Industrial Relations Commission New South Wales Medium Neutral Citation: Gallagher, Ma'a and Premutico v Industrial Relations Secretary on behalf of the Secretary, Department of Communities and Justice (Corrective Services) [2019] NSWIRComm 1069 Hearing dates: 11, 12 and 14 June 2019. Written submissions filed 20 and 25 June 2019. Date of orders: 27 September 2019 Decision date: 27 September 2019 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: Appeals upheld Catchwords: PUBLIC SECTOR DISCIPLINARY APPEALS – misconduct – allegation of assault by correctional officers on inmate – allegation of failure to use video camera to record the force used against inmate – allegation of failure to arrange for medical treatment to be offered to inmate – allegation of failure to report misconduct – appellants denied misconduct allegations – misconduct allegations sustained – appellants reduced in classification for a period of 12 months – appeals against disciplinary decisions – respondent's burden of proof not discharged – appeals upheld Legislation Cited: Government Sector Employment Act 2013 Industrial Relations Act 1996 Government Sector Employment (General) Rules 2014 Cases Cited: Briginshaw v Briginshaw [1938] 60 CLR 336 Browne v Dunn [1883] 6 R 67 Category: Principal judgment Parties: Terry Gallagher (Appellant) Rodney Ma'a (Appellant) Michael Premutico (Appellant) Industrial Relations Secretary on behalf of the Secretary, Department of Communities and Justice (Corrective Services) (Respondent) Representation: Counsel: Ms A Douglas-Baker (Respondent) Solicitors: Mr M Jaloussis, McNally Jones Staff Lawyers (Appellants) Ms E Keech, Professional Standards Branch, CSNSW (Respondent) File Number(s): 2018/003743422018/003743322018/00374308 Publication restriction: Nil DECISION 1. By letters dated 7 November 2018, the appellants, Terry Gallagher, Rodney Ma'a and Michael Premutico, were advised by Mark Wilson, Assistant Commissioner, Security and Intelligence, Corrective Services NSW ("CSNSW") of the decision, following findings of misconduct against them in relation to an alleged assault on inmate SC at the Dawn de Loas Correctional Centre ("DDLCC") on 8 January 2016, to impose disciplinary action on each of them. 2. The appellants are employed as correctional officers by the respondent, the Industrial Relations Secretary on behalf of the Secretary, Department of Communities and Justice (Corrective Services). As at 8 January 2016, each of the appellants held the rank of First Class Correctional Officer ("FCCO") and was a member of the Security Operations Group ("SOG") which provides a specialist response to security and emergency situations within correctional centres. 3. The disciplinary action imposed by Mr Wilson pursuant subsection 69(4) of the Government Sector Employment Act 2013 ("the GSE Act") on each of the appellants was a reduction in classification to Correctional Officer Year 1 for a period of 12 months commencing on 10 December 2018. 4. This decision determines the public sector disciplinary appeals by each of the appellants against the disciplinary action imposed upon him by Mr Wilson. The statutory scheme 1. Section 69 of the GSE Act is in the following terms: 69 Misconduct—Public Service and other prescribed government sector employees (1) In this section: government sector agency means: (a) a Public Service agency, and (a1) that part of the NSW Police Force comprising administrative employees under the Police Act 1990, and (b) any other government sector agency prescribed by the regulations for the purposes of this section. misconduct extends to the following: (a) a contravention of this Act or an instrument made under this Act, (b) taking any detrimental action (within the meaning of the Public Interest Disclosures Act 1994) against a person that is substantially in reprisal for the person making a public interest disclosure within the meaning of that Act, (c) taking any action against another employee of a government sector agency that is substantially in reprisal for a disclosure made by that employee of the alleged misconduct of the employee taking that action, (d) a conviction or finding of guilt for a serious offence. The subject matter of any misconduct by an employee may relate to an incident or conduct that happened while the employee was not on duty or before his or her employment. serious offence means an offence punishable by imprisonment for life or for 12 months or more (including an offence committed outside New South Wales that would be an offence so punishable if committed in New South Wales). (2) The person who exercises employer functions in relation to an employee of a government sector agency is responsible for dealing with any misconduct by that employee in accordance with this section. (3) The government sector employment rules may deal with the following: (a) misconduct by employees of government sector agencies, (b) the procedural requirements for dealing with allegations of misconduct by employees of government sector agencies (consistently with procedural fairness). (4) If, in accordance with those rules, there is a finding of misconduct by an employee of a government sector agency, the person who exercises employer functions in relation to the employee may take any of the following actions: (a) terminate the employment of the employee (without giving the employee an opportunity to resign), (b) terminate the employment of the employee (after giving the employee an opportunity to resign), (c) impose a fine on the employee (which may be deducted from the remuneration payable to the employee), (d) reduce the remuneration payable to the employee, (e) reduce the classification or grade of the employee, (f) assign the employee to a different role, (g) caution or reprimand the employee. (5) Proceedings and actions under this section may be taken or continued despite the employee resigning or otherwise ceasing to be an employee of the agency concerned. Any such action may be expressed to be a termination of employment even if the person has ceased to be an employee. (6) This section does not apply to that part of the NSW Police Force comprising police officers or to any employees of a government sector agency excluded from this section by the regulations. 1. Relevant provisions of Part 7 of Chapter 2 the Industrial Relations Act 1996 ("the Act") dealing with public sector disciplinary appeals are set out below: 97 Notice of certain decisions etc (1) This section applies to the following decisions made by a public sector employer in relation to a public sector employee: (a) a decision to defer, for a period in excess of 6 months, the payment of an increment to the employee, (b) a decision to reduce the rank, classification, position, grade or pay of the employee, (c) a decision to impose a fine or forfeit pay, (d) a decision to annul the appointment of an employee appointed on probation, (e) a decision to suspend the employee as a punishment where the employee is held to be guilty of misconduct or contravention of any law or any rule or direction of the employer, (f) a decision to dismiss the employee, (g) a decision to direct or to require the employee to resign. (2) A public sector employer who makes a decision to which this section applies in relation to an employee must give the employee notice, in writing, of the decision as soon as practicable after the decision is made, except as otherwise provided by an order made under subsection (4). (3) If the employer is unable to give the employee notice of the decision within 14 days after it is made, the employer may apply to the Commission for an order as to the giving of the notice. (4) On receipt of an application under subsection (3), the Commission may make such order as the Commission thinks fit as to the giving of the notice or may make an order dispensing with the giving of the notice. (5) A notice may be given, or the giving of a notice may be dispensed with, in accordance with an order made under subsection (4). (6) In subsection (1) (f): dismiss includes dispensing with the services of an employee (including under any right or power of the Crown to dispense with the services of an employee). (7) For the purposes of this Division: (a) a decision of a kind referred to in subsection (1) (d), (f) or (g) is a decision that may, subject to this Act, be appealed against under section 98 regardless of whether the decision was made for disciplinary reasons, and (b) a reference to a public sector employer making a decision of a kind referred to in subsection (1) includes a reference to any other person (including the Crown) who is authorised by or under any law to make that decision or to carry it into effect. 98 Right of appeal (1) Despite anything contained in any other Act, a public sector employee may, subject to and in accordance with this Part, appeal to the Commission against an appealable decision of his or her employer. (2) Such an appeal may be made on the ground that the decision appealed against was made substantially in reprisal for a public interest disclosure within the meaning of the Public Interest Disclosures Act 1994. (3) However, employees of the following classes cannot appeal to the Commission against an appealable decision referred to in section 97 (1) (d), (f) or (g): (a) employees engaged under a contract of employment for: (i) a specified period of time that is less than 6 months, or (ii) a specified task that is of less than 6 months duration, (b) employees serving a period of probation or qualifying period, if the duration of the period, or the maximum duration of the period, is determined in advance and either: (i) the period, or the maximum duration, is 3 months or less, or (ii) if the period, or the maximum duration, is more than 3 months—the period, or the maximum duration, is reasonable having regard to the nature and circumstances of the employment and the statutory provisions relating to the probationary appointment of the employee concerned, (c) employees engaged on a casual basis for a short period except those who: (i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months, and (ii) would, but for the decision of the employer, have had a reasonable expectation of continuing employment with the employer. 100 Appealable decisions may be carried into effect despite right of appeal (1) An appealable decision may be carried into effect whether or not an appeal may be (or has been) made against the decision under this Division. (2) However, if the decision appealed against is a decision of a kind referred to in section 97 (1) (d), (f) or (g), a permanent appointment is not to be made to the position held by the employee when the decision was made until: (a) the time for making an appeal against the decision has expired without an appeal having been made, or (b) if an appeal is made within that time—the appeal is determined or has lapsed. 100C Decisions with respect to appeals (1) (Repealed) (2) The Commission, in relation to a disciplinary appeal, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. (3) Without limiting the generality of subsection (2), if in relation to a disciplinary appeal it appears to the Commission that the employer failed to comply with the rules of procedural fairness in making the decision appealed against, the Commission: (a) is not required to allow the appeal solely on that basis and may proceed to decide the appeal on its merits, or (b) may quash the decision and remit the matter back to the employer with such directions (if any) as to which stage of the disciplinary process in relation to the matter may be recommenced by the employer. (4) The decision of the Commission in respect of an appeal is, except as provided by section 197B, final and is to be given effect to by the employer against whose decision the appeal was brought. 100D Orders by Commission with respect to payment of salary and continuity of employment (1) Without limiting section 100C, if the Commission decides to allow a disciplinary appeal, the Commission may: (a) if the employee has paid a fine imposed by the employer or his or her pay has been forfeited—order the employer to repay the amount of any such fine or forfeited pay, and (b) order the employer to pay the employee an amount stated in the order that does not exceed the remuneration the employee would, but for the decision of the employer, have received from the employer, and (c) order that any period of employment of the employee with the employer is taken not to have been broken by the decision of the employer. (2) Any such order by the Commission must be given effect to by the employer. (3) Nothing in subsection (1) enables the Commission to make an order for compensation in the case where a person is not reinstated or does not continue in employment. 100G Presentation of cases (1) A public sector employer must present the employer's case to the appellant at least 7 days before the hearing of a disciplinary appeal. (2) At the hearing of an appeal under this Part, the public sector employer's case is to be presented first. (3) Nothing in subsection (2) removes from an appellant or any other person the onus of proving any ground on which the appellant relies. 1. Each of the three appellants seeks an order from the Commission that the decisions of Mr Wilson referred to at [3] above be quashed. It is not in issue that each of the appeals before the Commission is competent and capable of being heard and determined by the Commission in accordance with the statutory provisions set out immediately above. The appellants Terry Gallagher 1. Terry Gallagher joined CSNSW as a correctional officer on 7 September 2014. As at 8 January 2016, Mr Gallagher held the rank of FCCO Year 2. 2. On 27 July 2017, Mr Gallagher received a formal reprimand which was issued to him by Mr Wilson for acting unprofessionally and failing to report two other correctional officers for assaulting inmate JB by "striking him in the face during a target search of the inmate's cell…" on 8 January 2016. Mr Gallagher referred to this reprimand in his witness statement in these proceedings. 3. On 2 April 2018, Mr Gallagher was promoted to the rank of Senior Correctional Officer ("SCO"). However, he was told that his position would not be "signed off" until the investigation, which ultimately led to the disciplinary action which is the subject of these proceedings, was finalised. Mr Gallagher was placed on "higher duties" and paid as a SCO from April to 10 December 2018 when the disciplinary decision of Mr Wilson took effect. 4. Apart from the matters that led to these proceedings and the reprimand he received on 27 July 2017, Mr Gallagher has not been the subject of disciplinary action by CSNSW. 5. Mr Gallagher gave evidence that the 12 month reduction in rank imposed upon him by Mr Wilson will result in a loss to him of $21,000 in income and approximately $1,950 in employer superannuation contributions. Rodney Ma'a 1. Rodney Ma'a joined CSNSW as a correctional officer on 22 September 2009. As at 8 January 2016, Mr Ma'a held the rank of FCCO Year 2. 2. On 27 July 2017, Mr Ma'a was issued with a formal reprimand by Mr Wilson for reasons similar to those relating to Mr Gallagher which are referred to at [9] above. Mr Ma'a also made reference to this reprimand in his witness statement in these proceedings. 3. Apart from the matters that led to these proceedings and the reprimand he received on 27 July 2017, Mr Ma'a has not been the subject of disciplinary action by CSNSW. 4. According to Mr Ma'a, as a result of the disciplinary action imposed upon him by Mr Wilson, he will lose approximately $10,470 in income and approximately $1,500 in employer superannuation contributions. Michael Premutico 1. Michael Premutico joined CSNSW as a correctional officer on 10 April 2010. As at 8 January 2016 Mr Premutico held the rank of FCCO Year 1. At that time, Mr Premutico was not a permanent member of the SOG but was on a three-month secondment with that group. 2. On 27 July 2017, Mr Premutico was issued with a formal reprimand by Mr Wilson for reasons similar to those relating to Mr Gallagher and Mr Ma'a referred to at [9] and [14] above. 3. Mr Premutico was promoted to the rank of SCO in April 2018. 4. Apart from the matters that led to these proceedings and the reprimand he received on 27 July 2017, Mr Premutico has not been the subject of disciplinary action by CSNSW. 5. According to Mr Premutico, as a result of the disciplinary action imposed upon him by Mr Wilson, he will lose approximately $20,115 in income and approximately $1,920 in employer superannuation contributions. Incident on 8 January 2016 1. On 8 January 2016, the three appellants, as part of the SOG, were conducting a search operation of the cells and common areas at the DDLCC. The appellants have asserted that, while officers were searching the cells in H Block, inmate SC, who was with other inmates in the common area of the block, became abusive and began swearing at correctional officers who were in the area, including female officers. The SCO on duty in H Block on that day asked Mr Gallagher and Mr Ma'a to take SC to his cell in order to de-escalate the situation. 2. CCTV footage, which was tendered into evidence, showed Mr Gallagher and Mr Ma'a escorting SC up a flight of stairs and into his cell. He was not handcuffed and was compliant with the instructions given to him to walk to his cell. Mr Gallagher and Mr Ma'a followed SC into his cell and closed the door but didn't lock it. Mr Premutico was positioned on the walkway outside the cell. Mr Gallagher and Mr Ma'a were in SC's cell from 7.48.07am until 7.49.24am, a total of one minute and 17 seconds. 3. During the period after Mr Gallagher and Mr Ma'a left the cell, the cell door was seen to suddenly move outwards, as if it had been pushed or kicked from inside, at 8.03.50am, 8.03.52am and 8.03.54am. At 8.07.20am, FCCO Rogato Lattao, responding to a cell alarm or "knock up" button pressed by SC, opened the cell door. SC walked out of his cell shirtless and descended the stairs. Before he reached the bottom of the stairs, he turned and went back to his cell and retrieved a t-shirt which he began to put on as he walked back down the stairs. He was walking freely and no signs of injury were visible on the CCTV footage. 4. In an "Incident Report" made by Mr Lattao later that day it was noted that SC had asked to be brought to the Justice Health clinic to get checked. Mr Lattao and SC were met outside the clinic by Senior Assistant Superintendent Jack Reynolds who, later that day, prepared an "Incident/Witness Report" which included that SC had stated that he needed some Panadol for his swollen jaw and that the "squad" had just searched his cell and "bashed" him. SC stated that he wanted the police to take action. 5. SC was seen by Nurse Belinda Diaz who recorded the following in the clinical notes she made that morning: 8/1/2016 08.20 Nursing: Brought to clinic from H block after SQUAD cell searches. Injuries incurred, (L) lower jaw swelling as big as golf ball. Reported got kicks on both thighs and side of body and back. Noted redness on back and little red graze 1mm (L) thigh has noted swelling mid-way on the side as big as a marble… Non-stop talking at first saying "I'm okay miss just give me pain killers." Reported to have had lots of injuries from cage fighting as a job. Showed scars on abdomen and scars on legs, where he has titanium plates put in. Ice pack applied on (L) lower jaw and (L) side of thigh alternately. 1. In an "Inmate's Application" form completed by SC that morning he stated: The squad searched my cell and I was talking to another inmate and a squad member called me out and told me to go into my cell with the two squad officers, one was an Islander and one was an Aussie they weighed about 120 Kg each. When went into cell they cuffed me and then assaulted me. I requested DDL staff to take me to clinic to get checked out. I request that CCNSW investigate the matter. 1. Tendered into evidence were a number of colour photographs of SC taken on the morning of 8 January 2016 by Mr Reynolds. These photographs showed swelling to the left jaw of SC as well as some faint red marks on his back and thighs. 2. Shortly after the incident on 8 January 2016 involving inmate SC, both Mr Gallagher and Mr Ma'a prepared written reports setting out their versions of what occurred during the incident. No reference was made to any use of force on, or other physical contact with, the inmate. Involvement of NSW Police 1. The alleged assault on SC by Mr Gallagher and Mr Ma'a was reported to the NSW Police. On 12 February 2016, SC signed a typed statement before Detective Sergeant Ben Johnson. This police statement contained the following: 11. I walked to my cell and I believe the Islander and Aussie squad members were right behind me. I walked up the stairs and I could hear them walking behind me. When I got to my cell which was number 36 I walked about one metre into the cell and I stopped. I saw the window of the cell was open. 12. I turned to face the two squad members and I saw that they were now standing just inside the doorway and the door was being shut by the Aussie squad member. I said, "What's up Chief." 13. The Islander squad member shoved me to the back of the cell. My hands were still behind my back. The shove was with his left hand because I was standing to his left. I lost my balance and I hit the back wall of the cell. 14. I turned and I faced the window. The Islander squad member said, "Put your hands on your head." I did this and then I felt one hand be taken from my head to my lower back and then the other hand and I was handcuffed in metal handcuffs with the arms to my wrists tight. 15. They spun me around and said, "Turn around". I saw the Islander squad member was in front of the Aussie squad member. The Islander squad member said, "What's your problem?" I said, "I don't have a problem but look at me cell because you guys have turned my cell upside down. I have only been here a week and you have no intel one me." 16. The Islander squad member was rocking back and forth on his feet and his head was down with his jaw tucked in. This body language made me feel like I was about to be jumped. The Aussie squad member said, "You do have a drama." The Aussie stepped to the right side of the Islander and threw a short right uppercut that landed on my left jaw. It dazed me and dropped me to the bed and my hip landed on the metal bed frame. 17. One of the squad members, I don't know which said, "Pick him up." I felt one of them pick me up with both hands on my chest and shoulder. I am 75 kg and 178cm. One of them took a hold of my head and jammed my head into the window which was now shut. My head hit the Perspex of the window and I dropped onto the bed and put my head into the mattress to protect it. 18. I felt what believe were forearms being thrown into my head and punches being thrown into my back. I could tell the difference because punches felt sharper than the forearms did. I can't say which squad member was doing the punching and forearm strikes. Out of my peripheral vision I could see a light skinned person standing over me so I believe it was the Aussie squad member throwing the forearms and punches. 19. The punches and elbows stopped and I turned my head and body. I saw the Aussie squad member standing on the bed and I saw boot marks all over the sheet. He stomped on the back of my head two or three times. 20. I was saying, "My apologies Chief, my apologies." I was saying this to try to stop them from giving me a hiding. I was un-cuffed and the two squad members walked out of the cell and locked me inside. 21. I looked out the Perspex window in the cell and I said to another squad member, "Chief can you get the nurse." He spoke to another squad member and he came back to me and said, 'What have you got another drama?" I said, "No Chief." I said this because I didn't want the squad to come back in and jump me again. 1. On 18 February 2016, DD another inmate from the DDLCC, signed a typed statement before Detective Sergeant Johnson. This police statement contained the following: 4. About six weeks ago I was housed in cell 35 of H block with (name of DD's cellmate). My neighbour in 36 was SC, who I call (SC's nickname). On a weekday in that week the squad came in to H block and told us all to go to our cells. Then we had to line up in two or three lines and used a dog to do searches. 5. (DD's cellmate) and I got told to go upstairs and stand outside our cell with another squad member. Two squad officers grabbed (SC's nickname) from the H1 side and brought him up to his cell in H2 side. When they got to the door of the cell I saw one squad officer handcuff (SC's nickname) to the back and then (SC's nickname) walked into his cell followed by the two squad officers. The officers shut the door behind them. 6. (DD's cellmate) and I were standing at the door of cell 36. I heard a thumping sound like people were wrestling and I heard (SC's nickname) screaming. He said, "Fuck off you dogs stop fucking hitting me." (DD's cellmate) went to look into (SC's nickname) window and a squad officer pushed (DD's cellmate) away from the door and towards cell 35. (DD's cellmate) and I went into cell 35. 7. I could still hear banging on the walls and on the floor coming from cell 36. The squad officer said to me, "Are you happy with the search?" I said, "Yes," (DD's cellmate) and I were never searched and the squad left out cell but told us to stay in the cell until everyone else comes back into the wing. 8. Our cell door was left open and l saw the two squad officers who were in with (SC's nickname) leave his cell. (SC's nickname) was yelling, "I've got to go to hospital youse fucking broke me jaw." I looked in (SC's nickname) cell and I saw blood on the floor of the cell and (SC's nickname) had a big swelling on the side of his face. 9. (DD's cellmate) went and told the wing officers that (SC's nickname) needed to see the nurse and the officers took him to the nurse. 10. (SC's nickname) told us when he got back that the squad officers knocked him out and that they were kicking him about the head when he came to. 1. On 10 March 2016, DM, another inmate from the DDLCC who was SC's cellmate at the time of the incident, signed a typed statement before Detective Sergeant Johnson. That police statement contained the following: 5. A three stripper from Dawn De Loas who I think is the intel officer opened the gate between H2 and H1 and said, 'What were you saying mate? What did you say?" (SC's nickname) said, "I didn't say nothing." An Islander squad officer and another squad officer told (SC's nickname) to go with them. One of them said, "You come here." I saw one of the squad officers handcuffed (SC's nickname) to the rear and then (SC's nickname) went into our cell 36 followed by two or three squad officer and they shut the door behind them. 6. About five minutes later the squad officers came out of the cell and left the wing. We were allowed to return to H2 but (SC's nickname) had been locked in. I went up to cell 36 where (SC's nickname) was and through the window I saw (SC's nickname) holding his jaw. 7. (SC's nickname) said, "My jaw is broken get the officers to take me to the clinic." His jaw was out about an inch and he was bleeding from the mouth. 8. About half an hour later (SC's nickname) was taken out to the clinic by the wing officers. I was let back in the cell. My bed had blood and boot prints on it that were not there before the squad officers went into the cell. The beds are side by side against the wall. 1. Ultimately, on 23 November 2017, the police advised CSNSW that no further action would be taken in relation to the alleged assault on SC on 8 January 2016. None of the appellants was ever charged with any offence in relation to this matter. The regulatory framework within which the appellants work 1. There is no dispute that the regulatory framework, within which correctional officers employed in CSNSW work, strictly forbids assaults by officers on inmates of the level of ferocity alleged by inmate SC. Assaults of that sort inevitably lead to the dismissal of the officers involved. 2. The use of force by correctional officers on inmates is strictly regulated. 3. Clause 131 of the Crimes (Administration of Sentences) Regulation 2014 ('the Regulation") is in the following terms: 131 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 the force that is necessary for control and protection, having due regard to the personal safety of correctional officers and others. (3) If an inmate is satisfactorily restrained, the only force that may be used against the inmate is the force that is necessary to maintain that restraint. (4) Subject to subclauses (1)–(3), a correctional officer may have recourse to force for the following purposes— (a) to search, if necessary, an inmate or to seize a dangerous or harmful article, (b) to prevent the escape of an inmate, (c) to prevent an unlawful attempt to enter a correctional centre by force or to free an inmate, (d) to defend himself or herself if attacked or threatened with attack, but only if the officer cannot otherwise protect himself or herself from harm, (e) to protect other persons (including correctional officers, departmental officers, inmates and members of the public) from attack or harm, but only if there are no other immediate or apparent means available for their protection, (f) to avoid an imminent attack on the correctional officer or some other person, but only if there is a reasonable apprehension of an imminent attack, (g) to prevent an inmate from injuring himself or herself, (h) to ensure compliance with a proper order, or maintenance of discipline, but only if an inmate is failing to co-operate with a lawful correctional centre requirement in a way that cannot otherwise be adequately controlled, (i) to move inmates who decline or refuse to move from one location to another in accordance with a lawful order, (i1) to allow a medical practitioner to carry out medical treatment on an inmate in accordance with section 73 of the Act, (j) to achieve the control of inmates acting defiantly, (k) to avoid imminent violent or destructive behaviour by inmates, (l) to restrain violence directed towards the correctional officer or other persons by an uncontrollable or disturbed inmate, (m) to prevent or quell a riot or other disturbance, (n) to deal with any other situation that has a degree of seriousness comparable to that of the situations referred to in paragraphs (a)–(m). (5) Subclause (4) does not limit the operation of any law with respect to the force that may be used to effect an arrest. 1. Clause 253 of the Regulation provides as follows: 253 Reporting of misconduct by correctional officers (1) If— (a) an allegation is made to a correctional officer that another correctional officer has, while carrying out his or her duties as a correctional officer, engaged in conduct that, in the opinion of the officer to whom the allegation is made, constitutes a criminal offence or other misconduct, or (b) a correctional officer sincerely believes that another correctional officer has engaged in conduct of that kind, the correctional officer must report the conduct, or alleged conduct, to a correctional officer who is more senior in rank than the officer making the report. (2) The senior correctional officer must report the conduct, or alleged conduct, promptly to the Commissioner if the senior correctional officer believes that it— (a) constitutes, or would constitute, a criminal offence by the correctional officer, or (b) would provide sufficient grounds for taking proceedings or action under section 69 of the Government Sector Employment Act 2013 against the correctional officer. (3) Subclause (1) does not apply to conduct or alleged conduct that— (a) has been made the subject of any proceedings or action under section 69 of the Government Sector Employment Act 2013, or (b) has been the subject of evidence or other material given, or submissions made, in the course of criminal proceedings, or (c) has already been reported under this clause to a more senior correctional officer. (4) A correctional officer must not, in relation to any other correctional officer— (a) fail to approve or recommend the promotion of the other officer, or (b) take, approve or recommend disciplinary action against the other officer, or (c) direct, approve or recommend the transfer of the other officer to another position in Corrective Services NSW, or (d) make, approve or recommend a decision which detrimentally affects the benefits or awards of the other officer, or (e) fail to approve or recommend that the other officer receive education or training which could reasonably be expected to improve the officer's opportunities for promotion or to confer some other advantage on the officer, or (f) change, or approve or recommend a change to, the duties of the other officer so that they are not appropriate to the officer's salary or position, or (g) otherwise act to the detriment of the other officer, in retaliation against the other officer because he or she has acted in accordance with this clause or has disclosed information relating to conduct contrary to law to any other correctional officer. 1. The Corrective Services NSW Operations Procedures Manual contains the following provisions which were, in substance, in effect as at 8 January 2016: 13.1.2 Guidelines Serious incidents must be reported directly to the General Manager (GM) and the Duty Officer (by telephone not email) followed by a report using the Offender Integrated Management System (OIMS) Incident Reporting Module (IRM). The submission of an IRM report does not remove the obligation of personnel to write Incident/Witness Reports and complete other documentation as stipulated in each of the policies in Section 13 of the Operations Procedures Manual (OPM). Staff required to submit an incident or witness report, must write the report: • from their recollection of the incident • independently of all other staff involved in the incident. Staff are not to review any video footage of the incident prior to submitting an incident or witness report (see OPM 13.9 Recording and Managing Video Evidence). While chiefly about serious incidents, a number of lesser events must also be reported on­line using the IRM. A table of all IRM reportable incidents is set out in Annexure 13 (e) Table of Reportable Incidents. In addition, the Assistant Commissioner, Custodial Corrections must be notified (by telephone) of specific incidents and these are listed in below in section titled Mandatory Direct Reporting of Incidents. When an IRM report is entered, relevant personnel within Corrective Services NSW (CSNSW) will be automatically notified of the incident by a Mandatory E-mail Notification (MEN). It should be noted that these MENs will usually only contain preliminary information. GMs or their authorised officers must also forward a comprehensive briefing note to the Duty Officer and to the Custodial Corrections Division (see below Mandatory Direct Reporting of Incidents). Important statistical information from the IRM report is collected for different reasons. These include: • the development of corporate strategy and operational planning • the preparation of corporate reports CSNSW ls obliged to draft each year. For all of these reasons, it is important that the lRM report is accurate and timely. ………………………… 13.7.3.1 What type of force can be used? The type of force you use will depend on the circumstances and what resources are available. It must be reasonable, appropriate for the circumstances, and no more than necessary to manage the risk. If you use restraints, weapons and/or chemical aids, there are instructions in this policy governing their use. 13.7.3.1.1 The planned use of force - when force is not immediately necessary A planned use of force is one with prior indication that it may be necessary and there is time to prepare for its use - for example, an inmate refuses to come out of their cell, to get into a vehicle or refuses to be searched. These situations and others like them do not necessarily require the immediate use of force. If time permits, the Senior Assistant Superintendent (SAS) or the Officer in Charge (OIC) of the shift must be called to take charge. No matter who is in charge, that officer must consider what, if any, alternatives there are to using force. If force appears unavoidable the type and level to be used will depend upon: • the immediate security risk • people's safety • the inmate's physical and mental health (including the possibility of pregnancy) • the need to preserve evidence. If time allows: • call adequate numbers of personnel to the scene • instruct the personnel what their role is and what they are expected to do • explain the objectives • provide adequate protective equipment • issue security equipment if needed • have at least one video camera on the scene recording the actions and conversations of those involved • ensure any CCTV in the area is recording the incident. You must give the inmate clear instructions about what you want the inmate to do and when you want them to do it. Clearly explain the consequences for failing to comply and give them a reasonable opportunity to comply. When all else has failed, only then instruct personnel to use force. …………………………… 13.7.3.2 The limits of force Once an inmate has been satisfactorily restrained you must not apply additional force. If the force is no longer necessary, you must stop applying it. That includes the use of restraints. Force must be applied in a way that minimises the injury risks to staff and the involved inmate(s). In every case, a correctional officer using force must justify the type of force they used, why they used it, and the duration of its use. This includes the use of security equipment. ………………………….. 13.7.5 VIDEO RECORDING POTENTIAL AND ACTUAL USES OF FORCE When the use of force is 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, staff 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. lf a video camera is not used, the most senior officer present at the incident must provide an explanation in their report. Your explanation is unacceptable if it merely states that time did not allow a camera to be brought to the scene. Your explanation must detail the circumstances that precluded a camera being brought to the scene. Once made, a video recording must be managed according OPM 13.9 Recording and Managing Video Evidence. Note: Staff are not to review any video footage of the incident prior to submitting an incident or witness report. 13.7.6 COMPULSORY OFFER OF MEDICAL TREATMENT Medical treatment must be offered to every inmate who has force used on them. This instruction applies irrespective of the level of force actually applied and the presence or absence of injury. The treatment must be offered by medical personnel. If no Justice Health and Forensic Mental Health Network (JH&FMHN) personnel are on duty then an ambulance must be called. An inmate can refuse treatment, but must refuse directly to the attending medical personnel. The refusal cannot be communicated to the medical personnel by a correctional officer. 1. On the respondent's case, the above provisions were said to be relevant to the misconduct findings which were made against the appellants and the disciplinary action imposed on them. The disciplinary process 1. By letters dated 8 December 2017, almost two years after the incident involving inmate SC, Mr Gallagher was advised by Mr Wilson of the following misconduct allegations: 1. On 8 January 2016 at Dawn de Loas Correctional Centre, First Class Correctional Officer Terry Gallagher struck inmate SC… causing swelling in his jaw a lump on his leg and red marks on his back and thigh in circumstances where the use of force was unnecessary, unreasonable and not required to manage any risk presented by the inmate, in breach of clause 131 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) and sections 13.7.3.1 and 13.7.3.2 of the CSNSW Operations Procedures Manual. 2. On 8 January 2016 at Dawn de Loas Correctional Centre, First Class Correctional Officer Terry Gallagher failed to use a video camera to record the force used against inmate SC… including the application of handcuffs and the force applied to the inmate's body in breach of section 13.7.5 of the CSNSW Operations Procedures Manual. 3. On 8 January 2016 at Dawn de Loas Correctional Centre, First Class Correctional Officer Terry Gallagher failed to arrange for medical treatment to be offered to inmate SC… after force had been used on inmate C in breach of section 13.7.6 of the CSNSW Operations Procedures Manual. 1. Mr Gallagher was advised that Mr Wilson had decided to proceed with the matter as allegations of misconduct under section 69 of the GSE Act. Mr Gallagher was also advised that he was being given a reasonable opportunity to make a statement in accordance with clause 38(4) of the Regulation. 2. Mr Ma'a also received a letter from Mr Wilson dated 8 December 2017 in virtually identical terms to the letter sent to Mr Gallagher. 3. Mr Premutico received a letter from Mr Wilson dated 8 December 2017 which contained the following misconduct allegations: 1. First Class Correctional Officer (FCCO) Michael Premutico failed to report misconduct by FCCO Terry Gallagher and FCCO Rodney Ma'a, whom he sincerely believed had struck inmate SC… without lawful justification during a target search of the inmate's cell on 8 January 2016 at Dawn de Loas Correctional Centre, in breach of clause 253(1)(b) of the Crimes (Administration of Sentences) Regulation 2014 (NSW) and section 13.1.2 of the CSNSW Operations Procedures Manual. 2. On 8 January 2016 at Dawn de Loas Correctional Centre, First Class Correctional Officer Michael Premutico failed to arrange for medical treatment to be offered to inmate SC… after force had been used on inmate C, in breach of section 13.7.6 of the CSNSW Operations Procedures Manual. 1. Mr Gallagher responded to Mr Wilson by letter dated 31 January 2018. He denied each of the allegations against him. Mr Gallagher stated that he did not strike or physically touch inmate SC and he was not handcuffed. Mr Ma'a responded to Mr Wilson by letter dated 14 January 2018. He also denied each of the allegations against him. Mr Premutico also responded to Mr Wilson on 14 January 2018 and denied the two allegations against him. 2. By letters dated 7 May 2018, Mr Wilson advised each of the three appellants that he was satisfied that each of them had engaged in the misconduct described in the allegations set out in the letters of 8 December 2017 and that the "misconduct action" he was proposing to take under section 69(4) of the GSE Act was "Termination of employment (with opportunity to resign)" in each case. Mr Wilson provided each of the appellants with the evidence upon which he relied in making his findings, including the police statements of inmates SC, DD and DM. The appellants were given a "reasonable opportunity" to make submissions in relation to the proposed action. 3. Mr Premutico responded in writing to Mr Wilson on 8 June 2018 and pointed out a number of inconsistencies between the CCTV footage showing inmate SC being escorted to and from his cell on the day of the alleged assault on him and the police statements of inmates SC, DD and DM. Mr Gallagher responded in writing to Mr Wilson on 10 June 2018, again denying the misconduct allegations. Mr Ma'a did likewise on 27 June 2018. 4. Electronically recorded interviews of the three appellants were conducted by Mr Wilson on 17 July 2018. Also present was Emma Keech, Legal Officer, Professional Standards Branch, CSNSW. Each of the appellants maintained their denials of the misconduct allegations. 5. In his interview, Mr Gallagher stated: I would like you to understand the lead up to inmate C being escorted to his cell. From the very moment SOG Officers entered his cell to do a random search he was continually abusive and made threats towards officers and it was at the direction of the Senior Correctional Officer in Dawn De Loas that he was escorted to his cell, that was the, the reason. At no time was C handcuffed as stated by M. CCTV shows this that he was never, never once handcuffed. ………………………… The reason we closed the door is 'cause the inmates could see and they were feeding off each other, the inmates were trying to incite him and he was trying to incite them so that's why the door was closed just to get away from the other inmates just to have a word with him, explain that we've got a job to do and to put, you know, like to, you know, give us that bit of respect, let us, we're, we're there to do our job that's basically what it is. 1. The information provided by Mr Ma'a in his interview was consistent with that provided by Mr Gallagher. In his interview, Mr Premutico again denied the misconduct allegations against him. 2. By letters dated 7 November 2018, Mr Wilson advised each of the appellants of his decision to reduce each of them in classification to Correctional Officer Year 1 for a period of 12 months from the pay period commencing on 10 December 2018. 3. In each of his letters of 7 November 2018, Mr Wilson, after setting out the sustained misconduct allegations against each of the appellants set out at [40] and [43] above, then stated: * I am satisfied that you engaged in the misconduct set out above based on the weight of available evidence, which includes statements from inmate C and two inmate witnesses, reports from CSNSW officers, medical evidence of inmate C's injuries and the CCTV footage showing the outside of the cell. I do not find your explanation credible against this weight of evidence. * Your misconduct is extremely serious. There is an expectation of high standards of professional conduct for all CSNSW employees. Correctional officers are relied upon to provide a safe custodial environment for all persons who are in custody, in accordance with the duty of care owed to inmates. You are responsible for maintaining that duty of care towards inmates by complying with CSNSW procedures and the Crimes (Administration of Sentences) Regulation 2014. Your misconduct is unacceptable and such behaviour cannot be condoned. * I have reduced the proposed misconduct action from termination of employment to a reduction in classification in consideration of your satisfactory performance of your duties without further incident since 8 January 2016. I am confident that you will appreciate the leniency that I have decided to extend to you on this occasion. 1. It is from these decisions that the three appeals now before the Commission are brought. Case for the respondent 1. The respondent relied upon the evidence of inmate SC who was called as a witness in the proceedings. His statement to police of 12 February 2016 is set out in part at [30] above. At the time of giving his evidence in these proceedings, SC was serving a period of incarceration at Parklea Correctional Centre. The "Inmate's Application" form referred to at [27] above was also tendered into evidence and relied upon by the respondent. 2. Under cross-examination, SC gave further detail about the assault that he alleged was perpetrated upon him by Mr Gallagher and Mr Ma'a: Q. And you say that they cuffed you when you were in the cell? A. Yep. Q. Similar cuffs to what you've got on now? A. Yep. Q. Can you just show the Commissioner? But they were behind your back? A. Yep. Q. Sorry, your arms were behind your back? A. Yeah. Q. And you say that while your arms were behind your back you were hit with a short right upper cut? A. Yep. Q. To the left side of your jaw? A. Yep. Q. And that forced you down onto the bed? A. Yep, got me, yeah. Q. Did you lose consciousness at any point in time? A. I don't think so, no. I was dazed but I didn't get knocked out, no. Q. And do you recall being kicked in the head? A. Yeah, just getting stomped, yep. Q. No, no, kicked in the head? A. No, not kicked but I got stomped. Q. So if I were to suggest to you that you had told an inmate you had been kicked in the head, that's not correct? A. No, I'd only been stomped. Q. If I was to suggest to you that you had reported being kicked in the head, that would be incorrect? A. Yeah. Q. So you were stomped on the head. Well, we'll come to the stomping. So, you say you were punched? A. Yep. Q. To the face? A. Yep. Q. On a scale of 1 to 10, 1 being the lowest, 10 being the most severe punch, how would you rate that punch? A. It was a good 8 to 10. Q. Good 8 to 10? And did it cut your mouth? A. I can't remember. Q. Did it knock out any teeth? A. No, it didn't. Q. Did it cause any bleeding in your mouth? A. No, not that I can recall. Q. But you say that the lump you had was the result of that short right upper cut? A. Yep. ……………………….. Q. You had a lump on the side of your jaw from a 8 to 10 punch but you don't remember or know whether there was any dried blood or bruising or-- A. I was not split on the lips on the outside, external bleeding, no. Q. So, you say you fell on the bed, face down? A. Mm-hmm. Q. And they were punching you and elbowing you into the back? A. Yep. Q. And the ribs? A. Yep. Q. When did they kick you in the thighs? A. They didn't kick me in the thighs. Q. So, it would be incorrect to say that you were kicked in the back, in the side of your body and your thighs? A. I was only stomped on the head; I wasn't kicked at all. Stomped on the head, I was hit, elbowed on the things and torso region and the back of my head. Q. So just so that we're certain, the nature of the attack that you say you sustained, you say that there were no kicks on both of your thighs? A. No, I'm pretty sure it was just elbows and punches on the whole body and torso, yeah. Q. And no kicks to the side of your body? A. No. Q. And no kicks to your back? A. No. Q. And particularly, there was no kick in the head? A. No, there was only a stomp. Q. All right? A. Two or three. Q. So when you're lying on the bed, face down, you say that you then turned and that's when one of the officers was standing above you? A. Yep. Q. And he stomped on your head? A. Yep. Q. How many times? A. Two or three. Q. Two or three. What part of your head? A. Back of my head. Q. Back of your head, all right. How did you feel when he did that? A. Dazed me. ………………………… Q. And you were punched and you went - did you fall on the bed or did you go back to the window at the back of the cell? A. First I went into the back of the - first I went on the bed. They picked me up and jammed my head to the back of the - threw me in the back of the cell. Q. Right? A. Then I dropped back down on the bed again and that's when they was just started laying into me. I've covered my head in the pillow. Q. So when they picked you up, where did they pick you up from? A. From my bed. Q. No, what part of your body? A. From the scruff of my chest and my torso. Q. They picked you up? A. Yeah. 1. In addition, the respondent called as a witness former inmate DD, who had since been released from prison, and tendered into evidence his police statement of 18 February 2016 which is set out in part at [31] above. 2. Inmate DM, whose police statement of 10 March 2016 is set out in part at [32] above, was not called to give evidence in these proceedings. 3. The respondent also relied upon the "Incident Report" of Mr Lattao and the "Incident/Witness Report" of Mr Reynolds referred to at [25] above as well as the clinical notes of Ms Diaz referred to at [26] above and the colour photos of inmate SC referred to at [28] above. 4. The following was put in the Respondent's Written Case filed on 14 January 2019 for the purpose of conciliation, but also relied upon by the respondent at the hearing of these three appeals: 38. The Appellants received procedural fairness throughout the misconduct proceedings, having been given multiple opportunities to provide an explanation for their actions. 39. The Respondent contends that the outcomes imposed were appropriate, having regard to the seriousness of the misconduct by the Appellants. 40. Assaulting an inmate without lawful excuse is extremely serious misconduct. Similarly, acting as a lookout or to stand mute knowing an assault is being carried out by your colleagues and to not intervene or to subsequently report its occurrence is also extremely serious misconduct. 41. It is an important principle, and in the public interest, that the Assistant Commissioner impose a sufficiently severe outcome proportionate to the misconduct, to act as a deterrent to the officers involved that such conduct will not be tolerated. 42. The use of force was planned and it was implemented under the guise of a target cell search. It was hidden from CCTV cameras through a nearly closed cell door. Inmate C states that he was handcuffed before being assaulted, which effectively left him defenceless. 43. Inmate C suffered a serious injury to his jaw. He said it still hurt him to eat and he still could not open his jaw properly without it hurting and clicking as of 12 February 2016. He also suffered significant bruising to his lower back and lumps on his legs. 44. All of the Appellants denied the allegations in their responses rather than accepting responsibility for their actions. 45. None of the Appellants arranged for inmate C to be offered medical attention after the use of force despite the inmate's requests. 46. All of the Appellants have a prior finding of misconduct on their employment record relating to their failure to report an assault by other SOG officers on inmate JB earlier on the same morning of 8 January 2016... A reprimand was ultimately imposed on each of the Appellants in that matter due to the circumstantial nature of much of the evidence. 44. The Respondent submits that each of the Appeals should be dismissed. 1. In the respondent's written Outline of Submissions, it was stated that the police statement of inmate SC was corroborated by the police statements obtained from the other two inmates, DD and DM. 2. Whilst the respondent accepted that, from their respective reports, neither Mr Lattao nor Mr Reynolds observed any physical injuries on inmate SC, it was apparent that, upon medical examination by Ms Diaz, inmate SC was found to have red marks on his back and right thigh, a lump on his leg of 2cm and a swelling to the left lower side of his jaw of about 5cm. The colour photographs taken at the time showed swelling to the left hand side of SC's face, a lump on his left thigh and what appeared to be red marks on his back and legs. 3. The respondent's written Outline of Submissions, also contained the following (footnotes omitted): Respondent's Submissions Misconduct – s 69 of the GSE Act 85. Inmate C made immediate complaint to the wing officer, FCCO Lattao, and was taken to the Clinic where he presented to Nurse Diaz with injuries consistent with his claim to have been assaulted by appellants Gallagher and Ma'a in the manner in which he claims to have been assaulted. That FCCOs Gallagher, Ma'a and Premutico deny seeing any swelling to Inmate C's face, and that neither FCCO Lattao nor SAS Reynolds apparently saw any injuries to Inmate C's face, does not detract from Inmate C's evidence, Nurse Diaz's contemporaneous and independent record of what she observed, and the photographs taken of Inmate C's injuries. 86. The respondent contends that each of appellants Gallagher and Ma'a contravened clause 131 of the CAS Regulation in that each applied unlawful force to Inmate C in circumstances where there was no lawful reason for either of appellants Gallagher or Ma'a to: a. personally escort Inmate C into his cell; b. close the door to Inmate C's cell while each was inside the cell with Inmate C; c. apply handcuffs to Inmate C while he was in his cell; or to d. apply any use of force, however slight, to Inmate C's person. 87. On appellants Gallagher and Ma'a's version of events they were following an order to take Inmate C to his cell and it was necessary to issue Inmate C a verbal warning inside his closed cell without using a video camera to address his alleged verbal abuse of correctional officers, including in particular female officers. 88. In no circumstances was it necessary, in order to address Inmate C's alleged verbal abuse of correctional officers, to personally escort Inmate C into his cell, to close the door, apply handcuffs and/or any use of force. If, as appellants Gallagher and Ma'a allege, Inmate C was being verbally abusive, it was sufficient to direct Inmate C from the common area to his cell and to lock him in his cell. That appellants Gallagher and Ma'a entered Inmate C's cell and closed the door, while appellant Premutico stood outside the cell and directed other inmates away from the cell, is inconsistent with the requirements of the CSNSW OPM and was inappropriate in all the circumstances. 89. Even if the Commission were to accept appellants Gallagher and Ma'a's version of events as to Inmate C's alleged verbal abuse and their claim to have taken Inmate C into his cell to issue a verbal warning to him, their conduct was most unwise in a modern corrections environment and could readily give rise, as it has done, to an allegation of improper or unlawful conduct on the part of appellants Gallagher and Ma'a towards an inmate. 90. The Commission would exercise significant reservation about the accounts of each of appellants Gallagher, Ma'a and Premutico insofar as: a. none of the appellants has provided a fulsome account of the disciplinary action each received on 27 July 2017, and in the case of appellant Premutico there is a blanket denial that he has been the subject of any disciplinary action, which is plainly untrue; b. plainly, each has been the subject of disciplinary action in respect of their conduct on 8 January 2016 towards another inmate, JB; c. each maintains that he knew nothing of the allegations of Inmate C in circumstances where appellants Gallagher and Ma'a each provided a detailed report of what each said had occurred on 8 January 2016; d. plainly, at a minimum appellants Gallagher and Ma'a were aware of the nature and content of Inmate C's allegations. 91. Each of appellants Gallagher, Ma'a and Premutico has displayed a lack of candour with the Commission which would not only occasion reservation on the part of the Commission in accepting uncritically the accounts of each appellant but which reflects poorly on each of the appellants. If the Commission finds relevant contraventions of clauses 131 and 253 of the CAS Regulation, as the respondent submits the Commission would, then such contraventions meet the definition of misconduct for the purposes of s 69 of the GSE Act. Disciplinary Action to be Taken - s 100C of the IR Act 92. The respondent contends that the issue to be determined by the Commission is whether, pursuant to s l00C of the IR Act, it should confirm the order for a 12-month reduction in the rank, classification, position, grade or pay of each of the appellants Gallagher, Ma'a and Premutico. 93. The respondent contends that the order for a 12-month reduction in rank, classification, position, grade or pay is appropriate in the present case for the following reasons: a. the conduct of each appellant was in contravention of clauses 131 and/or 253 of the CAS Regulation and constituted misconduct for the purposes of s 69 of the GSE Act; b. the conduct of each appellant shows a disregard for the statutory framework within which each is required to conduct himself as a correctional officer, including the requirements of clauses 131 and 253 of the CAS Regulation and the provisions of the CSNSW OPM which apply to the use of force, the recording of applications of force, the reporting of the use of force and the requirement to seek medical treatment for any inmate to whom such force is applied; c. each of the appellants has failed in his duty as a correctional officer and to the Commission to provide fulsome and candid evidence concerning each appellant's disciplinary history; and d. appellants Gallagher and Ma'a have failed to provide candid and fulsome evidence of their respective knowledge of Inmate C's allegations. 94. In light of these matters, the appropriate order is that the Commission confirm the order for a 12-month reduction in the rank, classification, position, grade or pay of each of appellants Gallagher, Ma'a and Premutico. Case for the appellants 1. Each of the three appellants maintained his denial of the misconduct allegations made against him. Each of them was thoroughly tested in cross-examination by counsel for the respondent. 2. The following submissions were put on behalf of the appellants (footnotes omitted): 12. On 8 January 2016, each of the Appellants were members of an SOG unit tasked with searching inmates' cells at the Dawn de Loas Correctional Centre ("DDLCC"). 13. Inmate C was attempting to incite other inmates as he was unhappy about the searches being conducted. Eventually, the SCO on duty that day asked Gallagher and Ma'a to take C to his cell to de-escalate the situation. 14. C was escorted to his cell by Gallagher and Ma'a. He was not handcuffed, as he was compliant with instructions given to him to walk to his cell. 15. Gallagher and Ma'a followed C into his cell and shut the door but did not lock it. The door was shut so that the other inmates could not hear what was being said and so C could not incite them further. Premutico stood on the walkway outside the cell while SOG members were searching the adjacent cell. 16. While they were in the cell, Gallagher and Ma'a warned C that he would be charged with intimidation and abusing staff if he continued behaving in an unacceptable manner. 17. C alleged that while he was in the cell with Gallagher and Ma'a, his hands were cuffed behind his back with his arms to his wrists tight by the "Islander squad member". He then alleged that the "Aussie squad member" 'threw a short right uppercut that landed on my left jaw. It dazed me and dropped me to the bed and my hip landed on the metal bed frame.' He then alleged that he was picked up and his head was jammed into the window, which was shut. He says he then dropped onto the bed and put his head into the mattress to protect it. 18. C described being assaulted by either Gallagher or Ma'a, with forearms being thrown into his head and punches being thrown into his back. When the punches and elbows stopped, he turned his head and body (while presumably still lying on the mattress), saw the Aussie squad member standing on the bed and boot marks all over the sheet. He then alleged that the Aussie squad member stomped on the back of his head 'two or three times.' 19. Gallagher and Ma'a deny that they assaulted C while he was in his cell. If they had, such an assault would have constituted a criminal offense under sections 60 or 61 of the Crimes Act (NSW). 20. Premutico denies hearing any sounds coming from C's cell that suggested he was being assaulted. 21. C alleged that he was then uncuffed and the two SOG members walked out and locked his cell door, leaving him inside. 22. Gallagher and Ma'a deny that they handcuffed C while he was in the cell. 23. As Gallagher or Ma'a denied using force on C, there was no need for them to use a video camera to record their interactions with him. 24. As there was no use of force upon C by Gallagher or Ma'a, there was no need for them to offer him medical treatment. 25. Premutico had no reason to believe that C had been struck by Gallagher and Ma'a, therefore, he had no cause to make any report of misconduct. 26. Premutico saw no injuries on C when he looked into his cell. Therefore, there was no need for him to offer C medical treatment. 27. C alleged that he asked an officer to get the nurse, but when questioned "why", he backed off. He then alleged that he spoke to one of the inmates 'to tell the Chief to get the nurse' and that five or ten minutes later he was called to the clinic. 28. The evidence put forward by the Respondent in relation to how C came to the clinic contradicts the above version. FCCO Lattao states that he responded to a cell alarm button pressed by C at approximately 8.30am and was told by C he wanted to go to the clinic, so he escorted him there. 29. The 'injuries' to C noted by the nurse were inconsistent with the nature of the alleged assault. All C wanted was some pain killers and refused the offer of an x-ray. 30. The CCTV footage shows that Gallagher and Ma'a were in C's cell from 8.48.07am till 8.49.24am, a total of 1 minute and 17 seconds. 31. C remained alone in his cell from 8.49.30am till 9.07.16am, a period of over 17 minutes. 32. The CCTV footage shows C's cell door being pushed out on 2-3 occasions from about 9.03.51am, while he was alone in his cell. 33. The alleged injuries to C are inconsistent with the alleged assault occasioned upon him. 34. It is possible that C had the swelling on the left side of his jaw and marks on his body before Gallagher and Ma'a walked into his cell. 35. The cuffing of C's hands would have produced injuries to his wrists, which C never complained about when he saw the nurse, nor did he show them to SAS Reynolds when he took photos of the alleged injuries to his face, back and legs. 36. There is no reference to any complaint of injuries to C's wrists in the Justice Health records. 37. The Respondent has relied upon statements obtained from 2 inmates, namely, DM and DD. These statements are unreliable and untruthful for the following reasons: (i) In relation to DD- (a) he alleges he saw blood on the floor. There is no evidence of blood. (b) the thumping sounds, like people wrestling, he alleges he heard coming from C's cell. No evidence has been called from any credible witnesses, such as the other Officers who were conducting a search in the adjoining cell to corroborate this evidence. (c) C's screaming, he alleges he heard coming from C's cell. Again, no credible corroborating evidence for this. (d) He saw C being handcuffed when he got to the door of his cell. The CCTV footage shows this to be a lie. (e) He heard C yelling that he had to go to hospital because his jaw had been broken. No credible corroborating evidence. (f) C told him and inmate DMo when he got back from the clinic that the officers had knocked him out and they were kicking him about the head when he came to.18 C made no such complaint. (ii) In relation to DM - (a) He saw C being handcuffed when he was called out to go to his cell. The CCTV footage shows this to be a lie (b) The officers came out of C's cell about 5 minutes later. The CCTV footage shows how long they were in the cell and it wasn't for 5 minutes. (c) C telling him his jaw was broken. No such complaint was made by C. In fact, he told the nurse he would know if his jaw was broken. (d) He saw C was bleeding from the mouth. No evidence of any bleeding from the mouth or anywhere else. (e) His bed had blood and boot prints on it after the officers had left and he returned to his cell. No evidence of this, particularly as the cell was secured after C was taken to the clinic. 38. Clearly, the statements of DM and DD are unreliable, untruthful and not supported by the Respondent's own evidence, yet Wilson relied upon them, together with the Justice Health records, to satisfy himself that Ma'a and Gallagher had used force against C. 39. SAS Reynolds stated in his Incident/Witness Report that he informed Officers Lattao and Hassan to ensure that C's cell was still secured after he was escorted to the clinic. There is no evidence that this direction from a Senior Officer was not complied with. 40. The CCTV footage shows several inmates talking to C at the window of his cell, when Correctional Officers were not close by. 41. The evidence of C is not consistent with him having been assaulted in the manner he has described. There was plenty of time and opportunity for C to have inflicted those injuries upon himself. 42. If the Respondent reasonably and sincerely believed that Gallagher and Ma'a had assaulted C and caused those injuries to him, it is inconceivable that it would not have dismissed them for that conduct, and Premutico for failing to report their misconduct. 43. It is quite telling, and a reflection of the weakness of the evidence relied upon by the Respondent against the Appellants that their dismissals were withdrawn and replaced with demotions. 44. It is well known that CSNSW will not tolerate assaults upon inmates by Correctional Officers and will dismiss any Officer who does assault an inmate. 45. The Appellants did nothing wrong and their demotions will result in them sustaining a substantial financial loss in income and consequential superannuation entitlements. The appeal should be allowed 46. There are several matters that the Appellants say should be considered in allowing their appeals: (a) The Appellants have consistently denied any wrongdoing; (b) Each of the Appellants agreed to be interviewed and for that interview to be recorded; (c) In their interviews, the Appellants answered all questions fully and frankly; (d) None of the Appellants have a disciplinary record of any substance and they have not been disciplined for assaulting an inmate; (e) Each of the Appellants have been good employees and there is no suggestion that they have not performed their duties in a satisfactory manner. In fact, Ma'a and Gallagher were promoted to Senior Correctional Officers whiled the investigation into the allegations against them was still pending; (f) C's evidence is false and should not have been accepted by Wilson, because- (i) he alleged that he was punched on the left side of the face, apparently explaining how he got the swelling on that side of his jaw. It would be reasonable to expect that for such swelling to appear, the impact to his face would have to be with substantial force, yet there was no blood from any cut inside his mouth, nor did he complain of any blood being present or cuts inside his mouth; (ii) there were no marks or injuries to his wrists that would suggest he had been handcuffed when in the cell; (iii) the alleged motive for the assault is nonsensical. On his evidence, he was taken to his cell and bashed because he was having a joke with another inmate. Yet he tells Reynolds he was going to be charged with intimidation/abusing staff, however, he wasn't; (iv) he alleged that there were punches being thrown into his back, yet when he was photographed there were no signs of any bruising appearing, nor was it suggested by the Respondent that such bruising appeared later. In fact, when one looks at the photographs taken of the alleged injuries to his back, there is nothing to support his allegations of an assault. The same comments can be made for the other 'marks' photographed that apparently were caused by the alleged assault; (v) more telling than any of the above matters is the allegation that he was 'stomped on the back of my head two or three times' presumably with the Officer's boots. Yet, when the CCTV footage is viewed of C exiting his cell on the way to the clinic, there is no obvious appearance in his demeanour of the after effects of such an assault, i.e. he walks out of his cell and strides off without any stumble or stagger. He makes no complaint to the nurse that this stomping has occurred, nor does he complain of any headache that one would reasonably expect him to have after such an assault. He only asks for pain killers for his sore jaw! In fact, he also alleged that he was hit in the head with forearms by Gallagher and/or Ma'a, yet no complaint of a headache; (vi) the Police thought so little of C's allegation that they determined not to take any criminal action against Ma'a and/or Gallagher and /or Premutico; (vii) C saw the nurse at DDLCC only on 8/1/2016 in relation to the alleged assault. There was a further consultation on 3/2/2016 when he wanted a mental health review. There was no other consultation requested, or treatment sought in relation to the alleged assault after 8/1/2016. Conclusion 47. The above factors should lead the Commission to uphold the Appellants' appeals, set aside the disciplinary action of CSNSW and make appropriate consequential orders. Further written submissions: the rule in Browne v Dunn 1. Towards the end of the third day of the hearing, the following exchange with counsel for the respondent occurred: COMMISSIONER: Is it open to me, on your submission, to find that, if I don't accept that he was banging his jaw against the door, as was put to him by Mr Jaloussis, that he may well have otherwise self-inflicted the injury that was apparent in the photographs by banging his jaw on some other hard object in the cell, or even his fist? And the reason I'm asking you this is because, had he been the appellant in proceedings, for example, you'd probably put that, on the basis of Browne v Dunn, you have to put a positive proposition to him, get his response, and then you can make a submission about it, but he's not in that capacity as a witness. Do you need to Browne v Dunn witnesses in proceedings such as this? DOUGLAS-BAKER: Well, in my submission, given that the appellants' case is that it was self-inflicted, I've seen that in the submissions, it was incumbent upon the appellants to put that to Mr Chapman in broader terms than simply the isolated proposition that, "You did this," that is, the jaw into the door. COMMISSIONER: Why is that, given that he's not a party, as it were; he's not an accused, he's not an appellant, he's not an applicant. Does the rule in Browne v Dunn go that far, that you need to put those propositions to witnesses? I must say, I haven't come across a submission to that effect before, that I can recall. DOUGLAS-BAKER: No, that might be something that I can address separately. I think I should confirm the scope of that. 1. After the conclusion of the proceedings, further written submissions were received from the parties on the question as to whether or not the rule in Browne v Dunn ([1883] 6 R 67) applied to a witness in these types of proceedings, such as SC. 2. In short, it was submitted by the respondent that the rule did apply to SC to the extent that, if a submission was to be put on behalf of the appellants, as it ultimately was, that the Commission should find that the injury to his jaw was self-inflicted, it was necessary to put that proposition to him in cross-examination to give him an opportunity to respond to it. 3. On behalf of the appellants, it was accepted that the rule in Browne v Dunn did apply to SC. However, it was further submitted that the following passage of the transcript of the cross-examination of SC satisfied the requirements of the rule: Q. Were you hitting the door with your jaw? A. No. Q. Are you sure? A. With my jaw? Q. Yeah? A. No way. Q. With your face? A. Look how low the mark is. My jaw is not that low where the handle is. Q. Were you hitting it with your jaw? A. Not at all. Q. To create an injury to your face? A. Look where the door come out. The door come out near the door handle. My jaw is not that low. That's halfway down my body. Q. Just answer the question. Were-- A. No. Q. --you hitting it with your jaw? A. No. 1. According to the submission put on behalf of the appellants, SC was put in no doubt during cross-examination that his allegations against the three appellants were a concoction and that at no time had the appellants assaulted him. He was specifically asked if he had inflicted the injury to his face by hitting the cell door with his jaw, given that the door was seen on the CCTV footage to move outwards three times within a period of about six seconds during the time SC was alone in his cell after Mr Gallagher and Mr Ma'a had left the cell and locked the door. It was, according to the appellant's submission, not necessary to put to SC every other possible alternative explanation as to how the lump on his jaw could have been self-inflicted. 2. I agree with the submission put on behalf of the appellants. SC was well aware that it was the appellant's case that Mr Gallagher and Mr Ma'a did not assault him. It follows that he was aware that, on the appellants' case, the swelling to his left jaw and his other alleged injuries were not caused by them. He was asked in cross-examination whether he caused the injury to his jaw himself by hitting the cell door with it, which he denied. 3. The rule in Browne v Dunn is a rule of fairness which requires that a person, against whom an adverse finding is to be sought, is given an opportunity to respond before such finding is made. In this instance, SC was aware that Mr Gallagher and Mr Ma'a denied assaulting him. He was directly questioned as to whether he inflicted the injury to his jaw himself by hitting it against the cell door. The rule in Browne v Dunn did not require that each and every possible manner in which he may have inflicted the injury on himself be put to him for his response. It is sufficiently clear that his response would have been that the injury to his jaw was caused by a punch by one of the two correctional officers who were in his cell at the time. There has been no failure on the part of the appellants to comply with the rule in Browne v Dunn. Determination 1. The appeals of the three appellants are upheld. There can be no other outcome if the Commission is not persuaded, on the evidence before it, that SC was assaulted by Mr Gallagher and Mr Ma'a. For the reasons set out below, I am not so persuaded. 2. The only persons present in the cell when the alleged assault took place were SC, Mr Gallagher and Mr Ma'a. There were no other eye witnesses to the incident. Mr Gallagher and Mr Ma'a have consistently denied that either of them made any physical contact with SC. Against this is the evidence of SC which I found to be unconvincing. 3. SC claimed that, prior to the assault on him, he was handcuffed with his hands behind him "in metal handcuffs with the arms to my wrists tight". Both Mr Gallagher and Mr Ma'a deny that SC was handcuffed by either of them at any time. After the alleged assault, SC did not complain about any soreness in, or injury to, his wrists and none was observed by Mr Reynolds or Ms Diaz. David Bartle, a correctional officer with over 14 years' experience who is currently working as an Industrial Officer with the Public Service Association, gave evidence that, in his opinion, "an inmate who has been assaulted whilst handcuffed behind his back, including being thrown against the wall and to the ground, should have visible injuries to their wrists and would be complaining of pain as a result". 4. Mr Bartle was cross-examined by counsel for the respondent but remained firm in his opinion that an inmate, who had been handcuffed and assaulted in the manner that SC claimed he was, would have had injuries to his wrists. SC did not complain about any such injuries and none were observed by anyone following the alleged assault. I found Mr Bartle's evidence to be persuasive. It casts serious doubt on the veracity of SC's version of events. 5. According to the clinical notes made by Ms Diaz on 8 January 2016 shortly after the alleged assault on SC occurred, the accuracy of which I have no reason to doubt, SC claimed that he "got kicks on both thighs and side of body and back" (at [26]). By the time SC came to make his police statement on 12 February 2016, he was claiming that he had been shoved to the back of the cell, received a short right uppercut to his left jaw causing him to drop onto the bed, was picked up and had his head jammed into the cell window which was shut, then dropped onto the bed again, had forearms thrown into his head and punches thrown into his back and had his head stomped on two or three times (at [30]). No mention was made of him being kicked "on both thighs and side of body and back". 6. Under cross-examination in these proceedings, SC responded as follows: Q. And it wouldn't be correct for me to suggest to you that what you reported to the nurse was that you had been kicked on both thighs and on the side of the body and in the back? A. No, I haven't been kicked at all. Q. I'm suggesting to you that you told the nurse that? A. No, I didn't. I told her got elbowed and punched and stomped on my head. 1. It would be expected that, if SC had been elbowed, punched and stomped on the head as he claimed, he would have suffered more serious injuries than those observed and recorded by Ms Diaz, and that she would have recorded such serious claims in her notes. Under cross-examination, Ms Diaz gave the following responses: Q. And you've noted here that there was a left lower jaw swelling, as big as a golf ball. Do you recall this inmate? A. Yes. Q. You recall this particular inmate? A. Yes. Q. You've also written down here that he reported to you that he was kicked on both thighs and on the side of the body and the back? A. Yes. Q. If he had said to you that he'd been stomped on the head, that's something that you would have written down? A. I would write that down. Q. Would it have caused you concern if he'd told you he had been stomped on the head two or three times? A. That would really concern me, absolutely. Q. In the sense that you would have insisted on him having - going to the hospital for x-rays? A. Yes. 1. Further, it is highly unlikely that SC could have been handcuffed and subjected to an assault of the nature and ferocity as described by him in his police statement in the space of one minute and 17 seconds, which was the total time spent by Mr Gallagher and Mr Ma'a in the cell with SC with the door closed. 2. It was submitted on behalf of the respondent that the police statement of SC was corroborated by police statements obtained from two other inmates, DD (at [31]) and DM, SC's cellmate (at [32]). I reject this submission. 3. In his police statement, DD claimed that SC "told us when he got back that the squad officers knocked him out and that they were kicking him about the head when he came to". SC made no such claim in his police statement. During the cross-examination of SC, the following exchange occurred: Q. Did you lose consciousness at any point in time? A. I don't think so, no. I was dazed but I didn't get knocked out, no. Q. And do you recall being kicked in the head? A. Yeah, just getting stomped, yep. Q. No, no, kicked in the head? A. No, not kicked but I got stomped. Q. So if I were to suggest to you that you had told an inmate you had been kicked in the head, that's not correct? A. No, I'd only been stomped. Q. If I was to suggest to you that you had reported being kicked in the head, that would be incorrect? A. Yeah. 1. Also, in his police statement, DD claimed that he saw "one squad officer" handcuff SC to the back and then SC walked into his cell. DM made a similar claim in his police statement. However, the CCTV footage shows that SC was not handcuffed when he entered his cell. 2. In his police statement, SC claimed that, while he was being assaulted in his cell, he was saying "My apologies Chief, my apologies". DD claimed that, after SC had gone into his cell, DD and his cellmate heard SC screaming "Fuck off you dogs stop fucking hitting me". SC was cross-examined about this: Q. So it's your evidence, Mr C, that from the time that the door closed, shortly thereafter the assault commenced upon you? A. Yeah, it's happening right now. Q. And what were you doing while you were being assaulted? A. Trying to put my head into the pillow and the mattress, because I couldn't cover my face. Q. What were you saying, anything? A. Yeah, "I'm sorry", and I was just - I was saying, "Sorry", and I don't even know what I was saying "Sorry" for, because I was just trying to get them to stop hitting me. Q. And if I was to suggest to you that you were screaming out, "Fuck off, you dogs, stop fucking hitting me"-- A. I can't remember. Q. Is that correct? A. I can't remember. Q. You can't remember saying that? A. No. Not at all. Q. But you remember you were apologising-- A. Yeah, I remember saying "sorry". Q. And don't know what you were apologising for. A. Yeah, I remember that, yeah. 1. In his police statement, SC claimed that, at some point after he was assaulted, he looked out the Perspex window in the cell and "said to another squad member, 'Chief, can you get the nurse'". Later in the statement, SC claimed that he said to another inmate "Tell the Chief to get the nurse". DM claimed that SC said to him through the cell window "My jaw is broken get the officers to take me to the clinic". However, in a written statement which was tendered into evidence by the respondent, Mr Lattao stated that he responded to a cell alarm button pressed by SC and then escorted him to the Justice Health clinic. SC was cross-examined about this issue: Q. Did you knock up? Ask for help? A. I go the boys to yell out through the - I got the boys to go down and speak to the wing officers. Q. Why didn't you knock up? A. Because there were boys outside the window. It was quicker to - you only use the knock up button for after hours. Q. Well, that's not true, is it? A. You only use the knock up button after hours. Q. If you need assistance at any time-- A. They tell you it's not a medical emergency. Q. Just a minute, just a minute. Let me ask a question? A. Yep, all right. Q. If you need assistance at any time, whether it's day or night, and you're locked in your cell, you are entitled to press that knock up button? A. Yep. Q. That's correct, isn't it? A. Yep. Q. And at the time that you say you were talking to the boys-- A. No, I wasn't talking to them, I was just saying to them, "Get the nurse for me". Q. --there was no correction officer outside your cell then, was there? A. Not straight - not after they left, no. Q. No, so why didn't you knock up? A. 'Cause I was talking to the boys and I said to the boys, "Go get the nurse, I need to go to the clinic". Q. Right, so you deny that you knocked up because you say you called the boys to go and get one of the officers? A. I can't remember if I knocked up or not. I just remember speaking to the boys through the door. Q. Did you knock up or not? A. I can't remember SC's initial denial that he could have used the cell alarm or "knock up" button in his cell, followed by his equivocation on this point, casts further doubt on the veracity of his police statement and that of DM. 1. At no point did SC claim that the assault upon him by Mr Gallagher and Mr Ma'a had caused him to bleed. There is no record of blood having been observed by Mr Lattao, Mr Reynolds or Ms Diaz. However, in his police statement, DD claimed that he saw blood on the floor of SC's cell. DM, in his police statement, claimed that, when he was allowed back into the cell he occupied with SC, his bed had blood and boot prints on it. There is no other evidence of the presence of blood in SC's cell. 2. It is clear that neither DD nor DM witnessed the alleged assault on SC. Their evidence as to what they saw before and after the alleged assault and heard during the incident is unsupported by any other evidence, including the evidence of SC himself. The proposition that SC's statement is corroborated by statements obtained from DD and DM is simply wrong. 3. The respondent's submission that "appellants Gallagher and Ma'a entered Inmate C's cell and closed the door, while appellant Premutico stood outside the cell and directed other inmates away from the cell, is inconsistent with the requirements of the CSNSW OPM and was inappropriate in all the circumstances" (see paragraph 88 at [61] above) is rejected. Mr Gallagher and Mr Ma'a were not disciplined because they entered SC's cell and closed the door. The asserted inconsistency between these actions and the "requirements of the CSNSW OPM" was not elaborated upon by the respondent, nor was it explained how this action, and that of Mr Premutico standing outside and directing inmates away from the cell, was "inappropriate in all the circumstances". 4. It may be accepted that "their conduct was most unwise in a modern corrections environment" (see paragraph 89 at [61] above). No matter how well intentioned the appellants' attempts may have been to isolate SC, at the direction of the SCO, from the other inmates who were said to be inciting him (and vice versa) and, at the same time, administer a verbal warning to him for his unacceptable behaviour towards correctional officers including female officers, by closing the cell door the appellants have exposed themselves to, what they claim, are baseless allegations of assault by them on SC without having the benefit of CCTV footage or eye witness accounts to support their version of events. However, the appellants were not disciplined for lacking wisdom. They were disciplined because the respondent accepted, at least in large measure, the allegation by SC that he was assaulted by Mr Gallagher and Mr Ma'a over the firm denials by those two officers. 5. A submission was put on behalf of the respondent that SC "made immediate complaint to the wing officer, FCCO Lattao, and was taken to the Clinic where he presented to Nurse Diaz with injuries consistent with his claim to have been assaulted by appellants Gallagher and Ma'a in the manner in which he claims to have been assaulted" (paragraph 85 at [61] above). 6. This submission must be rejected for a number of reasons. Firstly, SC's complaint to Mr Lattao was not "immediate". It occurred some 17 minutes after Mr Gallagher and Mr Ma'a had left the cell when, on his version which I accept, Mr Lattao responded to a "knock up" button from SC's cell. Secondly, SC's injuries, as observed by Ms Diaz and photographed by Mr Reynolds, were not entirely consistent with SC's claim as to the manner in which he was assaulted. For example, no injuries or marks were observed on his wrists from being handcuffed or on his head being "jammed" into the Perspex window or being "stomped on" two or three times. The "significant bruising to his lower back" said to have been suffered by SC (see paragraph 43 at [58] above) was not visible in the colour photos of SC taken after the alleged assault and was not noted by Ms Diaz in her clinical notes ([26] above). Ms Diaz only noted "redness on back" and, in her oral evidence in these proceedings, no mention was made of any "significant bruising" to the back of SC. It is also unclear whether the "lumps on his legs" were claimed by the respondent to be attributable to the alleged assault, given that SC denied that he had been "kicked on both thighs and on the side of the body and in the back", or at all ([76] above), or attributable to some other cause, such as his "injuries from cage fighting as a job" ([26] above). 7. The respondent has attacked the credit of each of the appellants on the basis none of them had provided a "fulsome account of the disciplinary action each of them received on 27 July 2017, and in the case of appellant Premutico there is a blanket denial that he has been the subject of any disciplinary action, which is plainly untrue" (see paragraph 90 at [61] above). 8. I reject these attacks on the credit of the appellants for the following reasons. Both Mr Gallagher and Mr Ma'a referred in their witness statements to the reprimands that they both received on 27 July 2017, which were based on allegations which both officers refuted at the time. Given that the author of those letters of reprimand was Mr Wilson, the decision maker in the present matter, there was no need for either Mr Gallagher or Mr Ma'a to provide a "fulsome account" of that prior disciplinary action which, I note, was not appealable under the provisions of Part 7 of Chapter 2 of the Act ([6] above). It may be presumed that Mr Wilson was fully across the detail of those prior matters and was also across what was described by the respondent as the "circumstantial nature of much of the evidence" which supported those reprimands (see paragraph 46 at [58] above). 9. With respect to Mr Premutico, the reprimand he received on 27 July 2017 was not referred to in his witness statement. However, at the outset of Mr Premutico's evidence-in-chief, the following exchange occurred: Q. And you signed a statement in these proceedings dated 15 April 2019? A. Yes. Q. Is there any correction that you'd like to make to that statement? A. Yes, there is. Paragraph 19. Q. Yes, and what's that correction you'd like to make? A. I have been the subject of a prior disciplinary action. Q. And what was the nature of that disciplinary action? A. Not reporting misconduct. Q. You heard evidence from Mr Gallagher and Mr Ma'a in relation to a reprimand that they received? A. Yes. Q. Arising from a non-reporting of an alleged assault? A. Yes. Q. Was your reprimand arising out of that same situation? A. Yes, it was. Q. Other than that correction, do you say the contents of that statement are true and correct? A. Yes, I do. 1. It is not unusual for witnesses in this jurisdiction to make these sort of corrections to their witness statements at the beginning of their evidence-in-chief. 2. Again, it may be presumed that neither Mr Wilson, who was the author of the letter of reprimand to Mr Premutico of 27 July 2017, nor the respondent, was misled by the failure of Mr Premutico to refer to this matter in his witness statement as filed and served. I draw no adverse credit inference against Mr Premutico for his omission, since corrected, in this regard. 3. I have had the advantage of observing each of the appellants in the witness box under cross-examination by counsel for the respondent. I formed the impression that each of them gave their evidence in an honest, forthright and credible manner. 4. By contrast, in giving his evidence, SC was often evasive in his responses, resorting to "I don't remember" or "I can't remember" in excess of 50 times, to relatively straightforward questions, as the following extracts from the transcript demonstrate: Q. And did you tell Sergeant Johnson that they kicked you in the head? A. I can't remember. I'm pretty sure I did. I didn't say "kick", I said "stomped". Q. Stomped on the head? A. Mm. Q. But you didn't tell him that they kicked you in the head? A. I can't remember. Q. Did you tell him that you buzzed up? A. I can't remember. Q. Or knocked up, I'm sorry? A. I cannot remember. Q. But if you had knocked up, you would have told him because you knew you had to tell him everything that happened? A. I can't remember what I said to him. …………………………. Q. Did you speak to any officer through the perspex window of your cell? A. Can't remember. Q. Nobody called you to the clinic, did they? A. I can't remember. …………………………. Q. Have you seen any of the nurses or doctors at any correctional centre in relation to problems you had with your jaw? A. I probably have, yes. Q. Prior to the alleged assault? A. I can't remember. Q. And have you been told by the nurses or doctors that you seem to be talking with a clenched jaw or clenched teeth? A. I can't remember. ………………………… Q. Yes. And that's been causing you problem prior to what you're saying occurred on 8 January, isn't that the case? A. I can't remember. Q. Have you gone to the clinic and sought pain killers for your sore jaw before 8 January 2016? A. I can't remember. Q. But you do remember having a problem with your jaw before 8 January 2016? A. I can't remember. Q. Your memory's not the best, is it? A. No, it's not from seven years ago. ………………………… Q. All right. Did you tell the nurse that you wanted some Panadol for your swollen jaw? A. I can't remember. Q. But Panadol's what you received? A. I can't remember, like I said. Q. Well, if I was to suggest to you that it was Panadol, would you accept that? A. Like I said, I can't remember. …………………………… Q. And if I was to suggest to you that you were screaming out, "Fuck off, you dogs, stop fucking hitting me"-- A. I can't remember. Q. Is that correct? A. I can't remember. Q. You can't remember saying that? A. No. Not at all. Q. But you remember you were apologising-- A. Yeah, I remember saying "sorry". Q. And don't know what you were apologising for. A. Yeah, I remember that, yeah. ……………………………. Q. And you were complaining to DM when you were in the common area that, "They're fucking searching our cell," weren't you? A. I can't remember. Q. Do you deny that you were complaining? A. I can't remember. Q. If DM said that you were complaining that, "They're fucking searching our cell," he'd have no reason to lie, would he? A. I'd say not. Q. So he'd be telling the truth? A. I'd say - I wouldn't have a clue. I can't remember whether I said it or not. Q. And did you tell DM that your jaw was broken and you wanted the officers to get you to the clinic? A. I thought it was broken. It felt like it was, it was that sore, yeah. Q. And you were bleeding from the mouth? A. I can't remember if I was bleeding or not. Q. You don't remember if you were bleeding from the mouth? A. I don't, no. Q. Did your bed have blood and boot prints on it? A. It had boot prints on it, yes. Q. Did it have blood on it? A. I can't remember. By the time I come back to my cell, the sheets on my bed were gone. Q. Was there any blood at all on your face after receiving such a-- A. I can't remember. Q. --an assault? A. I can't remember. Q. If there was blood on your face, would you have forgotten that, would you? A. I can't remember, literally I can't. I can't remember if there was - I'm not sure if there was blood on my face or not. Q. If there was blood on your face, you would've told Detective Sergeant Johnson? A. If there was blood on my face, Mr Reynolds would've taken a picture of it. Q. If there was blood on your face, you would've told Detective Sergeant Johnson? A. I can't remember. Q. Did the nurse clean your face? A. I can't remember. ……………………………… Q. Have you been assaulted by any other inmate? A. Yeah, you said that at the start of the-- Q. At about this time in 2016? A. I can't remember. Q. Do you remember going to the clinic about having a cut on your upper and lower lip? A. I can't remember. Q. And you told the nurse that you fell down the stairs? A. I can't remember. Q. You don't remember that either? A. No. Q. I don't know if you answered the question. Have you been assaulted by any inmate at about 2016? A. I can't remember. Q. Have you ever been assaulted by an inmate? A. Yes. Q. When? A. In October last year when I got six teeth knocked out at the front and my cheekbone got snapped in about five places, my nose got broken, yeah, at Kempsey gaol. Q. And finally, when you gave your statement to Detective Sergeant Johnson did you tell him that the officers accused you of answering back? A. I can't remember. Q. And that's why they bashed you? A. I can't remember. Q. You don't remember? A. No. Q. Did you tell that to anybody? A. I can't remember. 1. In this matter it is the respondent that bears the evidentiary burden of establishing, on the balance of probabilities but adopting the approach of Dixon J in Briginshaw v Briginshaw ([1938] 60 CLR 336), that SC was assaulted by Mr Gallagher and Mr Ma'a in the manner described in allegation (1) set out at [40] above. If that evidentiary burden on the respondent is not discharged, then the finding by Mr Wilson of misconduct on the part of Mr Gallagher and Mr Ma'a based on that allegation cannot stand. In that event, allegations (2) and (3) against both of those officers must fall away as must both allegations against Mr Premutico (at [43] above). It must follow that, if the Commission is not satisfied to the requisite standard that the assault on SC occurred as alleged, then there was no requirement on Mr Gallagher or on Mr Ma'a to use a video camera to record a use of force against SC, no failure by Mr Premutico to report the misconduct of the other two officers and no requirement on any of the three appellants to arrange for medical treatment for SC. 2. I refer to the submissions put on behalf of the appellants at paragraphs 42-44 of their written outline of submissions ([63] above). There is considerable force in these submissions. This Commission is acutely aware of the regulatory framework in which the three appellants work (set out in part at [36]-38] above). The nature of the alleged assault by Mr Gallagher and Mr Ma'a on SC is such that, if it occurred as described by him, none of the three appellants could be permitted to continue to be employed within that regulatory framework. 3. After considering all of the evidence before the Commission, including evidence elucidated during cross-examination of witnesses, and the submissions of the parties, I am not comfortably satisfied that the misconduct allegations against the appellants have been substantiated. 4. Having made that determination, it is unnecessary for the Commission to make any finding, or to even speculate, as to the cause, for example, of the swelling to SC's left jaw. However, I note that self-harm by inmates for a variety of reasons or motivations is not an unknown phenomenon in correctional centres. 5. The appeal by each of the appellants is upheld. As a consequence, the disciplinary action which the respondent has taken against each of the appellants cannot be allowed to stand. Orders 1. I make the following orders: (1) The disciplinary appeal by Terry Gallagher is allowed. (2) The decision of Mark Wilson, Assistant Commissioner, Security and Intelligence, to reduce Mr Gallagher's classification to Correctional Officer Year 1 for a period of 12 months commencing on 10 December 2018 is set aside. (3) Mr Gallagher is to be restored to the classification and rate of pay to which he would have been entitled had the disciplinary decision referred to in Order (2) not been made. (4) The disciplinary appeal by Rodney Ma'a is allowed. (5) The decision of Mark Wilson, Assistant Commissioner, Security and Intelligence, to reduce Mr Ma'a's classification to Correctional Officer Year 1 for a period of 12 months commencing on 10 December 2018 is set aside. (6) Mr Ma'a is to be restored to the classification and rate of pay to which he would have been entitled had the disciplinary decision referred to in Order (5) not been made. (7) The disciplinary appeal by Michael Premutico is allowed. (8) The decision of Mark Wilson, Assistant Commissioner, Security and Intelligence, to reduce Mr Premutico's classification to Correctional Officer Year 1 for a period of 12 months commencing on 10 December 2018 is set aside. (9) Mr Premutico is to be restored to the classification and rate of pay to which he would have been entitled had the disciplinary decision referred to in Order (8) not been made. (10) These Orders take effect on and from Monday 14 October 2019. John Murphy 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: 27 September 2019