Crime and Misconduct Commission v Commissioner of Police & Anor [2013] QCAT 362

CITATION: Crime and Misconduct Commission v Commissioner of Police & Anor [2013] QCAT 362 PARTIES: Crime and Misconduct Commission (Applicant/Appellant) v Commissioner of Police (First Respondent) Shaun Groufsky (Second Respondent) APPLICATION NUMBER: OCR239-11 MATTER TYPE: Occupational regulation matters HEARING DATE: 15 May 2013 HEARD AT: Brisbane DECISION OF: Michelle Howard, Member DELIVERED ON: 10 July 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The reviewable decision is confirmed. CATCHWORDS: POLICE DISCIPLINE- where police officer punched complainant- whether act of self- defence- whether inappropriately applied force- whether conduct improper- whether misconduct- observations on role of decision-maker in reviews brought by CMC Queensland Civil and Administrative Tribunal Act 2009 ss 17-24, 40 Crime and Misconduct Act 2001 ss 219BA, 219G, 219H Aldrich v Ross [2001] 2 Qd R 235 Crime and Misconduct Commission v Deputy Commissioner Queensland Police Service & Chapman [2010] QCAT 564 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Michael Copley, Senior Counsel, instructed -- 1 of 13 -- 2 by the Official Solicitor, Crime and Misconduct Commission FIRST RESPONDENT: SECOND RESPONDENT: Mr Scott McLeod, Counsel, instructed by the Official Solicitor, Office of the Queensland Police Service Solicitor, Queensland Police Service Mr Steve Zillman, Counsel, instructed by the Queensland Police Union Legal Group REASONS FOR DECISION [1] For convenience, I will refer to the parties as the CMC, the decision-maker and Sergeant Groufsky. [2] The CMC has applied for review of two determinations by the decision- maker which may be summarised as follows: a) The finding that the charge contained in matter 1(a) was not substantiated, namely that on 11 March 2009 at Southport, Sergeant Groufsky’s conduct was improper in that he inappropriately applied force against a prisoner; b) In respect of matter 1(b), which the decision-maker found substantiated, that the sanction imposed, namely a reduction in salary by 1 pay point from Sergeant 3.2 to Sergeant pay point 3.1 over a period of 12 months, and a direction to undertake a course or counselling, is inadequate. [3] The CMC seeks to proceed with review as to sanction only if matter 1(a) is found to be substantiated on review. [4] The Tribunal has jurisdiction under sections 219BA(1), 219G and 219H of the Crime and Misconduct Act 2001 (CMC Act), and sections 17-24 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). My duty is to conduct a fresh hearing on the merits and reach my own conclusions. I must do this in order to produce the correct and preferable decision in accordance with the QCAT Act, consistently with the principles articulated in Aldrich v Ross1 (and confirmed as appropriate in QCAT in CMC v Deputy Commissioner & Chapman2). [5] As also discussed in CMC v Deputy Commissioner & Chapman, the Brigginshaw civil standard applies. However, as it is a disciplinary proceeding able to produce serious consequences, reasonable satisfaction is not to be lightly reached or on flimsy evidence. 1 [2001] 2 Qd R 235. 2 [2010] QCAT 564. -- 2 of 13 -- 3 Non-publication orders [6] Non-publication orders were made by the Tribunal on 29 November 2011. The orders prohibit publication of CCTV footage and any photographs depicting the incident that is central to the disciplinary action taken against Sergeant Groufsky. Publication is also prohibited of the names and other identifying information of persons, other than the parties, referred to in the documents filed in the Tribunal in this review proceeding. [7] The non-publication orders are broad. They necessitate that I refer to all persons, other than the parties, in a manner which does not identify them, even when referring to the evidence of other police officers who were present or gave statements which are before me. Background [8] A prisoner transported from Arthur Gorrie Correctional Centre to the Southport Watch-house for a remand court appearance complained to the CMC about alleged mistreatment by Sergeant Groufsky. [9] Sergeant Groufsky was subsequently charged with misconduct as follows: That on the 11th day of March 2009 at Southport his conduct was improper in that he: a) inappropriately applied force against the prisoner; and b) failed to treat the prisoner with dignity and respect after he was subjected to an unclothed search. [10] Better and further particulars (with minimal paraphrasing) were provided as follows:  The prisoner had been transported to the watch-house from Arthur Gorrie Correctional Centre for an appearance before the Southport Magistrates Court;  whilst in a holding cell the prisoner interfered with the CCTV camera and was in possession of contraband namely tobacco and an improvised lighter;  He was then placed in a padded cell for the purpose of a further strip search and began to persistently verbally taunt police and spit at the viewing partition on the door;  Sergeant Groufsky warned him on more than one occasion to cease his behaviour talking to him through the cell door which was ajar;  Sergeant Groufsky then opened the padded cell door, entered and approached the prisoner and struck him once to the head with a closed fist rending him unconscious; -- 3 of 13 -- 4  whilst the prisoner was unconscious on the cell floor Sergeant Groufsky and Senior Constable T disrobed and searched him;  a suicide smock was provided in the cell which Sergeant Groufsky left on the floor next to the prisoner’s naked body;  Sergeant Groufsky did not attempt to either dress the prisoner in or cover him up with the smock; and  proceeding the unclothed search of the prisoner Sergeant Groufsky failed to complete the search register, part of the detention log under the prisoner’s custody report which is an operational requirement under section 54 Police Powers and Responsibilities Regulation 2000. [11] The decision-maker found matter 1(b) to be substantiated, and found that matter 1(a) was not substantiated. The background [12] There is no dispute that Sergeant Groufsky used force against the complainant prisoner. The issue is whether the application of force was inappropriate and if so, improper, amounting to misconduct. [13] It is not controversial that Sergeant Groufsky was working at the Southport watch-house on 11 March 2009, while the complainant was held there. [14] The complainant was moved from a cell which he had occupied with another prisoner to a padded cell. Sergeant Groufsky’s evidence about the events [15] In Sergeant Groufsky’s statements to investigators, he said that because the prisoner had been ‘playing up’ by being ‘aggressive, angry, threatening’, for his own safety and the safety of police officers, he was moved to the padded cell. He was aware that the complainant had a history of violent offending.3 [16] He says that the complainant was highly aggressive when he was placed in the padded cell, suggesting that he was ‘punching the walls, kicking the walls, spitting on the Perspex. There was a series of taunts and abuse and he was yelling at us …he on kept continually challenging us to fight’.4 [17] Once the complainant had been moved, Sergeant Groufsky heard him yell words to the effect of ‘come on you fucking cowards I’ll take you apart’ and saw him spit on the window in the cell.5 Meanwhile, he says Constable B searched the cell he had previously occupied and found ‘contraband’ (the remains of a rubber glove), leading to a concern that he had, as is 3 Section 21(2) documents, Part B, page 127-128. 4 Section 21(2) documents, Part B, page 130. 5 Section 21(2) documents, Part B, page 127. -- 4 of 13 -- 5 apparently not uncommon, smuggled a lighter in to the watch house. Sergeant Groufsky considered that for safety reasons, a search of the prisoner’s clothing was required. [18] He says he advised Senior Constable T of this and stated that he would go into the cell first.6 He continues: as I walked through the door I walked in with my hands down, he’s taken a step back and raised his fist to assault me. At that point I felt an immediate fear for my safety, I thought he was going to punch me in the head. I took a pre- emptive strike as a single punch, it knocked him back against the wall. I then grappled him to the ground…which point when he was down on the ground I realised he had become unconscious. So that was the end of it, he was rolled into the safety position we tried to rouse him several times. We couldn’t rouse him and the ambulance was called.7 [19] His evidence is that when the door of the cell was opened several times, that the prisoner was told to calm down, but that he reacted persistently aggressively. He says that before he walked into the cell, he would have told the complainant to move to the back of the cell. He says that as he walked into the cell, he was calm and his hands were down. As he walked in however, he says he complainant took a step back and raised his fists to him. At this point, Sergeant Groufsky says he feared for his safety and struck the complainant. He says that he did not enter the cell with the intention of hitting the prisoner.8 [20] Asked why he entered alone, he explained that he was not alone. Although only one person could enter the doorway at a time, he had Senior Constable T with him, who entered after him. [21] He further explained that after the punch, he grabbed the complainant and took him to the ground, saying that the one hit was to stun him, but expecting him to remain aggressive, he took him to the ground to restrain him, ‘….just enough to get rid of the immediate threat that was there before me.’9 He says that he had exercised several other options before deciding to strike the complainant. He speaks about tactical communication which he says had failed. He variously suggests that withdrawal was not an option because ‘his fists were already up to hit me’ and the punch was only averted by Sergeant Groufsky striking out in self- defence, and because the complainant needed to be searched.10 [22] He considers the force he used was not ‘over zealous’ and was to avert the complainant’s punch, to secure his safety and avoid being hit.11 He believes that the size disparity between him (192 cm and 90 kgs) and the complainant (175 cm and 70 kgs), does not alter the reasonableness of 6 Section 21(2) documents, Part B, page 127. 7 Section 21(2) documents, Part B, page 127-128. 8 Section 21(2) documents, Part B, page 130, 134. 9 Section 21(2) documents, Part B, page 135. 10 Section 21(2) documents, Part B, page 135. 11 Section 21(2) documents, Part B, page 135, 136. -- 5 of 13 -- 6 his actions, because he asserts a 70 kg person can do the same damage if they punch a person in the face or the throat.12 The complainant’s evidence about the events [23] The complainant was interviewed several times, and also provided a written statement. [24] He acknowledges that once in the padded cell he was screaming to be let out. He says officers including the officer who hit him, laughed at him and he yelled ‘Let me out you stupid cowards- things like this after he called me (unintelligible) then two minutes later I feel the door open and felt my face hit (unintelligible) that’s what started it.’13 [25] He says that he was standing on (or adjacent to) the door when it opened. He says ‘when the door opened he hit me straight away- no conversation nothing.’14 He denies that he was aggressive and says he did not remember threatening the officer when the officer opened the door, although he acknowledges being angry and saying ‘heaps of things’, including swearing at the officers. He acknowledges spitting, at the window/glass in the door and the camera while in the padded cell.15 [26] When asked if he raised his fists at any time, he said he did not remember.16 Asked if he did anything to provoke the officer, he replied,’ I said to him (unintelligible) what I told you.’17 When asked again later, he said ‘I don’t think so.’18 When later shown the still photographs of the incident from the CCTV recording in which it appears the complainant had raised his hands and clenched his fists, he says ‘No I didn’t think I did that.’ He repeated that the officer hit him as soon as he walked into the room.19 [27] After he returned from the hospital to the watchhouse, he says the officer who hit him said ‘you see you cock sucker…’20 In a written statement he expands on this comment, saying that it was, ‘You see cock-sucker, you acted tough but now you lost badly.’ 21 The evidence of other police officers about the events [28] Constable B and others had cleaned toilet paper off the camera in the cell occupied by the complainant and another prisoner several times. She reports that when in the cell, there was a smell of ‘burning’ and she saw a small amount of tobacco on the floor. She observed the complainant 12 Section 21(2) documents, Part B, page 136. 13 Section 21(2) documents, Part B, page 51. 14 Section 21(2) documents, Part B, page 52, 60. 15 Section 21(2) documents, Part B, page 52-53. 16 Section 21(2) documents, Part B, page 53. See also written statement at 60. 17 Section 21(2) documents, Part B, page 53. 18 Section 21(2) documents, Part B, page 55. 19 Section 21(2) documents, Part B, page 56. 20 Section 21(2) documents, Part B, page 54. 21 Section 21(2) documents, Part B, page 61. -- 6 of 13 -- 7 spitting at the cameras and yelling out at police officers. Senior Constable C confirms her account, and says also that the complainant and another prisoner had been swearing, cursing, banging on doors, spitting on the cell door and Perspex screens.22 Constable H has similar recollections of events. Senior Constable T says that through the day the complainant was trying to bait numerous officers, to ‘fight like a man and … things like that..’23, he was ‘just basically causing troubles within the cells and he was isolated throughout the day into the ...padded room, in the padded cell because of his basic demeanour…. He was spitting at the windows and stuff like that.’24 [29] Constables B and H both say that the complainant was taken to a padded cell so that a strip search could be done.25 Constable B recalls that he continued to yell when he was placed in the padded cell including threatening to kill officers. She recalls Sergeant Groufsky speaking calmly to the complainant.26 She did not see the punch, although when she walked past the cell she looked in and saw the complainant and Sergeant Groufsky on the floor.27 Constable H recalls the complainant calling out to officers words to the effect of ‘I kill you, I kill you cowards’ and that he spat on the window of the padded cell.28 [30] Senior Constable T went with Sergeant Groufsky to the padded cell. He says Sergeant Groufsky opened the cell and ‘before he opened the cell he was spitting at the glass again.’29 He says that both he and Sergeant Groufsky told the complainant to settle down. The complainant responded by saying words to the effect of come in and fight me, clenching his fists and with his chest out. [31] He says the door was ajar at this stage and Sergeant Groufsky went in ‘to basically tell him to settle down cos (sic) he won’t get out of there basically if he keeps going on the way he was and that’s when (the complainant) … basically closed his fist in close proximity to Sergeant Grousky (sic) and that’s when Sergeant Grousky (sic) has punched him once in the mouth.’30 Although he says that there was no discussion about Sergeant Groufsky going into the cell, ‘he was only talking to him verbally just saying- Settle down.’31 [32] Senior Constable T explains that the complainant ‘had two clenched fists just down beside his waist line…they were probably just a little bit below his waist line and when he’s clenched them he’s bought (sic) them quickly, 22 Section 21(2) documents, Part B, page 94. 23 Section 21(2) documents, Part B, page 113. 24 Section 21(2) documents, Part B, page 113. 25 Section 21(2) documents, Part B, page 80 and 106. 26 Section 21(2) documents, Part B, page 81-82. 27 Section 21(2) documents, Part B, page 83. 28 Section 21(2) documents, Part B, page 105-6. 29 Section 21(2) documents, Part B, page 114. 30 Section 21(2) documents, Part B, page 115. 31 Section 21(2) documents, Part B, page 116. -- 7 of 13 -- 8 or started to bring them up to his sort of waist stomach line there and that’s when Sergeant Grousky’s (sic) basically hit him.’32 [33] Constable H explains that Sergeant Groufsky opened the door to the cell to go in to do the search, but the complainant would then move to spit on the window, so he shut it again. After several attempts, he opened the door and went in.33 She saw Sergeant Groufsky strike the complainant, but could not see what the complainant was doing, because he was behind Sergeant Groufsky. She says the complainant was constantly yelling at this time with words to the effect of, ’I’ll kill you, you coward, come in by yourself, I’ll kill you.’34 [34] She says that the punch did not involve a ‘big back swing or anything, it was just like straight like that and hit him to the face.’35 When this occurred, she went to get some hand cuffs. When she returned, she observed that both men were on the floor of the cell. Shortly afterwards her shift finished. [35] Senior Constable T says that there was no further punch, that Sergeant Groufsky ‘has grabbed him and was sort of this is (the complainant) was basically still moving around and like he was sort of covered up but he was still moving.’36 Then, he says Sergeant Groufsky went in close to him and had him in the corner of the cell at the rear. Senior Constable T then he stepped in, but did not become involved in the incident. He recalled that Sergeant Groufsky had ‘issued a knee’37 to the complainant’s right leg and at that stage he went to the ground.38 [36] He expressed the view that the complainant presented a threat to Sergeant Groufsky, because he clenched his fists and because of his demeanour and threats throughout the day. He says he thought the complainant was, when he closed his fists and moved them up, going to hit Sergeant Groufsky, before Sergeant Groufsky ‘got the first punch in..’39 After the complainant was on the ground, they realised that he may have been ‘out cold.’40 He stayed with the complainant until the ambulance arrived. He said that the complainant was given a sternum rub, a pain stimulus, to see if he reacted to it, but he did not. He believed he was unconscious when the ambulance arrived. [37] Constables G and E guarded the complainant for some time at the hospital and transported him back to the watch-house. Although they did not converse with him. They saw him and Sergeant Groufsky have a brief conversation when he returned to the watch-house when Sergeant 32 Section 21(2) documents, Part B, page 116. 33 Section 21(2) documents, Part B, page 106-107. 34 Section 21(2) documents, Part B, page 107. 35 Section 21(2) documents, Part B, page 108. 36 Section 21(2) documents, Part B, page116. 37 Section 21(2) documents, Part B, page 117 38 Section 21(2) documents, Part B, page 116-117. 39 Section 21(2) documents, Part B, page 117. 40 Section 21(2) documents, Part B, page 118. -- 8 of 13 -- 9 Groufsky took some photographs of the injury. Constable G could not recall details of the words spoken but thought it was ‘just normal conversation.’41 Constable E recalls that Sergeant Groufsky said words to the effect of ‘You won’t do that again’ although not the words alleged by the complainant. 42 The expert evidence [38] Inspector WT was asked to review the incident. He concluded that the strike was a legitimate use of force and was primarily a defensive mechanism.43 He concludes that the strike did not render the complainant unconscious, because he was balanced and standing, prior to the application of what he considers was a headlock. He regards the headlock as a legitimate use of force and wrestling of him to the ground was legitimate to overpower and pin the complainant. He opines that he was probably rendered unconscious when wrestled to the ground. [39] Although he believes more effective strategies were available, he concludes that the actions of Sergeant Groufsky were ‘justified, reasonable, proportionate and appropriate.’44 [40] Mr CH, a former Police Operational Skills Instructor, also drew similar conclusions.45 [41] Of course, I am entitled to form different conclusions based on the evidence, including my interpretation of the CCTV recording. The CCTV recording of the events [42] I have before me the CCTV recording and also copies of a number of photographs which are still shots taken from the recording. It is common ground that the CCTV recording does not record every moment, it records a frame once in every second. There is no accompanying audio tape. The recording is not of high quality and presents a grainy image. [43] My observations of the relevant portion of the CCTV footage are described below. [44] A person, whom it is uncontroversial is the complainant, can be seen entering the padded cell. A short time later, the door to the cell opens and closes some 4 times, but no-one else enters. While this happens, the complainant stays quite close to the door, moving a little forward and back, and sometimes gesticulates to whoever is outside. Then, he walks up to the door and stands very close to it, on top of it, for most of the remaining time that he is alone in the cell. Then the door is pulled ajar 41 Section 21(2) documents, Part B, page 76. 42 Section 21(2) documents, Part B, page 90. 43 Section 21(2) documents, Part B, page 159. 44 Section 21(2) documents, Part B, page 160. 45 Section 21(2) documents, Part B, page 83-85. -- 9 of 13 -- 10 from the outside. A person walks into the cell, in police attire. It is uncontroversial that the person is Sergeant Groufsky. [45] As Sergeant Groufsky enters the cell, the complainant steps backwards. Sergeant Groufsky takes what appear to be 2 steps into the cell. During this time, the complainant clenches his fists at his side down beside his thighs, but then moves them upwards while clenched towards his waist. As this occurs, Sergeant Groufsky meanwhile raises his right arm and strikes the complainant in the region of his head and or face. [46] A scuffle then ensues between the two men. During the scuffle, they are in direct bodily contact. Because of the positioning of the camera, Sergeant Groufsky’s body is, during this time, substantially in front of the complainant’s, but it is apparent that they are physically engaged with one another. [47] During the scuffle, another police officer, whom it is common ground is Senior Constable T, enters the cell. He passively stands apart from the complainant and Sergeant Groufsky while they scuffle. [48] After a short period, the complainant and Sergeant Groufsky simultaneously move down to the floor. My conclusions about the events [49] There are some minor inconsistencies between the accounts given by the various police officers of the surrounding events. [50] Constables B and H both said that the prisoner was transferred so that the complainant could be searched. In Sergeant Groufsky’s version of events, the need for the search only came about when Constable B searched the holding cell, after the complainant had been moved to the padded cell. Also, he says that while in the padded cell, the complainant punched and kicked the walls, which he did not. [51] Sergeant Groufsky also says that he told Senior Constable T of the need to search and that he would go into the padded cell first, whereas Senior Constable T does not recall there being any discussion to that effect before Sergeant Groufsky entered. Constable H recalls Sergeant Groufsky opening the door to do the search, suggesting that her recollection co- incides with Sergeant Groufsky’s. [52] However, it is apparent from the transcripts that it was a busy day in the watch-house. I do not consider it significant that some of these details in the lead-up to the strike are recalled differently by those present. It would be more surprising that their recollections coincided precisely. They all agree that before Sergeant Groufsky entered, the need for a search had been identified and that the complainant had been making threats towards police officers. It is reasonable to infer, and I do, that the ongoing verbal threats heightened Sergeant Groufsky’s vigilance to a possible physical threat upon entering the cell from the complainant. -- 10 of 13 -- 11 [53] I have placed greater weight on the CCTV evidence, than the other evidence, as it is not susceptible to the vagaries of memory and perception. I am comforted that my interpretations of the CCTV recording are supported by the evidence given by the various police officers. [54] On the other hand, the evidence of the complainant is at odds with the evidence of the police officers in various respects about the events in the lead-up and after the incident. His version of the incident is also at odds with my observations of the CCTV recording. I regard him as an unreliable historian who has conveniently diminished his own role in the events. Even confronted with the CCTV recording he maintains that he did not believe he had clenched his fists and moved them upwards when he clearly did so. Accordingly, I have given his evidence about the events little weight. [55] This extends also to the complainant’s version of what Sergeant Groufsky said to him after he returned from the hospital. I accept that Sergeant Groufsky said the words attributed to him by Constable E. [56] The CCTV recording shows, as the police officers suggest, that the door to the cell is opened several times before Sergeant Groufsky enters. The police officers who were present each say that the complainant was being told to calm down when this occurred. They also say that the complainant was spitting on the Perspex in the cell door. It is not possible to see on the CCTV whether he is spitting, but the placement of his body very close to the door, on top of it, and the orientation of his body is consistent with this occurring. Also, he acknowledges this behaviour. I accept that he was told to calm down before Sergeant Groufsky entered but that he baited officers. [57] When Sergeant Groufsky entered the padded cell, his hands were down. The complainant stepped back towards the side of the cell. His posture and immediate clenching of his fists do not suggest retreat. I infer that he does this, not in retreat as the CMC suggests, but in response to Sergeant Groufsky directing him to move away from the door and swiftly entering. [58] It is apparent from the CCTV recording that, contrary to his assertions, the complainant clenched his fists by his side and then moved his hands upwards towards his waist. This is consistent with the evidence of Sergeant Groufsky and Senior Constable T. [59] Then following those actions by the complainant, Sergeant Groufsky moved rapidly, bringing his fist up. He struck the complainant. As Constable H described it, it was a single strike, straight forward, which hit the complainant in the face. [60] The complainant then remained on his feet and, I was able to observe him plainly enough to be reasonably satisfied, he scuffled or wrestled with Sergeant Groufsky. The complainant remained conscious during this scuffle. Then both of them went down towards the floor. This is consistent with the reports of Sergeant Groufsky and Senior Constable T, who -- 11 of 13 -- 12 concluded that he appeared to be unconscious once he was on the floor due to his non-responsiveness to the sternum rub, despite some later suggestions by others that perhaps he was simply refusing to answer questions, for example, in the ambulance. [61] There is no evidence to suggest that he hit his head as the two wrestled to the ground. The independent expert suggests a ‘headlock’ may have been responsible for a loss of consciousness. [62] By the time he was on the ground, both Sergeant Groufsky and Senior Constable T accepted that he was unconscious. The evidence about his state in the ambulance do not go to his state of consciousness immediately after the physical interaction. I give them less weight than the observations of those in the immediate vicinity of the complainant immediately after he went down to the floor. [63] Therefore, I accept that the complainant was rendered unconscious. I am reasonably satisfied that he became unconscious as a consequence of the physical interaction which ended in he and Sergeant Groufsky wrestling to the floor. The precise mechanism which produced the unconsciousness is uncertain, but the punch was not responsible. The CMC’s submissions [64] The CMC submits that if the force was improperly applied it would constitute misconduct. It argues that the Tribunal should conclude that Sergeant Groufsky more probably than not entered the cell for the purpose of hitting the complainant. It argues that it can be inferred from the words Sergeant Groufsky used to the complainant on his return from hospital, that is, ‘you won’t do that again’, that the punch was delivered as punishment. [65] It submits that even if I accept that the punch was in self-defence, it should be accepted that the force employed was inappropriate because it exceeded the level of threat which the prisoner presented. It says other options were available including pushing, punching or grabbing which would have enabled Senior Constable T to get into position to assist to restrain. [66] The CMC argues the size disparity between the complainant and Sergeant Groufsky is significant in assessing the reasonableness of the use of the degree of force used. It suggests that it is open to me to conclude that Sergeant Groufsky hit the complainant so that he could search his clothing for contraband without the risk of obstruction from a prisoner who had proved a nuisance to the watch-house staff. My conclusions on the review [67] I do not accept that Sergeant Groufky entered for the purpose of hitting the complainant so that he could be searched. He entered the cell assertively. He and others had been attempting to have the complainant -- 12 of 13 -- 13 calm down so that a search could be done. Their efforts to cajole and reason with the complainant from outside the cell were not successful. That stalemate had to be broken. Action needed to be taken to resolve the situation. [68] Sergeant Groufsky took action when he entered the cell. He could not know for certain, although I infer that he had concerns that he may face threat of physical assault when he entered the cell. I am satisfied that he was quite vigilant. He had a split-second to respond to the threat. He reacted very quickly, by striking the complainant first. I find that the strike was delivered in self-defence. [69] There is a size disparity between the two men, but in view of my observations of the punch, and my finding that it did not render the complainant unconscious, I am not satisfied to the requisite standard that disproportionate force was used in light of the threat. Therefore, I am not satisfied that force was inappropriately applied in the circumstances. For completeness I make the observation that I did not see any action of Sergeant Groufsky on the CCTV recording which suggests an inappropriate use of force during the scuffle, and nor does any person’s version of events suggest it, including the complainant’s. [70] I do not accept the CMC’s submission about the inference to be drawn from Sergeant Groufsky’s comment to the complainant on his return from hospital, that is, ‘you won’t do that again’ that the punch was delivered as punishment. Although that is one possible interpretation, but it is also possible (and in my view it is more likely), that Sergeant Groufsky was suggesting to the complainant that he may be more reluctant to physically threaten a police officer in the future. There is no doubt the complainant ultimately came off second best when he attempted to punch Sergeant Groufsky. The Sergeant’s reflexes were faster than the complainant’s. [71] I confirm the decision of the Deputy Commissioner and find matter 1(a) unsubstantiated. It follows that I do not need to consider sanction, which the CMC does not dispute is adequate for matter 1(b) alone. [72] Despite my findings, I make the observation that, in my view, Sergeant Groufsky could not be said to have responded well during the incident and in a far from exemplary manner. The fact that I consider the evidence is inadequate to reasonably satisfy me that the charge is substantiated does not mean that Sergeant Groufsky responded as might be preferred or expected, especially given his seniority and experience. [73] It is an unfortunate reality that police officers encounter regular threats to their personal safety from persons they deal with. It is an occupational hazard. There are, no doubt, many methods of addressing physical threats, which do not involve punching the person making the threat. I expect that police officers are well trained in them, and that most physical threats from members of the public and prisoners are averted in other, more passive ways. Clearly, that is the preferable course. -- 13 of 13 --