Weldon-Bowen v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-08-16|Before: Centre J

Background

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.
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.

The Evidence

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.
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.
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.
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.
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.
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

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.
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.
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.
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.
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.
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.
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.
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.
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

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.
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.
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.
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.
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

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

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?
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.
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.
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.
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

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

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.
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'.
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

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.'
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.
Mr Stummer showed Mr Willis photos he took while riding. Mr Stummer told Mr Willis that he was riding with his friend Mr Douglas.
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.
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.
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.
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.'
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.
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'.
Mr Stummer stated that he was 'shocked' to be issued with a fine for negligent riding.

Ongoing investigation of the complaints

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.
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.
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.
A number of photos provided by Mr Stummer and taken by Mr Willis were added to the file.
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.
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.
Mr Bryant concluded that the dint on the car was more consistent with the contact by the bike than that of a fist.
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

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.
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.'
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.
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.'
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'.
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.
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

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.
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'.
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.
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.
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)
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.
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.
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.
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'.
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.'
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.
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.
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).
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.'
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

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.
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.

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.
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.
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

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.

Evidence

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.
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.
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.
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.
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.
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.
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.
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'.
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

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.
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.
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].
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.
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

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.
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.
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.
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.
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.

Evidence

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'.
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.
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.
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.
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.
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

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.
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").
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'.
In Gupta at [43] (O'Sullivan J) held that issuing an infringement notice is not a service within the meaning of s 24 of the DDA but did not give any reasons other than setting out the submissions of the parties. In Djime, (Cavanough J) found that at the time the police took out the gas spray and arrested the plaintiff, they were not providing him with a service.
On the basis of these decisions, the NSW Police Force submitted that services provided in the course of Mr Willis investigating the conduct in connection with the traffic incident and the decision made by the respondent about issuing traffic infringement notices were not a 'service' within the meaning of the Act.
The respondent's second submission is that if the Tribunal finds that in fact the NSW Police Force provided services within the meaning of the Act, the services were not refused or provided on terms that were discriminatory.
The NSW Police Force submitted that an applicant's dissatisfaction with the services provided is not evidence that services were refused. Faulkner v ACE Insurance Limited [2011] NSWADT 36; Kitoko v Sydney Local Health District [2017] NSWCATAD 209 ("Kitoko"), leave to appeal was refused in Kitoko v Sydney Local Health District [2018] NSWCATAP 38.
The NSW Police Force submitted that she did not decline or refuse to: 1. Adequately respond to the applicant's allegations against the bike rider; or 2. Take her allegations seriously; or 3. Take her statement; or 4. Provide an ACLO; or 5. Fail to provide her with an Events Number.
The respondent submitted that even if there was a service provided by Mr Willis, it was not refused on the facts as there was nothing Mr Willis was unwilling to do. The respondent submitted that the word 'refuse' must be given its ordinary meaning which the respondent defined as 'indicate or show that one is not willing to do something.' Mr Willis did the following: 1. Expressed sympathy with the applicant as a father, given her fear for her child; 2. Took her statement and inspected her vehicle and sought CCTV footage; 3. Sought assistance of an ACLO; and 4. Issued two infringement notices, one each to Ms Weldon-Bowen and Mr Stummer of equal value.
The NSW Police Force submitted that the applicant's real complaint is the manner in which the services were provided, which is not within the scope of ss 19(b) and 33(b) of the Act; Kitoko [49]; Whitfield v New South Wales (NSW Police Force) [2011] NSWADT 265 [92].
The respondent rejected that there was any obligation pursuant to the Police Act or the Act for the NSW Police Force to provide 'a proper investigation', 'appropriately sympathetic and supportive responses' and 'treatment commensurate to the objective seriousness of their conduct' as pleaded by the applicant.

Discrimination

The respondent conceded that Ms Weldon-Bowen did not receive a good service from Mr Willis and that Mr Willis could have done things differently or better. The NSW Police Force sought to emphasise that this case was not about policing practices but about why Mr Willis acted in the manner that he did on 8 December 2020. The respondent's submission was that it was not because of the applicant's race or gender.
In regard to ss7(1)(a) and 24(1)(a) of the Act concerning direct discrimination, the NSW Police Force in her opening submissions denied that Mr Stummer is an appropriate comparator as he was the bike rider and not the vehicle driver and submitted that the hypothetical comparator was 'not Aboriginal and/or a woman who engaged in driving in the same or similar manner as the applicant and attended the police station to report the matter'.
It was submitted that the hypothetical person would have been treated in the same or similar matter as the treatment received by Ms Weldon-Bowen because: 1. Mr Willis conducted the investigation in his usual manner, that is, by interviewing the relevant persons, administering the JURAT, taking statements and receiving and reviewing evidence provided by the parties; 2. Mr Willis was nor obligated to charge a person with every potential offence; 3. The requirement on Mr Willis to assess charges applies to all matters reported to NSW Police.
In the closing submissions, the NSW Police Force does not explicitly move away from this submission but submitted that the applicant received more favourable treatment compared to Mr Stummer who was a non-Aboriginal male who attended Redfern Police Station and made a complaint.
The respondent submitted that the evidence in regard to the interaction between Mr Willis and Mr Stummer was that Mr Willis raised his voice at him, was aggressive and threatening. Mr Willis threatened to place him under arrest if he left the police station and told him that he would issue him with a ticket.
The respondent submitted that there was no differential treatment in the manner in which Mr Willis conducted his investigation and that not all of Mr Stummer's photographs were uploaded on the case file. The respondent also referred to Mr Stummer's email to Mr Willis of other alleged traffic infringements by the applicant that were not investigated by the respondent.
The respondent also submitted that there was no evidence as to how Mr Willis would have treated a hypothetical comparator.
In regard to causation, it was submitted that even if there was a finding of 'less favourable treatment', there is no evidence that the reason she was subjected to any such less favourable treatment was because of her race or sex and that there was no ground to draw an inference.
In this case, it was submitted, there are no facts that 'positively suggest' that the actions of Mr Willis were because of Ms Weldon-Bowen's race and/or sex, however there are facts that point in the opposite direction, which are that Mr Willis formed an opinion based on the available evidence in conducting an investigation in regard to a complaint from Mr Stummer about Ms Weldon-Bowen and a complaint by Ms Weldon-Bowen about Mr Stummer and his actions were consistent with his usual approach.
The respondent submitted that reliance cannot be placed on the report from ICRR because the academics had insufficient expertise, their assumptions and findings were not made on observing the evidence. Their views and reasoning were based on reference to literature and on the basis of accepting the applicant's evidence and was based on incorrect understanding that Mr Willis refused to attend the scene of the alleged criminal conduct and that he overheard the cyclist's intimidatory behaviour towards the applicant prior to interviewing Mr Stummer.
The respondent submitted that even if it is accepted that there is discrimination and biases faced by Aboriginal women in dealing with Police, which the respondent denied, it does not establish causation.
It was submitted that the more probable inference to be drawn from the evidence before the Tribunal was that Mr Willis jumped to conclusions prematurely that Ms Weldon-Bowen was involved in wrongdoing, before interviewing her and becoming aware that she was Aboriginal. This was due to his lack of experience, deficiencies in his skills and failure of his supervisors to review the file more closely.

Findings as to the Evidence

The Tribunal found Ms Weldon-Bowen gave her evidence in a considered and careful manner. She had a good recollection of events of the day. She did fail to recall exact aspects of the journey which were not consequential. We reject the respondent's submission that her evidence ought to be rejected as it was not truthful.
Ms Weldon-Bowen's affidavits were considerably more detailed account of the events on 8 December 2020 than the witness statement made by her at the police station on the day. During cross examination it was put to Ms Weldon-Bowen that a number of her recollections were inaccurate and that her failure to include these details in the police witness statement demonstrated that these details were not correct.
For example, Ms Weldon-Bowen's police statement does not record that the bike rider knocked on the boot of her car and said to her words to the effect 'pull up now and get out of the fucking car.' The police statement stated that the bike rider was yelling at her to pull over. We do not accept that based on this fact the Tribunal ought to be sceptical or reject the applicant's evidence.
The respondent's criticism that Ms Weldon-Bowen affidavits includes more detail and substance than the statement prepared for her by Mr Willis at the police station on 8 December 2020 is not well placed.
The statement prepared by Mr Willis was very brief and was not made for these proceedings. It is to be expected that statements in legal proceedings are more detailed than those made by a police officer during an interview. Secondly, the same criticism can be raised about Mr Stummer's affidavit in these proceedings which contains additional and slightly different content to the police statement. Neither Mr Stummer's nor Ms Weldon-Bowen's credit is impugned because they described things in a slightly different manner in the affidavit or added additional detail which did not appear in the short statements prepared by Mr Willis.
The Tribunal accepts the expert evidence in the IRCC Report that within organisations such as police forces across Australia there has been racial prejudice against Aboriginal people. See also discussion of 'racial prejudice' in Eatock v Bolt [2011] FCA 1103; 197 FCR 261 at [215]-[216]. Attributing negative characteristics on people on the basis of their race and relying on policies and practices throughout organisations has benefited some people and discriminated against others based on race.
There was no direct evidence before the Tribunal that Ms Weldon-Bowen was treated by the NSW Police Force on the basis of her race or sex, that much is common ground. It therefore is necessary to infer, on the balance of probabilities, that the requisite conduct had occurred based on race and or sex. As we set out in the decision below, the facts as found by the Tribunal do not support such an inference.
Mr Willis was a distracted, agitated and a confused witness. On numerous occasions he changed his evidence and gave conflicting evidence. He had difficulty focusing on the questions put to him. After the lunch adjournment he stated that he just wanted to leave.
It was put to Mr Willis that Ms Weldon-Bowen did not do or say anything in an aggressive or hostile manner. Mr Willis agreed with this proposition, however he continued to maintain that Ms Weldon-Bowen was aggressive towards him in the manner she was speaking to him and telling him what to do.
Mr Willis gave evidence that he did ask Ms Weldon-Bowen to provide him with her video footage but a few questions later, stated that he was not sure and did not remember.
Mr Willis admitted that there was no evidence that Ms Weldon-Bowen stopped her vehicle in the laneway as a deliberate act, however he stated that he saw significance at the time. Mr Willis' evidence was that he believed that all drivers have 'brake checked' bike riders at some stage and he assumed that Ms Weldon-Bowen did it to Mr Stummer.
He admitted that he had no evidence that Ms Weldon-Bowen changed lanes unsafely despite informing his supervisor, Sergeant Donovan that he had video footage. His evidence was that he was not lying but could not explain why he said those words.
Despite his errors, Mr Willis' evidence was that he continued to believe that both Ms Weldon-Bowen and Mr Stummer had committed offences of equal value.
Mr Willis' evidence as to why the fine was for negligent driving, changing lanes unsafely and using a mobile telephone while driving was also confusing and irrational. First he stated that he believed that the fine for using a mobile phone while driving was for a specific amount, then he stated that he could not recall the value of the fine. He also stated that the fine for using mobile phone was higher than for negligent driving, but a few questions later could not recall if this was the case. Ultimately, Mr Willis' agreed that it was a mistake to issue the fine for negligent driving. Mr Willis admitted that his conduct of not following up the collection of evidence was 'absurd conduct'.
While we have made factual findings in regard to Mr Willis' competence as a police officer, this is not to suggest that he may not be competent performing different work. Our observations are strictly in regard to Mr Willis' conduct in this particular investigation and are not intended to be a judgement as to his proficiency generally.
The Tribunal finds that Mr Willis was not an accurate, credible or a reliable witness because of the matters set out above and where there is conflict in the evidence between him and Ms Weldon-Bowen, the Tribunal prefers Ms Weldon-Bowen's evidence.
The Tribunal accepts Mr Willis' evidence where it does not conflict with Ms Weldon-Bowen's evidence. This evidence includes that: 1. Mr Willis did not know that Ms Weldon-Bowen was an indigenous woman before he met her, by this stage he had made a number of decisions such as to not take a statement from Mr Stummer as he had decided to treat his complaint as a 'failure to exchange details' and to take a 'form of demand' (not a statement); 2. Mr Willis decided to not interview the second bike rider; 3. Mr Willis was discouraging Mr Stummer from making a complaint by stating words to the effect: I can issue you with a ticket; 4. Mr Willis formed an opinion that both Mr Stummer and Ms Weldon-Bowen were persons of interest; and 5. Mr Willis held an opinion that at some stage all vehicle drivers 'brake check' bike riders on the road.
The Tribunal has difficulty accepting the logic of Sergeant Bryant's evidence that it is appropriate for the police to issue a fine to a person for negligent driving at a particular location based on an accusation that the driver was driving negligently in a different location.
Mr Stummer did his best to recall the events of the morning of 8 December 2020. He was visibly agitated and was keen to portray himself as the victim. The Tribunal does not accept the NSW Police Force's submission that he was an independent witness without anything to prove.
Based on the GPS evidence it is clear that along Dunning Avenue Mr Stummer was not required to stop or brake suddenly, contrary to the evidence in his witness statement and affidavit. This was critical evidence and the reason he gave for chasing Ms Weldon-Bowen's car, yelling at her, swearing at her and throwing his water bottle at the vehicle. For this reason, the Tribunal prefers Ms Weldon-Bowen's evidence where it differs from that of Mr Stummer's evidence. However, ultimately what occurred on the road between Ms Weldon-Bowen and Mr Stummer is not important to the ultimate issues to be decided.

Services

'Services' is to be given its ordinary and wide meaning, mindful of the purpose and social goals of preventing unlawful discrimination in various aspects of community life. It has been described to include 'any act of helpful activity' or as 'conduct tending to the welfare or advantage of another' IW v City of Perth (1997) 191 CLR 1 ("IW") at 11-12 (Brennan CJ and McHugh J), at 22-23 (Dawson and Gaudron JJ), at 27 (Toohey J), at 41 (Gummow J) at 70 (Kirby J)
In Waters v Public Transport Corporation (1992) 173 CLR 349; [1991] HCA 49 ("Waters") and IW the High Court considered the meaning of the term 'services' in Victorian and Western Australian legislation respectively which was for present purposes similar both in terms of the definition and operative provisions in the Act.
In IW the Council was deliberating on whether to approve an application for a drop in centre for people living with HIV. The application was refused. A number of counsellors refused the application on the basis of the 'AIDS factor'. Members of the High Court disagreed as to how the service was to be characterised.
The majority of the High Court found that the Council did provide a service; Dawson, Gaudron and Gummow JJ concluded that the service was the act of considering the application; at 24 per Dawson and Gaudron JJ, at 44-45 per Gummow J. Kirby J found that the service was not the consideration, but the decision in relation to the application at 72; Toohey J found that both the consideration of the application and the disposition of the application were parts of the service at 27-29. Brennan CJ and McHugh J in minority on this point concluded that in exercising its discretion to determine whether or not to grant planning permission, the council was acting as a deliberative body and did not perform a service at 12-17.
While the majority found that the Council did provide a service, there was no finding that discrimination had been established; per Dawson, Gaudron and Toohey JJ. Kirby and Gummow JJ in dissent found that discrimination had been established.
Brennan CJ and McHugh J at 12, found that: …use of property or facilities owned by or under the control of the Council may constitute the provision of a service… So too may the provision of intangibles such as advice and information in respect of building and town planning matters.
However their Honours concluded that a refusal to exercise a discretionary power under planning legislation is not a 'service'. At 15 their Honours stated that when a body acts in a quasi-judicial role in exercising statutory power or duty 'it may be inappropriate to characterise the process as the provision of a service….'
Services must be specified, so it can be identified which alleged 'service' gives rise to the unlawful discrimination. Waters 404-406, IW 17, Mohamed at [35] and [45]. In Waters, McHugh J stated at 404: …Before there can be a finding of discrimination by a person in relation to the provision of goods or services, therefore, the relevant goods or services must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination. If a person is alleged to have refused to perform services, for example, the services in question must be identified in sufficiently concrete terms to enable the Board to determine whether or not there has been a refusal to perform those services. What is a sufficiently precise identification of the service in one case may be too general in another. If the discrimination alleged was the refusal to allow impaired persons to travel on trams to St Kilda, it would be meaningless to identify the service provided as "the public transport system". If, however, the discrimination alleged was the refusal to allow impaired persons to travel on trams generally, "transportation of members of the public by trams" might identify the service with sufficient precision to enable the relevant issues to be resolved. On the other hand, if it was alleged that the physically impaired were discriminated against because they were not given sufficient time to become seated on trams, the relevant description of the service might not be sufficiently precise unless a description of the trams as incorporated into a description of the services. Likewise, if a person is alleged to have imposed on another person a "requirement or condition" in respect of using services, the services provided must be identified with sufficient precision to enable the Board to relate the requirement or condition to those services and to determine the issues raised by s.17(5) of the Act. As will appear, the line between what is a "requirement or condition" of using services and the services themselves is often a fine one calling for an exact description of the services provided.
The High Court in IW referred to the English Court of Appeal decision in Farah v Commissioner of Police of the Metropolis [1998] QB 65 ("Farah") with approval. Ms Farah was a Somali woman and together with her 10 year old niece was attacked by white youths and their dog. Ms Farah sought protection by police officers. When the police arrived instead of providing her with assistance, she was arrested. When she appeared to defend the charges, no evidence was offered, and she was acquitted.
Her claim was that because of her race she did not obtain the protection others would have been afforded and that she had suffered unlawful discrimination by reason of omission to provide services to her. She alleged that 'officers failed to react to her emergency phone call, to investigate her account at the scene and to offer her protection' at 84G-H. The Court of Appeal held that such a claim was arguable against the police.
In Farah, it was held that pursuing, arresting or charging alleged criminals was not the provision of a service to the alleged criminals, however, those duties of a police officer that involve assistance to or protection of the public constitute 'services to the public' for the purposes of the Race Relations Act 1976 (UK). His Lordship Hutchinson concluded at 83 that 'services to the public'; are entirely apt to cover those parts of a police officer's duties involving assistance to or protection of members of the public.
Otton LJ expressed a similar view in regard to police officers at 78: While performing duties and exercising powers they also provide services in providing protection to the victims of crimes of violence.
Farah continues to be cited in the UK as authority for the proposition that police officers came within the class of persons in section 20(2)(g) of the Race Relations Act 1976 (UK) when they were providing services to the public; R v Secretary of State for Transport Ex p. Factortame Ltd (No. 6) [2001] 1 CMLR 47 and R v The Secretary of State for Transport ex parte Factortame Limited (No. 7) [2000] EWHC Technology 179; and that it was not enough, in excluding the provision of a service from the reach of the disability discrimination legislation, to say that it was incidental to a government function; Gichura v Home Office [2008] EWCA Civ 697.
In IW at 13 Brennan CJ and McHugh J also accepted an English authority in Savjani v Inland Revenue Commissioners [1981] QB 458 that held that there had been a provision of services: to the public in carrying out a statutory duty to determine whether a taxpayer was entitled to a deduction for a dependent child and in disseminating and giving advice to taxpayers to enable them to claim that tax relief.
In Mohamed, the plaintiff claimed that she and her family were abused and assaulted by their neighbours. Ms Mohamed telephoned the police, and two officers attended the family home. The plaintiff alleged that the police were rude to the family and failed to take their complaint seriously. It was alleged that the police took no action against those who abused and harassed Ms Mohamed and her family on the basis of their race.
Basten JA with whom Spigelman CJ agreed formulated the question of law as: Can the detection and prevention of crime as defined by s 6(3) of the Police Act 1990 (NSW) constitute a 'service' within the meaning of section 19 of the Anti Discrimination Act?
Basten JA at [36] found that the duties of police to provide services to the general public could also be services provided to individuals: There is nothing surprising about the proposition that the police owe individual members of the community a duty to exercise their powers and carry out their functions on a non-discriminatory basis. Such a duty is recognised in international law, which may uphold a claim for refugee status on the part of a person denied protection from violence on the basis of a protected characteristic, in his or her country of nationality: see Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; 210 CLR 1. Indeed, the fact that an authority is required to provide a public service implies that the service is to be provided without discrimination across all sectors of the community. To withdraw such a service from a particular group on the basis of a characteristic protected under human rights law is not to default on any obligation to the public at large, but in relation to members of that group. There is no reason why members who suffer individually as a result of such conduct should not have a basis for complaint under appropriate legislation, including the Anti-Discrimination Act.
Basten JA with whom Spigelman CJ and Hadley AJA agreed (at [35]-[36], [79], [86]), held that conduct of police officers with respect to: 1. a request for assistance in relation to possible criminal activity, where protection of persons or property may be required; 2. an investigation of an alleged criminal offence; and 3. detection and prevention of crime can constitute the refusal or provision of services within the meaning of s19 of the Act.
Hadley AJA at [87]-[89] found that while the initial investigation of complaints and prevention of unlawful conduct was a service to victims, it was not a foregone conclusion that later stages of the investigation and the decision whether to arrest and or prosecute the alleged perpetrator is a service to a person. His Honour rejected an attempt to define the boundaries between the different stages of an investigation in the abstract.
In Wotton v State of Queensland (No 5) [2016] FCA 1457; 157 ALD 14 (Wotton), Mortimer J (as her Honour was at the time) dealt with a class action against Queensland Police Service in regard to events on Palm Island, pursuant to the Racial Discrimination Act 1975 (Cth). Mortimer J at [632] described the inherently public function performed by the police by reference to what Viscount Cave LC said in Glasbrook Bros Ltd v Glamorgan County Council [1924] UKHL 3; [1925] AC 270 at 277 and at [633] stated: It is also consistent with the constitutional framework at state and federal level in Australia, which can be said to contemplate that there will be mechanisms by which the rule of law will be upheld and enforced for the benefit of the whole community, in a way which itself is consistent with core values of independence, impartiality and reasonableness…
With respect, we agree with the observations made by Mortimer CJ in Wotton. Police Forces across Australia carry out their duties and functions with fundamental core values. When a 'police service' is carried out by way of detecting crime or protecting persons from injury and property from damage in New South Wales by the NSW Police Service, the police service is being conducted with the core values of 'independence, impartiality and reasonableness.' These values are consistent with s 7 of the Police Act as referred to in Commissioner of Police, NSW Police Force v Estate of Edward John Russell [2001] NSWSC 745 ("Russell").
In Russell, Sully J dealt with questions of law referred to the Court by the Administrative Decisions Tribunal. One of the questions was: Whether the conduct of an individual police officer in the course of the pursuit and arrest of Mr Russell amounted to the provision of service within the meaning of section 19 of the Anti Discrimination Act 1997 NSW?
Sully J found at [41] that the pursuit and arrest of Mr Russell by police officers was not a service to Mr Russell within the meaning of s19 of the Act but that the police failed to provide a service to Mr Russell as soon as he was formally arrested. A correct assessment of the conduct of the individual police officers in the course of their pursuit and arrest of the late Mr. Russell is in my opinion as follows:

[1] The police officers who took part in the pursuit of Mr. Russell were providing to the community at large services of the kind described in section 6(3)(a) and (b) of the Police Service Act . [2] The police who took part in the arrest of the late Mr. Russell were also thereby providing to the community at large services of those two kinds. [3] As soon as the late Mr. Russell had been formally arrested, and had passed thereupon into police custody, the arresting police, and any police officer who had any part at all in the way in which Mr. Russell was subsequently handled; or who witnessed the way in which Mr. Russell was handled; became thereupon charged with a public duty to provide to the late Mr. Russell police services by way of the protection of his person from injury or death, and the protection of his property from damage, "whether arising from criminal acts or in any other way" . [4] All of the police officers mentioned in [3] above wholly failed, on the facts as found by the Equal Opportunity Division, to provide the services which they were bound to provide to Mr. Russell pursuant to section 6(3)(b). [5] To say that what the individual police officers did, or suffered to be done, to the late Mr. Russell amounted to the provision by them to him of police services, but on a basis discriminatory in the sense contemplated by section 19(b), seems to me to be a wholly artificial perception, given the facts found by the Equal Opportunity Division. The police officers involved did not, in my opinion, provide imperfectly to the late Mr. Russell the services which they were duty bound to provide to him. They did not provide those services at all.

Sully J's findings differentiate between services provided to the public or community at large connected with the detection of crime and the apprehension of persons suspected of breaking the law and different kinds to services provided to the individual who was the subject of police action which was connected with ensuring his safety and wellbeing and the protection of his property while in police custody. This is not to say that there was no public or community connection to an arrest of a person suspected of committing a crime. Conversely, not every circumstance where police powers are exercised or police perform a duty in relation to an individual, will a service be provided to the person within the meaning of the Act.
The same conclusion was reached in Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 at [168]-[169], [180] upheld on appeal in Robinson v Commissioner of Police, New South Wales Police Force [2013] FCAFC 64 ("Robinson"). In Robinson the Full Court upheld the finding that pursuing, arresting and granting bail was not a service within the meaning of s 24 of the DDA.
In Director General, Department of Community Services v MM and Another [2003] NSWSC 1241 ("MM"), Barr J dealt with questions of law referred to the Court by the Administrative Decisions Tribunal. One of the questions was: Was the State of New South Wales providing "services" to AM and/or MM within the meaning of s49M(1) and s47 of the Anti-Discrimination Act 1977 when determining their application to become foster parents?
Barr J found that the selection of foster parents was a service the appellant provided to MM. At [41] he stated: However, the fact that a person provides a service directly for the benefit of one person does not mean that that service is not also provided for anyone else. As Sully J found in NSW Police Force of Police v Russell, police officers may in relevant ways provide a service to the community at large as well as to individuals.
A body like the respondent can be simultaneously providing services to the public and to the applicant; MM at [41], Russell [43]-[44] or as described in The Australian Press Council Inc v Southey [2021] NSWCATAP 9 at [99], as part of a 'composite service'.
As stated by Heerey J in AB v Registrar of Births, Deaths and Marriages [2006] FCA 1071 at [66], the consideration of an amendment to a birth certificate was a refusal of a service, despite the fact the Registrar was providing services to the general public, it did not change the character of the activity and was a service within the meaning of 22 of the Sex Discrimination Act 1984 (Cth). This aspect of the decision was not challenged on appeal by the respondent. AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140; 162 FCR 528 at [116].
In New South Wales (NSW Police Force) v Whitfield [2012] NSWADTAP 27 ("Whitfield"), a police officer attended at a retirement village based on a complaint described as a neighbourhood dispute involving Mr Whitefield. The police officer asked Mr Whitefield to leave the accommodation. The Appeal Panel upheld a finding that the police provided a service to Mr Whitfield.
The appellant argued that the Tribunal erred in finding that the police provided Mr Whitfield with a service because he was not a victim. This submission was rejected by the Appeal Panel at [45]-[46]: In these circumstances, we do not consider that a strict distinction should be drawn as between the people seeking assistance, the person said to be the cause of trouble, and others with an interest. In cases of this kind, in our view it is reasonable to regard all affected as recipients of services though the exact nature of the service rendered may vary between them. Accordingly, we accept that it was open to the Tribunal to conclude as it did at [86] that Constable Lobb was engaged in the provision of a service, namely the demand that Mr Whitfield move out, that fell within the parameters of categories (a) and (b) of the meaning of 'police services' in the Police Act s 6(3). The characterisation of the service is a question of fact, and the Tribunal had a basis for its finding in that regard.
The Appeal Panel found that the service was 'protecting persons from injury and death.' The Appeal Panel allowed the appeal on numerous bases, including that there was neither a refusal of the service or the provision of the service on different or unfavourable terms.
In State of New South Wales v Whiteoak [2014] NSWCATAP 99, the Appeal Panel held that classification of persons in prison was not a service. At [158] the Appeal Panel stated: … if a governmental function or statutory duty is being performed and the persons affected have no ability to decide whether to accept or reject what is done or the outcome, it is unlikely that services are being provided in those circumstances.
The respondent's reliance on the decision in Bickle whilst not binding on this Tribunal is instructional. However, with respect, the reasoning in [18]-[19] that there is a distinction drawn between an initial investigation, which is a 'service' and the 'subsequent' conduct that follows not being a service because it is not for the benefit to the victims but to the benefit to the community as a collective is not consistent with the decisions in Mohamed [36], Russell [43]-[44], MM [41] and Farah as there is no dichotomy between police undertaking activities for the benefit of the community whist simultaneously undertaking activities for the benefit of the individual. There is no inconsistency or incongruity in a service provided by the police to the individual and to the general public.
The issue of whether the issue of an infringement notice to a person is a 'service' within the meaning of the Act has been addressed but not determined by the Tribunal. In Soliman v New South Wales (NSW Police Force) [2011] NSWADT 42, at [17] (Hennessy DP as she was at that time), refused to strike out the claim on the basis that the Tribunal had no jurisdiction because the issuing of an infringement notice was not a 'service'. …it is arguable that when issuing an infringement notice for defective tyres, a police officer is providing a member of the public with the service of either the prevention and detection of crime, and/or the protection of persons from injury or death, and property from damage.
In Nicolaou v New South Wales (NSW Police Force) [2015] NSWCATAD 142 at [19] Senior Counsel for the NSW Police Force agreed that the issuing of a penalty notice to the applicant was a 'service'. Hennessy DP as she was at that time stated at [23]: It is uncontroversial that police officers are exercising their powers or carrying out their functions when issuing a penalty notice for offensive language.
As to whether a service is provided, in Faulkner, the Tribunal rejected a narrow, legalistic and technical interpretation of the words refusing to provide... services' and found that a person does not need to formally apply for a service if the person who provides the service has indicated that the service would be refused. The Tribunal relied on a decision in JQ v Double Bay Out of School Hours Inc (2) [2010] NSWADT 257, which found that the applicant's claim is not restricted to a case of services actually provided and that the 'facts surrounding the claim can amount to an actual or (more likely) deemed or constructive refusal by the respondent.'
In Kitoko at [37], the Tribunal held that the phrase 'refusing to provide' should be read to mean 'declining to give' or 'denying a request or demand'.
In Waters, there was no dispute that the introduction of scratch tickets and the removal of conductors on trams was a service which was performed 'in the terms'. The 'terms' referred to in ss 19(b) and 33(b) of the Act are the terms which are given to the person who requires the goods or services. Waters at 366 (Mason CJ and Gaudron J). As Brennan J explained at 375, where s29(1)(a) and 29(1)(b) were in similar terms to ss 19(b) and 33(b) of the Act: The performance of a service and "the terms on which" the service is performed are concepts which are kept distinct in s.29(1)(b) and (2)(b) of the Act. As s.29(1)(b) speaks of discriminating "in" the terms on which services are performed, discrimination must be found, if at all, in the terms on which the service is performed not in the performance of the service. Because of the correlation between the terms on which a service is performed and the performance of the service, the existence of discrimination can be ascertained only by reference to the terms on which an actual service is performed by the putative discriminator. The service relevant to an alleged act of discrimination is the service which the putative discriminator performs, not a service which the putative discriminator has been accustomed to perform, nor a service of a higher standard which the putative discriminator could perform but is not performing. For the purposes of s.29(1)(b), a service consists in what is performed, not in what is not performed. If there be any unlawful discrimination by non-performance, it must fall within s.29(1)(a).
Applying the legal principles to the facts in this case, the relevant question is whether the respondent's response to the applicant's complaint of criminal conduct and or the applicant's request for assistance is a 'service' within the meaning of ss19 and 33 of the Act? As stated by McHugh J in Waters at 404, the identification of the relevant service is a question of fact. The services, which must be identified with 'sufficient precision' are those that are relevant to the complaint.
The request for assistance was made in the context of Ms Weldon-Bowen reporting alleged wrongdoing by a cyclist (Mr Stummer). The alleged wrongdoing involved damage to her vehicle, verbal abuse, being tail gated by a cyclist and an object being thrown at her vehicle. Reporting of crimes and request for assistance are services by way of detection of crime. The respondent detects crime through a process of investigation. The process of investigation in this case involved at least; interviewing relevant persons, taking statements from relevant persons, collecting and analysing evidence, investigating the scenes of the alleged crime and communication with Ms Weldon-Bowen about the investigation, including the provision of an Event Number.
The applicant pleaded that services included 'services by way of prevention and detection of crime, the protection of persons in NSW from injury or death, and property from damage, whether arising from criminal acts or in any other way; and receiving, investigating and resolving complaints of criminal conduct.' In substance the complaint was that the investigation was not conducted, that Ms Weldon-Bowen was not supported throughout the investigation and that Mr Stummer was not charged with offences commensurate with the 'objective seriousness of his conduct'. This is consistent with the applicant's submission that the facts in this case are analogous to the facts in Mohamed.
The applicant requested the respondent to carry out the investigation. Carrying out an investigation required the collection and consideration and evaluation of relevant evidence. The nature and scope of the investigation included a deliberating function. The carrying out of the investigation would have conferred a benefit on the applicant.
We find that the NSW Police Force was providing a service to Ms Weldon-Bowen on 8 December 2020 in carrying on an investigation into the complaint Ms Weldon-Bowen made about Mr Stummer's conduct in damaging her car, throwing a water bottle at her car and being abused by him on the road.
The request for assistance made by Ms Weldon-Bowen on 8 December 2020 was a service within the meaning of ss19 and 33 of the Act and s 6(3)(a) of the Police Act. A request for assistance in relation to possible criminal activity, where protection of persons or property may be required can involve a refusal or provision of a 'service'. Mohamed at [35]-[35]; Whitfield at [45].
The applicant submitted that the NSW Police Force refused to provide Ms Weldon-Bowen with services because Mr Willis immediately formed the view that Ms Weldon-Bowen was not a victim of crime, that he was openly hostile to Ms Weldon-Bowen, that he was sceptical of her account despite Ms Weldon-Bowen showing him video footage corroborating her claims, that he threatened to fine her for using her mobile phone while driving, that he tried to justify the cyclist's aggressive behaviour by stating 'the straw that broke the camel's back' and that Ms Weldon-Bowen was treated as an offender and charged with the offence of negligent driving for 'the actions of braking'.
The Tribunal has found that the relevant services was the investigation and the issue of the TIN. A number of matters referred to by the applicant in the paragraph above are descriptions of what an investigation involves, such as approaching the task with an open mind, not jumping to conclusions absent evidence, collecting and considering evidence, approaching people who make complaints with integrity and respect.
Some aspects of the investigation occurred. Ms Weldon-Bowen was interviewed by Mr Willis. He took her statement. Inquiries were made about the availability of an ACLO, an attempt was made to find CCTV footage of the alleged crime scene and Mr Stummer's evidence was collected.
However the police did not collect and consider the relevant evidence which is a critical part of conducting an investigation. The respondent fundamentally misunderstood and within the chain of command misrepresented Ms Weldon-Bowen's evidence. The failure to do so was a refusal of a service.
We are satisfied that based on the facts set out above, NSW Police Force refused to provide Ms Weldon-Bowen with a service, the service was an investigation of a complaint of violence, in circumstances where she was seeking protection as a victim of violence and the NSW Police Force were responding to her plea for assistance about the events of the morning when she was under threat.
The applicant has pleaded that police services had to be provided to the applicant in 'an appropriately sympathetic and supportive' manner. We reject this submission. No reason was given as to why these subjective words should be read into s 6 of the Police Act. Section 7 of the Police Act places an expectation that each member of the NSW Police Force to act in a manner which ensures that authority is exercised responsibly, strives for citizen personal satisfaction, preserved the rights and freedoms of individuals, upholds the rule of law and places integrity above all else.
The Tribunal finds that Mr Willis' statements to Ms Weldon-Bowen such as 'can you afford to pay the fine, can you afford to lose points' in circumstances of her making a complaint of criminal conduct are not consistent with the expectations in s7 of the Police Act.
We do not consider that Mr Willis' statement of 'if I fine him I could fine you for using your mobile phone while driving' to be 'treatment of the complainant as a victim rather than a perpetrator of a crime'. The fact was that Ms Weldon-Bowen did use a mobile phone while driving as she admitted and explained to Mr Willis during the interview.
We consider that the undisputed evidence was that Mr Willis did attempt to provide an ACLO for Ms Weldon-Bowen, however there was nobody available at the time. We consider that the provision of an Event Number is part of the investigation process. The taking out of an apprehended violence order or other protective measure in favour of the complainant does not arise on the facts as no order was sought or appropriate in circumstances where Ms Weldon-Bowen had no future fear of Mr Stummer.
The service we have identified is the provision of an investigation into Ms Weldon-Bowen's complaints about Mr Stummer's conduct. We are satisfied that the NSW Police Force failed to conduct the investigation for the following reasons: 1. Prejudgement by Mr Willis that all vehicle drivers at some stage 'brake check' bike riders; 2. Failure to contact an identified eyewitness to the altercation (the other bike rider); 3. Failure to collect relevant evidence (the video and photographs taken by Ms Weldon-Bowen of Mr Stummer and her car); 4. Failure to consider the evidence, Mr Willis incorrectly formed the view that the video showed that Ms Weldon-Bowen was driving unsafely; 5. Misrepresentation of the evidence, that both Ms Weldon-Bowen and Mr Willis were heated with each other; and 6. Misrepresentation of the evidence, Mr Willis passed on wrong information to his supervisor which implicated Ms Weldon-Bowen as a negligent driver which led to her being issued with a TIN.
Issuing a traffic infringement notice (TIN) to Mr Stummer cannot be a refusal to provide the applicant with services or be 'in the terms on which the NSW Police Force provides her with those services.'
We consider that issuing a TIN to the applicant in the circumstances of this case can be considered as a service because the issue of the TIN was directly connected to the failure to provide the service of the investigation. The TIN was issued to the applicant because the respondent misconstrued the evidence provided by the applicant. Mr Willis admitted during cross examination that a TIN should not have been issued to the applicant because there was no evidence that she was driving in a negligent manner.
The issue of a TIN was a matter of discretion for the respondent. In issuing the TIN the respondent was not performing a government function or a statutory duty and the applicant had the option of challenging the TIN in court which she did successfully.

Discrimination

There was no issue that Ms Weldon-Bowen is an Aboriginal woman. Mr Willis was aware that Ms Weldon-Bowen was a woman before she arrived at the Police Station as he overheard her speaking on the police radio while she was driving. Mr Willis assumed Ms Weldon-Bowen was an Aboriginal woman when she returned to the police station for the interview.
Sections 7(1)(a) and 24(1)(a) of the Act respectively, define discrimination on the ground of race and discrimination on the ground of sex. These provisions have been described to have two key components. Waters at 392 per Dawson and Toohey JJ; Waterhouse v Bell (1991) 25 NSWLR 99 at 105 ("Waterhouse"). The first component is 'differential treatment', and the second component is 'on the ground'.
The differential treatment component is that the complainant was treated less favourably by the respondent in regard to every allegation than the way in which the respondent treated or would have treated a person of a different race and or sex in the same or similar circumstances.
To determine whether there was less favourable treatment requires the identity of the comparator with the relevant circumstances for the purpose of the comparison. A comparison is between an actual or a hypothetical person, situation or circumstances. It is undertaken to shed light on whether the treatment of the complainant was less favourable.
The on the ground element is that a reason or ground for the less favourable treatment of the complainant by the respondent was the complainant's race and or sex. It is the causation element. It is not an assessment of the person's intentions or motives for so acting which are not necessarily relevant. The search is for the real reason why the person acted; Purvis v State of New South Wales (2003) 217 CLR 92; [2003] HCA 62 (Purvis) at [224]. As Deane and Gaudron JJ observed in Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165; [1989] HCA 56 (Banovic) at 176 reasons given for the conduct may in fact mask the true basis for the act or decision.
Where the comparison is hypothetical, the two questions as to 'less favourable treatment' and 'on the ground' of race and or sex can be addressed as part of the same reasoning exercise. Whitfield [96]; Smith v Department of Education and Communities [2013] NSWADT 162 [143]; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [65].
Concentrating primarily on the question 'why' the applicant was treated as she was, calls for an examination of all the facts of the case and simplifies deciding the less favourable treatment issue first. The question is not finding the real reason why the respondent believed he or she acted but it is an objective analysis as to why the applicant was afforded the treatment she received based on the circumstances in which the discrimination is alleged to have occurred. As stated by Lord Nicholls of Birkenhead in the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 1 All ER 26 at [10]: …As I have said, prima facie the comparison with the two male chief inspectors is not apt. So be it. Let it be assumed that, this being so, the most sensible course in practice is to proceed on the footing that the appropriate comparator is a hypothetical comparator: a male chief inspector regarding whose conduct similar complaints and representations had been made. On this footing the less favourable treatment issue is this: was Chief Inspector Shamoon treated less favourably than such a male chief inspector would have been treated? But, here also, the question is incapable of being answered without deciding why Chief Inspector Shamoon was treated as she was. It is impossible to decide whether Chief Inspector Shamoon was treated less favourably than a hypothetical male chief inspector without identifying the ground on which she was treated as she was. Was it grounds of sex? If yes, then she was treated less favourably than a male chief inspector in her position would have been treated. If not, not. Thus, on this footing also, the less favourable treatment issue is incapable of being decided without deciding the reason why issue. And the decision on the reason why issue will also provide the answer to the less favourable treatment issue.
The approach was explained by Mortimer J (as her Honour then was) in Watts v Australian Postal Corporation [2014] FCA 370; 222 FCR 220 at [242]: It is nevertheless correct in my opinion to approach s 5(2)(b) on the basis that the function of a comparator in the context of discrimination is to facilitate the isolation of the reason why the person was treated as he or she was: Purvis 217 CLR 92; [2003] HCA 62 at [223] per Gummow, Hayne and Heydon JJ. By removing the nominated attribute but otherwise comparing how the aggrieved person was treated in comparison with another person in the same or similar circumstances, it is thought that the "real reason" for the person's treatment more readily emerges. In the context of s 5(2)(b), it can be said that the "real effect" more readily emerges. This explanation in Purvis, combined with the particular language in s 5(2)(b), serves to highlight the overlap between "less favourable treatment" and "because of the disability" in s 5(2)(b). They are not two separate elements: rather, by reason of the comparison required, either the conclusion will be that the effect of the failure to make reasonable adjustments was to treat a person less favourably because of her disability, or the conclusion will be that it was not.
To substantiate her complaint, the Tribunal must be satisfied that there was differential treatment and that at least one of the reasons for the respondent's conduct must be Ms Weldon-Bowen's sex or race. There is no need for the applicant to prove motive or conscious intention to discriminate; Banovic at [11] (Deane and Gaudron JJ); IW at 63 (Kirby J); Purvis at [236] (Gummow, Hayne and Heydon JJ) at [160] (McHugh and Kirby JJ); Waters at 359 (Mason CJ and Gaudron J).
For the purpose of identifying the hypothetical comparator, it is relevant to consider the context in which NSW Police Force, by its officers, particularly Mr Willis was acting. Purvis at [7] (Gleeson CJ).
The applicant has to prove on the balance of probabilities that the race and or the sex is at least one of the 'real', 'genuine' or 'true' reasons for the treatment; Purvis at [224] (Gummow, Hayne and Heydon JJ). Ms Weldon-Bowen has to prove that she was treated less favourably in the same circumstances or in circumstances that are not materially different than the NSW Police Force treated a person who was not an Aboriginal person or a woman or an Aboriginal woman.
The comparison between the treatment received by Ms Weldon-Bowen and a person who is not Aboriginal or a woman requires the 'circumstances attending the treatment' to be identified and examined as to 'what would have been done in those circumstances' Purvis at [223] (Gummow, Hayne and Heydon JJ), (Callinan J agreed on the issue of comparator) if the person was not an Aboriginal woman.
The test for 'on the ground of' has been found to be in the same terms as 'by reason of' and 'because of' in Waterhouse at 105. The inquiry is objective. The aim is to examine all of the relevant facts and determine whether discrimination occurred. In Purvis, no final conclusion was reached as the majority found that there was no differential treatment, however Gummow, Hayne and Heydon JJ gave guidance about the construction of 'because of' at [236]: For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of".
The task for the Tribunal is to identify the true basis or reason for Mr Willis' conduct, act or decision. The explanation or justification given by the decision maker is relevant but not determinative; Banovic at 176 (Deane and Gaudron JJ).
Both parties made submissions about the making of inferences. There is no dispute about the relevant principles drawn from Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262; Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 at 362 (Dixon J); Jones v Dunkel (1958-59) 101 CLR 298 at 305.
In Seltsam at [79] (Spigelman CJ) stated: Evidence of possibility, including expert evidence of possibility expressed in opinion form and evidence of possibility from epidemiological research or other statistical indicators, is admissible and must be weighed in the balance with other factors, when determining whether or not, on the balance of probabilities, an inference of causation in a specific case could or should be drawn. Where, however, the whole of the evidence does not rise above the level of possibility, either alone or cumulatively, such an inference is not open to be drawn.
The following principles are relevant; 1. an inference must be reasonably drawn on the basis of the primary facts; 2. an inference can be drawn from a combination of facts, none of which viewed alone would support that inference; 3. a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; 4. it is not enough that the inference is a mere possibility: it must be one of "probable connection" Seltsam [83]; 5. the inference must be a logical one, and not supposition; and 6. an inference cannot be made where more probable and innocent explanations are available on the evidence.
Contrary to the applicant's closing submissions at paragraph 1(e), questions of causation are not resolved by the 'but for test' because causation is imbued with policy considerations specific to the statutory context and purpose of anti-discrimination law as well as with logic. Banovic at 176 (Deane and Gaudron JJ); Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324; 75 NSWLR 503 at 115; Purvis, at [7]-[8] (Gleeson CJ), at [140]-[166] (McHugh and Kirby JJ), [225], [231], [234]-[236] (Gummow, Hayne and Heydon JJ); [14] (Gleeson CJ).
Applying the legal principles to the facts of this case, the applicant's claim is that the respondent refused to provide her with services for reasons that included her race and her sex and treated the applicant less favourably that in the same circumstances or in circumstances which are not materially different.
The Tribunal has made findings of fact that the services the respondent provided to the applicant in investigating the criminal complaint were services within the meaning of ss 19 and 33 of the Act and that the respondent 'refused to provide' the applicant with the service by failing to conduct an investigation into her complaint. The next question is whether the applicant on the proscribed grounds or on one of the proscribed grounds received less favourable treatment than others. This question encapsulates the 'less favourable' issue and the 'causation' issue (reason why).
This claim raises the specific grounds of race and sex and the specific circumstance of provision of services. The circumstances relevant for the purpose of any provision of the Act are the circumstances in which the discrimination is prohibited by the Act; Waters at 392 (Dawson and Toohey JJ). Thus, where the act complained of consists of refusal to provide services, the statutory definition in ss 7 and 24 of the Act calls for a comparison between the way the respondent treated the applicant in the provision of the service and the way she treated or would have treated a man who was not Aboriginal. The situations being compared must be that gender and race apart, the situation of the applicant and the man who was not Aboriginal are in all respects the same or not materially different.
In this case there is no real person, and a hypothetical comparator must be considered in 'relevant circumstances' for the purpose of contrasting NSW Police Force's treatment of Ms Weldon-Bowen. Both parties submitted that Mr Stummer should not be a considered an actual comparator. In all respects apart one Mr Stummer could have been a comparator. Mr Stummer was a bike rider and not a driver of a car. We accept that in this particular case, this is enough of a dissimilar characteristic for Mr Stummer not to be considered an actual comparator.
The hypothetical comparator identified by the parties does not in our view address all of the circumstances of the impugned conduct. It fails to identify the fact that Mr Willis was conducting the investigation into the complaint made by Ms Weldon-Bowen together with the investigation he was conducting into the complaint made by Mr Stummer. To exclude Mr Willis' investigation of Mr Stummer's complaint from the comparison exercise would exclude relevant circumstances. Mr Willis was investigating complaints made by Mr Stummer against Ms Weldon-Bowen at the same time as he was investigating complaints by Ms Weldon-Bowen against Mr Stummer.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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'.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
We do not consider that this inference is a logical one or one that can be reasonably drawn from the primary evidence.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
The Tribunal makes the following order: 1. The application is dismissed.

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. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2024

Police Act 1900(NSW)

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)

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