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  4. Hattabi v State of Queensland - [2022] QCAT 8

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Hattabi v State of Queensland[2022] QCAT 8

Hattabi v State of Queensland[2022] QCAT 8

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Hattabi v State of Queensland & Ors [2022] QCAT 8

PARTIES:

Mustapha hattabi

(applicant)

v

state of queensland

shane hein

tim mCcormick

benjamin puia

deborah rasmussen

(respondent)

APPLICATION NO/S:

ADL039-18

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

13 January 2022

HEARING DATE:

14, 15 & 16 October 2020

HEARD AT:

Brisbane

DECISION OF:

Member Paratz AM

ORDERS:

  1. The complaint by Mustapha Hattabi which was referred to the Tribunal is dismissed.
  2. The publication of the contents of any document produced or provided to, or filed in, the Tribunal, by any health professional in relation to Mr Hattabi, other than as referred to in these Reasons, is prohibited.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – where a male complained that he had been discriminated against by police on the basis of his Middle Eastern race – where he was questioned by police in relation to his whereabouts – where police were investigating a reported bomb threat at a shopping centre – where the appropriate comparator was considered – whether direct discrimination was established – where a non-publication order as to reports by health professionals was made

Anti-Discrimination Act 1991 (Qld), s 9, s 10, s 11

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66

Petrak v Griffith University & Ors [2020] QCAT 351

Applicant:

Self-Represented (supported by Toula Hattabi)

Respondents:

J M Sorbello of Counsel, instructed by Crown Law

REASONS FOR DECISION

  1. [1]
    Mr Hattabi and his ex-wife Toula were at the Hyperdome Shopping Centre on 28 February 2018. They were seated at a coffee shop when they were approached by a police officer who spoke to them. Other officers came to the location and also spoke to them. The interactions occurred over a period of about 20 minutes.
  2. [2]
    The police officers spoke to Mr Hattabi in the course of their investigations into a reported bomb threat which had been made at the Big W store at the shopping centre earlier that morning.
  3. [3]
    Mr Hattabi subsequently made a complaint under the Anti-Discrimination Act 1991 (Qld) (‘the Act’) on 23 March 2018 to the Anti-Discrimination Commission Queensland (as it then was) alleging that the officers had discriminated against him.
  4. [4]
    The complaint was not resolved at conciliation, and Mr Hattabi required the Commissioner to refer his complaint to the Tribunal, by a written notice dated 3 August 2018 given under Section 166 of the Act. The referral was filed in the Tribunal on 6 September 2018.
  5. [5]
    The matter was heard before me on 14, 15 and 16 October 2020. At the conclusion of the hearing I reserved my decision, and gave directions for the obtaining of a transcript, and the filing of closing submissions.
  6. [6]
    Subsequent applications were made by Mr Hattabi as to the accuracy of the transcript, and the periods of time for filing of submissions were extended.
  7. [7]
    Mr Hattabi filed his closing submissions on 17 May 2021. The respondents filed joint closing submissions on 25 June 2021. Mr Hattabi filed his closing submissions in response on 30 June 2021.
  8. [8]
    These are my reasons in the matter.

The complaint

  1. [9]
    Mr Hattabi set out the basis of his claim for discrimination in his closing submissions as follows:[1]

Direct discrimination with regard to Mr Hattabi and how he was discriminated on the 28th February 2018

Particulars of unlawful discrimination

  • discrimination by the respondent against the complainant was on the basis of the attribute of race
  • discrimination on the basis of race is prohibited by 7(g) of the Act
  • the complainant is Moroccan

Discrimination in the area of state laws and programs

1. The discrimination by the respondent against the complainant was in the area of state laws and programs within the meaning of, and as prohibited under, s 101 of the Act, in that the respondent was:

  1. a)
    performing functions and exercising powers and responsibilities under state law; and
  2. b)
    discriminated in the performance of those functions, in the exercise of that power and in carrying out those responsibilities

Direct and indirect discrimination are unlawful

Section 9 of the Act prohibits direct discrimination and indirect discrimination, which are defined in ss. 10 and 11 of the Act respectively

Direct discrimination

  1. 1)
    The police officers who dealt with the complainant at the Stellarossa Cafe discriminated against him directly within the meaning of s 10 of the Act in that they treated him, a Moroccan man, less favourably than the complainant would treat a person who was:
  1. 1)
    a Caucasian person the (comparator)
  2. 2)
    the police officers treated the complainant less favourably in the administration of state laws and programs than they would a person with the attributes and characteristics of the comparator or by:
  1. a)
    subjecting him to a public interrogation
  2. b)
    refusing to provide their identification
  1. 3)
    continuing to detain him despite his answer in the negative to a key question (namely his attendance at Big W that morning)
  2. 4)
    assuming he was erratic and/or uncooperative
  3. 5)
    unnecessarily detaining him for an excessive period of time
  4. 6)
    treating him in a way that was degrading and without regard to his dignity

Evidence

  1. [10]
    The witnesses who gave evidence for Mr Hattabi at the hearing were:
    1. (a)
      Mr Hattabi
    2. (b)
      Ms Toula Hattabi
    3. (c)
      Dr Gianarakis
  2. [11]
    The witnesses who gave evidence for the respondents were:
    1. (a)
      Senior Constable Shane Hein
    2. (b)
      Senior Constable Tim McCormick
    3. (c)
      Detective Senior Constable Benjamin Puia
    4. (d)
      Detective Senior Constable Deborah Rasmussen
    5. (e)
      Dr Gray
  3. [12]
    Several media recordings of the incident were tendered as exhibits:
    1. (a)
      USB audio recording of the incident made on Mr Hattabi’s mobile phone[2]
    2. (b)
      USB CCTV footage Camera 12 and 14 made by the Shopping Centre[3]
    3. (c)
      Disc 9985 from Hyperdome Shopping Centre showing video footage[4]
  4. [13]
    A bundle of documents from Dorothea Vallianos, a clinical psychologist, was tendered by Mr Hattabi and was marked as an exhibit.[5]

Mr Hattabi

  1. [14]
    Mr Hattabi gave oral evidence at the hearing.
  2. [15]
    He said that he had been going to the Hyperdome shopping centre for 23 years. He did some errands at the post office, bought a voucher at Tatts Lotto, and walked around a bit. He said he was then not feeling very well, and was exhausted and shaky, and he called his ex-wife Toula Hattabi to please come and take him home.[6]
  3. [16]
    He arranged to meet Ms Hattabi at the coffee shop. He was at Coles and then when he saw her arrive at the coffee shop, he went over and joined her there.
  4. [17]
    He said they were sitting at the coffee shop for a few minutes when he saw a police officer (who turned out to be Officer McCormick) coming from far away, coming to him. He said that he instantly said to Toula that he thinks the officer is coming to him, and said ‘going to press record…’,[7] and recorded the conversation on his mobile phone.
  5. [18]
    He said the officer then asked him questions about whether he had been to big W and started describing a person who was 50 to 60, with dark hair and a moustache.
  6. [19]
    Mr Hattabi said the officer was humiliating him in the coffee shop close to everyone.[8]
  7. [20]
    He said that another police officer came after that. Mr Hattabi said to the officer that he was terrified and felt he was being degraded.[9]
  8. [21]
    He said that Officer McCormick told him that he was waiting for his boss and that ‘the boss is going to chat with me’.[10]
  9. [22]
    He said that a third officer (Officer Puia) came, and said the person they were looking for was described as: ethnic background, average, black moustache, dark black hair.
  10. [23]
    He said he then heard running and people screaming, and turned left and could see a female plain clothed officer running from the Big W area. He said she hugged him, and told him to stop shaking, which he described as unacceptable and said he was terrified because he saw she had a gun.[11]
  11. [24]
    He said she told him they were looking for someone wearing a black top, and that he looked like he was a match in the same size.[12]
  12. [25]
    He said she told him she would talk to him in one or two weeks,[13] and that the police had stopped four people.[14] He said the police said they wanted to ‘look at the other guy’ and they then walked away.[15]
  13. [26]
    Mr Hattabi said that he was wearing a black top, very light faded old blue jeans, a black belt, and black shoes.[16] He said that he had a small scruffy 3 or 3 ½ day beard at the time, and a small moustache.[17]
  14. [27]
    I asked Mr Hattabi about the effect of the incident on him, and he said that he can’t look at police in the road because his heart just starts pumping,[18] and that he can’t stop thinking about this case,[19] and has sleeping problems.
  15. [28]
    Mr Hattabi was asked in cross examination about a psychological injury that he said he had sustained at work, in respect of which he had pursued a claim against his employer in 2002, and had not worked since.[20]
  16. [29]
    He agreed that Dr Ginarakis had diagnosed him as having an adjustment disorder in 2014, and had recommended counselling.[21]
  17. [30]
    He said that he thought that police had been following him for a ‘long while’ before 2018.[22]
  18. [31]
    He was asked about whether the police had identified him as being Moroccan, and he said they knew he was Middle Eastern:[23]

Ms Sorbello: and you have a perception that everybody can identify you as a Moroccan man?

Mr Hattabi: no, no, of course.

Ms Sorbello: because of the way that you look?

Mr Hattabi: no, no, no. No, it – too many countries. Morocco, Algeria, Tunisia, Mauritania, back then it’s one country. I’ll give you some help like that. Okay, could be any different look, but Middle Eastern, you look Middle Eastern.

Ms Sorbello: okay. So your perception is that you look Middle Eastern to everybody?

Mr Hattabi: I am Middle Eastern.

Ms Sorbello: okay?

Mr Hattabi: okay. I am. I am Arab.

Ms Sorbello but you think that people look at you and go ’that’s a Middle Eastern not a Muslim man’?

Mr Hattabi: not every – no, no. Not everyone who look at me say those words.

Mr Bellow: okay?

Mr Hattabi: I can’t – that’s a – that’s a different story you created. I can’t go to (indistinct) that’s a Middle Eastern. That’s wrong. Absolutely wrong you walk in the state (indistinct) Middle Eastern. Oh that’s a Muslim. No.

Ms Sorbello: okay. So my point is that the officers…?

Mr Hattabi: yeah.

Ms Sorbello:….That approached you on this day didn’t know that you were Middle Eastern, did they?

Mr Hattabi: He knows I’m Middle Eastern. He knows.

  1. [32]
    It was put to Mr Hattabi in cross examination that the officers had not approached him because he was of Middle Eastern appearance:[24]

Ms Sorbello: Mr Hattabi, what I want to suggest to you…

Mr Hattabi: yeah

Ms Sorbello: Is that, at no point, did any of the officers indicate, to you, that they approached you because you were of Middle Eastern appearance, did they?

Mr Hattabi: No. No, but they knew. They approached only Muslim. A bomb, they go for Muslims. Because (indistinct)

Ms Sorbello: and at any point did any of them threaten you or intimidate you?

Mr Hattabi:… I’ve been intimidated, anyway. For 21 minutes. It’s been heavy-handed. They degrade me at coffee shop. They humiliated me so badly there. That hurt me – it – my dignity and my respect has been taken.

Ms Sorbello: Mr Hattabi, the reason why you are humiliated, you say, is because some officers were talking to you, in a shopping centre?

Mr Hattabi: No, because they singled me out. I’m Middle Eastern. One person in an entire shopping. Doors is open. That’s hurtful to me….

  1. [33]
    Mr Hattabi questioned the validity of the shopping centre closed circuit television video and the copies of the audio material, at numerous times through his evidence.[25] He variously described the video footage as a fake and a fraud,[26] and alleged that it had been tampered with by the police:[27]

Ms Sorbello: Your evidence is that the video footage from that event?

Mr Hattabi: Been tapped.

Mr  Sorbello: It had been what, sorry?

Mr Hattabi: Been chopped.

Ms Sorbello: Been chopped?

Mr Hattabi: And they put picture – glue in picture for picture.

Ms Sorbello: So somebody fraudulently put together?

Mr Hattabi: No, police, they did it. That’s it.

Ms Sorbello: Okay. Police did that?

Mr Hattabi: Simple as that. Yeah, the police did it, yeah.

Ms Sorbello: Okay. And that was from a Legal Aid building?

Mr Hattabi: From Legal Aid building, yeah.

Ms Sorbello: Yes. So the police took the footage from the Legal Aid building and?

Mr Hattabi: No, no, no, no, no, no. From his body cam.

Ms Sorbello: From his body cam?

Mr Hattabi: The one he have legal aid for. No, it’s him.

Ms Sorbello: Okay. And so now when we talk about this video footage?

Mr Hattabi: Yeah.

Ms Sorbello: You didn’t go to view it at Crown Law because you said that it was always going to be?

Mr Hattabi: Yeah (indistinct) right in it. Like I seen here. Like I saw.

Ms Sorbello: It was going to be wrong?

Mr Hattabi: Yeah

Ms Sorbello: Someone’s manufactured that video?

Mr Hattabi: You and the police. I wouldn’t know when we’re doing this.

Ms Sorbello: Sorry?

Mr Hattabi: Okay. The police – I wouldn’t know when doing this. All the time.

Ms Sorbello: The police – you know they’re doing that?

Mr Hattabi: All – all countries they know does.

Ms Hattabi

  1. [34]
    Ms Hattabi was asked in examination in chief by Mr Hattabi to describe what happened in the 20 minutes in question, and she replied as follows:[28]

Okay. That’s no problem. Okay. From the beginning, while we were sitting at the café – at the Stellarossa Cafe – so 1.15 I would say that we were sitting there having our sandwiches and our lunch. And then by about 1.21, approximately, you had noticed, Mustapha, Officer Tim McCormick, he was looking at us from a distance. And then you had spotted him circling and taking some notes, I believe, in his book. At that time you said to me this officer is coming for me, I’m going to press record. And sure enough, Officer McCormick did approach you. And immediately, Officer McCormick, when he approached us at the table the very first words he said to, Mustapha, was, ‘Sorry to interrupt. Have you been to Big W today?’ And you, Mustapha, responded no because you hadn’t been to Big W. And then Officer McCormick, he continued. I believed it to be an interrogation because he didn’t introduce himself and it seemed like it was going somewhere, and it was. And then officer Tim, he continued by saying ‘Look, you know, no offence if you’re younger, we’re looking for someone who has got your description: a man 50 to 60s’. I believe he said dark shirt, dark jeans, and followed your complexion, basically. Dark hair. And then he looked at you very strangely and said, you know, with your face and he almost pointed at you but saying it to you. And I’m thinking I don’t know what he meant by it, but then you said to him, I believe, something like I don’t have a moustache, I’ve got a beard. And to effect, you only had a scruffy little three-day growth in your face. As Officer Tim continued this conversation I had noticed from the beginning that for all the officers I’ve known over the years, all of those introduce themselves to me and yourself and I found it really odd and rude. And then as we progressed, I’d say a few minutes into the conversation with Officer Tim, then you ask his name because you are getting obviously upset.

  1. [35]
    Ms Hattabi explained that the audio recording which was made an exhibit had been copied from Mr Hattabi’s phone. She said it was copied by playing it on one phone and then recording the playing on another phone.[29]
  2. [36]
    Ms Hattabi was asked about her comment on the audio that the description of the person the officers described was a fair description of Mr Hattabi, and responded as follows:[30]

Ms Sorbello: Mrs Hattabi, you heard on the audio that on several occasions police officers described to you that they were looking for a particular person of a particular description and you commented a number of times, that’s fair, that’s fair?

Ms Hattabi: Yeah, I’m trying to calm Mustapha there.

Ms Sorbello: But in your opinion, the description was a fair assessment of how Mr Hattabi looked on the day?

Ms Hattabi: The description that Officer Tim came to Mustapha with was that, but, unfortunately, the descriptions had changed so much… on the day

Ms Sorbello: I’m asking about that on the day?

Ms Hattabi: On the day. What Officer Tim said to Mustapha on that day, it was like he was describing Mustapha.

  1. [37]
    Ms Hattabi was asked about the letter she wrote to centre management on 5 March 2018 saying that your memory of the offence was ‘feeling embarrassed and humiliated as the crowd grew around us’.[31] She said that there was a crowd that stopped and stared, but that it was not shown in the video.
  2. [38]
    Ms Hattabi was asked whether she was upset because she thought the police acted unprofessionally, but not in a discriminating way, and responded as follows:[32]

Ms Sorbello: the reality is that you’re upset because you perceived that the police acted unprofessionally, aren’t you?

Ms Hattabi: No, I know the police acted unprofessionally. I know that for a fact.

Ms Sorbello: Yes. But it had nothing to do with any form of discrimination against Mr Hattabi?

Ms Hattabi: Yeah, it had a lot to do with discrimination. You mentioned race, it’s not about his race, it was about his appearance, Ms Sorbello. It’s about the fact he looks Middle Eastern because he is. And after we found out that it was a bomb threat it was very easy to put two and two together. My Mustapha, being Middle Eastern, looking Middle Eastern, very easy if I’m a police officer and someone puts me in that position I’d easily say, you’re looking for a a suspect, there’s been a bomb threat made in the centre, well, who am I going to go for? Who was most associated with bombs? I’d most definitely not go for the Caucasian, white man.

Ms Vallianos

  1. [39]
    A bundle of documents from Dorothea Vallianos, a clinical psychologist, was tendered by Mr Hattabi. Ms Vallianos was not available to give evidence, and after discussion with the parties, the bundle was admitted as an exhibit.[33]
  2. [40]
    The bundle contained a copy of letters from Ms Vallianos to Dr Gianarakis dated 31 May 2018; a copy of a letter from her addressed to ‘To whom it may concern’ dated 19 July 2018; and a copy of a letter from her to the Tribunal dated 14 May 2019, which enclosed handwritten notes marked DV-02 to DV-54.
  3. [41]
    In her letter of 19 July 2018, Ms Vallianos noted that she first saw Mr Hattabi on 11 April 2018, and had seen him on nine occasions. She related the version of events which Mr Hattabi had told her – that he had indicated that his mental health had deteriorated since the incident at Logan Hyperdome; that he has repeated, disturbing memories about what happened; that he finds it hard to look at police officers and he avoids going to shopping centres where police and security personnel may be; and that he finds difficulty concentrating and feels angry and irritable often.
  4. [42]
    Ms Vallianos commented on the treatment Mr Hattabi had with her, and as to matters he said would assist his recovery, as follows:[34]

Mr Hattabi has benefited from supportive psychotherapy, cognitive behaviour therapy and strategies for managing his anxiety, stress and memories of the incident. However he has indicated that what he would assist his recovery are a written and public apology from the police officers and security involved and compensation for the anxiety, stress and trauma he has experienced since the incident at Logan Hyperdome. Mr Hattabi indicated he would like to be able to go back to shopping centres without the fear that security and police are watching, talking about and following him around the centre. Mr Hattabi is currently in the process of having the event of 28 February 2018 investigated by the Anti-Discrimination Commission and mediation is planned for the 26 July 2018. He is hoping that this will help his recovery. Further ongoing sessions and psychological support is recommended for Mr Hattabi and he is agreeable to this.

  1. [43]
    The letter from Ms Vallianos to the Tribunal enclosed documents which were requested to be produced, and she noted limitations as to the use of the documents as follows:[35]

The enclosed photocopy file contains highly confidential records and would generally require interpretation by a suitably qualified psychologist. My notes contain extremely confidential information, some of which may not be exclusive to my client’s capacity.

The enclosed file contain my personal clinical notes which should not be used for the purpose of any psychological assessment of my client.

  1. [44]
    The photocopy file consisted of handwritten notes, and various psychological tests.

Dr Gianarakis

  1. [45]
    Dr Gianarakis said that he was a general practitioner at Wellers Hill, and that Mr Hattabi had been coming to that medical centre since 1999, and had been his patient consistently since 2014.[36]
  2. [46]
    Mr Hattabi asked the doctor whether he had ever considered that he (Mr Hattabi) would be suffering from delusional disorder of the paranoid type, and the Doctor replied:[37]

Well, you know, to be honest, no, I didn’t. You know, I hadn’t – that wasn’t a diagnosis that I’d been concerned about but, you know, it was after I – it was put forward by – in the report from Doctor Gray. I obviously had to give it some due consideration and obviously I was quite surprised by that diagnosis and I thought – I thought that, you know, I’d potentially missed something and/or well, it had never been, you know, no one has ever alluded to. I mean, Toula’s never – never been concerned about anything – any experiences with you. So I had no, you know, it was a complete surprise but since that, you know, since then we’ve had to – really I’ve have had to give it due consideration and question you and really retrace your – recount all your experiences and looking for any evidence that – that – that, you know, that, you know, to try and support that diagnosis. So no, I hadn’t been concerned that you are suffering from that prior to that. No.

  1. [47]
    Mr Hattabi asked the doctor whether he (Mr Hattabi) continued needing treatment, and the doctor replied:[38]

Well, yeah. I, I mean, you still got I guess, you know, you still got ongoing, you know, you’ve just got, ongoing symptoms of – the insomnia, as I said, is a concern. You – you’ve – you know, you suffer anxiety. Your, you know, your mood, I think yes, you know, your mood is often – you’re depressed. Yeah, so you are. I mean, I think – I think Doctor, you know, after the – the potential diagnosis of delusional disorder, that – that caused anger I think in you too. That – that – that trigger anger. And, you know, I’ve had to try and deal with that. And try and – try and help you through that. Yeah. So it’s – I guess it’s supportive counselling. I mean it’d be – we would liked to have, you know, I would like to have a psychologist to help you – help you too. But cost is a– is an issue for you. So I’ve tried to provide that as much – that supportive sort of psycho-therapy for you but ideally I – you know, it’s – it’s – I would like a psychologist to also spend some time with you.

  1. [48]
    The doctor was asked about his report of 20 September 2018, and its reference to conditions that Mr Hattabi was suffering from, and agreed these were an aggravation of pre-existing conditions:[39]

Ms Sorbello: Yes. But Doctor, on a fair reading of your report alone of 20 September 2018, there is nothing there to suggest to anyone that any of these conditions pre-existed prior to 28 February 2018, is there?

Dr Gianarakis: Sorry, say that again? There’s no what? So that point again, thanks.

Ms Sorbello: For a person reading your report?

Dr Gianarakis: Yes

Ms Sorbello: … From 20 September 2018, there is nothing there to indicate to that person that Mr Hattabi suffered previously from anxiety, insomnia, or agitation, is there?

Dr Gianarakis: Yeah, he didn’t have agitation, like, no there’s nothing to say that he..

Ms Sorbello: No?

Dr Gianarakis: .. Didn’t have that. No. That’s right. This is a – this is a det – this is an aggravation of symptomatology and an acute symptomatology occurred after the event. That’s for sure.

  1. [49]
    The doctor was asked whether Mr Hattabi was affected by being approached by police, rather than because of any discrimination by police, and he replied that Mr Hattabi has a feeling that the police were targeting him because of his appearance as a Middle Eastern person.[40]

Ms Sorbello: Doctor, so if I can summarise then, you’re saying that Mr Hattabi’s – the effects of this event has arisen because of the fact that he was approached by police rather than because of any discrimination by police?

Dr Gianarakis: No, well, I think – no – you know, again – in the past he has felt they he has been, you know, a target because of his, you know, appearance and that, attention is drawn to that and as much as you want to dismiss reports by our Parliament that support that, they say that this is a real thing that many people in the Muslim community feel. They feel they are receiving, you know, are the receiving end of, you know, the words, there’s racial profiling, that exists, and that – and if you want to dispute that exists – it exists. There’s a lot of talk about it in the media and all throughout the world and even in – you know, particularly in the Victorian State, that, so this gentleman has this you know, you know he has this feeling and so there is, you know, when there’s police – he was approached to that, he believed that once again, because of who I am, I’m – someone’s coming towards me because they see a Middle Eastern person, right, you know, he’s coming up towards me, why am I being targeted here. You know. He had a concern that once again he, you know, that he was, you know, he – that there was something going on and it was going – you know, and he was being again, because his appearance, he was being approached. Now, I mean, you know, that’s what this is about.

Senior Constable McCormick

  1. [50]
    Constable McCormick (as he then was) had signed a statement of evidence dated 28 March 2019.[41] He stated that he was managing the Logan Hyperdome Police Beat on 28 February 2018, and that a phone call from Big W was received at the Police Beat, advising that a bomb threat had taken place in the store about three hours previously.[42]
  2. [51]
    He stated that he was advised by the Police Beat administration officer that Big W had advised that a male person had walked in and walked out and that when staff had asked to check his bag he had said words to the effect of ‘no, I have a bomb’, and that the initial description of the person of interest was it was a male in dark clothing with a black moustache, olive skin and a bag.[43]
  3. [52]
    He stated that he contacted the Loganholme station for the Criminal Investigation Branch to come and investigate, and waited for them to arrive, and that when Plain Clothes Senior Constable Ben Puia, Detective Senior Constable Luke Kleiden and Plain Clothes Senior Constable Deborah Rasmussen from the CIB arrived, they advised that they would attend Big W to review the CCTV footage.[44]
  4. [53]
    He stated that he and Constable Hein went on patrol and then split up, and he headed through South Mall looking for people who matched the description he had been given.[45] Then described what then occurred as follows:[46]

14. I noticed a male and female sitting at a café. I noticed that the male matched the description I had been given and was behaving abnormally. He seemed jittery. I now know the male to be Mustapha Hattabi.

15. I proceeded around the couple and stood so that I was looking at them and phoned Constable Hein.

16. I advised Constable Hein that I was pretty sure that I’d found the guy as he matched the description. I asked Constable Hein to join me.

17. I approached the couple and asked the male if he had been to Big W at all today. I advised Mr Hattabi that the description had been given was a male in their 50s – 60s, with olive/tanned skin, black hair, a black moustache and wearing a dark top and jeans. I asked Mr Hattabi where he had been in the Hyperdome during his visit.

  1. [54]
    He stated that he then advised Plain Clothes Senior Constable Puia who said he would come and have a look for himself, and that a short time later Plainclothes Senior Constable Rasmussen arrived who advised that Mr Hattabi was not the man who was observed on the CCTV footage at centre security.
  2. [55]
    In cross examination, Senior Constable (SC) McCormick (as he now is) said that he saw a bag at Mr Hattabi’s feet. Mr Hattabi asked why he had singled him (Mr Hattabi) out, and he replied ‘I singled you at the time because you are the person who fitted the description’.[47]
  3. [56]
    He was asked about the description as to age which he was given by the Administration Officer, and said ‘I recall the time possibly she said middle-aged[48] and that ‘no, there was no age brought up, just middle-aged. It was generic.’
  4. [57]
    He was asked why he described Mr Hattabi as being erratic, in his conversation with Mr Hattabi, and that was because of what he observed:[49]

Mr Hattabi: Yeah. Why did you start to call me erratic? Did – why?

SC McCormick: Because I formed a reasonable belief that you were acting erratic when speaking with you.

Mr Hattabi: You tell me – explain it to the court I’m acting erratic?

SC McCormick: You were jittery, you were over-speaking me, you weren’t allowing me to finish my sentences, you were using hand gestures that I believe were unreasonable at the time, you are questioning everything that I was saying. So that’s…

Senior Constable Hein

  1. [58]
    Constable Hein (as he then was) had signed a statement dated 27 March 2019.[50] He stated that he and Constable McCormick were looking for persons matching the provided description, and that he located a male matching the description in the Rivers store and obtained identifying details from him, and then proceeded to look for other persons.[51]
  2. [59]
    Officer Hein said that he identified the man he stopped at the Rivers store on the basis of matching the description he was given as to the suspects appearance, and denied that he stopped that man because he thought he was an Arabic Muslim.[52]
  3. [60]
    Officer Hein stated that he then received a phone call from Constable McCormick who informed him that he was at the coffee shop outside Coles, and was confident that he had found the male suspect. He stated that he went to that location and then observed that the male who Constable McCormick was speaking with matched the description which they had been provided with of the person of interest. He stated that the male (who he now knows to be Mustapha Hattabi) was acting quite nervously.[53]
  4. [61]
    He stated that Plain Clothes Senior Constable Rasmussen arrived and advised them that Mr Hattabi did not match the individual seen on the CCTV, and stated that they had tracked the offender in CCTV and they would be making further enquiries in relation to the matter.[54]
  5. [62]
    Mr Hattabi asked Senior Constable Hein (as he now is) about the man he had spoken to in the Rivers store, and he said that the man matched the description provided.[55]

Detective Senior Constable Puia

  1. [63]
    Plain Clothes Senior Constable (PCSC) Puia (as he then was) signed a statement dated 29 March 2019. He stated that he attended the Big W store with DSC Kleiden and PCSC Rasmussen to ascertain the details of the complaint and canvas potential CCTV footage, and received a call from Constable McCormick advising that he had located a man who matched the description. It stated that he made his way from Big W to the area where Constable McCormick was, which took approximately 5 – 10 minutes.[56]
  2. [64]
    He stated he stated that that he spoke to Mr Hattabi and his wife, but did not disclose that the incident was a bomb threat so as to not incite fear. He stated that PCSC Rasmussen arrived and confirmed that Mr Hattabi was not the suspect.[57]

Detective Senior Constable Rasmussen

  1. [65]
    Plain Clothes Senior Constable (PCSC) Rasmussen (as she then was) signed a statement dated 28 March 2019. She stated that she attended Big W to review the CCTV footage and spoke to the girl who had been on the door at the time of the incident, who she described as ‘quite scrambled in relaying her account of the events’.[58]
  2. [66]
    She stated that the CCTV footage at Big W was very grainy, so she made her way to the centre security to look at their CCTV footage. She stated that on the centre security CCTV footage she saw the suspect leave Big W and make his way to Mr Minit.[59]
  3. [67]
    She stated that she then made her way to where PCSC Puia was, who pointed out Mr Hattabi. She stated that whilst Mr Hattabi did fit the broad description that they were working off at the time, that he did not resemble the person of interest she had viewed on the CCTV. She then went up to Mr Hattabi as follows:[60]

17. I walked up to the male and introduced myself and explained why I was making enquiries with him. He appeared to be nervous and was visibly shaking. I recall spending a short time talking to him about our enquiries. The male seemed to appreciate my reassurances and I offered that if he had any issues that he could attend Loganholme Station.

18. I explained to the couple that the officers had been given a description of a man wearing a black top that was around Mr Hattabi’s height and age and that they had stopped four other people on the way.

19. I noticed that Mr Hattabi was sweating and shaking and I gave him a hug to try and comfort him.

20. I explained to Mr Hattabi that he did not resemble a man I had viewed on the CCTV footage that we had to leave and continue our current investigation.

21. Mr Hattabi advised me that he was so nervous because he has in the past felt that police had him under surveillance. He advised me that he felt that police were always following him.

  1. [68]
    DSC Rasmussen said that she did not run in the shopping centre when going from the centre management offices to Coles, but walked briskly with purpose.[61]
  2. [69]
    Mr Hattabi asked Detective Senior Constable (DSC) Rasmussen (as she now is) about her hugging him, which he described as really inappropriate, and she said she was offering comfort and support as follows:[62]

Mr Hattabi: It is, thank you. Thank you, did you know that hug was really inappropriate for an officer?

DSC Rasmussen: You’re asking?

Mr Hattabi: I’m asking you, yes. Did you think it’s appropriate to hug – to hug me?

DSC Rasmussen: So at the time I honestly thought that that is something that you needed. It is not something that I do, I’m not a touchy-feely person. However, it was quite an incident. I act and react at the time with whoever I meet. I cannot tell you why that occurred, except for, it obviously appeared to me that that is something that you required, is the only explanation I can give by – and that would have just been to however you are reacting, that I would have thought that is something you needed at that time. So that is why – I can’t explain – it was two years ago, so can’t explain now. But I am someone who is very open and attuned to how people are, how people react and the only explanation I can give you, is something must’ve occurred that is the whole reason. Have I done it before? Yes, I have done that before in different situations. Have I ever done it again, no, Sir, this has definitely changed the way that I police and is that a good thing? No, we’re a service and we are about caring and being open and honest to anyone that we deal with. So I don’t know what you want from an answer in relation to this. I can only tell you at the time your and my inter-interaction, something obviously occurred that showed that you needed some sort of comfort and support which is what I was offering.

  1. [70]
    Mr Hattabi asked DSC Rasmussen as to whether she knew that for a senior Muslim man, it was sexual harassment for her to hug him, and she replied that she had only identified him as a detained person, as follows:[63]

Preceding my interaction with you, I had done six months investigation with the Muslim community in Logan and I have been educated to a degree in relation to what is acceptable and what isn’t acceptable. In relation to my re-interaction with you, I did not identify you as a Muslim man, I identified you as a male that was detained and I was there to let you know about identification purposes. So – is – I hope I’ve answered your question in relation to that.

Dr Gray

  1. [71]
    Dr Curtis Gray was called as an expert witness by the respondents. He said that he had practised as a consultant psychiatrist for 27 years. He said that he interviewed and examined Mr Hattabi for 110 minutes on 24 September 2019, and wrote a report dated 22 October 2019, and a supplementary report dated 27 March 2020.
  2. [72]
    In his report, Doctor Gray discussed Mr Hattabi’s personal and medical history. He noted that Mr Hattabi was born in Casablanca, Morocco, and was of Islamic faith. He noted that at some point in the early 1990s Mr Hattabi decided to emigrate to Australia at the age of 35 for what he hoped was better opportunity.[64]
  3. [73]
    He noted that Mr Hattabi met Toula, who was of Greek Orthodox faith at the time, within approximately one year, and that she converted to Islam and they married.
  4. [74]
    He noted that Mr Hattabi advised that in around 2002 he was racially harassed, and was subject to frequent comments from a co-worker with respect to him being a terrorist, and that this co-worker used to make puerile sexual overtures towards him, and that Mr Hattabi left this employment, and was seemingly unable to then rejoin the workforce.
  5. [75]
    He noted that Mr Hattabi reported a number of other difficulties throughout his life after the employment issues, including problems with respect to his marriage to Toula which eventually broke down in the early 2000’s with a divorce in 2004.
  6. [76]
    He noted that Mr Hattabi subsequently lived independently, but he reported having some problems with housing, and one point took the State Government to court about his housing problems because he believed he was being treated ‘differently to other people’.
  7. [77]
    He noted that Mr Hattabi has not worked for any income for over 15 years, and has been in receipt of the disability support pension.[65]
  8. [78]
    Doctor Gray reviewed the previous medical history and background material with which he was provided, which he described as extensive. He noted in his summary and assessment that Mr Hattabi’s response to incidents of alleged harassment and discrimination cannot be explained as a simple reaction to them and that in his opinion Mr Hattabi now had a clearly developed paranoid psychosis with paranoid delusions:[66]

Mustapha Hattabi is a 58-year-old man who presents in the context of assessment with respect to allegations of racial discrimination and harassment by members of the Queensland Police Service (QPS) that have led to a significant deterioration in his mental health and well-being.

The history available to me, whilst supporting that Mr Hattabi was indeed upset by what happened with respect to the subject incident, however, clearly indicates that he has been more or less constantly troubled by the perception that he is frequently harassed and vilified because of his racial background for many years and pre-dating the subject incident.

There does not appear to be any strong history that indicates that Mr Hattabi was suffering with any abnormal psychological symptoms until he was aged about 40, by which stage he had emigrated from Morocco to Australia, other circumstances of this related to him forming a view that his country of residence at the time (Morocco) was a place where corruption and harassment were not to his liking. He emigrated to Australia for greater opportunity. He married and, unfortunately problems arose with respect to religious issues that he, and his ex-wife, believed to have been intrusion by her mother into their marriage such that Mr and Mrs Hattabi had divorced by 2004.

A couple of years earlier, in 2002, he had been subjected to what sounds like genuine harassment in his then workplace, of a sexual and racial nature, which led to him being diagnosed with an Adjustment Disorder with Mixed Anxiety and Depressed Mood.

I am concerned however, that he may well have been becoming psychotic at that stage and developing a paranoid psychosis because he clearly indicated by mid-2002 that he was being observed and followed. It is difficult to find a rational explanation for this. In all likelihood, the breakdown of his marriage has been a very significant factor for this man, and he has become increasingly isolated as the years have passed, albeit receiving a lot of support from his ex-wife with whom he remains in frequent contact and on good terms.

Nevertheless, the longer-term history indicates that Mr Hattabi has developed a mindset whereby he believes himself to be subject to frequent harassment by others in his general community and police and security personnel, and a person who is being racially discriminated against. It may well be that some of his allegations, over the years, have some basis in fact, and with respect to the subject incident it is clear that this would have been quite distressing.

In my opinion, however, Mr Hattabi’s response to this, and to incidents beforehand, cannot be explained as a simple reaction to them because he now describes what is, in my opinion, a clearly developed paranoid psychosis with paranoid delusions (that he’s been followed, that he is somehow being set up, that others are constantly referring to him when he is out and about in the general community), delusions of reference (that police and security guards are referring to him when they undertake relatively standard actions such as touching their ear piece), and possible delusional perceptions.

One could argue that the nature of his beliefs is that of overvalued ideas however I am of the view that he is convinced of these matters, and therefore deluded, and that the diagnosis is in fact Delusional Disorder, paranoid type.

  1. [79]
    In cross examination, Doctor Gray was asked whether he had given consideration to matters of culture and religion in forming his opinion expressed in his report, and responded as follows:[67]

Member: Dr Gray, in your supplementary report, you did take issue with Doctor Gianarakis, who had asserted – and I’m looking at page 2 of your second report, the top of page 2. Dr, Gianarakis asserted that you had given no consideration to matters of culture, subculture and Mr Hattabi’s religion. Would you like to expand upon that sentence in relation to your consideration in forming an opinion?

Dr Gray: Well, thank you. The consideration of culture, spirituality, religion, race is just a standard part of a psychiatric assessment, and it is – excuse me – it is a component that needs to be integrated along with all the other information. I have absolutely no issue with Mr Hattabi or any other person of Muslim faith asserting that, you know, things were difficult after 9/11, that there may be times and places where discrimination occurs.

I even have no issue with Mr Hattabi saying that he has been subject to that (indistinct) but the basis of my diagnosis, having taken that into account, works on what in psychiatry is phenomenology of the person’s experience, and Mr Hattabi’s phenomenology, which is the symptomatology and the experience is, as I’ve documented in my reports, psychotic. He has developed delusions, and he has other psychotic phenomena that lead to delusions, and I know that Mr Hattabi is very unhappy with that, and I know that he sees that as a sort of an - you know, me casting aspersions upon his character, but, in fact, it is no different to a cardiologist making a diagnosis of, you know, a cardiac condition. It is not an assault on character; it is merely a diagnosis, and the diagnosis is made on the basis of that phenomenology (indistinct) without the cultural and (indistinct) and spiritual and religious factors. They do not invalidate the phenomenology in any way whatsoever.

Submissions of Mr Hattabi

  1. [80]
    Mr Hattabi filed closing submissions of 84 pages on 17 May 2021, and further submissions in response of 18 pages on 30 June 2021.
  2. [81]
    Whilst the submissions of Mr Hattabi were written by Ms Toula Hatabi, as noted at the end of the submissions, they are properly referred to as his submissions.
  3. [82]
    In his closing submission Mr Hattabi contends that the four police respondents changed their initial statements and treated him in a discriminatory way; that Doctor Gray was ‘damaging and defamatory against Mr Hattabi’;[68] and that his treatment from the police is ‘inhumane’.[69]
  4. [83]
    Mr Hattabi sought compensation for pain and suffering of $25,000, compensation for medical treatment of $22,400, and compensation for his expenses for return trips to the city to file and serve documents of $5,000 – being a total of $52,400.
  5. [84]
    Mr Hattabi submits that the McCormick failed to follow rules by not stating his name, and was wrong ‘as he had tunnel vision on Mr Hattabi on being the suspect based on his racial profiling of him’.[70] Mr Hattabi described his actions:[71]

[16] Mr Hattabi wasn’t stopped by officer McCormick because a moustache because Mr Hattabi didn’t have a moustache, he was stopped because officer McCormick knew it was a bomb threat and took one look at Mr Hattabi’s middle eastern face and immediately racially profiled him and directly discriminated against him.

  1. [85]
    He submitted that Officer Rasmussen came and gave him an ‘inappropriate and very unprofessional bear hug’ leaving him in a state of shock and disbelief which upset him:[72]

As a man of strong Islamic faith, he would never hug a woman let alone a woman carrying a police belt and gun, she was not in uniform and after-the-fact this officer insisted in her statement of 2018 for more than a year that Mr Hattabi initiated the hug which he most certainly did not, upsetting Mr Hattabi more.

  1. [86]
    Mr Hattabi discusses the transcript of the hearing in detail, and suggests that the transcript has been deliberately tampered with where he is trying to explain important points – for example:[73]

(125). Page 114 a total of 21 indistincts again placed strategically where Mr Hattabi is trying to explain key points most importantly line 45 how the entire paragraph of Mr Hattabi’s explaining how he felt by officer Rasmussen’s hug is destroyed by indistincts.

  1. [87]
    Mr Hattabi describes the transcript as corrupted and as a lie:[74]

Well it certainly looks like set up from beginning to end especially in this corrupted transcript. Where the important words are covered in indistinct, indistinct, indistinct.

This is how Royal Commissions are established, from these kinds of behaviours. There is intent in this document to harm Mr Hattabi more with lies and that is a crime as there is no proof of these lies Auscript has written yet they refuse to rewrite the script.

  1. [88]
    He also describes the ‘800 plus indistincts in this transcript’ and submits that it ‘is not worth the paper it is written on’.[75]
  2. [89]
    Mr Hattabi questions whether the bomb threat was real because the shopping centre was not closed down, and he was approached three hours later. He describes the police actions as ‘unique and out of the ordinary’, and that ‘if this truly was a bomb threat at all, it was not treated with any seriousness, except for the harsh abhorrent treatment of Mr Hattabi’.[76]
  3. [90]
    Mr Hattabi submits that the video from the CCTV cameras has been tampered with so that Officer Rasmussen cannot be seen as running:[77]

From the beginning this blackout part of the video is a deliberate blackening and shortening of the video to keep it restricted in size, if it was larger as it should have been, Officer Deborah Rasmussen would easily be seen running to the scene, just like she is seen running away from the scene at the end on the CCTV, we all viewed in the hearing, where she states in court under cross examination by Mr Hattabi about running and she says please don’t run in shopping centres and then she is seen running away from the scene when Mr Hattabi played the footage. These constant lies have made the officers unreliable witnesses to the court and that should be taken into consideration, as police officers these lies are damaging and have been in this case with Mr Hattabi the innocent man.

  1. [91]
    Mr Hattabi submits that Doctor Gray’s evidence is untruthful and biased:[78]

Page 98, top of page above line 5 ‘who pay you to (indistinct) report on me?… That would be well, I was engaged by Crown Law, and I presume they paid the bill, although I have to confess I haven’t checked’ ‘could you tell us how much they pay you Dr Gray? - You can ask, but I can’t tell you because I don’t know’

From line 5 to line 15 this doctor lies and avoids the answer as he got paid a lot of money to do this corrupted medical report by colluding with Crown Law to destroy further Mr Hattabi’s reputation, with defamation and discrimination and give his opinion, a paid bias one at that, of an unheard-of diagnosis, given without the correct collateral history as there is a 100% objection and disagree factor from Mr Hattabi’s doctor of many years and the objections of family as well.

  1. [92]
    The submissions from Mr Hattabi conclude that the respondents’ witnesses lied in their evidence, and that the truth has been distorted:[79]

This was an injustice and total travesty of massive proportions on how Mr Mustapha Hattabi was treated on the bomb threat day of 28 February 2018.

He was an innocent man and the lies continued, after the fact for 3.5 years by the officers, their paid Dr Gray, the Crown, and Auscript, to distort the truth and say things that never happened.

This is why Mr Hattabi deserves to be compensated and all the evidence, facts, comparisons from police statements and lists of the inconsistencies and lies, along with the Discrimination Act listed in this entire submission explain why.

  1. [93]
    The submissions in response say as to the question as to issues of credibility raised by the respondents, that it is the respondents’ credibility that is in question:[80]

There is no question about the credibility of the applicant and his witness Toula Hattabi.

It doesn’t work to even try, the Crown, the Police, and Auscript who transcripted the fraudulent transcript, which only portions of the material Toula Hattabi mentioned about the errors in it, have been mentioned, by the respondents in their response.

The transcript was a 390 page document and the Crown only covered a very small portion of the transcript errors pages 1-18 and even then the errors are not picked up as per the audio Mr Hattabi has for comparison, given to him by Auscript themselves.

Line 16 ‘The tribunal should be very reluctant to accept Toula Hattabi was a reliable witness’.

To see this is quite farcical, and refuted and rejected, considering Toula Hattabi (myself), had the birds eye view of the entire incident and there is no evidence to suggest I have lied at any point, the fact though that I set about the respondents being not credible, due to the huge amount of lies they said from beginning to end, is a true indication of a copycat name-calling.

  1. [94]
    Mr Hattabi submits that it is necessary to scrutinise every small detail due to the seriousness of the matter:[81]

Every small detail needs scrutinising, as Mr Hattabi could have died on that day, from what these 4 police did to him and the stress he endured for nothing, so yes, every little lie the police said and the Crown and Auscript is mentioned repeatedly, for a reason one man’s life means a lot more than a joke that these police treated Mr Hattabi on the 28th February 2018 for an alleged bomb threat, nobody knows about from Mr Hattabi whilst the case is still current…

… and Mr Hattabi is the only man ridiculed over this matter, in the Hyperdome shopping centre.

Submissions of the Respondents

  1. [95]
    The Respondents filed a joint closing submission of 84 pages on 25 June 2021.
  2. [96]
    They submitted that the allegation of Mr Hattabi that the video recording of the CCTV footage, which had been provided by the shopping centre, had been tampered with, is ‘nonsensical’:[82]

8. Such a submission is nonsensical. For it to be accepted, it must also be accepted that here the Tribunal altered the footage in exactly the same way as a respondents or alternatively, the respondent somehow gained access to the Tribunal’s records and removed the footage disclosed by the Logan Hyperdome and replaced it with the altered footage or otherwise have colluded with the Logan Hyperdome prior to it complying with the Tribunal’s order to produce the footage.

  1. [97]
    The Respondents submit that the Tribunal should treat Mr Hattabi’s evidence as unreliable, and referred particularly to the allegations as to video footage being tampered with, and his description of the hugging incident.[83] they also referred to the evidence of Doctor Gray that Mr Hattabi suffers from a Delusional Disorder.[84]
  2. [98]
    They also submit that the Tribunal should be very reluctant to accept that Toula Hattabi was a reliable witness.
  3. [99]
    The respondents submit that for direct discrimination to be established under section 10(1) of the Anti-Discrimination Act 1991 (the Act) a two-steps approach is required as reflected by Petrak v Griffith University & Ors[85] where it was stated that the Act required a comparison between the treatment of the complainant and an actual or hypothetical comparator, which requires two questions to be answered:[86]

27. The comparison thus required two questions to be answered:

  1. a)
    whether there was less favourable treatment of the complainant; and
  2. b)
    if so, whether the less favourable treatment was on the basis of the relevant attribute.
  1. [100]
    The Respondents submit that should the Tribunal be satisfied that Mr Hattabi was treated less favourably by reason of his race, then the exemptions in section 107 of the Act that ‘a person may do an act that is reasonably necessary to protect public health’, and in section 108 of the Act as to ‘an act that is reasonably necessary to protect the health and safety of people at a place of work’, should apply.
  2. [101]
    The Respondents submit that the appropriate comparator is not a Caucasian person as submitted by Mr Hattabi, but is ‘a person that matched the description of the person of interest that officers of the Queensland Police Service were looking for’.
  3. [102]
    The respondents submit that it was never suggested in cross-examination of the respondents that they were aware of Mr Hattabi’s race and they treated him in a particular manner because of his race.[87]
  4. [103]
    They submit that there was not ‘less favourable’ treatment of Mr Hattabi in relation to issues as submitted by Mr Hattabi:[88]
    1. (a)
      public interrogation
    2. (b)
      refusal to provide identification by Officer McCormick
    3. (c)
      continuing to detain Mr Hattabi despite his answer in the negative to whether he had attended at Big W that morning
    4. (d)
      assuming Mr Hattabi was erratic and/or uncooperative
    5. (e)
      unnecessarily detaining Mr Hattabi for an excessive period of time
    6. (f)
      treating Mr Hattabi in a way that was degrading and without regard to his dignity
  5. [104]
    The respondents submit that if the Tribunal is satisfied that Mr Hattabi was the subject of discrimination by virtue of his race, that the evidence of Doctor Gray as to any psychiatric injury and treatment should be accepted over that of Doctor Gianarakis.[89]
  6. [105]
    The respondents refer to several documents attached to Mr Hattabi’s closing submissions (documents 4, 5, 6, 7, and 8) and submit that they should be removed from the record and disregarded.[90]

Discussion

  1. [106]
    Section 7 of the Act provides that discrimination on the basis of certain attributes is prohibited:

7 Discrimination on the basis of certain attributes prohibited

The Act prohibits discrimination on the basis of the following attributes—

(a) sex;

(b) relationship status;

(c) pregnancy;

(d) parental status;

(e) breastfeeding;

(f) age;

(g) race;

(h) impairment;

(i) religious belief or religious activity;

(j) political belief or activity;

(k) trade union activity;

(l) lawful sexual activity;

(m) gender identity;

(n) sexuality;

(o) family responsibilities;

(p) association with, or relation to, a person identified on the basis of any of the above attributes.

  1. [107]
    The meaning of direct discrimination is described in Section 10 of the Act as follows:

10  Meaning of direct discrimination

  1. (1)
    Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

Example— R refuses to rent a flat to C because—

  • C is English and R doesn’t like English people
  • C’s friend, B, is English and R doesn’t like English people
  • R believes that English people are unreliable tenants.

In each case, R discriminates against C, whether or not R’s belief about C’s or B’s nationality, or the characteristics of people of that nationality, is correct.

  1. [108]
    There is no disagreement between the parties as to the basic outline of events:
    1. (a)
      Mr Hattabi and his ex-wife Ms Toula Hattabi were at a coffee shop at the Logan Hyperdome shopping centre.
    2. (b)
      They were spoken to by four police officers.
    3. (c)
      The relevant incident involving Mr Hattabi took place at a single location (the coffee shop) over a period of about 20 minutes.
    4. (d)
      Towards the end of the incident, a female police officer hugged Mr Hattabi.
    5. (e)
      The female police officer told Mr Hattabi that examination of the shopping centres close circuit television video recording satisfied them that Mr Hattabi was not the person of interest they were looking for.
    6. (f)
      The officers then left the area, and Mr Hattabi and Ms. Hattabi left a short time later.
  2. [109]
    Mr Hattabi alleges that he was directly discriminated against by the officers, who detained and interviewed him over the period of 20 minutes, on the basis of his race, and that he was humiliated, and has suffered mental health and other injury as a result of the incident, and then seeks monetary compensation from the respondents.
  3. [110]
    The State of Queensland is named as a respondent as the employer of the four officers, and each of the four officers is also named as a respondent.
  4. [111]
    The evidence of the police officers consistently was that a complaint had been received by the Police Beat at the shopping centre, as to a bomb threat having been made at the Big W store at the shopping centre about three hours before that, and that the police responded accordingly.
  5. [112]
    Officer McCormick, who was attached to the Police Beat, gave evidence that he went on patrol in the shopping centre looking for a person of interest that matched the initial description that he was given, of a male in dark clothing with a black moustache, olive skin and a bag.
  6. [113]
    Officer McCormick said that he observed Mr Hattabi sitting at the coffee shop, and considered that he matched the description of the person of interest he was looking for, and proceeded to ask Mr Hattabi whether he had been at the Big W store, and then advised other police that he believed he had found the person of interest.
  7. [114]
    As further police became involved, a more detailed description of the clothing and appearance of the person of interest was obtained from the complainant staff member at the Big W store by investigating detectives, and from observation of closed circuit television video both at the store and at the shopping centre security office.
  8. [115]
    The initial question arises as to whether Officer McCormick identified Mr Hattabi as a suspect, and proceeded to question him, because of his racial appearance, or on the basis of a description that was unrelated to his race.
  9. [116]
    In the course of the hearing, Mr Hattabi questioned whether there ever was a genuine bomb threat, and whether any person was charged with an offence as a result of a bomb threat and was the subject of court proceedings.
  10. [117]
    Officer Rasmussen gave evidence that a suspect was identified from the video footage and police investigations, and was arrested and interviewed and charged by Detective Senior Constable Luke Kleiden in relation to the matter, and was issued with a caution as a court outcome.[91]
  11. [118]
    Evidence as to the complaint about a bomb threat, and as to the police investigation, was given by each of the police officers to the extent of their involvement. I consider that evidence as to the complaint to be credible, logical, and consistent with the actions of the police officers at the time.
  12. [119]
    I am completely satisfied that a complaint was made to police on 28 February 2018 by the Big W store that a comment was made to one of its staff who was at the exit, by a customer who was leaving the store, that was interpreted by the store as being a bomb threat.
  13. [120]
    Mr Hattabi displayed, in the course of the hearing, and in his submissions, a deep suspicion as to the veracity of almost every aspect of the police evidence. This led him to question the police evidence in detail.
  14. [121]
    Further, Mr Hattabi displayed a belief that the evidence provided, or relied on, by the respondents, was contrived with the intent of portraying him as a guilty person, and specifically that he was being assumed to be a person who would make a bomb threat, simply because he was of what he described as his Middle Eastern racial appearance.
  15. [122]
    The specific complaint of Mr Hattabi as set out in his closing submission is that he was discriminated against because of the attribute of race. He did not rely upon an attribute of religion in his submission, however he makes frequent reference to his being a Muslim man.
  16. [123]
    There was no evidence by any of the police officers that they had identified Mr Hattabi as being either a person of Middle Eastern race, or of being a Muslim person.
  17. [124]
    The various descriptions of the person of interest as related by the officers was of a male in dark clothing with a black moustache, olive skin and a bag (officer McCormick) or of a male in their 50s – 60s with olive/tanned skin, black hair, a black moustache and wearing a dark top and jeans (Constable Hein).
  18. [125]
    Neither of those descriptions lends themselves to any specific characteristic of a male person being Middle Eastern or Muslim. There would be males from many racial backgrounds, other than Middle Eastern, who would be described as having a black moustache and olive/tanned skin – for example, males from a Mediterranean background may well have that same appearance. There is nothing in the description of the clothing that would identify the wearer as being Muslim – the clothing of a dark top and jeans could well be Western clothing, and is not traditional Islamic clothing in any sense.
  19. [126]
    Mr Hattabi described his appearance that day as wearing a black top, very light faded old blue jeans, a black belt, black shoes, a scruffy beard and a small moustache.[92] He did not take issue that his complexion could be described as olive/tanned skin.
  20. [127]
    The clothing being worn by Mr Hattabi would reasonably be described as being dark clothing, and his appearance as olive/tanned skin with a moustache. That overall description is consistent with the general description of the suspect which both Officer McCormick and Officer Hein were looking for.
  21. [128]
    It has to be borne in mind that the officers had not spoken directly to the complainant, and were operating upon a broad description that had been passed on to them.
  22. [129]
    Mr Hattabi has drawn attention to differences of detail between his appearance and the various descriptions of the suspect voiced by the various police officers. These relate to specifics such as the extent of his moustache at the time.
  23. [130]
    I am satisfied that Officer McCormick identified Mr Hattabi as a person who he should question on the basis of his matching the description of the appearance and clothing of the male person of interest, having a bag, that Officer McCormick was given.
  24. [131]
    The full period of interaction between the officers and Mr Hattabi and Ms Hattabi and the coffee shop area was recorded on a camera view from a closed-circuit television video which was provided by the shopping centre from a camera that looks across the table where Mr Hattabi and Ms Hattabi were seated, towards the entrance of the Coles supermarket (Camera 14). Another camera view, showing the approach along the walking area with the Coles supermarket on the left, was also provided by the shopping centre (Camera 12). Mr Hattabi has contended that the videos have been tampered with.
  25. [132]
    The video of the coffee shop area was viewed several times in the course of the hearing, and I have had the opportunity to review it repeatedly. There is no indication, from the standpoint of a viewer, that the video has been tampered with in any way, or any appearance that the video is anything other than a continuous recording. The video shows a progression of normal activity in the shopping centre with no evident changes of lighting, or framing, or jerky movement.
  26. [133]
    Mr Hattabi has not adduced any expert evidence as to the videos having been tampered with, so there is no evidence from a technical point indicating any tampering with the video which is not apparent to a lay viewer.
  27. [134]
    It is difficult to apprehend what a person who was intentionally tampering with the video would have tampered with in any event. All the critical parts of the interaction between Mr Hattabi and Ms Hattabi and the officers are shown in the video, including the hugging between the police officer and Mr Hattabi. If a person was seeking to tamper with the video, for the purposes of removing any controversial vision, or to portray Mr Hattabi in a guilty light, it is difficult to conceive where that has occurred.
  28. [135]
    As the respondents have submitted, it is also difficult to conceive logistically how anyone could have tampered with all the various copies of the video, as the shopping centre provided a copy directly to the police, and also provided a copy directly to the Tribunal, and if so, when that could have occurred.
  29. [136]
    I do not accept the submissions of Mr Hattabi that the videos provided by the shopping centre from their CCTV systems, have been tampered with by any person in any way.
  30. [137]
    A significant issue of concern to Mr Hattabi is his allegation that the female officer inappropriately hugged him, which he has described as sexual harassment.
  31. [138]
    I have reviewed the video footage of the interaction between female officer, PCSC Rasmussen and Mr Hattabi repeatedly, both on the CD recording was provided, and on the USB recording. The images from each recording are the same.
  32. [139]
    The video shows that PCSC Rasmussen first comes up to talk to Mr Hattabi at 13:32:45 and seems to touch him gently on one shoulder. She then moves away from him and is looking at her mobile phone. She then goes back to Mr Hattabi at 13:34:28 when the hug occurs.
  33. [140]
    Mr Hattabi said that the female officer had jumped on him and hugged him when she arrived, and gave the impression that the contact was unwelcome and one-sided.
  34. [141]
    The video however clearly shows that the hug did not occur until some time after the female police officer arrived, and that Mr Hattabi later opens both of his arms wide as the female officer moves towards him. Presumably, his motion is in response to something she is telling him, which is presumably that she has been advised that further examination of the surveillance video from the Big W store at the security office has shown that he is not the suspect.
  35. [142]
    The video then shows the police officer putting her arm around Mr Hattabi’s shoulders, and him responding by putting both of his arms around the officer in an embrace, and patting her on the back. The female police officer then moves a little away from him, but Mr Hattabi is shown retaining her hand with his hand in a handshake as he talks to her.
  36. [143]
    There is no indication whatsoever in the video of the female police officer having surprised Mr Hattabi, or that the hug is anything other than completely consensual. Every indication from the video is that Mr Hattabi willingly and warmly hugged the female police officer, and then maintained close personal contact with her as he continued to speak with her.
  37. [144]
    The video evidence does not in any way show any sexual harassment of Mr Hattabi, and I reject entirely his allegation that he was sexually harassed by the female police officer.
  38. [145]
    The overall interaction occurred over a period of about 20 minutes. I do not consider that the interaction was protracted in any unreasonable way having regard to the need for the relevant police officers to move between the Big W store, the Centre security office, and the coffee shop, after Mr Hattabi was initially located by Constable McCormick.
  39. [146]
    I consider that the police officers’ actions in speaking to Mr Hattabi, in the company of his ex-wife, at the coffee shop, after having received a serious complaint, and identifying him as having a general appearance which accorded with the description they were initially given, were justified having regard to the information they had at the time, and their duty to investigate a matter which was potentially of immediate public danger if there was an active bomb threat.
  40. [147]
    Observation of the video evidence discloses that the presence of the police officers talking to Mr Hattabi does not seem to have caused any degree of disruption to the normal flow of activity in the shopping centre, or any concern to shoppers.
  41. [148]
    In the video people can be seen going about their shopping, walking directly past the table where the officers are talking to Mr and Ms Hattabi, without any apparent concern or interest. It is notable that another couple sitting at a nearby table at the coffee shop seem oblivious to the interaction occurring, and display no obvious concern or interest.
  42. [149]
    Mr Hattabi submits that the officers treated him less favourably by refusing to provide their identification. The transcript of the phone recording provided by Mr Hattabi shows that the first officer (Officer McCormick) was requested by Mr Hattabi for his name and his card, and replied that ‘I don’t have a card on me Sir, my boss is coming’, and that, when asked again what his name was, replied to Mr Hattabi ‘Sir you are acting erratically okay’. [93]
  43. [150]
    The telephone recording indicates that the second police officer did not give his name, but that plainclothes Senior Constable Ben Puia did give his name and registration number when he arrived; and introduced Officer Rasmussen as ‘Deb’, and she introduced as being from Logan CIB and her name as ‘Debbie’.[94]
  44. [151]
    The two uniformed officers were the first on the scene, and were assessing the situation in the context of there being a possible serious threat to public safety, and were awaiting the arrival of their superiors who they had contacted, and who did identify themselves on their arrival.
  45. [152]
    The failure of the first two officers to give their names has not been demonstrated as behaviour that constituted less favourable treatment.
  46. [153]
    There is no evidence that the officers treated Mr Hattabi in a way that was degrading and without regard to his dignity. The telephone recording of the conversation, and the video recordings, indicate a polite interaction.
  47. [154]
    I consider that the conduct of each of the police officers, as related by them, and as evidenced by the telephone recording, was courteous, measured, and appropriate in the circumstances.
  48. [155]
    The question arises as to whether there may be some mental health reasons as to why Mr Hattabi would make his numerous allegations, including that the video had been tampered with, that the officers had targeted him on the basis of his being of Middle Eastern appearance, and that a female police officer had sexually harassed him.
  49. [156]
    Mr Hattabi called evidence from his General Practitioner, Dr Gianarakis, who has been his doctor since 2014. Dr Gianarakis expressed the view that Mr Hattabi has ongoing symptoms of insomnia, and anxiety, and is often depressed, and thought that supportive psycho-therapy with a psychologist would be of benefit to him.
  50. [157]
    Dr Gianarakis was asked about the diagnosis by Doctor Gray of Mr Hattabi suffering from Delusional Disorder of the paranoid type, and he said that he was quite surprised by that diagnosis and he hadn’t been concerned that Mr Hattabi was suffering from that condition.
  51. [158]
    Ms Vallianos, a clinical psychologist who treated Mr Hattabi from 11 April 2018 described the conditions that he was suffering from when he presented to her, and that his mental health had deteriorated since the incident at Logan Hyperdome. She said that he had benefited from supportive psychotherapy, cognitive behaviour therapy and strategies for managing his anxiety, stress and memories of the incident. She recommended further ongoing sessions and psychological support for him.
  52. [159]
    The respondents arranged for Mr Hattabi to be examined by Doctor Gray as an expert consultant psychiatrist. Doctor Gray expressed the view (as earlier quoted in these reasons) that Mr Hattabi has a clearly developed paranoid psychosis with paranoid delusions (that he is being followed, that he is somehow being set up, that others are constantly referring to him when he is out and about in the general community) delusions of reference delusions (that police and security guards are referring to him when they undertake relatively standard actions such as touching their ear piece) and possible delusional perceptions; and made a diagnosis of Delusional Disorder, paranoid type.
  53. [160]
    Mr Hattabi does not accept the diagnosis of Doctor Gray, and says that it is inconsistent with the observations of his general practitioner.
  54. [161]
    Mr Hattabi also sought in the submissions to refer to adverse comments made in online media as to Doctor Gray. Those comments were not properly put in evidence in the hearing, and the makers of those comments were not available for cross examination. Accordingly, I place no weight upon them, and have no regard to them.
  55. [162]
    It would appear that the views of Mr Hattabi, as to his being the subject of police and security attention, are significantly shared by Ms Hattabi, who authored the submissions on his behalf.
  56. [163]
    The observation by Mr Hattabi, that no other medical professional has made the same diagnosis as Doctor Gray, appears correct on the evidence presented in this matter. Ms Vallianos did not refer to any specific diagnosis as to Mr Hattabi’s condition.
  57. [164]
    Dr Gianarakis is a general practitioner who knows Mr Hattabi well, and voiced strong understanding of the feeling of Mr Hattabi that he has been a victim of racial profiling in this matter.
  58. [165]
    It has to be relevantly considered however that Doctor Gray is a highly experienced and qualified psychiatrist, and that his opinion in relation to his specialist field would be highly regarded, in the absence of any contesting expert evidence.
  59. [166]
    I accept the evidence of Dr Gray, and where the views of Doctor Gray and Doctor Gianarakis do not accord, I prefer the expert evidence of Doctor Gray.
  60. [167]
    I accept the diagnosis of Doctor Gray that Mr Hattabi suffers from delusional disorder of a paranoid type, and consider that this condition permeates Mr Hattabi’s evidence, rendering it unreliable.
  61. [168]
    Overall, I prefer the evidence of the police officers to that of Mr and Ms Hattabi. The evidence of the police officers is clear, and consistent with the telephone recording made by Mr Hattabi himself, and the video recordings made independently by the shopping centre security cameras.
  62. [169]
    In considering whether direct discrimination is established, I have initial regard to the issue of whether there was less favourable treatment of Doctor Hattabi by the police officers.
  63. [170]
    In order to do so, I have to consider who the comparator would be. The attribute that is being considered is that of race.
  64. [171]
    Mr Hattabi submits that the comparator would be a Caucasian person. The respondents submit that the comparator would be a person who met the description of the person of interest in the investigation.
  65. [172]
    Mr Hattabi submits that the question of race arises, as he considers that he has a Middle Eastern appearance. That would suggest that the primary characteristic of a comparator would be as to someone who did not have a Middle Eastern appearance.
  66. [173]
    The police officers say that their attention was drawn to Mr Hattabi, and that they questioned him, because his appearance was similar to that of the description they had been given of the suspect who had made the bomb threat.
  67. [174]
    I consider that the appropriate comparator would be a person who:
    1. (a)
      was not of Middle Eastern appearance, and
    2. (b)
      who had a similar appearance to that of the description of the suspect given to the police.
  68. [175]
    The police action in this case was to go to Mr Hattabi, and question him as to his movements that day, and then to stay in his presence until further investigations as to the identity of the suspect were conducted.
  69. [176]
    I am satisfied that if Mr Hattabi had not had a Middle Eastern appearance, but still had a similar appearance to the description of the suspect, that Officer McCormick would still have acted in the same way by questioning him as to his whereabouts that morning, and calling for further assistance to investigate his possible involvement in the bomb threat.
  70. [177]
    I therefore do not consider that Mr Hattabi was treated less favourably.
  71. [178]
    If I did consider Mr Hattabi was treated less favourably, the next question would be whether the less favourable treatment was on the basis of the relevant attribute.
  72. [179]
    As I am not satisfied that there is any evidence that the officers did in fact identify Mr Hattabi as being of Middle Eastern appearance or racial background, (or to the extent that it is relevant, as a Muslim man), then I would not consider that the less favourable treatment was on the basis of the attribute of race in that event.
  73. [180]
    I therefore do not find that the complaint of direct discrimination is substantiated, and I dismiss the complaint which was referred to the Tribunal.

Non-Publication

  1. [181]
    I am cognisant of Mr Hattabi’s mental health description as described by his general practitioner and by his psychologist, and am concerned that publication of his personal medical history would add to his feelings of anxiety and victimisation.
  2. [182]
    Mr Hattabi did not apply for a non-publication order to be made in relation to the proceeding. I am cognisant also however that Mr Hattabi was self-represented, and may not be aware of the availability of such orders.
  3. [183]
    Section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that the tribunal may make an order prohibiting the publication of the contents of a document or other thing produced to the tribunal,[95] if the tribunal considers the order is necessary to avoid endangering the physical or mental health or safety of a person;[96] and that the tribunal may act on its own initiative in doing so.[97]
  4. [184]
    I have specific regard to the comments of Ms Vallianos that her photocopy file includes her personal clinical notes, and contains highly confidential information, and consider that it is appropriate that a prohibition order be made in regard to that information.
  5. [185]
    I also have regard to the detailed personal medical history recorded by Doctor Gray.
  6. [186]
    I consider that the prohibition order should extend to all medical information filed in the proceedings which I have not specifically referred to in these Reasons.
  7. [187]
    I order that the publication of the contents of any document produced or provided to, or filed in, the Tribunal, by any health professional in relation to Mr Hattabi, other than as referred to in these Reasons, is prohibited.

Footnotes

[1]  Closing Submissions  of Mr Hattabi filed 17 May 2021.

[2]  Exhibit 2.

[3]  Exhibit 4.

[4]  Exhibit 22.

[5]  Exhibit 8.

[6]  Transcript 1-32 L 46.

[7]  Ibid 1-34 L 12, 44.

[8]  Ibid 1-35 L45.

[9]  Ibid 1-35 L 34.

[10]  Ibid 1-38 L 38.

[11]  Ibid 1-41 L 32.

[12]  Ibid 1-43 L 6.

[13]  Ibid 1-44 L 9.

[14]  Ibid 1-44 L 45.

[15]  Ibid 1-45 L 3.

[16]  Ibid 1-47 6.

[17] Ibid 1-47 L 30.

[18]  Ibid 1-63 L 45.

[19]  Ibid 1-64 L 20.

[20]  Ibid 1-74 L 46.

[21]  Ibid 1-86 L 46.

[22]  Ibid 1-90 L 46.

[23]  Ibid 1-92 L 12.

[24]  Ibid 1-134 L 4.

[25]  Ibid 1-122 L 25.

[26]  Ibid 1-126 L 39.

[27]  Ibid 1-96 L 5-39.

[28]  Ibid 2-27 L 10-34.

[29]  Ibid 2-30 L 19.

[30]  Ibid 2-31 L 15.

[31]  Ibid 2-32 L 40.

[32]  Ibid 2-42 L 21.

[33]  Exhibit 8.

[34]  Letter Dorothea Vallianos dated 19 July 2018, p 2.

[35]  Letter Ms Vallianos to the Tribunal 14 May 2019, p 1.

[36]  Transcript 3-36 L 41.

[37]  Ibid 3-37 L 28.

[38]  Ibid 3-47 L 46.

[39]  Ibid 3-72 L 5.

[40]  Ibid 3-75 L 27.

[41]  Exhibit 9.

[42]  Statement of Tim McCormick, 28 March 2019, [6].

[43]  Ibid [7].

[44]  Ibid [11].

[45]  Ibid [12].

[46]  Ibid [14] – [17].

[47]  Transcript 2-50 L 34.

[48]  Ibid 2-51 L 26.

[49]  Ibid 2-65 L 23.

[50]  Exhibit 10.

[51]  Statement of SE Hein 27 March 2019 [10].

[52]  Transcript 2-87 L 15.

[53]  Ibid [12] – [13].

[54]  Ibid [16].

[55]  Transcript 2-83 L 42.

[56]  Statement of Benjamin Puia 29 March 2019 [9].

[57]  Ibid [14].

[58]  Statement of Deborah Rasmussen 28 March 2019 [7].

[59]  Ibid [10].

[60]  Ibid [17].

[61]  Transcript 3-8 capital L 1.

[62]  Ibid 3-25 L 9.

[63]  Ibid 3-26 L 25.

[64]  Report Doctor Gray 22 October 2019, p 9.

[65]  Ibid, p 23.

[66]  Ibid p 17-18.

[67]  Transcript 2-115 L 15

[68]  Mr Hattabi closing submission 17 May 2021 p 5.

[69]  Ibid p 9.

[70]  Ibid p 4.

[71]  Ibid (68) p 9.

[72]  Ibid p 24.

[73]  Ibid p 16 [125].

[74]  Ibid p 17.

[75]  Ibid p 23.

[76]  Ibid p 19.

[77]  Ibid p 24.

[78]  Ibid p 46.

[79]  Ibid p 84.

[80]  Mr Hattabi's response to the respondent's submissions 30 June 2021, p 2.

[81]  Ibid p 6.

[82]  Respondents joint submission filed 25 June 2021 [8].

[83]  Ibid [10], [11].

[84]  Ibid [13].

[85]  [2020] QCAT 351 [33].

[86]  Respondents joint submission filed 25 June 2021 [26], [27].

[87]  Ibid [44]

[88]  Ibid [45]

[89]  Ibid [51]

[90]  Ibid [77]

[91]  Transcript 3-18 L 40.

[92]  Transcript 1-46, 1-47.

[93]  Transcript of phone recording done by Toula Hattabi, p 3

[94]  Ibid p 6 and 7

[95] Queensland Civil and Administrative Tribunal Act 2009 s 66(1)(a)

[96]  Ibid s 66(2)(b)

[97]  Ibid s 66(3)

Close

Editorial Notes

  • Published Case Name:

    Hattabi v State of Queensland & Ors

  • Shortened Case Name:

    Hattabi v State of Queensland

  • MNC:

    [2022] QCAT 8

  • Court:

    QCAT

  • Judge(s):

    Member Paratz AM

  • Date:

    13 Jan 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Petrak v Griffith University & Ors [2020] QCAT 351
2 citations
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Cite 1 - [2020] QCAT 351
Cite 2 - [2020] QCAT 351

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