Industrial Relations Commission New South Wales Medium Neutral Citation: James Goodman and Secretary of the Treasury on behalf of Department of Attorney General and Justice (Corrective Services NSW) [2014] NSWIRComm 1026 Hearing dates: 15 April 2014 Decision date: 30 September 2014 Jurisdiction: Industrial Relations Commission Before: Tabbaa C AM Decision: Claim dismissed Catchwords: Appeal against fine - Disciplinary decision involved reprimand and fine of $200 - Alleged non-compliance with Use of Force Policy in that hand-held video camera not used to record the incident - Alleged unnecessary use of force - Use of Force Incident Report allegedly completed incorrectly and inaccurately - Failure to complete and submit an Inmate Misconduct Report - All allegations sustained by the evidence - Claim dismissed. Legislation Cited: Industrial Relations Act 1996 Crimes (Administration of Sentences) Regulation 2008 Cases Cited: Lyle Young and Commissioner of Corrective Services (GREAT Appeal No 140 of 2004); Commissioner of Police v Donlan and Hanson (Court of Appeal: Clarke, Handley and Powell JJA, 8.8.95 unreported) Category: Principal judgment Parties: Mr James Goodman (Appellant) Mr S Cosgrove - Solicitor, Professional Standards Branch (Respondent) File Number(s): IRC 1063 of 2013 DECISION Overview 1Mr James Goodman (the Appellant) was employed by the Secretary of the Treasury on behalf of Department of Attorney General and Justice (Corrective Services NSW) (CSNSW) as a First Class Correctional Officer at the Metropolitan Remand and Reception Centre (MRRC) when, on 26 April 2012, an incident occurred during which he used force on an inmate. 2The Appellant and another Officer, Singh, entered a cell to conduct a routine regulation strip search of inmate "K". The Appellant noticed that K was wearing a gold ring on his finger. As it posed a risk of self-harm, he requested inmate K to hold out his hand so that he could see if the ring could be removed but the inmate pulled his hand away. The Appellant grasped the inmate's hand. The inmate clenched his fist. The Appellant interpreted the inmate's reaction as a hostile action. The Appellant engaged in the use of force by taking hold of K's hand and bringing him to the ground. The ring could not be removed. K stood up and the strip search continued without further incident. K sustained minor abrasions to his left arm and to the left side of his face. 3On review of the CCTV footage, the Professional Standards Committee (the PSC) found that the level of force used was unjustified and that the Appellant had failed to consider other alternatives to using force. The PSC recommended that the matter be referred to the Investigation branch for formal investigation of the following five allegations of misconduct: (a)On 26 April 2012, the Appellant failed to follow the Use of Force Policy in that he did not use a hand held video camera, the use the force was unreasonable, and he did not complete the Use of Force Incident Report correctly and accurately; and (b)The Appellant failed to submit the required documentation in relation to the Use of Force incident on 26 April 2012, including the Inmate Misconduct Report. 4The Appellant said he attended the first interview to gain an insight into the allegations against him. 5Thereafter, he refused to participate in a formal interview but did submit an Officer Report Form regarding the incident. 6The investigation report found that four out of the five allegations were sustained. 7The Appellant received a reprimand and a fine of $200 for his conduct during that incident. These proceedings constitute an appeal against the imposition of the fine. The Issues 8There are four issues that arise for consideration by the Commission: (1)Did the Appellant fail to follow the Use of Force Policy with respect to the use of a hand held video camera to record the incident on 26 April 2012? (2)Was the use of force necessary or reasonable? (3)Was the Use of Force Incident Report completed correctly and accurately? and (4)Did the Appellant fail to submit the Inmate Misconduct Report? Did the Appellant fail to follow the Use of Force Policy with respect to the use of a hand held video camera to record the incident on 26 April 2012? 9In his report to the Investigator, the Appellant pointed out the following: (c)that the whole incident had been visually recorded by the two cameras already located in the cell; (d)the incident had occurred spontaneously as he had not been aware that K was in possession of an object that he could use to self-harm; (e)K was at risk of self-harm and, if left alone, could have ingested the ring causing a choking hazard and possibly his death; and (f)unless preventative action was taken quickly, a delay caused by fetching a hand held video camera could have increased the risk of a self-harm event occurring. 10The Appellant pointed out the Commission that the inmate was in a safe cell because he had been identified to be at risk of self-harm. He also pointed out that the inmate had actively refused to hold out his hand so that the Appellant could determine for himself whether or not the ring could be removed thereby causing him to suspect that it was capable of being removed and used as a device to self-harm. He noted that the CCTV footage confirmed that the inmate clenched his fist just before he was restrained. 11Whilst not seeking to challenge the policy, the Appellant questioned the options he had - observe and give priority to UOF policy thereby allowing the inmate to retain possession of a non-prescribed item and thus placing him at increased risk of self-harm by OR observe his duty of care to the inmate. He pointed out that if he had stayed in the cell while his mate went to fetch a video camera, he may have increased the risk to himself. He pointed out that his "motivation in using force was a rigid adherence to Duty of Care, reinforced by the long-established practice of taking zero risks with inmates who are at risk of self-harm". 12The Investigator noted that the Appellant and Officer Singh did not adequately explore, or consider, a suitable alternative to using force. The Investigator believed that there was sufficient time to allow for the retrieval of a hand held video camera. It was held that negotiations between K and the Officers could have been suspended until such time as one was present. 13That finding was supported by Mr Wilson, Assistant Commissioner, Security and Intelligence Division. He gave evidence that whilst he acknowledged that there may be occasions when use of force is spontaneous, the occasion in question was not one of them as there was not that sense of urgency around it. He believed that once the inmate declined to hand over the ring, the retrieval proceedings should have been stopped until a video camera could be obtained to record the incident, including sound recording. 14Mr Cosgrove observed, on viewing the CCTV footage on a number of occasions, that it demonstrated that the inmate did not have a clenched fist either before, or during, the time the Appellant grasped his wrist. 15Section 13.7.5 of the Operations Procedure Manual (OPM), Video Recording the Use of Force, states: When the use of force is expected or planned or when there is a high potential for conflict, a video camera must be brought to the scene. An example is an inmate who is refusing to comply with a lawful instruction and there is no immediate risk to security, personnel, or other inmates. In that and similar situations, force must not be applied until a video camera is on the scene and recording the actions and conversations of all those involved. This is a requirement even if the area is subject to CCTV surveillance and recording. If a video camera is not used, the most senior officer present at the incident must provide an explanation in their report. An explanation is unacceptable if it merely states that time did not allow a camera to be brought to the scene. The explanation must detail the circumstances which existed that precluded a camera being brought to the scene in sufficient time. 16The evidence indicated that, up until then, the inmate had been compliant with instructions received from the Officers. It was agreed that he was not a risk to security, personnel or other inmates. He was at risk of self-harm. 17The Appellant failed to mention that there was a third officer standing at the doorway of the cell. Therefore, there was no need to leave the inmate alone, or alone with either the Appellant or Officer Singh, while a hand held video camera was obtained. The third officer could have been despatched to fetch the video camera while the two officers remained with him and continued with the strip search. 18I accept the evidence of Mr Wilson that the Appellant ought to have stopped when he could not remove the ring at the stage where he had a hold of the inmate's hand while he was in the standing position. At that point, a video camera could have been obtained and a more senior officer called in to negotiate the release of the ring. I concur that it was not so crucial, in the circumstances, to throw the inmate on the ground in such a violent way in order to attempt to get the ring off him. 19I find that the Appellant failed to follow the Use of Force Policy with respect to the use of a hand held video camera to record the incident on 26 April 2012. Was the use of force necessary and reasonable? 20The inmate awoke on the entry of the Appellant and Officer Singh into his cell. He complied with directions to place the food items in the cell in the bin provided outside of his cell. He then participated in a regulation strip search. He took off the clothing on his upper body. The Appellant agreed that, up to that point, he was fully compliant with all directions. 21When the Appellant saw the ring on K's finger, he requested inmate K to hold out his hand so that he could see if the ring could be removed but the inmate pulled his hand away. The Appellant grasped the inmate's hand. The inmate clenched his fist. The CCTV footage demonstrated that the Appellant engaged in the use of force by taking hold of K's hand and throwing him to the ground. The Appellant then pulled K across the floor by his arm and placed his knee on the back of K's head. Officer Singh assisted by holding K's legs. The ring could not be removed. K stood to his feet and the strip search continued without further incident. 22In his report to the Investigator, the Appellant acknowledged that he could "see how the force may seem excessive to superficial observation" nevertheless, he pointed out that: (g)K was in a safe cell because he was at risk of self-harm; (h)K was actively refusing to comply with his direction to hold out his hands for inspection to determine the removability of the ring; (i)that refusal caused him to suspect, from experience, that the ring was able to be removed and used as a device of self-harm; (j)K clenched his fist before he was pulled down to the ground with the aim of safely checking the removability of the ring without being assaulted. 23The Appellant submitted that the longer the inmate was left in possession of the ring, the greater the risk of him ingesting it. On that basis, he considered that he had fulfilled his Duty of Care both to the inmate and to himself. The Appellant argued that the inmate may have hit him with his fist if he had stopped to consider alternatives. 24Nevertheless, during cross-examination, the Appellant agreed that he had described Inmate K to the investigators during the preliminary interview as "very quiet and introverted". The Appellant also agreed that he told the investigators that, in hindsight, K may simply have been attempting to remove his ring by himself and not clenching his fist in a hostile manner. 25Section 13.7.1 of the OPM, Alternatives to the Use of Force, provides: When emerging problematic behaviour is identified early enough and managed according to CSNSW's case-management policy, the need to use force may be reduced. Force is always the option of last resort. In developing situations, the following strategies may also avoid the need to use force: presence of and frequent patrols by correctional officers; persuasion and negotiation with inmates; and the presence of, and instructions by more senior officers. force must not be used if there are alternatives to its use. I grasped the inmates hand, and the inmate clenched his fists, which I perceived to be a hostile action, so I pulled the inmate straight down to the ground, face down in the cuffing position. 26Mr Wilson defined "reasonable force" as being force consistent with the level of resistance being offered or the level of threat presented and it should be withdrawn immediately the resistance is withdrawn. While it was not defined anywhere, he pointed out that general guiding principles were provided within the policy to assist officers to exercise judgment. In addition, the legislation states that the amount of force used should be limited to that required to control the situation. On that basis, in his opinion, the force used on that occasion was "way in excess of that". 27Mr Wilson pointed out to the Applicant during cross-examination the latter had established that he could not take off the inmate's ring when he had hold of the inmate's hand and, therefore, "there was no need to take him down onto the ground in the manner that you did.....". 28Mr Wilson stated that use of force is a fundamental component of the primary training of correctional officers. It is instilled in correctional officers during their 11 weeks of primary training. In addition, whenever in-service training is conducted in relation to any other issue (eg firearms, batons, handcuffs, defensive tactics, etc), use of force basic principles are refreshed. 29In Mr Wilson's view, the training provided required the level of force used to be commensurate with the level of resistance being offered. He submitted that it would be ludicrous to suggest that there was any threatening behaviour displayed by the inmate in the CCTV footage provided. In his opinion, a clenched fist, on its own, would not constitute evidence of an inmate about to strike a correctional officer without it being supplemented by aggressiveness, acting out and non-compliance with directions. Therefore, from his perspective, the level of force used in an attempt to retrieve the ring was far in excess of what was required and was therefore totally unnecessary and unwarranted. Mr Wilson believed that it would have been sufficient, and the Appellant would have arrived at the same conclusion, if he had grabbed the inmate's hand and attempted to remove the ring himself. 30Regulation 121 of the Crimes (Administration of Sentences) Regulation 2008 relevantly provides: 121 Use of force in dealing with inmates (1) In dealing with an inmate, a correctional officer may use no more force than is reasonably necessary in the circumstances, and the infliction of injury on the inmate is to be avoided if at all possible. (2) The nature and extent of the force that may be used in relation to an inmate are to be dictated by circumstances, but must not exceed such force as is necessary for control and protection, having due regard to the personal safety of correctional officers and others. (3) ..... (4) Subject to subclauses (1)-(3), a correctional officer may have recourse to force for the following purposes: (a) to search, where necessary, an inmate or to seize a dangerous or harmful article, (b) .... (f) to avoid an imminent attack on the correctional officer or some other person, but only if there is a reasonable apprehension of such an attack, (g) ..... 31Therefore, the use of defensive tactics is an option available to correctional officers to use subject to that defensive tactic being: - in accordance with the Respondent's Use of Force Policy; - necessary; and - reasonable. 32The use of force is considered justified if it was both necessary and reasonable. It is considered necessary in circumstances where the correctional officer needs to protect themselves or others or to move an inmate from one location to another. Whether the force used is considered to be reasonable is dictated by a consideration of its appropriateness in dealing with the circumstances or the inmate involved. In the present circumstances, the Appellant has not been able to convince the Commission that the use of force was necessary. He has also not been able to convince the Commission, in view of the circumstances described above, that the force used was reasonable. 33Correctional Officers are trained in defensive tactics in order to avoid/resolve physical conflict, defend themselves and others against attack and act in accordance with legislation, policy and procedures. 34Most relevantly, they are provided with skills to assist them to avoid physical confrontations including the use of communication techniques, tactical disengagement, containment and negotiation. The Respondent recognises that there is an element of the custodial population who will demonstrate resistance and violence and, therefore, has provided its officers with training on tactics, supported by appropriate techniques, to enable early identification and avoidance or diffusion of situations in order to resolve such confrontation in a satisfactory manner 35The evidence did not demonstrate that the Appellant applied any of those skills in the present circumstances.. 36Correctional Officers are trained to recognise the factors that need to be considered in assessing the level of force appropriate in a given situation and the behavioural warning signs/pre-attack indicators displayed by inmates that indicate imminent attack. It is noted that "hand set - clenched fist" is one such indication. Nevertheless, I agree with Mr Wilson that, a clenched fist, on its own, is not a sufficient indicator, particularly in the present circumstances. 37The Investigator could not find any substantial evidence to suggest that K was aggressive to the point where there was a significant threat to the personal safety of the Appellant. I concur with that conclusion. Not only was there no significant or any threat to the personal safety of the Appellant, there was no threat to anyone else. 38I find that the Appellant had not attempted to use any of the techniques he had been trained in, and described above, in order to take the ring off the inmate without confrontation. The Inmate had been compliant and resumed being compliant once he was back on his feet. I find that the use of force by the Appellant was both unnecessary and unreasonable. Was the Use of Force Incident Report completed correctly and accurately? 39In his report to the Investigator, the Appellant argued that the Use of Force Incident Report was completed correctly and accurately in that he had neatly described the situational event, the action taken and the outcome. 40The Appellant stated in his report and also in the evidence filed in these proceedings that he had pulled K to the ground, face down in the cufflink position. 41Yet the CCTV footage demonstrated that he grabbed K by the left arm and manoeuvred him over unto his back causing his face to come into contact with the concrete. 42The Applicant explained that he had stepped back with his right foot causing a pull to be created on the K's left arm. He then lowered his body weight, thereby causing the pull to continue until K made a smooth landing on his back on the ground. The fact that he had maintained a hold on K's arm and shoulder allowed him to prevent K's head from coming into direct contact with the ground when he lowered him down. The only time K's head came into contact with the ground was when it rested on the ground after he rolled him over into the cuffing position. He explained that the fact that K struck the bed during that drop was an unfortunate and unavoidable consequence. He did not realise that the inmate had hit his head and sustained an abrasion to his right shoulder. He pointed out that if he had wanted to be more forceful with K, he could have simply dropped him straight down thereby causing his head to come into direct contact with the ground. 43He could not explain how the inmate came over to the other side of the cell where there was real potential for him to incur injuries as a result of contact with the concrete bed. 44The Appellant stated that he had not deliberately omitted the names of other staff members present during the incident. He claimed that it was an oversight on his part. 45The Appellant argued that once senior management noted that the UOF incident package was incomplete, it could have been brought to his attention when he turned up for work the following day and given the opportunity to correct any perceived errors/omissions. 46I accept the Appellant's submission that he could have been given an opportunity, under normal circumstances, to correct any perceived errors/omissions. However, there were too many omissions from that report. The Investigator noted that the Report was not completed correctly and accurately because the Appellant did not describe the direction given to K, did not record direct speech and did not detail the nature of the force used. 47Section 13.7.8 of the OPM, Reporting the Use of Force, provides: If you use force on an inmate you must write an independent Incident Report (Annexure 13 (a)) within 2 hours, or as soon as the circumstances allow. In all cases, you must submit your report before you cease duty. A written report is mandatory irrespective of the type or amount of force that was used. Your report must explain why the force was necessary, and any instructions you or someone else gave to the inmate(s) along with their response. The report must also describe in detail the type of force that was actually applied; it is unacceptable to describe the force used as "the minimum necessary". 48I accept that the Appellant had not complied with the Respondent's requirements in relation to reporting. Did the Appellant fail to submit the Inmate Misconduct Report? 49The Appellant agreed that he had not submitted An Inmate Misconduct Report. He explained in his report to the Investigator that he did not consider it appropriate to complete an Inmate Misconduct Report because the inmate was at risk of self harm and was possibly mentally ill. He pointed out that it had been standard practice for a long time not to complete such reports in circumstances where the inmate was mentally ill. He pointed out that he has, since this incident, changed, his approach and now completes Inmate Misconduct Reports. 50Section 16.1.2 of the OPM provides: A custodial or non-custodial officer who witnesses an inmate committing or attempting to commit a correctional centre offence must immediately report the matter to the General Manager. The incident is to be reported on a Misconduct Report. This applies to all staff (i.e. custodial and non-custodial officers) regardless of position or rank. 51There was no evidence before the Commission to refute the allegation by the Appellant about the culture that had developed which was not to submit an Inmate Misconduct Report in cases where the inmate had a mental illness. 52I accept the finding of the Investigator that the reason proffered by the Appellant that K suffered from a mental illness did not excuse the requirement to submit an Inmate Misconduct Report. 53It is noted, nevertheless, that the Appellant has self-corrected in that regard. CONSIDERATION 54The Appellant argued that the last time he received training was 14 years ago when he passed through the Corrective Services Academy despite the fact that there have been several legislative changes since then, including changes to the requirements on strip searches. In addition, he argued that he has still not been made aware of what misconduct he has committed and how to avoid making the same mistake in the future. I do not accept the Appellant's arguments in view of the evidence before the Commission to the contrary. The Appellant agreed, during cross-examination, that he told the Interviewers during the initial interview that he had a good understanding of the policy and had been trained on where to research/reference that policy. 55The Appellant believed that the two Executive members who had initiated the investigation against him had an axe to grind with him. He pointed out that he had lodged a bullying and harassment claim against Mr Garry Lockhart, and, in relation to the view held by Mr Ross Edwards, acting General Manager, that "a clenched fist did not warrant the reaction" by the Appellant, he pointed out that the workplace had recently experienced two incidents involving officers who had been knocked down and injured by a clenched fist. 56The Respondent referred to the decision of the Government and Related Employees Appeal Tribunal in an appeal by Lyle Young against a decision of the Commissioner of Corrective Services (Appeal No 140 of 2004) in which the Tribunal cited with approval the judgement of Powell JA in Commissioner of Police v Donlan and Hanson with regards to the nature of disciplinary proceedings in respect of police misconduct: While it might be possible in the case of a departmental charge involving disciplinary proceedings to characterise the power as a power to impose a penalty, or punishment, for an offence, the fact that the power is also exercisable in respect of an offence for which a court may impose, or has imposed, a penalty, or punishment, makes it clear that the true objects for the attainment of which the power was granted, and for which it is to be exercised, is, nor punishment, but the protection of the public, to maintain proper standards of conduct on the part of members of the Police Service and to protect the reputation of the Police Service (see, for example, Hardcastle v Commissioner of Police (1984) 53 ALR 593, 597 at 5-6). I concur with the view expressed by that Tribunal that analogous considerations apply to disciplinary action taken in respect of employees of Corrective Services. 57I further concur with the view expressed by that Tribunal that "the proper object of disciplinary proceedings is the protection of the public, the maintenance of correct standards of conduct on the part of employees of the Department of Corrective Services and the protection of the reputation of the Department. The abuse of an inmate, who of necessity is in position of vulnerability by a Corrective Services Officer, to the extent and degree found by the Tribunal in this case, constitutes in our view an especially serious form of misconduct". 58That Tribunal noted the efforts being made by the Respondent to change the culture of force in relation to inmates and, in lieu, to promote a culture of minimum force. Those efforts have been mirrored in the present proceedings. 59The Appellant confirmed that the incident on 26 April 2012 was not the first occasion he had come to the attention of the Respondent for not following correct protocol in relation to the use of force. He was previously counselled on for use of force upon inmate H who did not appear to be offering any resistance and the reports he had submitted did not reflect the manner of force used as demonstrated by the video tapes of that incident. 60The Appellant was advised that the above incident and another counselling he had received regarding misuse of the email system were taken into consideration in relation determining what disciplinary measure was to be applied as a result of this incident. 61During cross-examination, the Appellant agreed that, given his good understanding of the policy on use of force, it would be reasonable to assume that he would have been aware that where there is a high potential for conflict such as his perception that the inmate was clenching his fist, that a video camera would have been brought to the scene. The Appellant could not recall if he asked the officer at the cell door to fetch the video camera pointing out that he had not wanted to draw his attention away from K. He argued that, despite K being in a designated safe cell and there were sufficient observation points if the inmate had intended to self-harm, he did not want to relinquish his grasp on the inmate's wrist and allow him an opportunity to secrete the ring. 62In view of all of the above, the Commission finds that the four allegations are sustained and declines to intervene to overturn the fine imposed on the Appellant. 63Matter IRC 1063 of 2013 is hereby concluded. I Tabbaa AM COMMISSIONER 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: 01 October 2014