In a decision published on June 30, the NSW Civil and Administrative Tribunal (NCAT) ruled Paul Taufaao had engaged in unlawful homosexual vilification as he assaulted David Massa at Sydney's ARQ nightclub in 2014.



Massa and a friend, Simon Margan, were at ARQ in the early hours of the morning on September 15, 2014, when they encountered Taufaao by the dance floor.

In his evidence to the tribunal, Massa said he had had a conversation with Taufaao before heading to the dance floor. As he walked back towards Taufaao, a woman stepped between them and pushed his chest with both her hands.

"[Taufaao] stepped forward and the female stepped to the side," Massa told the tribunal. "He said – 'Fuck off, faggot'."

Taufaao then punched Massa in the head so hard that he fell backwards.

"The next thing that I remember was trying to get to my feet and could taste blood in my mouth; I could feel the blood dripping down the front of me," Massa said. "I could not move my bottom lip and the pain felt as though my lip had been ripped off."



Margan told the tribunal he had heard Taufaao make various statements as he assaulted Massa, "including the phrases 'Fuck off faggot!' and, 'I am going to kill you faggot!'"

He gave evidence that witnessing the assault and hearing Taufaao's comments left him feeling "degraded and humiliated", unsafe to go out on Oxford Street (a popular Sydney gay strip), and "less of a person".

In its decision, the tribunal wrote that Taufaao's comments were "not merely insults" but had the capacity to incite people in ARQ to feel hatred and contempt for Margan and gay men generally.

"The assault on its own could not be said to have been incitement to hatred or serious contempt on the grounds of homosexuality. However, coupled as it was with the words 'Fuck off faggot' and 'I’m going to kill you faggot', in this context the actions would constitute incitement."



Taufaao was convicted of assault occasioning actual bodily harm in October 2014, and sentenced to a two-year good behaviour bond and a $1100 fine.



Margan complained to the Anti-Discrimination Board of NSW two weeks after the attack, alleging that Taufaao's actions constituted unlawful homosexual vilification. His complaint was referred to the tribunal in July 2015.

Margan told BuzzFeed News he made the complaint because "attacks on Oxford Street are still all-too-common these days".

"When gay men are attacked in gay-safe spaces, then this makes the crime much more concerning," he said.

"As an assault victim, and someone who has often seen these types of assaults occur on Oxford Street previously, I know how much of a difference it makes when those who witness such unprovoked violence sit by and do nothing about it. It is those that ‘turn the other cheek’ to this behaviour who end up ensuring assaults like this continue."



Margan said he was satisfied the $10,000 fine was an appropriate amount. The tribunal also decided not to order Taufaao to apologise – a decision Margan backed.



"Apologies have their place in mediated settlements," he said. "However, if the respondent is not participating in the process of genuinely apologising, then this is not that beneficial. It is very difficult to force an apology and it is dubious as to whether coerced and insincere court apologies achieve anything."