on Boxing Day. He had returned to his home at about 6.15 and because he was on antibiotics he had not had anything to drink. He changed and made himself a meat salad. He said that he heard the ball bounce on the patio and he went to see what was happening. He then saw Mr McMahon come around and approach him. Mr McMahon pushed off his glasses and threw them about 20 feet away. He began to hit Mr Bowman and dragged him against the railings. He recalls Mr McMahon calling him a fascist old pig. He says that it is not true that Mr McMahon apologised about the ball or asked for the ball back. Mr Bowman denies taking a swing at Mr McMahon and said that he couldn't do that because his right arm had been frozen for some considerable time. He could no longer play bowls because of his frozen right arm. He recalls Mrs McMahon coming in to pull them apart. He believes it was because Mrs McMahon saw a Mr and Mrs Tomkins in the roadway. He stated that he believed the Tomkins arrived shortly thereafter and helped him. The time lapse was "just a matter of seconds". He needed five stitches above his eye and had other bruising. He denied absolutely grabbing hold of Mrs McMahon and forcing her into the railings. In answer to questions from his own solicitor he stated that he had no contact with the McMahons since the incident and in answer to questions from the court he indicated that he had not had much communication with the McMahons prior thereto. He offered no explanation for the incident.

16 Tribunals and Courts of Law are frequently asked to decide which of two versions of a series of facts they accept. It is often a very difficult task particularly where both witnesses are credible. The decisions are made with the benefit of a number of factors. Perhaps the most important is each witnesses' demeanour in the witness box, his or her method of giving the evidence, the way questions are answered in cross-examination, the willingness to acknowledge the possibility of error and changes in recollection due to the passage of time. Other matters that would be looked at include the interest that the witness might have in the outcome of the proceedings and the inherent likeliness or unlikeliness of the evidence when considered with the background of the known facts. Finally, most Tribunals or Courts seek to find some form of corroboration from other evidence of whatever nature. The decision that is made is not always one between believing one witness and not believing another or holding that one witness is telling the truth and the other is lying. More often than not the decision comes down to the preference of one recollection over another. Recollection is notoriously unreliable.

17 The court was urged to accept the evidence of the McMahons because, it was submitted, each witness corroborated the other. That is certainly the position on the Affidavits but during the course of the hearing it became clear that the Affidavits of Mrs McMahon and the two children had been prepared for, rather than by, them. In those circumstances the court preferred the evidence which was given orally and after substantial cross-examination by Mr Meadows for the respondent it could not be said that all four versions of events were identical. The most significant area of dispute lay in what happened to Mrs McMahon when she attempted to intervene. There was a certain amount of confusion relating to this issue and in particular which way she was twisted (if at all), whether or not she got between her husband and Mr Bowman and whether or not Mr Bowman twisted her around so that she hit the verandah. The existence of these discrepancies gives some assistance to the court. If indeed all of the witnesses gave identical testimony one might reasonably be suspicious that they had co-operated. The fact that after cross-examination the testimony was different would tend to indicate that the parties were attempting to tell the truth as they saw it. The fact that the evidence that they gave before this court might have been different to that which they gave before the Local Court at Raymond Terrace could also be explained by the length of time between the two hearings. In any event, without the assistance of the actual transcript this court has no basis for finding that there was any discrepancy unless such was admitted. Again, where a witness does make such an admission and makes it readily, as was done in this case, it tends to give credence to their general evidence.

18 The court is not required to find any facts relating to the fight which took place between the applicant and the respondent. It is admitted that it did take place and the applicant indicated his remorse in relation to it. Proceedings in respect of the incident were heard before the Local Court at Raymond Terrace and the applicant was subject to orders of that court. The question posed to this court is whether or not Mr Bowman made the remarks attributed to him by the applicant and all members of his family.

19 The two witnesses called by Mr Bowman as to his character were both credible. There is no doubt that their good opinion of Mr Bowman is genuinely held. The court accepts that Mr Bowman has not acted in the manner alleged in their company but this does not answer the question as to whether he acted in the manner alleged on 12 January 1999. Mr McMahon also gave his evidence in a satisfactory and convincing manner. He was ready to concede mistakes and accepted fully the wrongfulness of his actions. The evidence of Mrs McMahon and the two boys was also credible particularly that of the youngest boy Tristan who corroborated his mother's evidence of being grabbed by Mr Bowman and being pushed on to the verandah rail. Mrs McMahon's version of events at the time of scuffle was convincing. She said that Mr Bowman did grab her and swung her around so that her back hit the verandah. The court is prepared to accept that this is what occurred and that therefore Mr McMahon was not dissembling when giving his evidence either in this court or, it would appear, the Local Court at Raymond Terrace. Mrs McMahon gave evidence that she went to the doctor about the bruises in her back and this was not challenged and would again tend to corroborate the incident.

20 It was put to Mr McMahon that the discrepancy between his evidence was caused by his wish to obtain the sympathy of the courts in which he was appearing. Firstly, in respect of his wife at Raymond Terrace and then here on account of the racial vilification. This he denies. It is understandable that in defending himself from a serious charge of assault Mr McMahon chose to emphasise the alleged attack on his wife. It does not preclude the possibility that the words complained of were uttered.

21 Mr Bowman gave his evidence in a confident manner. He gave reasonable explanations for why he might not have been drinking on the night in question and why he could not have swung his right arm at Mr McMahon. The taking of antibiotics does not affect a person who consumes alcohol, the alcohol negates the value of the antibiotic. It is therefore possible that Mr Bowman had been drinking. Certainly Mr Bowman could not move his right arm above his shoulder but that would not necessarily prevent him from taking a swing at Mr McMahon. In considering which evidence the court prefers account must be taken of the statements of all the witnesses and the inherent likelihood of events occurring as described. According to Mr Bowman there was no reason for this assault whatsoever. He had said nothing, he had not had any earlier arguments with Mr McMahon, Mr McMahon just came over from his house into Mr Bowman's house and attacked him savagely. No evidence was produced which might support the likelihood of this version of events, whereas on behalf of Mr McMahon the events were placed in what would be a reasonable context. The court therefore prefers the evidence of the McMahon family and finds that Mr Bowman did make the racially objectionable remarks attributed to him.

22 The applicant contends that the actions of Mr Bowman are in breach of s.18C of the RDA. This section is set out below:

"18C(1) [Offensive behaviour unlawful unless in private]. It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

18C(2) [When act not performed in private] For the purposes of subsection (1), an act is taken not to be done in private if it:

(a) causes words, sounds, images or writing to be communicated to the public; or

(c) is done in the sight or hearing of people who are in a public place.

"public place" includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place."

On behalf of the applicant it was submitted that the Act was not done in private on the grounds that it was done "near or within the sight or hearing of a public street." These are not the words used in s.18C(2)(b) or (c) and no concession has been made that the respondent's house was a public place. The respondent for his part argued that if the words were found to have been spoken they were spoken in private and therefore did not constitute a breach of the section. It was argued that the only circumstances in which the words spoken may have been spoken "in public" would have been if they were spoken in the sight or hearing of the persons who were in the public street at the time the incidents took place.

22. It is to be remembered that Rosh McMahon had given evidence that a person was walking down the road with a dog and that Mr Bowman had given evidence that Mr and Mrs Tomkins had been on the street and came to his rescue immediately after the fight. None of these witnesses was produced and no evidence was led by the applicant which would tend to indicate that any of these persons heard the words complained of. If they had, it was conceded by the respondent, the act would have been one done in public. In his submissions the solicitor for the applicant suggested that the court could find that on the balance of probabilities the Tomkins or the unidentified dog walker would have heard the remarks.

23. When the concept of racial vilification was introduced into the Commonwealth Act the section made clear that it was not intended to cover private utterances. The section was considered by the Human Rights and Equal Opportunity Commission in Korczac v Commonwealth of Australia (Department of Defence) [1999] HREOCA 29; (2000) EOC 93-056 where the report states as follows:

"2. The tribunal held that s.18 is intended to apply to the workplace. The tribunal explained its reasoning, stating:

"It is evident that the RDA does not require the relevant acts to have occurred "in public" or "in a public place" what is required is that the acts occur "otherwise than in private". Section 18C(2) indicates circumstances where certain conduct may be taken to occur "otherwise than in private". However, the section is not exhaustive, it simply indicates some examples of cases which may fall within the definition and it does not exclude other circumstances which a person may argue fall within the meaning of "otherwise than in private"".

This view was arrived at after consideration of the whole of the RDA and in particular s.9 of the Act and Article 5 of the ICERD.

24. However it does not appear necessary to resort to the reasoning in Korczac to bring the incident under examination in this case within s.18C(1). Section 18C(2) excludes from the definition of an act done in private certain acts that are done "in the sight or hearing of people in a public place". There is no doubt that Elaine Avenue Lemon Tree Passage was a public place and there is equally no doubt that no less than three persons were in that public place at the time the events occurred. The question to be considered is therefore whether it is necessary to prove that those persons saw or heard the acts complained of. In R v James Webb (1848) 2 C & K 933 Pollock CB held that:

"If an indictment charges that the thing was done within sight and within view of persons that imports not that they did see it but that they could see it."

"I thought that, if only one person could see the exposure, it was not the offence; but that, if the persons in the street could have seen it, it was the offence, though it was not proved that they did see it. ... In the case of York, there was no evidence that any one in the street did see the defendant, but only that persons going along the street could have seen him."

25. This authority was adopted by Sim J in the Supreme Court of New Zealand in Purves v Inglis (1915) 34 NZLR 1051:

"The appellant was convicted of using indecent language within the hearing of persons in a public place. The language was used by the appellant in a paddock near a public street in the town of Balclutha, and, as the Magistrate (Mr Young) has found, could have been heard by some children who were then in such street. It was not proved that any of these children actually heard the language, and it was contended, therefore, on behalf of the appellant, that the Magistrate was not justified in convicting the appellant. ...

s.42 of the Police Offences Act, 1908 provides that "every person who uses any profane, indecent, or obscene language in any public place, or within the hearing of any person in such public place" is liable to imprisonment or fine. In order to constitute the offence of which the appellant has been convicted it is not necessary, I think, for the language to have been actually heard by any person in a public place. It is sufficient that the words were spoken in such a way that they were capable of being heard by some person in a public place if such person was attending to what was taking place."

26. In the instant case there is no evidence that the persons who were present in the street at the time of the incident heard what occurred but given that the words were shouted between one house and the next it would be reasonable to conclude that they were spoken in such a way that they were capable of being heard by some person in the street if that person was attending to what was taking place. That would bring the actions within s.18C(2)(c) and would make them public acts for which their perpetrator would be liable.

27. In order to succeed in his application the Applicant must establish that on the balance of probabilities the incidents which he described in his complaint and in the application occurred and that they constituted in law the type of offensive behaviour prohibited by s.18C(1). The Court has come to such a conclusion after weighing up all the evidence and the manner in which it was given. The Court took into consideration those matters discussed earlier in this judgment which affect any decision on the witness' veracity.

28. The Court has indicated that it accepts the evidence of the McMahon's, that Mr Bowman shouted the words "you come and get the ball you black bastard, youse are all the fucken same" when the ball first landed on his veranda and then the words "you get off my property you black bastard" when Mr McMahon appeared to collect the ball. Those words were reasonably likely in all the circumstances to offend or insult Mr McMahon and his family and were said because of the race, colour or ethnic origin of the McMahon's.

29. The Court has found as a matter of law that even though it was not proved that any person on the public street heard the words being used that there were persons on that street and they could have heard those words. The Court has found that this being the case, words were not uttered in private and therefore Mr Bowman does not escape his responsibility under the RDA.

30. The Applicant claims compensation which the Court is entitled to award under s.46PO(4)(d) HREOC Act. In considering the appropriate amount of the award the Court has excluded the altercation between Mr Bowman and Mr McMahon. It has done this because the altercation was the subject of proceedings in the local court and Mr McMahon should not be twice punished for his actions. Mr Bowman may have certain rights under State law to compensation in relation to that incident which are intended to compensate him for the hurt and distress he suffered. The Court is of the view that the words, addressed as they were to an entire family including impressionable children, were insulting and demeaning and that an appropriate amount of compensation would be $1,500.

31. The case was heard over two days and if no costs were awarded to the successful applicant the entire benefit of this judgment would be lost. It is therefore appropriate to order that the respondent pay the applicant's costs to be taxed if not agreed on the Federal Court scale. The Federal Magistrates Court when it propounds its rules will include within those rules simplified procedures in relation to costs. This will include lump sum costs based upon events. Those rules are not yet promulgated and should have no bearing on any taxation but if the parties wish the Court to make its own binding assessment of costs the Court would be pleased to do so provided it is so requested within seven days.