Mr Lee's purpose
71 The finding that Mr Lee did not understand that his comments might cause offence does not expressly engage with any requirement of s 9(1) of the Act. There was understandable confusion in the submissions of the parties about whether it was a finding as to his purpose or as to whether his acts involved a distinction based on race. If the latter, it was necessary to consider whether race was one reason for the conduct, even if other reasons were predominant (s 18 of the Act). On balance, however, and in the light of our earlier observations, we consider that the finding as to Mr Lee's understanding should be taken to be a finding that Mr Lee did not have the purpose of impairing Ms Vata-Meyer's rights as required by s 9(1).
72 Ms Baw mounted a strong challenge to the finding that Mr Lee was unsophisticated and so obtuse that he did not intend his actions to impair Ms Vata-Meyer's enjoyment of just and favourable conditions of work. There is force in her argument that, by finding in [68] that it was possible that Mr Lee did not understand that his comments might cause offence, the primary judge applied a standard of proof to Ms Vata-Meyer's case that was higher than the balance of probabilities. His Honour misdirected himself at [64] when, after noting that it was necessary for Ms Vata-Meyer to establish a connection between the impugned acts and her race, he stated:
If there are innocent explanations which are consistent with the facts as established then she would be unable to do so.
73 His Honour's statement at [68] that he was willing to give Mr Lee "the benefit of the doubt" on the basis of his presentation in the witness box despite his apparent scepticism concerning his explanation also tends to indicate that he did not ask himself the correct question.
74 Ms Vata-Meyer was not required to prove her case beyond reasonable doubt. The mere availability of one or more innocent explanations does not mean that Mr Lee's purpose was not an unlawful one. The question had to be determined on the balance of probabilities. The conduct of Mr Lee on 28 September 2011 and the surrounding circumstances are described in the reasons of the primary judge at [66]. That description is so truncated as not to reflect a proper engagement with the allegations or the evidence, to denude Mr Lee's words of much of their context, and in material respects does not reflect the events of 28 September 2011 as described by Ms Vata-Meyer in her complaint. At the same time, his Honour did not reject Ms Vata-Meyer's description of events. For instance, Mr Lee's first remark offering Ms Vata-Meyer "black babies" is said to have taken place at the afternoon tea, when in fact, according to the complaint, it took place earlier at the work coral. There is no reference in [66] to the fact that Ms Beban responded "Oh Gus, you can't talk like that" when Mr Lee made the "black babies" remark. There is no specific reference to the confrontation between Ms Vata-Meyer and Mr Lee after the first remark when Ms Vata-Meyer threw down the packet of Chicos in front of Mr Lee and voiced her anger at the racial connotation. Neither is there a reference to Ms Vata-Meyer's observation that Mr Lee's response was cocky, but said in a quiet voice so no one else could hear. There is no reference to Ms Vata-Meyer's evidence that her disapproval was obvious by this time. Ms Vata-Meyer also said that sometime later Mr Lee brought the packet of lollies to the afternoon tea and that she picked them up, put them in his shirt pocket and indicated loudly to all around that she was highly offended. Then there was the reference by Mr Lee to Michael Jackson. And after Ms Vata-Meyer said in her complaint that Ms Cloudy asked about the difference between camembert and brie. Ms Moran was explaining the difference when Mr Lee all of a sudden called out "I like coon".
75 The source of the primary judge's finding about Mr Lee's purpose seems to be an exchange with the bench during cross-examination. The transcript of the cross-examination was part of the appeal papers before this Court. It occupied approximately nine pages. At most, four pages dealt with the events of 28 September 2011 directly. In cross-examination Mr Lee said he did not recall the details of some of the events of the afternoon. But he agreed that Ms Vata-Meyer was very angry after the first "black babies" remark. Whether he realised Ms Vata-Meyer was offended was first referred to in an exchange with his Honour as follows:
HIS HONOUR: Mr Lee, I understand Ms Vata-Meyer's point to be once you made the initial reference to black babies, and you saw that Ms Vata-Meyer was angry, and I think you say she was angry---?---That's correct
---did you not make a connection between the reference to black babies and her anger and the fact that she's an Aboriginal person?---I didn't make any reference at the time, your Honour.
You didn't make the connection?---I didn't make the connection at all.
76 Then, at the end of the cross-examination there was a further exchange as follows:
HIS HONOUR: I have one or two questions I want to ask, Mr Lee?---Yes, your Honour.
I understand from your evidence that at the time you made the reference to black babies, you didn't think you were doing anything wrong; is that correct?---That's correct, your Honour.
And does that remain your view?---Not now, your Honour. I realise that it was a mistake, and as I apologised to Ms Vata-Meyer the day after, I realised it was a mistake.
77 The respondents emphasised the forensic advantage enjoyed by the primary judge "of observing the witnesses in cross-examination including their demeanour, tone and phrasing of their oral evidence". But too much can be made of this.
78 In Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[30] Gleeson CJ, Gummow and Kirby JJ explained the role of an appeal court in examining the fact finding process of a trial judge as follows:
28 …[T]he mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
29. That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.
See also: McHugh J at [66] and Callinan J at [148].
[Footnotes omitted.]
79 Earlier, in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) 160 ALR 588; [1999] HCA 3 Kirby J referred to scientific literature showing how unreliable a finding based on credit alone can be. At [93] his Honour said that:
In some cases the evidence of the witness, where credibility is in question, although relevant to the outcome of a trial, relates only to particular aspects of the parties' dispute and leaves untouched other evidence which requires separate evaluation with no obstacle of a credibility finding. In such cases, to avoid appellate reversal, the trial judge must demonstrate that such evaluation has occurred … Where there is other evidence, unchallenged, unanswered, ostensibly reliable and supported by uncontested contemporaneous records, an adverse credibility finding in respect of one witness or more does not remove from consideration all the other evidence. Nor can it relieve the trial judge, or the appellate court when required, of the duties of analysis and the provision of reasons to demonstrate and explain that such analysis has occurred.
80 While this is not a case involving uncontested contemporaneous records, in all other respects the present case meets this description.
81 The finding that Mr Lee did not have a purpose of impairing Ms Vata-Meyer's rights was a finding as to Mr Lee's credibility based on the primary judge's impression of him apparently derived from two brief exchanges with him in cross-examination. But there was other evidence, which tended to undermine Mr Lee's credibility, unchallenged, unanswered and ostensibly reliable. Some of this evidence was not mentioned in the reasons.
82 In order to determine the question of purpose his Honour was entitled to have regard to Mr Lee's demeanour as a witness but he was required to evaluate the answers he gave in the two exchanges during cross-examination against the unchallenged, unanswered and ostensibly reliable evidence of other witnesses. That evidence included:
Ms Vata-Meyer's angry response to the first "black babies" remark;
the fact that Mr Lee knew at the time that she was angry;
Ms Vata-Meyer's evidence, which was not contested and which his Honour accepted, that the conduct was repeated during the afternoon, that Mr Lee responded in a cocky way, and that Ms Vata-Meyer made her reaction plainly known at the time;
the early reprimand from Ms Beban, an ostensibly independent witness, who generally corroborated Ms Vata-Meyer's account;
the subsequent reference to "coon" and the circumstances in which Ms Vata-Meyer alleged it was made;
the fact that Mr Lee understood coon "could be used as a racial slur";
the fact that at the time he was giving his evidence Mr Lee was a 45 year old Work Health Safety Advisor in the Department of Prime Minister and Cabinet;
the fact that at the time of the events in question, he had been employed for three years in the same role in the People, Policy and Performance Branch;
the fact that in 2011 the Department had a policy on diversity and cultural sensitivity, a copy of which was annexed to Ms Leggett's affidavit; and
that within the past two years Mr Lee had undertaken cultural awareness training, a circumstance his Honour appears to have overlooked entirely.
83 The importance of the last consideration should not be underestimated. The evidence before his Honour was that this training explored:
a. Indigenous history, cultures and peoples;
b. Non-Indigenous and Indigenous attitudes towards each other and how they were formed; and
c. Cross-cultural behaviours and actions.
84 Ms Vata-Meyer has dark skin. It was common ground that Mr Lee knew that she was employed under the indigenous graduate program. While the contents of the course were not before the Court, it is difficult to believe that in 2011 a person who had completed training of this nature would be oblivious to the hurt that might be caused to an indigenous person by inviting her or other employees within her hearing to eat "black babies" and would not know that it would impair her enjoyment on an equal footing of her right to just and favourable conditions of work. Even if the first invitation was merely thoughtless, how, in the face of the evidence of Ms Vata-Meyer's reaction and Ms Beban's reprimand can the second invitation be explained? Was the later reference to "coon" entirely coincidental? Did the context tend to support Ms Vata-Meyer's version of events?
85 If the proper conclusion to be drawn from all the evidence is that Mr Lee was aware that his remarks could be hurtful to an indigenous employee, then his Honour's initial scepticism about Mr Lee's explanation was entirely justified and the inference that he had an unlawful purpose might well have been drawn. Mr Lee might indeed have been obtuse, not in the sense of stupid, as his Honour ultimately concluded, but obtuse in its alternative sense of insensitive. Before his Honour reached his conclusion he should have brought all the evidence into account including the evidence of Mr Lee's training and experience, weighed it up and decided whether Ms Vata-Meyer's account was more probable than not.
86 At this point it is well to recall what the plurality went on to say in Fox v Percy at [30]-[31]:
30 It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana"):
... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.
31. Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.
[Footnotes omitted.]
87 As we have already observed, the effect of his Honour's observation at [66] that Mr Lee responded to a question from someone at the afternoon tea with "I just like plain old Coon cheese" is that his Honour rejected Ms Vata-Meyer's evidence to the effect that Mr Lee's intervention was gratuitous, that is to say, that he interjected during an answer given by Ms Moran to a question asked by Ms Cloudy and that his contribution was non-responsive. It will be recalled that Ms Vata-Meyer's evidence was that the question Ms Cloudy asked was concerned with the difference between camembert and brie. It was not an inquiry about preferences. Furthermore, it might be significant that on her version Mr Lee's contribution was that he liked "coon", not "Coon cheese". This evidence might be important to the determination of Mr Lee's purpose. Either on its own, or in combination with the other evidence, it might have negated the impression his Honour formed during the cross-examination. If the proper construction of his Honour's reasons is that he rejected Ms Vata-Meyer's evidence, he ought to have explained why. How did he resolve the inconsistencies between the two accounts? He made no finding against Ms Vata-Meyer's credit. For, the reasons given above, it was insufficient to rely only on his impression of Mr Lee derived during cross-examination, at least without carefully evaluating it against the other evidence.
88 It therefore follows, that, despite Mr Seck's best efforts to persuade us otherwise, we are not satisfied that the primary judge did "weigh up the strength of the cumulative evidence to determine whether on the balance of probabilities" Mr Lee was actuated by an unlawful purpose. In our view, the primary judge erred by applying the wrong standard of proof, by giving too much weight to his impression of Mr Lee in the witness box and by failing to assess Mr Lee's demeanour in the light of all the evidence.