Auimatagi v Department of Community Safety [2012] QIRC 27
CITATION: Roki Auimatagi AND Department of Community Safety
(TD/2011/10) - Decision
<http://www.qirc.qld.gov.au>
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 - s. 74 - application for reinstatement.
Roki Auimatagi AND Department of Community Safety (TD/2011/10)
VICE PRESIDENT LINNANE 10 April 2012
DECISION
[1] This is an application by Roki Auimatagi (Applicant) seeking reinstatement to his former position as a
Corrective Services Officer with the Department of Community Safety (Respondent). The term Respondent in
this decision not only refers to the Department of Community Safety but also to all former entities which
employed the Applicant as either a Trade Instructor or a Corrective Services Officer. The application is made
pursuant to Chapter 3 of the Industrial Relations Act 1999 (Act). The Respondent contended that the Applicant's
dismissal was not harsh, was just, was reasonable and opposed any order for reinstatement or compensation.
The Applicant was dismissed from his employment with the Respondent on 18 February 2011.
Brief Chronology of Events
[2] The following chronology of events is not disputed:
in January 1996 the Applicant commenced employment with the Respondent as a Trade Instructor;
whilst employed as a Trade Instructor in late 1996 the Applicant was dismissed from his employment and
then reinstated by consent. On this occasion the Applicant's forearm came into contact with a prisoner.
In the Applicant's Affidavit in Reply (Exhibit 3) the Applicant said that, when a prisoner became abusive,
extending his arm towards the Applicant and moving towards him, he raised his forearm to protect
himself and the prisoner's head came into contract with the Applicant's forearm;
in February 1997 the Applicant was again dismissed from his employment and then reinstated by consent.
On this occasion the Applicant slapped a prisoner across the face who had abused and threatened him;
on 29 March 1999 the Applicant commenced employment with the Respondent as a Corrective Services
Officer at the Sir David Longland Correctional facility;
on 23 September 2009 there was an incident between the Applicant and prisoner Daniel Wirth in Unit S3,
Cell 15 at the Brisbane Correctional facility (Wirth Incident);
on 22 October 2009 there was an incident between the Applicant and prisoner Shane O'Halloran at the
Youthful Offender's Unit S2 at the Brisbane Correctional facility (O'Halloran Incident);
by letter dated 28 October 2009 the Applicant was informed by the Respondent that he was being
suspended from duty on full remuneration. The allegation at this time was that on 21 October 2009, the
Applicant grabbed Mr O'Halloran by the arm, turned him around and struck him on the left side of the
face (O'Halloran allegation). At this time the Applicant was asked to show cause why he should not be
suspended from duty without pay;
by letter dated 30 October 2009 the Applicant showed cause why he should not be suspended without pay
in respect of the O'Halloran allegation;
by letter dated 17 November 2009 from the Respondent, the Applicant was asked to show cause why he
should not be suspended from duty without remuneration on the allegation that the Applicant, on
23 September 2009, moved his left leg in a kicking motion towards Mr Wirth, apparently kicking
Mr Wirth's leg and using the back of his left hand to strike Mr Wirth in the vicinity of the head region
(Wirth allegation);
by letter dated 24 November 2009 the Applicant showed cause why he should not be suspended from
duty without remuneration in respect of the Wirth allegation;
in the period 24 November 2009 to 18 February 2011 the Applicant remained suspended from duty with
remuneration;
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on 4 March 2010 the Applicant participated in a recorded interview with two police officers from the
Corrective Services Investigation Unit at the Acacia Ridge Police Station in relation to the Wirth
allegation. The Applicant was accompanied by his legal representative. Relevant extracts of this
interview are outlined in Schedule A to this decision and form part of the decision;
on 12 August 2010 the Applicant participated in a recorded interview with Hayden Lenz and
Mark Champion of the Respondent's Ethical Standards Unit at Level 23 State Law Building in relation to
both the O'Halloran allegation and the Wirth allegation. The Applicant was accompanied by his legal
representative. Relevant extracts of the interview with respect to the Wirth Incident are outlined in
Schedule B to this decision and form part of the decision. Relevant extracts of the interview with respect
to the O'Halloran Incident are outlined in Schedule C to this decision and form part of the decision;
by letter dated 10 September 2010 the Applicant was provided with a copy of the written report of the
Ethical Standards Unit in relation to both the O'Halloran allegation and the Wirth allegation. In this
correspondence the Applicant was further advised that he may be liable for disciplinary action, pursuant
to s. 187(1) of the Public Service Act 2008 on the ground that he contravened, without reasonable excuse,
a provision of the Public Service Act 2008 or an obligation imposed under the Respondent's Code of
Conduct (Code of Conduct), specifically Obligation 2, Respect for other persons, on the allegations that:
o on 23 September 2009 the Applicant assaulted Mr Wirth; and
o on 22 October 2009 the Applicant assaulted Mr O'Halloran;
on 15 October 2010, following intervention by the Applicant's lawyers, Greg Coughlan, the Respondent's
Executive Director, Human Resources, became the Respondent's decision-maker in relation to the
abovementioned breaches of the Public Service Act 2008 allegations in place of Marlene Morrison, the
then Deputy Commissioner, Custodial Operations;
by letter dated 18 November 2010, the Applicant was advised that he may be liable for disciplinary action
under the Public Service Act 2008 in respect of four allegations regarding the Wirth Incident and the
O'Halloran Incident, namely:
o allegation 1: that pursuant to s. 187(1)(f) of the Public Service Act 2008 it was alleged that the
Applicant contravened, without reasonable excuse, a provision of the Public Service Act 2008 or
the Code of Conduct. Specifically Principal 2: Respect for Persons - 2.1 Workplace Behaviour
and Personal Conduct and Principle 2.2 Working with Offenders. It was alleged that the Applicant
breached those provisions on 23 September 2009 by using inappropriate physical force, via
striking, kicking and grabbing actions on Mr Wirth, in his cell at the Brisbane Correctional Centre;
o allegation 2: that pursuant to s. 187(1)(f) of the Public Service Act 2008 it was alleged that the
Applicant contravened, without reasonable excuse, a provision of the Public Service Act 2008 or
the Code of Conduct. Specifically, Principal 2: Respect for Persons - 2.1 Workplace Behaviour
and Personal Conduct and Principal 2.2 Working with Offenders. It was alleged that the Applicant
breached those provisions on 22 October 2009 by using inappropriate physical force, via striking,
kicking and grabbing actions on Mr O'Halloran, in secure Unit 2, Youthful Offenders Unit at the
Brisbane Correctional Centre;
o allegation 3: that pursuant to s. 187(1)(f) of the Public Service Act 2008 it was alleged that the
Applicant contravened, without reasonable excuse, a provision of the Public Service Act 2008 or
the Code of Conduct. Specifically, Principle 4: Diligence - 4.1 Job Requirements, 4.2 Knowledge
of legislation and Queensland Corrective Services policies and procedures and 4.5 Duty of Care.
It was alleged that the Applicant breached those provisions when the Applicant failed to comply
with the Respondent's procedure for use of force (the Respondent's Use of Force Procedure) in that
the Applicant used inappropriate force against Mr Wirth the Applicant failed to appropriately
report his use of force on Mr Wirth on 23 September 2009; and
o allegation 4: that pursuant to s. 187(1)(f) of the Public Service Act 2008 it was alleged that the
Applicant contravened, without reasonable excuse, a provision of the Public Service Act 2008 or
the Code of Conduct. Specifically Principle 4: Diligence - 4.1 Job Requirements, 4.2 Knowledge
of legislation and Queensland Corrective Services policies and procedures, and 4.5 Duty of Care.
It was alleged that the Applicant breached these provisions in that the Applicant failed to comply
with the Respondent's Use of Force procedure by using inappropriate force against Mr O'Halloran
and the Applicant failed to appropriately report his use of force on Mr O'Halloran on 22 October
2009.
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At this time the Applicant was also provided with a copy of the Respondent's Use of Force
procedure and he was asked to respond to the four allegations.
by letter dated 2 December 2010 the Applicant's lawyers requested further and better particulars of the
four allegations;
on 21 December 2010 Mr Coughlan responded to that request for further and better particulars by stating
that the allegations made against the Applicant were clear and that the Ethical Standards Unit report and
the Respondent's Use of Force procedures adequately particularised the allegations. Mr Coughlan
requested that the Applicant respond to the four allegations within fourteen days of 21 December 2010;
on or about 21 December 2010 Mr Coughlan granted the Applicant an extension of time until 25 January
2011 to respond to the four allegations;
in correspondence dated 25 January 2011 the Applicant's lawyers responded to the four allegations on
behalf of the Applicant;
on 7 February 2011 Mr Coughlan found the following:
o that allegation 1 was substantiated;
o that allegation 2 was unsubstantiated;
o that allegation 3 was substantiated; and
o that allegation 4 was substantiated to the extent that the Applicant failed to report his use of force
in accordance with the Respondent's Use of Force procedure.
Mr Coughlan further advised the Applicant that he was liable for disciplinary action under the
Public Service Act 2008 and that the penalty he was giving serious consideration to issuing was
termination of employment. The Applicant was asked to show cause why his employment should not be
terminated;
on 14 February 2011 the Applicant's lawyers responded to the abovementioned show cause on penalty
notice on the Applicant's behalf;
in correspondence dated 18 February 2011 the Applicant's employment was terminated by the
Respondent; and
the Applicant was paid in lieu of notice on termination: see letter of termination Attachment RA31 to
Exhibit 2.
Relevant Legislation
[3] Section 73 of the Act provides as follows:
"73 When is a dismissal unfair
(1) A dismissal is unfair if it is -
(a) harsh, unjust or unreasonable; or
(b) for an invalid reason.".
[4] Section 77 of the Act provides as follows:
"77 Matters to be considered in deciding an application
In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider -
(a) whether the employee was notified of the reason for dismissal; and
(b) whether the dismissal related to -
(i) the operational requirements of the employer's undertaking, establishment or service; or
(ii) the employee's conduct, capacity or performance; and
(c) if the dismissal relates to the employee's conduct, capacity or performance -
(i) whether the employee had been warned about the conduct, capacity or performance; or
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(ii) whether the employee was given an opportunity to respond to the allegation about the
conduct, capacity or performance; and
(d) any other matters the commission considers relevant.".
[5] Section 79(1) of the Act provides as follows:
"79 Remedies - compensation
(1) If, and only if, the commission considers reinstatement or re-employment would be impracticable, the
commission may order the employer to pay the employee an amount of compensation decided by the
commission.".
[6] Section 187(1)(f) of the Public Service Act 2008 provides as follows:
"187 Grounds for discipline
(1) A public service employee's chief executive may discipline the employee if the chief executive is
reasonably satisfied the employee has -
…
(f) contravened, without reasonable excuse -
(i) a provision of this Act; or
(ii) a standard of conduct applying to the employee under an approved code of conduct under
the Public Sector Ethics Act 1994; or
(iii) a standard of conduct, if any, applying to the employee under an approved standard of
practice under the Public Sector Ethics Act 1994.".
Relevant Respondent Policies and Procedures
[7] Code of Conduct Provisions: Principles 2 and 4 of the Respondent's Code of Conduct provides as follows:
"PRINCIPLE 2: Respect for Persons
Obligations
The obligations flowing from this principle cover the conduct of staff in their dealings with members of the
public, colleagues, offenders and other public officials.
You should:
deal fairly and equitably with other officials, the public and offenders
avoid patronage and favouritism in employment matters
perform your duties in a professional and responsible manner
ensure that your decisions and actions are reasonable, fair and appropriate in the circumstances, based on
a consideration of all the relevant facts and supported by adequate documentation.
Standards of Conduct
2.1 Workplace behaviour and personal conduct
You should treat colleagues, offenders and members of the public with dignity and respect. This includes being
tolerant of the views held by others which may differ from your own.
You should:
ensure that your conduct is not discriminatory or harassing to others
ensure your behaviour and performance meets workplace standards at any time that you are representing
the Agency or are likely to be identified or associated with your role as a public official (whether or not
you are 'on duty' at the time)
make sure you are familiar with and follow the Agency's policies on Equal Employment Opportunity and
the prevention and management of discrimination and harassment.
make reasonable efforts to develop and maintain appropriate skills in 'valuing diversity'.
For example
…
when dealing with aggressive or agitated offenders or co-workers you should deal with the person without
aggression or bias
…
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2.2 Working with Offenders
You should ensure that your interactions with offenders, their associates and families at all times remain on the
professional level, and that they do not cross the 'professional boundary'.
You should always be mindful that your conduct in this regard is being observed and will be subjected to the
scrutiny of either management, other staff, other offenders, relatives or friends of offenders, or members of
the public. What may appear to be an innocent interaction to you, may not be viewed as such by others and
in this regard you should always check your understanding of what is acceptable with other staff, or your
manager/supervisor.
You should always ensure that your interactions with offenders are respectful of their entitlements and dignity,
and consistent with the required duty of care.
For example:
…
any abuse of offenders constitutes official misconduct
…
When you work with offenders you should structure opportunities to enable them to manage their behaviour
within a humane environment.
For example:
fair, consistent culturally appropriate care and supervision
…".
"PRINCIPLE 4: Diligence
Obligations
The obligations flowing from the principle of diligence require employees to recognise their duty to perform 'a
fair day's work', to carry out their duties effectively to the best of their ability, and to maintain standards of
conduct reasonably expected of QCS staff.
In addition, employees have a duty to exercise due care, particularly where members of the public may rely on
information or advice provided by them, or where employees provide direct services to offenders who are
vulnerable.
The obligation also requires employees to strive for high standards in public administration. You should:
know and understand your job and your individual and team work goals
develop your skills and undertake your duties to the very best of your ability
provide high standards of service to offenders and staff
ensure that the Agency's 'duty of care' obligations are met where you are involved
develop leadership skills, particularly if you have supervisory or managerial responsibilities
Standards
4.1 Job Requirements
…
You should be thoroughly familiar with operations manuals, QCS or local procedures, guidelines and practice
frameworks that apply to your area of work, and ensure that you follow these in performing your duties.
…
4.2 Knowledge of legislation and QCS policies and procedures
To ensure that you make consistent decisions, you have a responsibility to maintain a good working knowledge
of the legislation, policies, procedures, directions, guidelines and administrative requirements relating to your
role.
…
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4.5 Duty of Care
You:
have a duty of care to take reasonable care to avoid causing harm to others
are required to exercise the degree of care that is reasonably expected from a competent and skilled
person in the performance of your duties
should exercise a high level of care, diligence and professional competence when working with
vulnerable or dependent persons
have an obligation to follow the relevant workplace health and safety requirements
should avoid negligent conduct by giving sufficient attention to your actions and decisions, and by
obtaining the direction and advice of your line manager if you are unsure how to proceed.".
[8] Respondent's Use of Force Procedure: Sections 4, 5 and 11 of this procedure are as follows:
"4. Authority to use reasonable force
A corrective services officer may use reasonable force in accordance with CSA s143. The use of reasonable
force may involve the use of weapons in accordance with CSA s143(4).
In accordance with CSA s308(4)(a), in helping a proper officer of the court, a corrective services officer may use
force authorised under CSA ss143-148.
A proper officer of a court includes -
a) the sheriff for the Supreme Court or the Court of Appeal;
b) the person performing the duties of the sheriff at the place where the Supreme Court is sitting somewhere
else;
c) the Sheriff or Registrar of the court for the District Court; or
d) the clerk of the court at the place where the court is sitting for a court constituted by a magistrate or
justice of the peace.
Refer procedures - ~Issues and Use of Safety and Security Equipment; ~Maintenance of Safety and Security
Equipment; ~Escort of Offenders; ~Weapons and Ammunition Management; and appendices - ~Weapons and
Munitions Schedule; ~Escort Staffing and Restraint Matrix
5. Escalating use of force
Corrective services officers must assess the level of risk presented by the individual(s) / situation and choose
their options.
The assessment must be done prior to use of force and must continue to be assessed during the situation, until the
incident is resolved. In assessing the level of risk presented, the corrective services officer must consider level
of use of force including but not limited to -
5.1 Level One - no force
A corrective services officer's presence will be sufficient to ensure the compliance of individuals to any given
direction or instruction without incident.
5.2 Level Two - reasonable force
Reasonable force may be used on individual/s who resist, fail to acknowledge or comply with any instruction or
direction given by a corrective services officer and includes in ascending order -
a) physical control and/or specialist equipment or restraint techniques;
b) water under high pressure (refer section 7 of this procedure);
c) chemical agents, (refer section 8 of this procedure);
d) impact weapons such as batons (refer section 9 of this procedure); or
e) corrective services dogs under the control of a corrective services officer.
Before the use of reasonable force, a clear and audible warning must be given to individual/s within reasonable
hearing distance using, if readily available, amplified equipment. Sufficient time must be given for the warning
to be observed.
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Reasonable force may be used to -
a) compel compliance with an order given or applying to an offender;
b) restrain an offender who is attempting or preparing to commit an offence or a breach of discipline;
c) restrain an offender who is committing an offence or a breach of discipline;
d) compel any person who has been lawfully ordered to leave a corrective services facility, and who refuses
to do so, to leave the facility;
e) restrain an offender who is harming himself/herself or attempting or preparing to harm himself/herself; or
f) any other situation which may reasonably warrant the use of reasonable force.
Examples -
An offender is given a direction by a corrective services officer to vacate his/her cell but refuses to comply. The
officer may take hold of the offender and remove him/her from the cell.
A visitor to a corrective services facility is advised that he/she is not permitted to enter the facility and is asked to
leave. If the visitor refuses to leave, a correctional services officer may take hold of the visitor and remove
him/her from the facility.
…
11. Reporting the use of force
11.1 Reasonable force
When a corrective services officer has considered it reasonable to apply physical or chemical force to an
offender or other person in compliance with the CSA, the officer must, as soon as practicable notify the general
manager of the facility and before proceeding off duty provide a written report to the general manager detailing
the nature of the force used and the reasons for the use of such force.
The general manager of a corrective services facility or Director, E&S Branch must report the event in
accordance with the procedure - ~Incident Reporting.".
Evidence
[9] The Applicant relied upon the evidence of the following witnesses:
the Applicant himself;
Gary Cooper, a Corrective Services Officer; and
James Gardiner, a Corrective Services Officer.
[10] The Respondent relied upon the evidence of the following witnesses:
Greg Coughlan, the Respondent's Executive Director Human Resources;
Peter Shaddock, the Respondent's Assistant General Manager at the Brisbane Women's Correctional
Centre who in October 2009 was Acting General Manager of the Brisbane Correctional Centre;
Hayden Lenz, the Investigations Manager of the Respondent's Ethical Standards Unit;
Ken Gittins whose substantive position is the Training Advisor, Correctional Practices Competency
Assessment - Use of Force; and
Terrence Christensen who was the Director of the Respondent's Ethical Standards Branch at the relevant
time.
[11] Mr Coughlan's Evidence: Mr Coughlan was the decision-maker in respect of the Respondent's investigation of
the allegations faced by the Applicant. He assumed responsibility for the disciplinary process in relation to the
Applicant on 15 October 2010. There had previously been some correspondence from the Applicant's then
Solicitors complaining about the previously appointed decision maker and so Mr Coughlan became the
decision-maker to alleviate any of the concerns raised. At that time Mr Coughlan rescinded the show cause
notice that had previously been issued to the Applicant.
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[12] Mr Coughlan then commenced his own investigation, carefully considering all of the material that was then in
the Respondent's possession in relation to the allegations against the Applicant. Mr Coughlan ultimately issued a
show cause to the Applicant in correspondence dated 18 November 2010. Mr Coughlan received the Applicant's
response to the show cause in correspondence from the Applicant's then Solicitor dated 25 January 2011.
Having considered that response Mr Coughlan advised the Applicant in correspondence dated 7 February 2011
that two of the four allegations had been substantiated and that the fourth allegation had been substantiated to the
extent that the Applicant had failed to report his use of force on Mr O'Halloran. The Applicant was then given
the opportunity to respond on the issue of penalty as to why his employment should not be terminated. In
correspondence dated 14 February 2011 the Applicant's then Solicitor responded to the show cause on penalty on
behalf of the Applicant.
[13] Having considered this correspondence Mr Coughlan advised the Applicant in correspondence dated
18 February 2011 that his employment was terminated.
[14] The processes undertaken by the Respondent in respect of the investigation of the allegations against the
Applicant are outlined in the Brief Chronology of Events. The Applicant was clearly provided with natural
justice throughout the investigation and the decision-making process in respect of these allegations. I also note
that no issue has been taken by the Applicant in respect of the procedural fairness given to him. The Applicant
remained suspended on pay during the whole of the period i.e. from 28 October 2009 until 18 February 2011.
On termination he was paid in lieu of notice.
[15] Mr Gittens' Evidence: Mr Gittens' evidence was not challenged. He is a content expert and his duties in the
role of Training Adviser included the co-ordination and maintenance of training standards in relation to the
Respondent's compulsory training modules for Corrective Services Officers i.e. the control and restraint
procedures and the use of firearms and emergency response. In his evidence, Mr Gittens:
outlined the qualifications attained by the Applicant whilst employed by the Respondent as a Corrective
Services Officer;
introduced the Applicant's training history;
included the Applicant's assessment notes from his control and restraint training concerning his
attainment of competency to perform control and restraint functions; and
identified the Applicant's training in relation to the Respondent's Code of Conduct.
[16] Given Mr Gittens' evidence it was apparent that the Applicant had received specific training in the Respondent's
Use of Force procedure and the Respondent's Code of Conduct.
[17] Allegations used to terminate the Applicant's Employment: Essentially the Applicant's employment was
terminated on 18 February 2011 by the Respondent for the following reasons:
(i) inappropriate physical force against Mr Wirth on 23 September, 2009 i.e. the Wirth Incident;
(ii) failing to comply with the Respondent's Use of Force procedures in that he used unjustified and
inappropriate force against Mr Wirth (this aspect is dealt with under (i) above) and that he failed to
appropriately report the use of force on Mr Wirth (Failure to Report the Wirth Incident); and
(iii) failing to comply with the Respondent's Use of Force procedures in respect of an incident with
Mr O'Halloran in that he failed to appropriately report the use of force on Mr O'Halloran (Failure to
Report the O'Halloran Incident).
[18] I will deal with the evidence in respect of each of those issues separately.
(i) Wirth Incident
[19] The allegation put to the Applicant by Mr Coughlan in correspondence dated 21 December 2010 (Attachment
RA26 to Exhibit 2) was as follows:
"Pursuant to Section 187(1)(f) of the Public Service Act 2008 it is alleged that you contravened, without
reasonable excuse, an obligation imposed on you under the Queensland Corrective Services (QCS) Code of
Conduct, Principle 2: Respect for Persons - 2.1 Workplace Behaviour and Personal Conduct; and 2.2
Working with Offenders.
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Specifically, it is alleged that you breached these provisions on 23 September 2009 by using unjustifiable and
inappropriate physical force, via striking, kicking and grabbing actions on a prisoner, Daniel Wirth, in his cell
(cell 15, unit S3) at the Brisbane Correctional Centre.
This allegation is based on the evidence of the CCTV footage detailed at point 6.2.1 of the investigation
report in combination with the evidence provided by prisoner Wirth to the Corrective Services Investigation
Unit (CSIU) and the Ethical Standards Unit (ESU) as detailed at points 6.1.1 and 6.1.2 of its investigation
report.
Copies of the ESU investigation report have previously been provided to you in correspondence dated
14 September 2010, including the relevant CCTV footage.
The standard of conduct required under Principle 2: Respect for Persons 2.1 Workplace behaviour and
personal conduct details, amongst other things, that you should 'ensure that your behaviour and performance
meets workplace standards at any time that you are representing the Agency…' listing the example of 'when
dealing with aggressive or agitated offenders or co-workers you should deal with the person without
aggression or bias'.
Under Principle 2: Respect for Persons 2.2 Working with Offenders you are required to 'ensure that your
interactions with offenders, their associates and families at all times remain on the professional level, and
that they do not cross the professional boundary'. In addition it details that 'any abuse of offenders
constitutes official misconduct' and requires that you provide 'fair, consistent, culturally appropriate care and
supervision' and that you be aware that strict procedural guidelines apply to some duties and that you must be
familiar with the relevant legislative provisions and QCS procedures.".
[20] The evidence is clear that the Applicant knew that Mr Wirth was supposed to have been transported to the
Maryborough Correctional Centre prior to him attending for work on 23 September 2009. It is also clear that the
Applicant knew that Mr Wirth did not go on that transport to the Maryborough Correctional Centre. What is
also clear from the evidence is that the Applicant was scheduled to commence work on 23 September 2009 at
7.00 a.m. but that he arrived for work sometime around 6.00 a.m. and that he was performing duties from around
6.00 a.m. It is also not in dispute that the Applicant entered cell 15 in unit S3, the cell where Mr Wirth was
located (Mr Wirth's cell), at the Brisbane Correctional Centre sometime between 6.00 a.m. and 7.00 a.m. on
23 September 2009.
[21] On the Applicant's own evidence he went into Mr Wirth's to convince Mr Wirth to be transported to the
Maryborough Correctional Centre or in the Applicant's own words "in an attempt to persuade him to comply":
see paragraph 136 of Exhibit 2. This evidence was confirmed in cross-examination of the Applicant.
[22] Prior to sighting the CCTV footage of the incident with Mr Wirth, the Applicant provided a written response
dated 24 November 2009 (about two months after the incident) as to why he should not be suspended without
remuneration in respect of the Wirth Incident: see Attachment RA-8 to Exhibit 2. In this response the
Applicant, inter alia, asserted that:
on the morning he was unlocking prisoners when Mr Wirth was yelling at him and using abusive words
including "you motherfucker". Under cross-examination the Applicant said he was downstairs at this
time;
when he got to Mr Wirth's cell to open the door Mr Wirth was yelling loudly and abusively towards the
Applicant and was making threats against him. Under cross-examination the Applicant said that he was
outside of Mr Wirth's cell at this time;
Mr Wirth was "standing on his bed and I told him to sit down. I was upset, distressed, humiliated,
embarrassed and offended at the comments he was making. I told him that he did not know my mother
(this reference to my mother I found extremely disrespectful and distressing especially as my mother had
only passed away the previous year)". Further. the Applicant said that Mr Wirth "was lunging forward
yelling … I was trying to get him to sit down and to calm down and was stating he could not speak to me
in that way". Under cross-examination the Applicant said that he was outside of Mr Wirth's cell at this
time and that he was "looking into the cell from the outside". The Applicant then appeared to try and
retract this statement saying that he was not looking in through the window. When questioned as to how
he knew that Mr Wirth was lunging forward if he did not see him do so, the Applicant said "because, you
know, ... it was loud and echoed … he was coming forward and yelling out". I do not accept this aspect
of the Applicant's evidence. I prefer the statement prepared some two months after the incident to the
Applicant's recollection under cross-examination. Clearly when the Applicant said in the correspondence
that Mr Wirth was lunging forward yelling, he was conveying to the Respondent authorities that he was,
to some extent, threatened by Mr Wirth's actions. Further, when cross-examined about the statement that
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Mr Wirth was standing on his bed, the Applicant said that he knew the sound was coming from the top - it
sounded like he was standing up yelling down. He said that he did not see Mr Wirth standing on the bed
but it sounded like he was standing on the bed. Ultimately, in cross-examination, the Applicant agreed
that at some point he had looked through the window and saw Mr Wirth standing on the bed. The CCTV
footage does not show Mr Wirth "standing on his bed" at any relevant time and does not show Mr Wirth
"lunging forward yelling";
the Applicant admitted that he had his left hand raised but this was not to his head but rather "I was
pointing my finger at him to his chest. I deny striking him in the head or kicking him. My finger was on
his chest as I was trying to get him to sit down and calm down but I was not using any force and did not
strike him. We both sat down to [sic] together and I advised him that he needed to listen to me and to
calm down". Under cross-examination, the Applicant admitted:
o that he was in Mr Wirth's cell at this time;
o that Mr Wirth was standing up and was agitated, and that the Applicant was trying to get him to sit
down; and
o the apology from Mr Wirth came whilst he was in the cell with Mr Wirth.
The CCTV footage has Mr Wirth seated at all times whilst the Applicant is in his cell. It also revealed
that there was no need to "calm" Mr Wirth down;
he left the cell and returned after approximately five minutes asking Mr Wirth if he had calmed down.
Mr Wirth apologised to him and he advised Mr Wirth that he would leave it at that. Under cross-
examination the Applicant said that he did not enter the cell when he returned some five minutes later;
and
in this correspondence the Applicant stated that he had been "a Corrections Officer for 14 years" and that
he had "an impeccable record and reputation as a good officer both with prisoners and with my
co-workers and management". There was no reference to the two previous occasions when his
employment had been terminated whilst he was a Trade Instructor.
[23] Essentially the Applicant's evidence under cross-examination in respect of the account of the incident given in
this correspondence, was that when the Applicant was outside Mr Wirth's cell he could hear him yelling and it
sounded like he was lunging towards the door of the cell. The Applicant was trying to give the impression at all
times that he had not looked through the window of Mr Wirth's cell. However, in the correspondence of
24 November 2009, the Applicant said that he saw Mr Wirth standing on the bed. I find that the Applicant must
have looked through the window of Mr Wirth's cell at this time given his evidence. Further, in the 24 November
2009 correspondence, it is stated that the Applicant was trying to get Mr Wirth to sit down whereas under cross-
examination, the Applicant stated that Mr Wirth was lying down on the bed. This change in evidence was given
at a time when the Applicant had seen the CCTV footage.
[24] On 4 March 2010, the Applicant was interviewed by Detective Sergeant Stephen Carr and Detective Senior
Constable Stephen Peake of the Corrective Services Investigation Unit in relation to the Wirth Incident. The
relevant transcript of that interview is found in Schedule A. The Applicant said in this interview that:
Mr Wirth told him that morning that he didn't want to go to the Maryborough Correctional facility
"because somebody there was going to give it to him";
that Mr Wirth was constantly yelling out abuse prior to him doing his rounds that morning and that
Mr Wirth's cell was locked;
he talked to Mr Wirth through the window in the door prior to him doing his rounds that morning and
Mr Wirth continued with the abusive language. In cross-examination, the Applicant agreed that he had a
look at Mr Wirth through the window and Mr Wirth was yelling abusive language. When he looked into
the cell he could see Mr Wirth. He then said that Mr Wirth was lying down and he could hear his voice
yelling out but he could not see his mouth. He confirmed that when he looked in through the window
Mr Wirth was lying on his bed facing the wall and he was not standing up. The Applicant further
admitted that at no time did Mr Wirth come to the cell door;
he and his partner did the head count and then he commenced to unlock the prisoners. This occurred
sometime between 7.30 a.m. and 8.00 a.m. This timing appeared to be wrong;
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when it was stated to him that he had not gone into Mr Wirth's cell prior to this, the Applicant responded
that because of all the yelling he went and knocked on the window and said "move back to your bed" and
that Mr Wirth "went up and stood on top of his bed". This was before 7.00 a.m. He said to Mr Wirth "get
back up there" before he unlocked the door. Mr Wirth then sat down on his bed. The CCTV footage
does not show Mr Wirth "on top of his bed". Under cross-examination, the Applicant's evidence was:
o that he knocked on the cell door and Mr Wirth was not on his bed;
o that he told Mr Wirth "[m]ove back, get back to your bed";
o that Mr Wirth went and stood at the top of his bed;
o shortly thereafter Mr Wirth was on his bed;
o he admitted that he was looking through the window and Mr Wirth was not on his bed and that he
went up and stood at the top of his bed and that he saw him standing at the top of his bed; and
o that at this time the Applicant said that he was coming into Mr Wirth's cell.
when he left Mr Wirth's cell his partner was standing at the door of Mr Wirth's cell;
he agreed that there were rules about prison officers speaking with prisoners on their own but he said that
he had confidence in doing his job and that he often spoke with prisoners. The Applicant stated that he
was not aware of any rule that said that prison officers should not speak with prisoners alone;
he said that Mr Wirth was sitting on his bed with his legs and feet on the bed;
Mr Wirth was "swearing constantly" and cursing. Mr Wirth was aggressive to him at first and said that
he wanted "to kill my family";
he never touched Mr Wirth at all - there "was no need of any physical" contact as Mr Wirth was just
mouthing threats;
he had "his finger in his chest" when he was referring to the Applicant as "motherfucker" but then said
that he could not remember touching Mr Wirth at any part of his body; and
he admitted that once you touch a prisoner then that is an assault unless it is justified.
[25] Essentially the Applicant, when cross-examined about this interview, said that having heard Mr Wirth yelling, he
went to Mr Wirth's cell door, he looked in through the window and saw Mr Wirth lying down on the bed facing
the wall and that this occurred between 6.00 a.m. and 7.00 a.m. on the relevant morning. The Applicant further
agreed that he said during this interview that when he was on the outside of the cell, he saw Mr Wirth was
standing on top of his bed and that he told Mr Wirth to sit down on his bed which he did.
[26] On 12 August 2010 the Applicant was interviewed by Hayden Lenz, the Investigations Manager, and
Mark Champion both of the Respondent's Ethical Standards Unit. The relevant sections of the transcript of that
interview are found in Schedule B. Prior to this interview, the Applicant and his Solicitor were shown the CCTV
footage of the Wirth Incident. The Applicant's description of the incident at this time was as follows:
when the Applicant was outside S3 (on the walkway) on 23 September 2009 he heard Mr Wirth yelling
and using obscene language;
the cursing and swearing continued so he went up to Mr Wirth's cell, knocked on the door to his cell and
spoke to Mr Wirth through the cell door telling him that if he kept up the yelling and abusive language he
would not be coming out for exercise. In cross-examination on this aspect of the interview the Applicant
said that:
o he spoke with Mr Wirth through the window of the cell door but he did not look in at Mr Wirth
through the window at this time;
o he didn't enter Mr Wirth's cell;
o he might have looked through the window at this time; and
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o when asked whether he could see Mr Wirth yelling abuse at this time, the Applicant said that he
could hear him and that he could not see Mr Wirth yelling abuse because he was lying down
facing the wall;
as the Applicant walked away from Mr Wirth's cell at this time the other prisoners were "going off" at Mr
Wirth;
Mr Wirth calmed down and the Applicant left and continued doing his rounds of checking other
prisoners;
another officer arrived and a head count was undertaken. After the head count was completed Mr Wirth
"goes off" again using abusive language;
he then went into Mr Wirth's cell and Mr Wirth is "still lying down, when I walked … he was yelling
out". This is at a time prior to the medical staff arriving. It is at a time when the CCTV footage shows
the Applicant entering the cell. Under cross-examination, the Applicant initially said that this occurred
sometime between 7.00 a.m. and 8.00 a.m. but indicated later that he must have been confused with the
timing as this was the only time he went into Mr Wirth's cell on that morning;
the Applicant went into Mr Wirth's cell because Mr Wirth was yelling out and was personally attacking
him verbally. The Applicant said he used his keys to get into Mr Wirth's cell and the other officer was
about twenty yards from Mr Wirth's cell at this time;
the Applicant said that he told Mr Wirth to sit up and listen to what he had to say and he said that he "told
him off". The Applicant said that when Mr Wirth yelled out he walked straight into the cell. This was
confirmed in the cross-examination of the Applicant when he said that he walked into the cell when
Mr Wirth started yelling out and abusing his family;
it was then put to the Applicant that the CCTV footage revealed that in the five minutes prior to him
entering Mr Wirth's cell that Mr Wirth appeared to be sitting on his bed watching television, the
Applicant responded saying that Mr Wirth was calling out obscene comments;
when asked did he know where Mr Wirth was in his cell prior to him entering the cell, the Applicant said
that he had no idea i.e. he could not tell whether Mr Wirth was near the door, at the other end of the cell
or on his bed at this time;
the Applicant then indicated that he had a conversation in the cell with Mr Wirth and said that he felt
angry with the comments that Mr Wirth made about his family;
then the Applicant said that "the minute I walk in he apologise" saying "[s]orry boss, I'm sorry" and that
"the minute I open the door he started apologising" and once he had said sorry then the Applicant said
that his anger calmed and he was not angry anymore. It was at this time that the Applicant "told him off"
and Mr Wirth continued to apologise and he told Mr Wirth that he had to stay in his cell until the medical
staff arrived and not long after that the medical staff walked in to his cell;
the Applicant's explanation for his left leg coming out in a kicking motion in the direction towards
Mr Wirth and Mr Wirth's reaction to that was, that Mr Wirth appeared to have a cold and that he sneezed
and he leaned back away from the sneeze as he didn't want to touch somebody who had a cold. Under
cross-examination, the Applicant confirmed that the kicking out of his left leg was a reaction to Mr Wirth
sneezing and further that Mr Wirth's movement backwards was when he sneezed;
when it was suggested to the Applicant that the footage appeared to show that his left leg came out in a
kicking sort of motion very close to where Mr Wirth's leg was and then Mr Wirth reacted back to that, the
Applicant responded by saying that Mr Wirth sneezed and that he reacted to that sneeze by moving
backwards;
the Applicant was then asked to explain Mr Wirth's reaction in moving backwards and he said he didn't
know although then agreed to the suggestion that Mr Wirth's reaction backwards was when he sneezed;
an alternative explanation by the Applicant was that his leg went out when he tried to balance himself
when he went backwards;
the Applicant said that his going backwards was a fairly instant reaction to Mr Wirth's sneeze;
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when it was suggested to him that the footage does not show the Applicant going in a backwards motion
prior to his leg coming out, his response was "why would I assault somebody who's already apologising
and sitting on a bed";
about thirty seconds after that incident, the CCTV footage appeared to show that the Applicant's left arm
came out and came very close to Mr Wirth's face and Mr Wirth's reaction was that he went back off the
bed. The Applicant's response was that Mr Wirth was a small person and when the Applicant leant
forward to tell him something he moved and that Mr Wirth was "probably scared of me". It is at this time
that the Applicant suggested that he often talked with his hands open in front of him so that there was no
sign of him coming to assault a prisoner. Under cross-examination, the Applicant agreed that he told
Mr Lenz that the movement in his arm/hand was a mechanism to defend himself in case Mr Wirth was
going to assault him. In evidence the Applicant said that his left hand came out towards Mr Wirth's head
because it is a cultural thing i.e. he talks with his hands;
when it was suggested to him that the CCTV footage appeared to show that his hand came up and came
very close to Mr Wirth's face in a motion like he was giving Mr Wirth a backhander on the face and that
then Mr Wirth reacted backwards, the Applicant responded by saying "why would I want to assault
somebody who's apologising to me already". The Applicant then said that his hand was there to protect
himself from the prisoner and he agreed that Mr Wirth had given no indication prior to this that he was
aggressive or going to attack him;
as for Mr Wirth's reaction, the Applicant stated that the prisoner had "a lot of respect for me … he must
… think … because I'm a bigger man he thinks every time I move I'm going to, I'm going to touch him or
assault him";
the CCTV footage did not show the Applicant moving forward towards Mr Wirth when his hand came
close to Mr Wirth's face and the Applicant's response was that if there was any assault "why would I do it
in the cell where the camera" could pick it up and "look at the size of the poor fella … [w]hy would I
want to assault somebody who's already apologising to me prior to coming into the cell". This is the first
occasion where the Applicant has stated that Mr Wirth was apologising to him prior to his entry into
Mr Wirth's cell;
as for the allegation that he grabbed Mr Wirth on his jaw, the Applicant said he had no intention of
harming Mr Wirth - "he's only a small, young fella, and the thing is he's already gone through a bad time
so why would I want to assault somebody who's harmless to me". The Applicant also said that he did not
recall grabbing Mr Wirth's jaw. After seeing the CCTV footage the Applicant said that he was just
comforting Mr Wirth when he put his hand on Mr Wirth's jaw. Under cross-examination, the Applicant
admitted that he did hold Mr Wirth's jaw in an attempt to get him to look at him.
[27] In relation to this interview, the Applicant under cross-examination stated that when he looked in through
Mr Wirth's cell door, Mr Wirth was lying down facing the wall and he was yelling.
[28] On 25 January 2011 the Applicant's then Solicitors wrote to the Respondent (Attachment RA28 to Exhibit 2) in
respect of the allegation concerning Mr Wirth. A summary of that response is as follows:
the Applicant had consistently and clearly denied kicking or attempting to kick Mr Wirth;
the CCTV footage was inconclusive and Mr Wirth made no complaint of the Applicant kicking him in the
leg;
in respect of the allegation that the Applicant moved closer to Mr Wirth and is seen to move the back of
his left hand towards the face of Mr Wirth, the response was that the footage did not corroborate the
allegation made by Mr Wirth. Mr Wirth had alleged that the Applicant had used his left hand to strike
Mr Wirth on the face;
the Applicant's explanation of the CCTV footage was that he "naturally and frequently gestures with his
hands while talking" and that "he deliberately speaks with 'open' hands in front of him when speaking to
prisoners, for his own safety and because he considers it is helpful to use such 'open' body language when
speaking to prisoners in the manner he was speaking to" Mr Wirth;
the CCTV footage was inconclusive that any contact was made with Mr Wirth;
the Applicant denied any striking action;
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as for the allegation that the Applicant grabbed Mr Wirth by the jaw, the Applicant denied grabbing
Mr Wirth's jaw and contended that the CCTV footage was inconclusive; and
the Applicant, having had the opportunity to consider all of the evidence, including the CCTV footage,
recalled using the tips of his fingers, without force, under Mr Wirth's chin to direct Mr Wirth's gaze to
himself.
[29] The Applicant's evidence before the Queensland Industrial Relations Commission (Commission) in respect of
the incident with Mr Wirth is found in paragraphs 135 to 140 of Exhibit 2 and is as follows:
"135 On the day in question prisoner Wirth had refused to be transported to another centre.
136 I spoke to the prisoner in an attempt to persuade him to comply.
137 During our conversation I did not kick, strike or grab prisoner Wirth.
138 The only contact I did have with him was at one point I put the tips of my fingers without force under
his chin so that he would look at me while we spoke.
139 I have viewed the video footage of my discussion with prisoner Wirth and note that as is my custom
while I am talking my hands move in gestures.
140 As is my custom I also use open hands and open body language to ensure my posture is non
confrontational when talking to prisoners in these circumstances and also for my own safety.".
[30] Before the Commission was the CCTV footage of the incident (Attachment 11 to Attachment HL-1 to
Exhibit 8). That footage revealed the following:
at 06.40.54 Mr Wirth entered the cell followed by another Custodial Services Officer (not the
Applicant);
another Custodial Services Officer (not the Applicant) entered the cell at 06.41.12;
both the abovementioned officers left Mr Wirth's cell at 06.41.44;
from 06.41.45 Mr Wirth is alone and is seated on the bed in the cell and shortly thereafter he got up and
turned the television on, had a drink of water and sat back down on the bed and watched television;
at 06.43.48 Mr Wirth lay down on the bed with his head on a pillow facing the television and appeared
to be watching the television and he continued to do so until 06.55.28;
at 06.55.31 the Applicant entered Mr Wirth's cell and Mr Wirth sat up on his bed and the two appeared
to be having a discussion;
at 06.55.45 the Applicant turned off the television and then stood in front of Mr Wirth who remained
seated on the bed. Again it appeared that a conversation between the two occurred. The Applicant then
moved the television and sat down on the shelf on which the television was located;
at 06.56.16 while he was seated on the shelf the Applicant kicked his left leg out toward Mr Wirth and
Mr Wirth's body then immediately moved backwards;
at 06.56.29 whilst seated on the shelf, the Applicant moved to his left to be in a closer proximity to
Mr Wirth and then leant his body forward to be even closer to Mr Wirth;
at 06.56.43 whilst seated on the shelf and leaning towards Mr Wirth, the Applicant moved the back of
his left hand in the direction of Mr Wirth's face and Mr Wirth's head moved back and to his right.
Mr Wirth's right hand came up towards Mr Wirth's face and Mr Wirth placed his left hand on his
forehead;
at 06.56.51 the Applicant, whilst seated on the shelf and leaning over towards Mr Wirth, pointed at
Mr Wirth with the index finger of his left hand. The Applicant periodically then pointed at Mr Wirth
with his left hand;
at 06.57.15 the Applicant sat upright on the shelf;
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at 6.57.54 the Applicant, whilst seated upright on the shelf, used his left hand to hold up the bottom of
Mr Wirth's face. Whilst this is occurring Mr Wirth brought up his left hand and placed it on the
Applicant's left hand;
at 6.58.11 the Applicant stood up and began to move around the cell;
at 06.58.18 Mr Wirth lay back down on the bed;
at 06.58.52 the Applicant leant over Mr Wirth who was lying on the bed and touched Mr Wirth on his
left elbow with the Applicant's left hand;
at 06.58.59 the Applicant leant over Mr Wirth who was lying on the bed and came into close contact
with Mr Wirth with the Applicant's left hand making contact with Mr Wirth's left hand and chest; and
at 06.59.40 the Applicant left Mr Wirth's cell and Mr Wirth continued to lie on his bed. Sometime after
Mr Wirth sat up, turned the television back on and sat on his bed watching the television. He later laid
back down on the bed.
[31] Following the playing of the CCTV footage in the hearing, the Applicant conceded in cross-examination that the
CCTV footage:
did not show vision of Mr Wirth yelling in his cell between 6.00 a.m. and 7.00 a.m. on the morning in
question;
did not show Mr Wirth lunging towards the door of his cell and yelling between 6.00 a.m. and 7.00 a.m.
on the morning in question;
did not show Mr Wirth standing, then standing on the bed, then sitting down between 6.00 a.m. and 7.00
a.m. on the morning in question;
did not show Mr Wirth lying on his bed facing the wall away from the door of his cell between 6.00 a.m.
and 7.00 a.m. on the morning in question; and
did not show Mr Wirth lying on his bed, facing the wall away from the cell door and yelling during the
relevant period.
[32] Further, the Applicant conceded that when he spoke to Mr Wirth in his cell on 23 September 2009:
Mr Wirth was crying at the time when the Applicant was trying to convince him to travel to the
Maryborough Correctional Centre;
the Applicant was aware that Mr Wirth was in a vulnerable state;
the Applicant was aware of the reason why Mr Wirth did not want to go to the Maryborough Correctional
Centre i.e. because he was concerned that he was going to be assaulted;
he went into Mr Wirth's cell with the intention of compelling compliance on the part of Mr Wirth, namely
to convince him to go to the Maryborough Correctional Centre;
that when he was talking to Mr Wirth in his cell, he was trying to convince him to go to the Maryborough
Correctional Centre and that in so doing he was speaking to him as a father would a son;
the Applicant said that Mr Wirth was not listening, that he was disrespecting him, that he was speaking to
Mr Wirth and the prisoner was talking, swearing and carrying on using abusive language; and
the Applicant further agreed that:
o Mr Wirth was not listening to the Applicant and was not looking at him all of the time he was
talking to Mr Wirth;
o he wanted Mr Wirth to look at him while he was talking to him;
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o so he put his left hand underneath Mr Wirth's chin and lifted it up to get him to look at the
Applicant when he was talking;
o he came into contact with Mr Wirth at that time, to get Mr Wirth's attention;
o he considered the force that he used to be reasonable force; and
o he admitted using force on Mr Wirth which he was not authorised to use;
[33] The Applicant admitted to using force on Mr Wirth that he was not authorised to do. The admitted force was
putting his left hand underneath Mr Wirth's chin and lifting it up to get Mr Wirth to look at the Applicant when
he was speaking to him. The Applicant considered that this use of force was reasonable force. At no time did
the Applicant report this use of force on Mr Wirth to any person.
[34] At the interview on 4 March 2010 the Applicant acknowledged that he knew from the training he had received
that a Corrective Services Officer was not to touch a prisoner unless it was justified. In July 2009 in an
assessment undertaken by the Applicant (Attachment KG18 to Exhibit 1), he acknowledged that he was not to
touch a prisoner, and thereby not assault a prisoner, unless there was justification for that.
[35] What then was the justification? A review of the CCTV footage revealed no level of risk to the Applicant from
Mr Wirth in his cell on the morning of 23 September 2009. Mr Wirth was in a particularly vulnerable state and
was crying at the time. The Applicant acknowledged that he was aware that Mr Wirth was in such a state while
he was in Mr Wirth's cell on that morning. Mr Wirth posed no risk whatsoever to the Applicant on that morning.
There was thus no need for the Applicant to touch Mr Wirth on that occasion and thus there was no justification.
[36] As the Applicant stated on a number of occasions, why would he need to assault Mr Wirth when:
Mr Wirth had already apologised for his actions (stating on one occasion that the apology came prior to
the Applicant's entry into Mr Wirth's cell);
Mr Wirth was such a small person compared to the size of the Applicant and posed no risk to the
Applicant; and
he saw the Wirth Incident as him having a father/son talk with Mr Wirth.
[37] There are also the other actions on the part of the Applicant whilst in Mr Wirth's cell on 23 September 2009
which the Applicant has not admitted i.e. the kicking out of his leg in the direction of Mr Wirth and the
movement of his left hand in the direction of Mr Wirth's face. In the Applicant's account of these actions a
number of inconsistencies arose which call into question the credibility of the Applicant's evidence. In this
regard I note the following:
prior to sighting the CCTV footage and prior to his entry into Mr Wirth's cell on 23 September 2009, the
Applicant said that Mr Wirth was standing on his bed yelling abuse and he told him to sit down, that
Mr Wirth was lunging forward yelling and he told him to sit down, that he told Mr Wirth to get back on
the bed before he unlocked the cell and that Mr Wirth went and stood at the top of the bed and, that when
he entered the cell Mr Wirth was yelling. On a later occasion the Applicant said that Mr Wirth was lying
on his bed facing the wall. The CCTV footage revealed none of this behaviour;
the Applicant under cross-examination attempted to explain these accounts by saying that he did not look
into the cell prior to his entry and that he knew that Mr Wirth was lunging forward because his voice was
loud and it echoed. As I have already found, this description of Mr Wirth's conduct was conveyed to the
Respondent in an attempt to show that he was, in some way, threatened by Mr Wirth's actions. The
CCTV footage did not show any aggressive behaviour on the part of Mr Wirth prior to the Applicant's
entry into his cell. Other Corrective Services Officers had entered Mr Wirth's cell prior to the Applicant
entering the cell without incident, Mr Wirth was either seated on the bed or lying on the bed and at times
watching television prior to the Applicant's entry into the cell. The demeanour of Mr Wirth during the
course of the CCTV footage gave no indication whatsoever of him yelling, lunging forward yelling or
standing on his bed. I have previously found that I do not accept the Applicant's evidence that he did not
look into Mr Wirth's cell prior to entering the cell i.e. I accept what was written on 24 November 2009
rather than his evidence following the sighting of the CCTV footage;
the Applicant said that when he entered Mr Wirth's cell he had no idea where Mr Wirth was in the cell. It
would seem to be highly unusual for a Corrective Services Officer to enter a cell when a prisoner is
yelling and screaming abuse not to check where the prisoner is in the cell before entering it alone. In any
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event the CCTV footage of Mr Wirth's body movements did not reveal that Mr Wirth was yelling and
screaming abuse prior to the Applicant entering the cell;
the Applicant's explanation of the incident involving the kicking out of his left leg in the direction of
Mr Wirth does not reflect the CCTV footage. The Applicant's evidence is that he reacted to Mr Wirth's
sneezing by moving backwards and his leg kicked out. The CCTV footage does not show any evidence
of a sneeze on the part of Mr Wirth or of the Applicant moving backwards prior to his leg coming out in
the direction of Mr Wirth. What it does show is a reaction from Mr Wirth following the action of the
Applicant. I find that in the kicking of his left leg in the direction of Mr Wirth, the Applicant was
engaging in some form of threatening behaviour towards Mr Wirth. The movement of Mr Wirth
following the kicking out of the leg indicated that he took some form of defensive action to the movement
of the Applicant. It must be noted that the Applicant had entered Mr Wirth's cell with an aim in mind i.e.
to convince him to go to the Maryborough Correctional Centre; and
following the incident with the kicking of the leg, the Applicant moved closer to Mr Wirth and then leant
his body even closer and then moved the back of his left hand in the direction of Mr Wirth's face.
Mr Wirth's head immediately moved backwards and to his right as if trying to avoid the Applicant's left
hand. The Applicant's initial explanation was that Mr Wirth was a small person and when the Applicant
moved closer to him he was "probably scared of him". Then the Applicant gave a further explanation to
Mr Lenz i.e. that the movement in his arm was a defensive mechanism in case Mr Wirth was going to
assault him. There was a further explanation given i.e. that he often talked with his hands open in front of
him. Upon review of the CCTV footage as a whole, I find that the action of the Applicant on this
occasion was neither a defensive mechanism nor did it give the appearance that it was a mannerism of the
Applicant. The Applicant agreed that Mr Wirth had given no indication whatsoever that he was likely to
assault the Applicant. Throughout the whole of the CCTV footage the Applicant was either laying on the
bed, sitting on the bed or, on one occasion, he got off the bed to turn the television on and he had a drink
of water. Further, the Applicant regularly responded to this allegation by stating that he had no need to
assault Mr Wirth, that Mr Wirth was a small man when compared to him, that Mr Wirth had already
apologised for his actions and that he would not assault Mr Wirth in front of the camera. On viewing the
CCTV footage and taking all of the evidence into consideration, I can only conclude that the movement
of the Applicant's left hand towards Mr Wirth was a deliberate threatening act on the part of the
Applicant. Mr Wirth's reaction supported that finding.
(ii) Failure to Report the Wirth Incident
[38] The second allegation put to the Applicant by Mr Coughlan in correspondence dated 21 December 2010
(Attachment RA26 to Exhibit 2) and which was found to be substantiated was as follows:
"Pursuant to Section 187(1)(f) of the Public Service Act 2008 it is alleged that you contravened, without
reasonable excuse, an obligation imposed on you under the Queensland Corrective Services (QCS) Code of
Conduct, Principle 4: Diligence - 4.1 Job requirements, 4.2 Knowledge of legislation and QCS (Queensland
Corrective Services) policies and procedures, and 4.5 Duty of Care.
Specifically it is alleged that you breached these provisions when you failed to comply with the Corrective
Services procedure governing the use of force by using unjustified and inappropriate force on prisoner Wirth
on 22 September 2009. It is further alleged that you failed to appropriately report your use of force in
accordance with the requirements of this procedure.
These allegations are based on the CCTV footage detailed at point 6.2.1 of the investigation report in
combination with the evidence provided by prisoner Wirth to the Corrective Services Investigation Unit
(CSIU) and the ESU as detailed in points 6.1.1 and 6.1.2 of the investigation report.
Principle 4: Diligence of the Code of Conduct details that: employees have a duty to exercise due care,
particularly where employees provide direct services to offenders who are vulnerable; and that employees
should 'ensure that the Agency's "duty of care" obligations are met where you are involved'.
4.1 Job requirements - 'You should be thoroughly familiar with operations manuals, QCS or local
procedures, guidelines and practice frameworks that apply to your area of work, and ensure that you follow
these in performing your duties'.
4.2 Knowledge of legislation and QCS policies and procedures - 'To ensure that you make consistent
decisions, you have a responsibility to maintain a good working knowledge of the legislation, policies,
procedures, directions, guidelines and administrative requirements relating to your role'.
4.5 Duty of Care - 'You:
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have a duty of care to take reasonable care to avoid causing harm to others
are required to exercise the degree of care that is reasonably expected from a competent and skilled
person in the performance of your duties
should exercise a high level of care, diligence and professional competence when working with
vulnerable or dependent persons
have an obligation to follow the relevant workplace health and safety requirements
should avoid negligent conduct by giving sufficient attention to your actions and decisions, and by
obtaining the direction and advice of your line manager if you are unsure how to proceed'.
The QCS 'Use of Force' procedure version 2, implementation dated 16 August 2007 (the version that was in
effect at the time of the alleged incidents) provides for the lawful use of force by corrective services officers.
This procedure was attached to my correspondence dated 18 November 2010 and is attached again for your
assistance.
The procedure specifies that 'Only the necessary amount of force justified by law is to be used to affect a
lawful purpose.' The procedure under the Authority to use reasonable force states that 'A corrective services
officer may use reasonable force in accordance with CSA s. 143. The use of reasonable force may involve
the use of weapons in accordance with CSA s. 143(4)'.
In terms of escalating the use of force the procedure requires that:
"Corrective services officers must assess the level of risk presented by the individual(s)/situation and choose
their options.
The assessment must be done prior to use of force and must continue to be assessed during the situation,
until the incident is resolved. In assessing the level of risk presented, the corrective services officer must
consider level of use of force including but not limited to -
5.1 Level One - no force - A corrective services officer's presence will be sufficient to ensure the
compliance of individuals to any given direction or instruction without incident.
5.2 Level Two - reasonable force - Reasonable force may be used on individual/s who resist, fail to
acknowledge or comply with any instruction or direction given by a corrective services officer and includes
in ascending order -
a. physical control and/or specialist equipment or restraint techniques;
b. water under high pressure (refer section 7 of this procedure);
c. chemical agents, (refer section 8 of this procedure);
d. impact weapons such as batons (refer section 9 of this procedure); or
e. corrective services dogs under the control of a corrective services officer.
Before the use of reasonable force, a clear and audible warning must be given to individual/s within
reasonable hearing distance using, if readily available, amplified equipment. Sufficient time must be given
for the warning to be observed.
Reasonable force may be used to -
a. compel compliance with an order given or applying to an offender;
b. restrain an offender who is attempting or preparing to commit an offence or a breach of discipline;
c. restrain an offender who is committing an offence or a breach of discipline;
d. compel any person who has been lawfully ordered to leave a corrective services facility, and who
refuses to do so, to leave the facility;
e. restrain an offender who is harming himself/herself or attempting or preparing to harm
himself/herself; or
f. any other situation which may reasonably warrant the use of reasonable force.
Examples -
An offender is given a direction by a corrective services officer to vacate his/her cell but refuses to comply.
The officer may take hold of the offender and remove him/her from the cell.
Furthermore the procedure details requirements for reporting the use of force at section 12.1 Reasonable
force as 'When a corrective services officer has considered it reasonable to apply physical or chemical force
to an offender or other person in compliance with the CSA, the officer must, as soon as practicable notify the
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19
general manager of the facility and before proceeding off duty provide a written report to the general
manager detailing the nature of the force used and the reasons for the use of such force'."
[39] As I indicated earlier in this decision the aspect of this allegation of the actual use of unjustified and
inappropriate force on Mr Wirth was dealt with under the Wirth Incident. It is the failure to report the use of
force that is dealt with under this section. The Applicant admitted that he did not report, either orally or in
writing, the following use of force on Mr Wirth on 23 September 2009:
the admitted action of putting his left hand underneath Mr Wirth's chin and lifting it up to get him to look
at the Applicant when he was talking. The Applicant admitted that he came into contact with Mr Wirth in
order to get Mr Wirth's attention and further admitted using force which was not authorised;
the threatening conduct engaged in by the Applicant when he kicked out his left leg in the direction of
Mr Wirth; and
the threatening conduct on the part of the Applicant when he moved his left hand towards Mr Wirth face.
[40] The Applicant contended that the Respondent's Use of Force procedure did not apply to the Applicant's conduct
on 23 September 2009. I will deal with this aspect later in this decision.
(iii) O'Halloran Incident and the Failure to Report the O'Halloran Incident
[41] Following receipt of a complaint against the Applicant, the then Acting General Manager of Brisbane
Correctional Centre, Peter Shaddock, arranged to meet the Applicant together with the Assistant General
Manager of the Centre on 26 October 2009. Mr Shaddock advised the Applicant that he had received a
complaint that the Applicant had physically struck Shane O'Halloran, a youthful prisoner within the Brisbane
Correctional Centre. The Applicant was invited to comment on the allegation. Mr Shaddock recalled that the
Applicant said words to the effect "I did physically grab and strike Mr O'Halloran across the left side of the
prisoner's face". With this Mr Shaddock asked the Applicant to demonstrate the manner of his actions involving
both the grabbing and the striking of Mr O'Halloran.
[42] Mr Shaddock's evidence was that the Applicant demonstrated grabbing Mr O'Halloran on the upper arm region
saying that the grabbing of the arm both blocked Mr O'Halloran's departure from the area and turned
Mr O'Halloran around to face him as he was still in the process of talking to Mr O'Halloran. The striking action
demonstrated by the Applicant was with an open hand across the left side of Mr O'Halloran's face and he
recalled the Applicant stating "I hit him like this" or words to that effect.
[43] Mr Shaddock then removed the Applicant from his allocated work duties and told him to provide an
"Officer Report" prior to the cessation of his shift on that day.
[44] On the same day the Applicant provided an unsigned written report to Mr Shaddock in relation to the incident
which he said occurred on 14 October 2009 (Attachment PS1 to Exhibit 7). According to the Applicant this
report was dictated to a Supervisor who then typed it up. The Applicant read it prior to giving it to Mr
Shaddock. In that report the Applicant said:
on 14 October 2009 he was rostered as the Secure 2 Unit Officer. It was accepted the incident occurred
on 22 October 2009 rather than 14 October 2009;
at approximately 1.00 p.m. he was unlocking prisoners out for their lunch when a prisoner came to him
and spoke about a job in the kitchen;
Shane O'Halloran, another prisoner, interrupted him asking where his mail was and the Applicant
responded that he had no mail;
Mr O'Halloran was agitated at the time;
he then told Mr O'Halloran to wait in the exercise yard;
Mr O'Halloran then called out to him from the yard door that he wanted to see him now;
he went outside to speak with Mr O'Halloran and he asked him to tell his "side of the story";
Mr O'Halloran then said "[f]uck off don't worry about it" and Mr O'Halloran turned to walk away;
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20
the Applicant then said "you wanted to talk to me so don't you walk away" and he stepped in front of him;
as he did this Mr O'Halloran shoved him out of the way with one hand;
he instantly reacted by using a open hand striking Mr O'Halloran to the side of his face; and
Mr O'Halloran then apologised for being rude.
[45] After reading the unsigned written report Mr Shaddock said to the Applicant "[y]ou have made no reference to
your earlier verbal comment that you had grabbed the prisoner in question". It was noted in the Officer's Report
by the Assistant General Manager that the "reported facts in his document vary from CCO Auimatagi's verbal
report during interview. CCO Auimatagi reported that he grabbed offender O'Halloran and pulled him back
towards himself, then 'slapped' offender O'Halloran using an open hand". Mr Shaddock also had the Applicant
sign the Officer's Report. Mr Shaddock also noted that the Applicant had the incident occurring on 14 October
2009 when the incident was reported as having occurred on 22 October 2009. On or about 26 October 2009
Mr Shaddock sent an email update to Darryl Fleming, the Acting General Manager of Custodial Operations, and
Terry Christensen, the then Director of Ethical Standards.
[46] On 29 October 2009 Mr Shaddock received a direction to hand deliver to the Applicant a letter of suspension.
Mr Shaddock, at about 2.00 p.m. on that day, telephoned the Applicant's home and the Applicant was not
available. Shortly thereafter Mr Shaddock and another officer travelled to the Applicant's residence to deliver
correspondence advising the Applicant that he was being suspended from duty. On the way to the Applicant's
residence, Mr Shaddock again telephoned and the Applicant answered. During this conversation Mr Shaddock
advised the Applicant of the purpose of his visit and the Applicant told Mr Shaddock that he would not allow
him to enter his property and that he would not come out of his house to see him and/or talk to him about the
suspension letter. Mr Shaddock advised the Applicant that he would leave the suspension letter in his letter box
and the Applicant agreed to this. Mr Shaddock left the suspension letter in the Applicant's letter box.
[47] Mr Shaddock then telephoned the Queensland Public Sector Union delegate and told him what had just occurred
and asked him to contact the Applicant and encourage him to read the suspension letter. I accept Mr Shaddock's
evidence as to the events that occurred on 26 October 2009 and 29 October 2009.
[48] On 30 October 2009 the Applicant responded to a show cause as to why he should not be suspended without pay
(Attachment RA5 to Exhibit 2) and detailed the incident with Mr O'Halloran as follows:
as the Applicant was talking to Mr O'Halloran, the prisoner would not listen saying words like "fuck off
you are taking sides";
the Applicant asked Mr O'Halloran to tell him what was happening and that he would sort it out saying
"I am the officer that is what I do";
as he was talking to Mr O'Halloran, the prisoner turned away and started to walk away;
the Applicant then placed his arm on Mr O'Halloran's arm to prevent him from walking away saying
"don't walk away from me";
everything then happened "very fast" according to the Applicant. Mr O'Halloran swung at his arm and
the Applicant thought that he was going to hit him. As Mr O'Halloran swung at him and turned back
towards the Applicant, the Applicant's hand which was on Mr O'Halloran's arm slipped and accidentally
made contact with Mr O'Halloran's face. The Applicant's hand was open, it was not a hard slap and was
completely unintentional;
the Applicant maintained that he did not strike Mr O'Halloran on the face, that it was an accident, an
unintentional slap that occurred when Mr O'Halloran lashed out at him when he placed his arm on the
prisoner; and
the slap occurred when Mr O'Halloran turned to walk away from the Applicant when he was speaking to
him.
[49] In that correspondence the Applicant also stated that he had "an impeccable record" and that he "never had
disciplinary action taken against" him. Again there was no mention made of the two previous occasions when
the Applicant's employment had been terminated.
-- 20 of 70 --
21
[50] The Applicant was also interviewed by Mr Lenz and Mr Champion of the Respondent's Ethical Standards Unit
on 12 August 2010 in relation to the incident with Mr O'Halloran on 22 October 2009. The relevant parts of that
transcript are contained in Schedule C. In this interview the Applicant said:
he was talking with Mr O'Halloran face to face in the exercise yard and the prisoner turned to walk off
and he went to grab him and said "No you do not walk away when I'm talking to you". This grab was
around Mr O'Halloran's left elbow region;
when Mr O'Halloran went to walk away the Applicant grabbed his arm and said "no you don't", "I'm
talking to you. You don't walk away while I'm speaking to you";
Mr O'Halloran said "fuck off" and then swung his hand and automatically the Applicant stuck his hand
out in front of him and that was when it hit Mr O'Halloran on the side of the face;
the Applicant said that he could have handled the matter better, however he "needed to let him know I'm
in charge" and, according to the Applicant, things were going 100 miles per hour at this time;
Mr O'Halloran swung his left arm towards the Applicant and the Applicant said that it was fair to say that
Mr O'Halloran was probably trying to break free of the grip that the Applicant had on him;
the Applicant put the same right hand up in front of him as he had used to grab Mr Halloran's left elbow;
when Mr O'Halloran swung, the Applicant's hand came off his hand and he struck his hand and came into
contact with Mr O'Halloran's face;
Mr O'Halloran's moved forward at the same time as the Applicant stuck his hand out in front of himself.
Mr O'Halloran lost his balance and his face came into contact with the Applicant's hands. The Applicant
said that he put his hand up after Mr O'Halloran had actually swung his arm and in the motion of putting
his hand up, there was a connection between his hand and Mr O'Halloran's face. This was a somewhat
different explanation to the Applicant's earlier account of the incident to Mr Lenz;
the Applicant acknowledged that he did not tell anyone about the incident with Mr O'Halloran after it
occurred;
he did not complete an incident report or any report in relation to the incident and he did not do so
because when the "incident occurred and finished we had the medical" rounds and things got away from
him;
there was no reason why he didn't tell any person or did not report the incident in writing on the next
work day;
when asked what was his understanding of the Respondent's reporting requirements of such incidents, his
response was that there was no serious injury in the incident, Mr O'Halloran was okay and he had had
twelve hours of abuse on the shift and he wanted to go home to his family; and
ultimately the Applicant agreed that he should have made notes of the incident in case a dispute arose and
said further that sometimes "you just forget to do things".
[51] The Applicant's evidence-in-chief in respect of the incident with Mr O'Halloran (Exhibit 2) was as follows:
"106. I recall the incident with Prisoner O'Halloran that is the subject of allegations against me.
107. Prisoner O'Halloran had been causing a disturbance in his Unit.
108. He had been asking another CCO for a letter that he was expecting.
109. When he was told there was nothing there for him he became agitated.
110. He started arguing with another prisoner.
111. I had my back turned to Prisoner O'Halloran at the time when I heard the words, 'Get the fuck out of my
face'.
112. I turned around and observed Prisoner O'Halloran arguing with another prisoner.
-- 21 of 70 --
22
113. I intervened and asked Prisoner O'Halloran what the problem was.
114. He asked if there was any further mail for him and I said no.
115. He continued to argue with the other prisoner.
116. I told Prisoner O'Halloran to leave and go to the exercise yard to get him away from the other prisoners.
117. I told him to wait there until I came to get him.
118. Prisoner O'Halloran complied and went to the exercise yard.
119. This defused the situation.
120. I spoke to the other prisoner and told him to leave the area too and to come and see me if there was any
further problem.
121. I then went out to the exercise yard and approached Prisoner O'Halloran and asked him what the problem
was.
122. He said words to the effect, 'I can see you are already taking sides'.
123. He was agitated and he started to walk away from me as I was talking to him.
124. I reached out and placed my right hand on his left upper arm.
125. Prisoner O'Halloran turned quickly and swung his arm as if to rid himself of my hand.
126. I put an open hand up to him to avoid any contact to my face.
127. In the action of having my open hand up and Prisoner O'Halloran turning around quickly my hand came
into contact with his face.
128. I did not intend to hit him and the contact was accidental.
129. Prisoner O'Halloran did not indicate that he was injured or make any complaint that I had hit him or that
he was upset by what had occurred in any way.
130. At this point I was able to calm Prisoner O'Halloran down and talked to him further.
131. I directed him to return to his cell.
132. I did not consider at the time that the contact I had with Prisoner O'Halloran required a report to be
written.
133. The reasons for this were that the contact was minimal, there had been no complaint at all made at the
time by the prisoner and the situation appeared resolved.
134. I accept in hindsight that I should have reported the incident.".
[52] Under cross-examination, the Applicant said that:
he came in physical contact with Mr O'Halloran in an effort to stop him walking away from him. The
Applicant was talking to Mr O'Halloran and he wanted to keep talking to him. The Applicant did this by
either stepping in front of Mr O'Halloran or using his right hand to grab Mr O'Halloran on the left upper
arm;
his right open hand came in contact with the side of Mr O'Halloran's head either to deflect a blow from
Mr O'Halloran or as an instantaneous reaction or was an accident;
he used force to prevent Mr O'Halloran from walking away from him; and
he used what he considered to be reasonable force to get Mr O'Halloran to comply i.e. to not walk away
from the Applicant.
-- 22 of 70 --
23
[53] The Applicant admitted that he did not make an oral report to Mr Shaddock on the day of the incident with
Mr O'Halloran and that he did not, prior to him ceasing duty on 22 October 2009, or at any time prior to
26 October 2009, provide a written report to Mr Shaddock concerning the incident.
[54] The Applicant accepted that, in hindsight, he should have reported the incident and stated that the reasons he did
not report the incident at the time were that he considered that his contact with Mr O'Halloran was minimal, that
there had been no complaint made by Mr O'Halloran at the time and that the situation appeared to have been
resolved. Under cross-examination, the Applicant agreed that under the Respondent's Use of Force procedure,
the degree of contact and/or whether there had been a complaint made by a prisoner, were not reasons that
conferred any discretion on the Applicant as to whether or not he should report his use of force on
Mr O'Halloran. The Applicant said in cross-examination that he treated the matter as if it were a father and son
relationship between he and Mr O'Halloran and that he treated his own son in the same manner. He later
conceded that he was not in a relationship of father and son with Mr O'Halloran but rather was in a relationship
of Corrective Services Officer and a prisoner. The Applicant knew of the Respondent's Use of Force procedure
having conceded that he had made reports required by that procedure on previous occasions.
[55] The third allegation put to the Applicant by Mr Coughlan in correspondence dated 21 December 2010 and which
was found to have been substantiated by the Respondent was similar to the allegation outlined in (ii) above
except that the specific details were as follows:
"Specifically it is alleged that you breached these provisions when you failed to comply with the Corrective
Services procedure governing the use of force by using unjustified and inappropriate force on prisoner
O'Halloran on 22 October 2009. It is further alleged that you failed to appropriately report your use of force
in accordance with the requirement of this procedure.".
[56] Ultimately it was the failure on the part of the Applicant to appropriately report his use of force with respect to
Mr O'Halloran that was relied upon as a ground for dismissal of the Applicant. In this regard the Applicant
conceded that he did not report his admitted use of force on Mr O'Halloran.
Submissions
[57] Applicant's Submission: Mr Fenton, Counsel for the Applicant, submitted that the Commission's primary task
was to determine whether or not an assault occurred on Mr Wirth as alleged, or at all. If there was no assault
then the Applicant ought to be reinstated. In this regard the Applicant relied upon the evidence given by
Mr Coughlan under cross-examination where he said that the primary reason for the termination of the
Applicant's employment was the assault against Mr Wirth. In fact, it was suggested to Mr Coughlan in cross-
examination the it was the assault on Prisoner Wirth and the failure to report it that was the primary reason for
the termination, and Mr Coughlan responded "correct" and then added "[a]nd the evidence that Mr Auimatagi
provided around that incident".
[58] In this regard the Applicant took issue with the fact that neither Mr Wirth nor Mr O'Halloran were called to give
evidence and no explanation as to why they did not give evidence was given. It was thus submitted that little or
no weight should be given to the statements of either Mr Wirth or Mr O'Halloran. These statements were
provided in the course of the investigation and I have not referred to them and do not intend to rely upon them in
any manner. My understanding of the Respondent's case before the Commission was that it did not rely upon the
statements of Mr Wirth or Mr O'Halloran and nor did the Respondent rely upon any finding that an assault had
been occasioned to either prisoner.
[59] The Applicant further submitted that the CCTV footage and the Applicant's explanation of what occurred with
respect to Mr Wirth were in agreement and thus the Applicant's explanation should be accepted. Not only was
the Applicant's explanation consistent with the CCTV footage but also it was not contradicted by any other
sworn evidence. As the CCTV footage had no sound attached to it, the evidence of the Applicant that he entered
Mr Wirth's cell because he was yelling abuse ought to be accepted as there was no witness called to contradict
his evidence. Further, the Applicant's explanation for what occurred on 23 September 2009 in Mr Wirth's cell
should also be accepted i.e. that:
the Applicant had a habit of gesturing with his hands and was gesturing with his hands;
at some point Mr Wirth sneezed and the Applicant moved back; and
the Applicant touched Mr Wirth on the chin so that Mr Wirth would look at him.
[60] Further, the Applicant submitted that the CCTV footage was inconclusive as to whether there was any contact
with Mr Wirth's leg in respect of the kicking allegation. The Applicant's evidence is that Mr Wirth sneezed, and
-- 23 of 70 --
24
that was consistent with the footage of Mr Wirth's head moving backwards and the Applicant's torso moving
back and his foot swinging forward. Further, the Applicant's evidence that he touched Mr Wirth's chin was also
consistent with the CCTV footage.
[61] The Applicant further submitted that the posture of the Applicant throughout the Wirth Incident was significant.
The Applicant adopted an open hand and open leg posture and gave every appearance that he was non-
aggressive in demeanour. It was further submitted that the posture of the Applicant would have enabled
Mr Wirth to quickly attack his testicles either with his hands or his feet and that this was an indication that the
Applicant was not being aggressive. In my view it could also indicate that the Applicant was aware that
Mr Wirth was not acting in any manner that was threatening towards him.
[62] It was further submitted that the Applicant was right-handed and had he meant to hit Mr Wirth he would have
done so with his right hand rather than his left hand. Further, if the Applicant wanted to assault Mr Wirth he
would not have done so in sight of the camera. Rather, he would have used his body to obscure the camera's
view of the assault. Thus it was submitted the fact that he deliberately sat within the field of vision of the camera
supported his evidence that he did not hit Mr Wirth.
[63] The Applicant further submitted that he had difficulties with the English language, particularly written English.
Where a person is asked to recount events on a number of occasions there would always be differences in those
accounts. This is particularly so when some of those accounts are given by a person whose second language is
English, and those accounts are written down by others.
[64] The allegation that the Applicant assaulted Mr Wirth cannot be made out on any legal standard of proof and
especially not the Briginshaw v Briginshaw1 standard. If the Applicant is found not to have assaulted Mr Wirth
then it is submitted that he must be reinstated. The Applicant contended that a fair viewing of the CCTV footage
revealed the Applicant gently counselling a prisoner in a difficult situation.
[65] As for the second and third allegations (the failure to report the incidents) the Applicant submitted that, if his
evidence is accepted, then there was nothing to report. The Use of Force procedure does not contemplate actions
such as the Applicant touching the chin of Mr Wirth to get him to focus his attention on the Applicant. The Use
of Force procedure only applies to a use of force under ss 143 to 148 of the Corrective Services Act 2006 i.e.
sections which create lawful exceptions to the crimes of common assault, assault occasioning bodily harm,
grievous bodily harm, wounding, manslaughter and murder in circumstances set out in those sections. The
Applicant submitted that the Use of Force procedure did not apply in this instance for the following reasons:
the procedure refers specifically to ss 143-148 of the Corrective Services Act 2006;
it states that "only the necessary amount of force justified by law is to be used to effect a lawful purpose"
which is clearly a reference to s. 143 of the Corrective Services Act 2006;
it refers to the issue of self defence and says that it is separate to the procedure implying that there are
uses of force outside and separate to the procedure; and
it specifically refers to the use of force being authorised by s. 143 of the Corrective Services Act 2006.
[66] Further, the Applicant submitted that not every touching of a human being by another is a use of force. Use of
force relevantly meant physical violence to compel compliance of a person with a lawful verbal direction that the
person has not complied with. Finally, the Applicant contended that there was no evidence that reinstatement
was impractical and thus the Applicant ought to be reinstated.
[67] Respondent's Submission: In its submission the Respondent identified a number of issues that were not in
dispute including that:
the Wirth Incident occurred on 23 September 2009;
the O'Halloran Incident occurred on 22 October 2009;
when the Applicant had been employed by a predecessor of the Respondent he had been dismissed and
then reinstated by consent in late 1996 following his forearm coming into contact with a prisoner;
in February 1997, the Applicant was dismissed and then reinstated by consent when he slapped a prisoner
across the face who had abused and threatened him;
1 Briginshaw v Briginshaw (1938) 60 CLR 336.
-- 24 of 70 --
25
the Applicant received all of the training and assessment that was deposed to by Mr Gittins: see
Exhibit 1;
as at September 2009 the Applicant knew from the training that he had received as a Corrective Services
Officer that:
o he had to treat prisoners with respect;
o that the Respondent's rules were that a Corrective Services Officer was not to touch a prisoner
unless justified;
o that from the Use of Force and Tactical Options Situational Response Force Assessment
undertaken by the Applicant in July 2009, he knew that he was not to touch a prisoner unless there
was justification for that;
o that the Respondent's Code of Conduct specifically included:
that as an employee of the Respondent, he had to have respect for persons, including prisoners
which included treating prisoners with respect and dignity;
that when dealing with aggressive or agitated prisoners, the Applicant should deal with such a
person without aggression or bias;
that any abuse of offenders constituted official misconduct;
that the Applicant was to provide fair, consistent, culturally appropriate care and supervision;
that the Applicant had to maintain standards of conduct reasonably expected from Respondent
staff i.e. he had to ensure that he met the Respondent's duty of care to prisoners when dealing
with them;
that the duty of care meant that the Applicant had to exercise a high level of care, diligence and
professional competence when working with vulnerable or dependant persons;
that the diligence principle in the Code of Conduct provided that the Applicant needed to be
thoroughly familiar with the Respondent's operations manuals and procedures and ensure that
he followed those; and
that the diligence principle in the Code of Conduct provided that the Applicant had to make
sure that he made consistent decisions and that he maintained a good working knowledge of
the legislation and procedures relating to his role;
o a Corrective Services Officer may use reasonable force in accordance with s. 143 of the Corrective
Services Act 2009;
o that a Corrective Services Officer must assess the level of risk presented, then choose the level of
force which may range from no force, to reasonable force to lethal force and that reasonable force
may be used to compel compliance with an order given or applying to a prisoner; and
o that in accordance with the Respondent's Use of Force procedure, when a Corrective Services
Officer has considered it reasonable to apply physical force to a prisoner, the officer must, as soon
as practicable, notify the general manager of the facility and before proceeding off duty, provide a
written report to the general manager detailing the nature of the force used and the reasons for the
use of such force;
the Applicant conceded in cross-examination that when his former Solicitor responded on his behalf to
Mr Coughlan in respect of the four allegations, no issue was raised that the Applicant had not been trained
or did not know of the provisions of the Code of Conduct or did not know of the provisions of the
Respondent's Use of Force procedure.
[68] In response to the Applicant's Submission that the Applicant did not assault Mr Wirth, the Respondent submitted
that the reason given for the Applicant's dismissal was not that he assaulted Mr Wirth. The reason given was
that he had breached the Code of Conduct and the Respondent's Use of Force procedure in respect of his conduct
toward Mr Wirth on 13 September 2009. On the Wirth Incident the Respondent submitted that:
-- 25 of 70 --
26
at 6:56:16 on 23 September 2009, whilst the Applicant was seated on the shelf, he attempted to kick
Mr Wirth by kicking his left leg out towards Mr Wirth, who immediately reacted by flinching backwards
and that the Applicant did this in an attempt to get Mr Wirth to listen to what the Applicant was saying;
between 06:56:43 to 06:56:46 on 23 September 2009 the Applicant, while seated on the shelf and leaning
over towards Mr Wirth, attempted to strike Mr Wirth by thrusting the back of his left hand in the direction
of Mr Wirth's head, Mr Wirth's head then moved back in response, Mr Wirth's right hand then came up
towards his face and Mr Wirth then placed his left hand on his forehead. It is further submitted that this
action by the Applicant was an attempt to get Mr Wirth to listen to what the Applicant was saying; and
between 06:57:54 and 06:58:06 on 23 September 2009, the Applicant, while seated upright on the shelf,
used his left hand to hold up the bottom of Mr Wirth's face to make Mr Wirth look directly at the
Applicant.
[69] It was further submitted that, on the balance of probabilities, after considering all of the evidence, including the
CCTV footage, the Applicant attempted to use and did use inappropriate force against Mr Wirth and this attempt
and actual force was used to try and compel compliance by Mr Wirth to travel to the Maryborough Correctional
Centre. The Respondent further submitted that the attempted and actual use of force used by the Applicant was
not reasonable or justified. The Applicant did not report the use of force against Mr Wirth as required by the
Respondent's Use of Force procedure and he had no excuse for contravening the Use of Force procedure.
[70] It was further submitted that the Applicant's conduct towards Mr Wirth on 23 September 2009 was not minor.
The Applicant was in a position of authority over Mr Wirth and he knew that Mr Wirth was in a vulnerable state
i.e. he feared that he would be assaulted if he was transferred to the Maryborough Correctional Centre. When
the Applicant went into Mr Wirth's cell on that day he was attempting to compel Mr Wirth's compliance with the
direction given by the Respondent i.e. that Mr Wirth be transported to the Maryborough Correctional Centre. In
attempting to get Mr Wirth's compliance he attempted to kick the prisoner, attempted to strike the prisoner and,
in an endeavour to get Mr Wirth to pay attention to what he was saying, he used force by placing his fingers
under Mr Wirth's chin to direct Mr Wirth's gaze towards the Applicant.
[71] The Respondent submitted that the Applicant's conduct was not accidental conduct or an ordinary human
interaction as was suggested in the Applicant's Submission. The use of force and the attempted use of force on
the part of the Applicant was deliberate and was contrary to the Code of Conduct and the Respondent's Use of
Force procedure.
[72] It was further submitted that the Applicant's account of what occurred on the morning of 23 September 2009
between the hours of 6.00 a.m. and 7.00 a.m. should be rejected because of the actual evidence before the
Commission i.e.:
the Applicant's evidence-in-chief and in particular, the Applicant's evidence in cross-examination;
the CCTV footage which was independent evidence of the conduct of Mr Wirth in his cell on that
morning between 6.00 a.m. and 7.00 a.m. which did not show Mr Wirth engaging in the conduct as
alleged by the Applicant; and
the inconsistencies in the various accounts given by the Applicant as to what occurred on the morning of
23 September 2009.
[73] The Respondent accepted that clear or cogent proof was required in a case such as this, in accordance with the
standard of evidence referred to in cases such as Briginshaw v Briginshaw2 but submitted that the CCTV footage
provided such clear and cogent evidence of the breaches of the Code of Conduct and the Respondent's Use of
Force procedure.
[74] The CCTV footage, when viewed as a whole, showed that immediately prior to the Applicant kicking his leg out
towards Mr Wirth and thrusting the back of his left hand in the direction of Mr Wirth's head, the Applicant
deliberately moved closer on the shelf towards where Mr Wirth was sitting. Further, the footage does not show,
in any way shape or form, Mr Wirth showing signs of aggression. The CCTV footage showed Mr Wirth was a
person much smaller than the Applicant and that he was sitting on the bed with his head down in a position that
could only be described as subservient. It was thus submitted that the assertion in the Applicant's Submission
that the Applicant was gently counselling a prisoner should be rejected.
2 Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 per Dixon J.
-- 26 of 70 --
27
[75] Further, the Applicant's Submission in respect of the Use of Force procedure ought to be rejected because the
Applicant's attempt to kick and strike Mr Wirth and the Applicant's use of force by holding Mr Wirth's chin in
the cell did not amount to ordinary human social interaction. Thus the Respondent's Use of Force procedure was
enlivened.
[76] On the O'Halloran Incident, the Respondent submitted that having regard to all the evidence, the Applicant:
used force on Mr O'Halloran in an endeavour to get him to comply with what the Applicant wanted
Mr O'Halloran to do i.e. to talk to him; and
considered that he used reasonable force to get Mr O'Halloran to comply with what the Applicant wanted
Mr O'Halloran to do.
[77] In those circumstances, it was submitted that the Respondent's Use of Force procedure was enlivened and the
Applicant had an obligation to report the incident and then to make a written report of the incident prior to him
ceasing duty on 22 October 2009 as required by section 11.1 of the Respondent's Use of Force procedure. The
evidence indicated that the Applicant was well aware of the requirements of the Respondent's Use of Force
procedure and did not comply with those requirements.
[78] The Respondent submitted that the substantive reasons for the Applicant's dismissal were fair, just and
reasonable and that the Respondent had proved that the Applicant engaged in the conduct for which he was
dismissed i.e.:
he had breached the Code of Conduct and the Respondent's Use of Force procedure in respect of his
inappropriate use of force on Mr Wirth on 23 September 2009 and that he had not reported that use of
force; and
he had breached the Code of Conduct and the Respondent's Use of Force procedure as he had not reported
his use of force on Mr O'Halloran on 22 October 2009.
[79] As for the suggestion that the Applicant's dismissal was a forgone conclusion based upon an inherent view held
by the then Director-General of the Respondent, the Commission should rely upon the evidence of Mr Coughlan
i.e.:
he had no predetermined view about the Applicant's conduct; and
he was not influenced by any person in his decision-making, either as to whether there had been a breach
of the Public Service Act 2008 or in respect of the disciplinary action to be taken against the Applicant.
[80] In support of this submission, the Respondent cited the fact that Mr Coughlan found the allegation that the
Applicant used force against Mr O'Halloran not to be substantiated.
[81] The Respondent further submitted that the Applicant was provided with natural justice relying upon the
chronology of events outlined earlier in this decision. In addition, the decision-maker was changed as a result of
concerns raised by the Applicant's former Solicitor. The Applicant was given every opportunity to respond to
the four allegations made against him and to place whatever material he wanted to place before the Respondent
in respect of those four allegations. Further, the Applicant had the services of a Solicitor during the course of the
Respondent's investigation and in particular, had the benefit of a Solicitor in responding to the allegations.
Conclusion
[82] In this application the Applicant has sought both reinstatement to his former position as a Corrective Services
Officer with the Respondent and the payment of lost remuneration between the date of dismissal and the date of
reinstatement alleging that his dismissal was harsh, unjust or unreasonable. In the alternative, the Applicant has
sought compensation.
[83] Throughout the investigation process which resulted in the termination of the Applicant's employment, the
Applicant denied using unjustifiable and inappropriate force on Mr Wirth on 23 September 2009. In this
decision I have detailed the various accounts of the Wirth Incident given by the Applicant. In the Applicant's
Submission it was suggested that when a person is required to recount specific events on a number of occasions
there will always be differences. I accept that, however, the differences in the various accounts given by the
Applicant of the Wirth Incident were anything but minor and the accounts were often contradictory.
-- 27 of 70 --
28
[84] The Applicant's evidence is that he entered Mr Wirth's cell on 23 September 2009 because Mr Wirth was yelling
abuse. I accept the Applicant's Submission that there was no oral evidence which contradicted his evidence in
this regard. What was before the Commission however was:
the Applicant's attempts to retract aspects of his earlier accounts of the Wirth Incident particularly those
given prior to his viewing of the CCTV footage; and
the CCTV footage.
[85] Given that evidence I have great difficulty accepting the Applicant's evidence that he entered Mr Wirth cell on
that morning because Mr Wirth was yelling abuse. Instead, I find that the Applicant entered Mr Wirth's cell in
order to persuade him to go to the Maryborough Correctional Centre. The demeanour of Mr Wirth throughout
the whole of the CCTV footage gave no indication whatsoever of Mr Wirth yelling. Whilst there was no audio
on the CCTV footage, Mr Wirth's body and the movement of his body was seen throughout the footage and gave
no suggestion whatsoever of him being aggressive, abusive or yelling.
[86] The Applicant advised Mr Lenz on 12 August 2010 that he was outside S3 when he heard Mr Wirth yelling and
using obscene language i.e. he was on his way to work that morning in S3. Throughout his evidence, the
Applicant said that he arrived at work at approximately 6.00 a.m. and that the incident occurred between 6.00
a.m. and 7.00 a.m. The CCTV footage has Mr Wirth entering his cell at 06.40.54 on that day. Two other
Corrective Services Officers are in Mr Wirth's cell until 06.41.44 i.e. a period of fourteen minutes. The
Applicant entered Mr Wirth's cell at 06.55.31. Between 06.40.54 and 06.55.31 Mr Wirth was either seated on
his bed watching television or laying down on his bed facing the television.
[87] One of the Applicant's accounts of the Wirth Incident (in this maximum period of fourteen to fifteen minutes)
was as follows:
he heard Mr Wirth yelling and being abusive;
he did a head count of prisoners with another Corrective Services Officer;
he unlocked prisoners; and
he went and knocked on Mr Wirth's cell window and told him to "move back to your bed" and that
Mr Wirth "went up and stood on top of his bed".
[88] On another account, in this maximum period of fourteen to fifteen minutes, the Applicant said:
when Mr Wirth continued cursing and swearing he went up to his cell, knocked on the door and spoke to
Mr Wirth through the cell door and didn't enter Mr Wirth's cell at this time;
the Applicant walked away from Mr Wirth's cell and the other prisoners were "going off" at Mr Wirth;
Mr Wirth calmed down and the Applicant continued doing his rounds of checking other prisoners;
another Corrective Services Officer arrived and a head count was undertaken by both the Applicant and
this other Officer;
after the head count was completed Mr Wirth "goes off" again using abusive language; and
he then went into Mr Wirth's cell.
[89] Given the evidence, the Applicant could not have been walking into S3 and hearing Mr Wirth yelling on the
morning of 23 September 2009 until either shortly before or some time after 06.40.54. There are then two other
Corrective Services Officers with Mr Wirth until 06.41.44 and they do not appear to have had any difficulty with
Mr Wirth. If the Applicant's evidence that Mr Wirth was yelling abuse was correct then one would think that the
yelling and abuse must have occurred after these two Officers had left Mr Wirth's cell, otherwise those Officers
would have dealt with his so-called abusive conduct. The evidence would indicate that either these two Officers
were on duty until 7.00 a.m. or that they had also arrived early for work and were not due to complete their shift
until 7.00 p.m. On either of the two accounts mentioned earlier, it is difficult to envisage the Applicant doing
everything he said he did in the absolute maximum period of fifteen minutes.
[90] As for the Wirth Incident itself I find that:
-- 28 of 70 --
29
the Applicant entered Mr Wirth's cell on 23 September 2009 to get Mr Wirth to go to the Maryborough
Correctional Centre;
during the course of the incident Mr Wirth was crying and the Applicant knew that Mr Wirth was in a
vulnerable state;
the Applicant admitted to using force on Mr Wirth that he was not authorised to do, namely that he put his
left hand underneath Mr Wirth's chin and lifted it up to get him to look at the Applicant when he was
talking to him. I do not accept that the putting of his hand underneath Mr Wirth's chin and lifting his head
up was, as the Applicant submitted, the Applicant just comforting Mr Wirth or that he was "gently
counselling an inmate in a difficult situation";
in the Applicant's kicking of his left leg in the direction of Mr Wirth, the Applicant engaged in a form of
threatening behaviour towards Mr Wirth;
the movement of the Applicant's left hand towards Mr Wirth's face was a deliberate threatening act on the
part of the Applicant;
there was no justification for the Applicant touching Mr Wirth as he posed no risk whatsoever to the
Applicant. The Applicant himself said that Mr Wirth was "harmless to me";
there was no justification on that day for the Applicant threatening Mr Wirth by kicking his leg out in Mr
Wirth's direction and/or moving his hand towards the face of Mr Wirth, as Mr Wirth posed no risk to him
on the morning of 23 September 2009; and
the Applicant was provided with procedural fairness throughout the disciplinary process.
[91] As for the O'Halloran Incident, the Applicant admitted:
placing his arm on Mr O'Halloran's arm to prevent him from walking away, that Mr O'Halloran swung
away and the Applicant's hand slipped and accidentally made contact with Mr O'Halloran's face and that
it was an "unintentional slap" on Mr O'Halloran's face; or
that he had an open hand up and Mr O'Halloran turned around quickly and his hand came into contact
with Mr O'Halloran's face.
[92] On any view it was clear that the Applicant used force against Mr O'Halloran on 22 October 2009 when:
the Applicant placed his arm on Mr O'Halloran's arm to prevent him from walking away; and
the "unintentional slap" on Mr O'Halloran's face.
[93] As for the failure to report both the Wirth Incident and the O'Halloran Incident, the Applicant submitted that the
Respondent's Use of Force procedure did not apply to ordinary human interactions. The purpose of the
Respondent's Use of Force procedure was said to be to "provide for the lawful use of force by corrective services
officers". Further it was submitted that the procedure provided that it was "[o]nly the necessary amount of force
justified by law" that is to be used "to effect a lawful purpose". The procedure gave Corrective Services Officers
the right to "use reasonable force in accordance with CSA s 143" and that Corrective Services Officers "may use
force authorised under CSA ss 143-148". Further, the procedure envisaged that a Corrective Services Officer's
presence would, at times. be sufficient to ensure compliance with a direction given by such Officer and that no
use of force would be required. The procedure also provided that reasonable force may be used on prisoners
who resist, fail to acknowledge or comply with any instruction or direction given by the Corrective Services
Officer.
[94] I can understand why the Respondent requires a Corrective Services Officer to report the use of reasonable force
against a prisoner. The Respondent needs to know at the earliest time, that force has been used on a prisoner.
Had the Applicant reported his use of force against both Mr Wirth and Mr O'Halloran in accordance with the
Respondent's Use of Force procedure, his employment may not have been terminated. Some other form of
disciplinary action may have been taken if the use of force had not been justified. The aim of the procedure is to
ensure that the Respondent is aware of any use of reasonable force prior to receiving any complaint by a
prisoner. A reporting of the use of force in accordance with the procedure also would have enabled the
Respondent to conduct a relatively contemporaneous investigation of the use of force by a Corrective Services
Officer.
-- 29 of 70 --
30
[95] With the Wirth Incident, the Respondent became aware of the use of force by the Applicant some two months
after the incident. With the O'Halloran Incident, it was some four days after the incident. The Applicant
admitted that he should have reported the use of force on Mr O'Halloran. The Applicant should also have
reported the use of force on Mr Wirth. The Applicant was aware of the Respondent's Use of Force procedure
and knew that he was required to report such incidents. The Applicant admitted to having made such reports on
other occasions.
[96] In the circumstances I find that the Applicant engaged in the conduct for which his employment was terminated.
The next issue is whether the penalty of termination of employment was an appropriate penalty. The Applicant
had been employed by the Respondent since January 1996. Whilst employed as a Trade Instructor his
employment had been terminated on two occasions and he had been reinstated. Both occasions involved the use
of force against a prisoner. There was no evidence of any issues arising with the Applicant's employment
following his appointment as a Corrective Services Officer. In a consideration of this aspect I have also
considered the age of the Applicant and the fact that he is Samoan.
[97] However, the problem for the Applicant was his inconsistent accounts of both the Wirth Incident and the
O'Halloran Incident. Ultimately, the Respondent did not rely upon the O'Halloran Incident as a basis for
termination of the Applicant's employment. The inconsistencies are not minor. I found the Applicant not to be a
credible witness at times particularly under cross-examination.
[98] As for the Wirth Incident, Mr Coughlan had the account given by the Applicant in the 24 November 2009
correspondence, the account given to the Corrective Services Investigation Unit on 4 March 2010, the account
given to the Ethical Standards Unit on 12 August 2010, the account given in response to the show cause and the
CCTV footage before him. On the O'Halloran Incident, Mr Coughlan had the Officer's Report of 26 October
2009, the response to the show cause as to why the Applicant should not be suspended without pay dated
30 October 2009, the account given to the Ethical Standards Unit on 12 August 2010 and the response to the
show cause. There were substantial inconsistencies in those accounts. The Respondent was entitled to consider
the credibility of those accounts. I have also had the opportunity of seeing the Applicant under cross-
examination. In all of the circumstances I am unable to find that termination of employment was inappropriate
in this instance.
[99] If it is found that the actions of the Applicant did not warrant termination of his employment, I will deal with the
issue of remedy. The principal remedy is that of reinstatement or re-employment. It is only where reinstatement
or re-employment is impracticable that the issue of compensation arises. The term "impracticable" was
considered by Hall P. in Queensland Teachers' Union of Employees v Department of Education3 where it was
said:
"It may be conceded that trust and confidence is a necessary ingredient of any employment relationship. It
follows that '… a loss of trust and confidence is a relevant consideration in determining whether
reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally
based: Perkins v Grace Worldwide (Australia) Pty Ltd (1997) 72 IR 186 at 191. At the same time, the word
"impracticable" does not import into s. 79(1) the whole of the judge made rule against ordering specific
performance of contracts of employment because of a reluctance to force parties into a personal relationship
involving elements of mutual confidence, compare Perkins v Grace Worldwide (Australia) Pty Ltd (ibid) at
190, Liddell v Lembke (1994) 1 IRCR 466 AT 495 per Gray J and Abbott-Etherington v Houghton Motors
Pty Ltd (1995) 63 IR 394 at 396 per Marshall J.".
[100] Given the differing accounts of the Wirth Incident and the O'Halloran Incident, it would be exceedingly difficult
for the Respondent to trust that the Applicant would undertake his duties as a Corrective Services Officer in an
appropriate manner in the future. Whilst I do not believe that the Applicant set out on 23 September 2009 to
threaten Mr Wirth, he did use threatening behaviour in an attempt to get Mr Wirth to do what the Applicant
wanted him to do. The Applicant's attempts, in cross-examination, to extricate himself from earlier accounts of
the Wirth Incident caused me to question the reliability of his evidence where there was no corroborative
evidence. In those circumstances I could not reinstate the Applicant to the position of a Corrective Services
Officer. There was no evidence as to any availability of re-employment. In any event I would not re-employ the
Applicant to any position which involved him interacting with prisoners.
[101] That would then leave the issue of compensation. The evidence before me is that the Applicant did not seek to
mitigate his loss in the six months following the termination of his employment i.e. between the
18 February 2011 and 17 August 2011. The Applicant's evidence was that he "had a lot of work", that he was
"building a fence at home", and that "he was working for the church as well" in a voluntary capacity. When
asked why he did not apply for work at a private correctional facility, the Applicant said that a lot of the
3 Queensland Teachers' Union of Employees v Department of Education (2000) 165 QGIG 767 at 769.
-- 30 of 70 --
31
Corrective Service Officers who came from the private sector did not like working in the private sector therefore
he was not interested in working in the private sector.
[102] The Applicant was remunerated during the period of his suspension i.e. between 28 October 2009 and
18 February 2011. On termination the Applicant received payment in lieu of notice. Thus, even if I am wrong
in my determination that the Applicant's actions warranted termination and that the dismissal was not harsh,
unjust or unreasonable, I could not award reinstatement, re-employment or any amount of compensation be paid
to the Applicant.
[103] As I have already indicated I am of the view that the Applicant did think he was having a father/son type
discussion with Mr Wirth on 23 September 2009 when he attempted to get Mr Wirth to go to the Maryborough
Correctional Centre. The Applicant was not however in any father/son relationship with Mr Wirth. He was a
Corrective Services Officer, and Mr Wirth was a prisoner. The Respondent must ensure that that relationship of
Corrective Services Officer and Prisoner is governed by proper processes and procedures. On this occasion the
Applicant went beyond his role as a Corrective Services Officer and did not comply with the Respondent's
processes and procedures. The Applicant has paid a heavy price for failing to comply with those processes and
procedures.
[104] In the circumstances, I dismiss the application. I order and determine accordingly.
D.M LINNANE, Vice President.
Hearing Details:
2012 January 1
February 6, 7, 8
March 9 (Applicant's Written Submissions)
March 16 (Respondent's Written Submissions)
Released: 10 April 2012
Appearances:
Mr J. Fenton instructed by Turner Freeman Lawyers for the
Appellant.
Mr J. Merrell instructed by Crown Law for the Respondent.
-- 31 of 70 --
32
SCHEDULE A
On 4 March 2010 the Applicant was interviewed by Detective Sergeant Stephen Carr and Detective Senior Constable
Stephen Peake of the Corrective Services Investigation Unit in relation to an incident involving the Applicant and a
prisoner by the name of Daniel Wirth which occurred on 23 September 2009 in S3 at the Brisbane Correctional Centre.
The following in an extract of that interview:
"AUIMATAGI: So the day before then I says you take care of yourself. That was it; I went home. The next
morning as I walked in the front gate the officers that, ah, that was escorting him down to the
receptionist door said to me guess what Wirth is back in the unit. I said what happened. He
said he's threatened to suicide, ah, to commit suicide - to harm - to harm - to harm himself. I
said well then what's (unintelligible). I said no worries. I went up to the unit.
CARR: What time was this?
AUIMATAGI: Around - between 6.30 - between 6.30 and - because when I got there there was no other -
there was hardly any officers. We always relieve because that, that unit - our unit is manned
overnight.
CARR: Uh hum.
AUIMATAGI: So I, I like to go in early and relieve the night shift and I always handover before they leave
so I went in and, um, relieved them and then I just do my rounds, just going around to check
prisoners.
CARR: Mmm.
AUIMATAGI: Before I entered the unit he was already going off. You fuckin' lying this, lying that. So I
went straight into the - to the, the cell door; knock on the door and I say what happened.
CARR: Do you know what cell number?
AUIMATAGI: He was in cell 15 I think it was. And I said, hey, you're not the only prisoner in the, in the
unit. Please, what happened. He said, ah, the jail lied to them - lied to him. He said he was
supposed to go somewhere else. When he get to the receptionist door, he was told to go to
the jail that he didn't want to go to because somebody there was going to give it to him.
Those are his words. And I said well, look, there's no need for you to carry on the way you
are because you are going to upset the whole unit - wake everybody up.
He didn't stop. He constantly yelled out. Abusive to - he didn't care he said. He said f you to
- you know, he - yeah.
CARR: Okay. Um --
GREEN: This is you outside his cell at this time?
AUIMATAGI: Yeah, yeah.
GREEN: Yeah.
AUIMATAGI: Um, well my job is I walk around when I first come in to make sure my prisoners are all -
CARR: Yeah. Was his cell door locked?
AUIMATAGI: They're all locked, yes.
CARR: Okay. And you didn't open up the cell door?
AUIMATAGI: No, not straight - not that, not that, um, first check I didn't.
CARR: Okay. So you've, you've talked to him through the door?
AUIMATAGI: Through the window, yes.
-- 32 of 70 --
33
CARR: Through the window of the door.
AUIMATAGI: Yes.
CARR: Okay. And he was abusive you're saying?
AUIMATAGI: Yeah.
CARR: Okay. Then what happened?
AUIMATAGI: I told him you keep that up, you won't - I won't be letting you out if that's, if that's your
attitude. I says you're not being fair on other prisoners within the unit. I says keep quiet
because he wanted to get another smoke. He was stressing out he said. He says whilst I'm,
I'm - you know, I', f'n stressed out, I want to go outside and have a smoke; it'll calm me
down. I said well - I can't - there's nothing I can do because I'm, I'm here on my own to
relieve the night shift. I said until we get the head count and everything else sorted then we'll
come back and, and commence the unlock and whatever we've got to do there during the
day.
CARR: What happened next? Just what happened that whole (unintelligible).
AUIMATAGI: So, so I come - because at this point I did my rounds, went back inside. You know, all
prisoners are, are well. Then I've got to wait for my partner to arrive.
CARR: And who was that?
AUIMATAGI: Well she - the person I was supposed to work with that day, ah, didn't - was sick.
(Unintelligible) I got told she was, she crook.
CARR: Uh hum.
AUIMATAGI: So I got somebody else to come in to - in relief of that, of that person.
PEAKE: Okay. And who was that?
AUIMATAIGI: Oh, I only know the - he's, he's not, he's not - he was fairly new in the job. Ah, I can't even -
it's an old bloke. I'm not very good with names. Um, oh, sorry I can't remember his name.
CARR: Okay. So you waited for him to turn up?
AUIMATAGI: Yes.
CARR: Okay.
AUIMATAGI: Before we, before we unlocked.
CARR: Okay. And then what's happened?
AUIMATAGI: Ah, then, then by the time he arrives all the, all the - they were at it. The prisoners were at it,
yelling from one side to the next - shut the f'n up you fuckin' dog this. You should've, you
know, get the f out of the unit because he was a bit of a troublemaker. Um, then I went up -
because he's - and I said, listen, we're going to unlock everybody in the morning, if you carry
on the way you are, you're not coming out and we're going to bring the sister up here to get
your medication and whatever.
So we started - not long after that we had - my partner arrived and then the head count was
called correct then we commenced, ah, unlock for me, for the medical people to come in and
-
CARR: Okay. So what time was this?
AUIMATAGI: Anything between 7.30 and quarter to 8.00
CARR: Uh hum.
-- 33 of 70 --
34
AUIMATAGI: Yeah, that's when the medication people come in and -
CARR: Okay. So you've never gone into see Worth at all before that?
AUIMATAGI: Well it's just that he continually yelling and screaming so I went into the (unintelligible)
because I thought to myself well because the prisoners are yelling out tell that f'n dog to shut
his mouth or he's going to cop it. I went in, I locked - and I said to him I said - I knocked on
the window and I say get back, move back to your bed. He went up and stood on top of his
bed.
CARR: So what time was this?
AUIMATAGI: It was before 7.00 o'clock in the morning.
CARR: Uh hum
AUIMATAGI: So I unlocked the door and I said -
CARR: Was your partner - had started work by then?
AUIMATAGI: Um, I think he, he's already in the unit. He went along to, to have a look at other - just, just
standing there - the other - because at this time all the doors are opened.
CARR: Uh hum.
AUIMATAGI: The kids, the boys' side that's on this side and he was in the mainstream side.
CARR: Uh hum.
AUIMATAGI: So he stood there and watched me open the door. So I opened the door and I said get back up
on your bed. I said - because he turned from abusing - to abusing me and my family. He said
- as I was at the door he said all I need to do is make one phone call and have your family
killed and he said, oh, you should've been shot at birth and I thought to myself, he, now that's
enough. I said get back up there. I opened the door and I said you listen to me, you listen to
me carefully. You do not - you don't know my family. I love my family so don't ever go
there. I said now sit down. He sat down. I said - I don't just walk off. I said -
CARR: Yeah, where did he sit down?
AUIMATAGI: On top of his bed -
CARR: Okay.
AUIMATAGI: -- because we were only about from here to that chair.
CARR: Sure.
AUIMATAGI: I, I sat on a desk like about this high looking at him, with my legs in front. You know, like
this.
CARR: So he, he was sitting up (overtalking).
AUIMATAGI: He was sitting down on the, on the top of his bed.
CARR: Okay.
AUIMATAGI: And I say you listen to me, I'm going to tell you something. I says you're not being fair. I
says you don't know my family. I love my family. You do not go there. That was said and
done. He apologised straight there and then. He says sorry, boss, I'm stressing out because
the jail fucked him around. I said what (unintelligible). I said it's not - that's out of my
hands. I said you're meant to go this morning as far as I understand but you didn't go. Now
my job is to make sure you're, you're, um, alive and well here. That's - and I said listen, you
keep this up, you won't be coming out of your cell. I left and by then my partner is already
standing at the door.
-- 34 of 70 --
35
CARR: Okay. (Overtalking)
AUIMATAGI: Not inside, not inside the cell. He was standing at the door.
CARR: Was he standing there the whole time?
AUIMATAGI: No, he walking up at the minute I, I opened the door.
CARR: Rocky, are, are there any rules about, um, prison, ah, prison officers speaking with prisoners
on their own?
AUIMATAGI: Yes, I have - um, well I, I have a confidence in doing my job and -
CARR: Yeah, okay, Rocky.
AUIMATAGI: - I've often speaking to prisoners.
CARR: No, are there any rules set down - guidelines as to how you contact or speak with the
prisoner? I don't care what you've done but are there any rules set down by Corrective
Services saying that - how you, how you go and speak with a prisoner? That you don't speak
with them on your own. That you don't --
AUIMATAGI: Oh, I'm not aware of such, um, law but I, I - my job is - communication within that job is a
very important part and I often speak with prisoners, ah, a lot of cases one on one.
Sometimes they prefer the one on one conversation with - discussion with the prisoners with
the officer. Some of them are not, are not comfortable with it so I, um, I have a - what you
call - I'm very good with, with people. That's just me.
CARR: Uh hum.
AUIMATAGI: I often interview - I often talk to prisoners one on one often in whatever situation, whatever
the case may be.
CARR: Okay. Now when you've gone into the cell and you've sat on the edge of a desk - is that
what you said -
AUIMATAGI: Yes.
CARR: - the edge of a desk and Wirth was sitting on the bed in front of you -
AUIMATAGI: Yes, yes.
CARR: -- but about how far away was he from you?
AUIMATAGI: Excuse me (unintelligible).
CARR: Sure.
AUIMATAGI: (Unintelligible) I'm sitting here like this, he's sitting arm length
? Arm length.
CARR: Arm length, okay.
AUIMATAGI: Arm length, yeah.
CARR: Okay. Whereabouts was his head?
AUIMATAGI: It was on his shoulders.
CARR: Yeah, I realise that but -
AUIMATAGI: Oh -
CARR: - was it lying on the bed?
-- 35 of 70 --
36
AUIMATAGI: No. No, he was sitting up.
CARR: Sitting up. Sitting upright?
AUIMATAGI: And, and, and -
CARR: And his feet were on the floor?
AUIMATAGI: Sorry?
CARR: Where were his feet? And don't say they were on his legs.
AUIMATAGI: On the bed. It was - his pillow was up (unintelligible) sit up on his pillow -
CARR: Yeah.
AUIMATAGI: -- and his legs was on the bed.
CARR: Oh, legs were on the bed?
AUIMATAGI: Because he only, he's only about, ah, 5-5 foot 7 or -
CARR: So his feet were on the bed?
AUIMATAGI: Yes.
CARR: His knees would've been up in his chest, is that right?
AUIMATAGI: No, no, his knees were in front of him. His legs were just like this in front of him.
CARR: Okay. So he was seated like you are now? Like I am --
AUIMATAGI: Yeah.
CARR: -- with my feet on the floor.
AUIMATAGI: No, they were -
CARR: (Overtalking) his feet were up?
AUIMATAGI: His feet was on the bed.
CARR: On the bed.
PEAKE: Were they doubled up underneath him or something or was he -
AUIMATAGI: Oh, his legs -
PEAKE: -- just laying on - was he laying on the bed.
AUIMATAGI: He was sitting like this on the bed.
PEAKE: Oh, okay.
AUIMATAGI: Because like I said, he's, he's a very small framed young fella.
CARR: Okay. So he's against the wall --
AUIMATAGI: Yeah (overtalking).
CARR: -- but he was an arm's distance away from you?
AUIMATAGI: Yeah, yeah.
-- 36 of 70 --
37
CARR: Okay. And he was looking right at you like I am now?
AUIMATAGI: No, he was like - he was, he was swearing and cursing and, and, you know, f'n this, you
know, fuckin' dog. You know, (unintelligible) swearing constantly threatened.
CARR: Uh hum.
AUIMATAGI: I'm not afraid of the prisoner. So --
CARR: Okay. Could you move back in your seat?
AUIMATAGI: -- that's why I - I was calm because I knew he was going through -- um, you know, he was
upset.
CARR: Was he aggressive towards you?
AUIMATAGI: At first he was.
CARR: (Overtalking)
AUIMATAGI: He wanted to, you know, to kill my family.
CARR: Okay. Did -
AUIMATAGI: He often repeat -
CARR: Did he shape up to you at all?
AUIMATAGI: No, he - no, no.
CARR: Do you know what I mean by "shape up"? I mean -
AUIMATAGI: No, no, he didn't because he (unintelligible) I know what you're saying. No, he never at any
time shaped up to me.
CARR: Okay. Did you strike him in any way?
AUIMATAGI: No, I did not.
CARR: Did you touch him at all?
AUIMATAGI: Um, no. There was no - like I said, there was no need of any physical - as much as his
mouthing was - that's all about - that's all that was going is his mouth for threats - the
swearing - but that's, that's about what was going on. I often speaks with - I often speak with
my hands in front of me because that's what we were taught. You can act from here but you
can't act from - I don't walk in - see, because if you, if you walk in the cell - I walk in there
calmly in peace and that's, that's me.
CARR: Okay. But you - you said when you entered the room you were upset with him because he
was threatening your family so you weren't a peace.
AUIMATAGI: The thing is - what - the word that upsets me "you motherfucker". (Unintelligible) My
mother passed away last year or the year before. It was, it was fairly fresh and that's when I
said to him, look (unintelligible) fuckin' mother. He apologised straight away.
CARR: (Overtalking) yeah.
AUIMATAGI: Yeah (Unintelligible) and I says that right because you don't know my fuckin' mother. You
ever - you know -
GREEN: And you pointed at him when he said that.
AUIMATAGI: I had my finger in his, in his chest and I said don't you ever -
CARR: So you touched him?
-- 37 of 70 --
38
AUIMATAGI: I can't remember touching him, you know, at any part of his body. Um -
CARR: Do you think you may have touched him at all with your hand?
AUIMATAGI: Well if, if - I was hoping - if the camera was recording all this, maybe that's where you get
the best answer from. As far as I'm aware, pointing at - at no time (unintelligible) my finger
came in touch with his, with his chest.
CARR: Uh hum.
AUIMATAGI: You know.
CARR: What about the rules or regulations in Corrective Services about touching a prisoner?
AUIMATAGI: Well we don't, we don't - ah, once you touch a prisoner, that's an assault and I don't
(overtalking).
CARR: Unless it's authorised or justified (overtalking)?
AUIMATAGI: Or justified.
CARR: Yeah.
AUIMATAGI: But it's in different cases altogether. If the prisoner's refusing to, to, ah - what's the word - the
compliance with -
CARR: Comply?
AUIMATAGI: Yeah. Then - but in this case, it's like I said, we take every case - individual case differently.
This is a man who - this is a young fella who's not - is not a threat to me and I have the
confidence in myself to, to, to handle and manage my prisoner the best way I think it'll, it'll
control any (unintelligible).
CARR: Do you believe you were justified in touching him on that day?
AUIMATAGI: Do I believe?
CARR: Yeah.
AUIMATAGI: Well -
CARR: You say you don't remember if you did touch him but if you did touch him, do you believe it
was justified or did you believe you had authority to touch him?
AUIMATAGI: Well, I don't, I don't - you've got me mixed up now.
CARR: The allegations are that you touched him, you assaulted him.
AUIMATAGI: Okay.
CARR: Okay. Do you believe -
…
CARR: Yeah. Do you believe you were justified in, in touching him or striking him in any way on
that day?
AUIMATAGI: No, I don't think - well like I said, there was no (overtalking).
CARR: I know you said you didn't - you don't recall touching him.
AUIMATAGI: Yeah.
CARR: Yeah.
-- 38 of 70 --
39
AUIMATAGI: And there was no - at any point there was no, there was no reason for me to touch him except
for that - I pointed at him and telling him not to - he doesn't know my mother and don't you
ever speak to me like that again. Straight away he apologised. I'm not going to touch him.
CARR: What's happened after that?
AUIMATAGI: I say I'll, I'll tell you what, you sit in here and think things over. Think about it because after
he apologises just leave it as that. I says you carry on the way you do again, you won't be
coming out for your smoke. So we walk away, lock the door. (Unintelligible) the medical
people came in to do their job and that's when, when he - after he went to get his medication,
he came over to me, I says, Daniel, go to exercise and go have a smoke; that's where it
finishes and then we continues. After I put him …".
-- 39 of 70 --
40
SCHEDULE B
On 12 August 2010 the Applicant was interviewed by Hayden Lenz, the Investigations Manager of the Respondent's
Ethical Standards Unit and Mark Champion also of the Respondent's Ethical Standards Unit in relation to an incident
with prisoner, Daniel Wirth, on 23 September 2009. The Applicant's then Solicitor, Ben Green, was also present during
the course of the interview. The following is a relevant extract of that interview:
"214 HL All right. Okay. And you've said that as you've come up to relieve the night shift officers in the
unit in S3 you heard Wirth swearing?
215 RA Yelling
216 HL Yelling and swearing and carrying on. All right so where were you when you first started to hear
that?
217 RA You walk up the walkway and on a, as you come up the walkway you can, S3 is just right in front
of you.
218 HL So you're indicating that you're outside on the walkway…
219 RA Yeah.
220 HL … outside the unit?
221 RA Yeah.
222 HL So how could you tell it was him at that stage swearing?
223 RA Because I can tell his voice. You know that's, that's, yeah it's Wirthy.
224 HL All right. So had you had much involvement with him prior to these two days?
…
241 RA Yes, yes he's been there a few, a fair few times yeah.
242 HL All right. And you said that he was going off, he was swearing…
243 RA Yeah.
244 HL … and like calling officers names and using obscene language…
245 RA Yes.
246 HL … and that type of thing.
247 RA Yes.
248 HL All right. So what did you do? You're outside and you hear this and what happened then?
249 RA I come in and relieve the morning shift and, but the cursing and swearing just keep on going, so I
went up because other prisoner yelling at the same time "Shut the fuck up you fucking dog."
Those are the exact word that came from other prisoners.
250 HL Yep.
251 RA My job is to control the, I went up to Wirthy's cell and I said, I called him "Hey buddy keep", I
said "You're not the only prisoner in the unit, please keep the, keep the obscene language and the
swearing." I said "There's other prisoners there." I said "You keep that up you won't be coming
out for your exercise" because that's what, it hurts. You know if they don't want to come out we
consider that as a punishment.
-- 40 of 70 --
41
252 HL Yep.
253 RA And he was, he was, when I walk away he just continue because other prisoners are onto him you
know calling him things and you know it happens every time you know.
254 HL Okay. So how do you communicate with him? You indicated that he was in the cell and you're
obviously outside. How do you communicate?
255 RA I knock, you know he can talk to me through the door.
256 HL Okay. So is there a closed door where there's like no holes or anything like that or is it, is there
some sort of opening?
257 RA Well yeah it's, you know it's, he can, he can talk and they can hear you …
258 HL Okay.
259 RA … and I can hear like …
260 HL Like do you have to raise your voice to be heard?
261 RA No. No. No.
262 HL Okay. They can just hear you through the closed door?
263 RA Yeah. Yeah.
264 HL Righto. Yep.
265 RA If you're right up close you can have a conversation without anybody hearing you and that's, that's
what I do and make sure that …
266 HL Yep. All right. So you've given him a bit of a warning and told him to quieten down…
267 RA Yeah.
268 HL … because there's other prisoners in the unit?
269 RA Yep.
270 HL And you start to go away and he continues on with his abuse?
271 RA Yeah because other prisoner…
272 HL Yep.
273 RA … are onto him…
274 HL Yep.
275 RA … you know calling him "You fucking dog shut your mouth, you should have …"
276 HL Yep.
277 RA … you know…
278 HL Yep.
279 RA … and he's a dog and the usual things you know.
280 HL Yep.
281 RA And that's what upsets him and then he turns on us because we're there.
-- 41 of 70 --
42
282 HL All right. So what do you do after you start to walk away and you hear the other prisoners going
off at him and he's still going on, what do you do then?
283 RA I said to him "If you keep that up you're not coming out for, at all. You're going to stay in till you
get your act together."
284 HL Yep.
285 RA It was good. I walk away and continue doing the rounds of checking other prisoners.
286 HL All right. What do you, what do you mean by when you say it's good?
287 RA When I relieve, sorry?
288 HL You said it was good.
289 RA Yeah.
290 HL What do you mean by that?
291 RA He, there was no yelling, he just calmed down.
292 HL Okay.
293 RA And that's when he's just, you know he must have settled down and chill out.
294 HL Yep. Yep. So you go about your business checking all the other prisoners?
295 RA Yeah.
296 HL Yep.
297 RA Yeah.
298 HL And what happens then?
299 RA Then my other officer arrive and we wait around until the, for the head count to be called correct.
We keep our head count. Once the head count is called correct then we wait for the medical nurses
and doctors and psychiatrists and psychologists that will come in and do their bit of the morning.
300 HL Yep.
301 RA And that's when he, he went off again.
302 HL All right. So who was your other officer?
303 RA Oh, oh I'm really bad with, with, see some of these officers I work, like the officer who was
supposed to be on that morning didn't, didn't work, he rang in sick, so another officer from down
in the reserve run came in as my assistant.
304 HL Okay. I think in prisoner Wirth's statement he says that the other officer was Gabby Murray.
305 RA No Gabby Murray wasn't even on that day with me.
306 HL You don't remember him being on?
307 RA She's a girl.
308 HL Sorry she, you don't remember her being on?
309 RA Yeah. Yeah I will remember because she's a female.
310 HL Okay. But it was a male officer was it?
311 RA Yes.
-- 42 of 70 --
43
312 HL All right. And you don't remember his name?
313 RA No.
314 HL Is it different to the earlier officer you told me about, the European stocky 25 to …
315 RA No, no it wasn't. It wasn't him.
316 HL It wasn't him …
317 RA No.
318 HL … it was a different one?
319 RA Yeah.
320 HL All right. Was that, so that, was that male officer was he rostered in S …
321 RA Yes.
322 HL … 3 as well …
323 RA Yes.
324 HL … with you on the 23 rd
?
325 RA Yes. He replaced, he replaced the original officer I was supposed to be on with that day.
326 HL Okay.
327 RA Yeah.
328 HL Because someone had gone sick?
329 RA Yes. Yes.
330 HL Okay. All right. So you wait until a head count is called correct…
331 RA Yes.
332 HL … and then the medical people come up …
333 RA Yes.
334 HL … including all those medical experts you told me about?
335 RA Yes.
336 HL And then you said that Wirth started to go off again.
337 RA Yes. Yes.
338 HL All right. So how was he going off?
339 RA It all, he should have been, he shouldn't be, he should be elsewhere "but these fucking dogs do me
over again." He used words like "Fucked me over again" and yeah it's just the obscene you know it
just …
340 HL Yep.
341 RA … it was terrible.
342 HL Yep.
-- 43 of 70 --
44
343 RA So that's when I went into the cell and I said to him, that's when, he then turned on me to say, he
was still lying down when I, when I walked, and he goes, he was yelling out, because I, because I
yell too much I said "Keep, keep the noise", I says "You're not coming out for the day, you can
stay in", and that's when he yelled out "Go and fuck your mother. All I've got to do is make one
phone call and have your family", and that's what, you know my family's, he doesn't know my
family, he doesn't know my mum and my mum passed away eight months before that.
344 HL All right. So you're indicating that on this occasion where he started to go off again after the
medical people have come up that's when you've actually entered into his cell?
345 RA The medical people were on their way down to our unit yeah.
346 HL Yep. All right. And that's, is that the time that we've seen on the footage here where you enter the
cell? Is that the time?
347 RA No, no that was before, before the medical people come down. But yeah it's closer to that time
where he, he just, he just went off again you know.
348 HL All right. Yeah. But the time that you're talking about when you entered the cell does that
coincide with what we see on the footage here when you enter the cell?
349 RA Yes.
350 HL That's the time?
351 RA That's the time yeah, yeah.
352 HL So prior to going into the cell there you hadn't been into the cell at all before, before that …
353 RA Not before that.
354 HL … that morning?
355 RA No.
356 HL Okay. So that's the first time you go in?
357 RA Yeah. Yeah.
358 HL All right. And you're saying that when you entered the cell that's when he's saying things like "Go
and fuck your mother" or …
359 RA No, no, no he was, he was yelling out, that's why I went into the cell. The other bit when he was
yelling and swearing I just told him before then for, to keep, it's when he started you know
personally attacking while I was the only officer there that's when I …
360 HL Okay. So after he's done that that's when you've entered the cell?
361 RA Yes.
362 HL Okay. And how did you get into the cell?
363 RA I, I have keys on me.
364 HL Okay. So you used a key to get into the cell?
365 RA Yes. Yes.
366 HL All right. And do you know where your colleague was at this time?
367 RA He was about standing in front of our, when we get our, when we control which is in the unit …
368 HL Yeah.
369 RA … about oh 20, 20 yards from where I was where the cell was.
-- 44 of 70 --
45
370 HL All right. So he's about 20 yards away from when you enter the cell?
371 RA Yeah. Yeah.
372 HL All right. So you go into the cell and what happens then?
373 RA I mean I tell him to sit up and listen to what I have to say. So I, I told him off. I says "You don't
know", I said "You can", you know "Me personally you can, me like you can attack me but don't
you", and I said "You don't know my family …
374 HL All right.
375 RA … you don't know my mother." I say "You don't go there."
376 HL All right. So you know when you're talking about he's talking about you know these terms like
"Go and fuck your mother" and stuff like that …
377 RA Yeah.
378 HL … when he says that how long is it from then until you enter the cell?
379 RA When he yelled out I walked straight in there.
380 HL All right.
381 RA I walked straight in. I said to myself hey …
382 HL All right. I mean you've had a bit of a look at the footage this morning. You know you entered the
cell on the footage here at 6:55 and the footage here starts from 6:50. In the five minutes before
that it looks like he's just sitting on his bed reading the, watching the TV.
383 RA Well look the sound, he was calling. I mean there was nobody else calling out except him. He
was the one who was calling out obscene …
384 HL All right. Well did you know where in the cell he was, what location in the cell he was when he
was yelling those type of things out, like you know talking about your family and that?
385 RA Where, well I can't, the cell was closed and when he was yelling out.
386 HL Yeah. So you've got no idea where he was?
387 RA No. No.
388 HL All right. You couldn't tell whether he was near the door or at the other end of the cell or on his
bed or anything like that?
389 RA Yeah, yeah you can't, you can't tell.
390 HL All right. All you know is that when he makes those statements a very short time after that you go
into the cell …
391 RA Yes. Yes.
392 HL … to talk, talk about him…
393 RA Yep.
394 HL … talk to him about it?
395 RA Yep.
396 HL Okay. All right. So you go into the cell and you start you know telling him that he can't say those
type of things?
-- 45 of 70 --
46
397 RA Yes.
398 HL And what happens then?
399 RA He's still saying oh you know you, he's telling, he's saying "You fucked with me. People fuck me
around. You fucked me over again." And I says "Hey what happened, you know well you were as
good as gold the day before and then all of a sudden it's gone from that to this." I says "Well that's
not, that's not, that's out of my control." I says "I don't tell those people where, you know where
you go you know. My job finishes here …
400 HL Yep.
401 RA … from here on you know.
402 HL Yep.
403 RA And I just said to him "But don't you ever", I said "See you don't know my family." I said "Well
you can do anything to me but don't, don't go there." And I say you know that's, you know you
don't know my mum.
404 HL Yep. All right. So were you, like how did you feel after he made those type of statements about
your family?
405 RA I was, it wasn't very pleasant. I mean I was angry but as any, you know because I love my family.
To me that's personal, it's …
406 HL All right.
407 RA You know it's not fair you know.
408 HL Yep. All right. So you tell him not to say those sort of things and then what happens?
409 RA Yeah the minute I walk in he apologise "Sorry boss I'm sorry" you know and I said "Well don't,
you know he was going on and on and on and then the minute I open the door he started
apologising and that's when, you know the whole time I was in control of myself. It's like when he
said sorry it was, to me the angry was calm and …
410 HL All right. So you're saying that that calmed you down…
411 RA Yeah.
412 HL … and you know when he was apologising?
413 RA Yes.
414 HL That meant that you weren't angry anymore?
415 RA No.
416 HL Okay.
417 RA No.
418 HL Yep. What happens then?
419 RA Then I, I told him off.
420 HL Yep.
421 RA I said to him "Look you don't, you don't go there. You don't threaten me and my family. My
family didn't put you in here." You know just the usual, I said "You know I treat you people fairly
fair when you're here. I look out", I says "What happened down where you go (ui) … I've got
nothing to do with that."
422 HL Okay.
-- 46 of 70 --
47
423 RA Yeah you know like…
424 HL All right. So you tell him you know it's inappropriate and all those type of things …
425 RA Yes.
426 HL … and does he make any response in relation to that?
427 RA He apologise. He apologises and …
428 HL Yep. So he continues to apologise?
429 RA Yes.
430 HL All right. And what happens after you know you've warned him about his behaviour and he
continues to apologise? What happens after that?
431 RA I said "Look I've got to, you've got to stay in your cell till you calm down and get your act
together." And not long after that the medical people walk in, I let him to go to medical to see the,
then after that I put him in the exercise yard for a smoke and that's where, that's where it, the whole
thing finished.
432 HL All right. You can see on the footage there basically what happens via the footage is that you
come into the cell, you turn the TV off in the cell there …
433 RA Yes.
434 HL … and then you sit on the little shelf or desk, whatever you call it…
435 RA Yes.
436 HL … where the TV is.
437 RA Yes.
438 HL And I slowed a section down where it appears that you're sitting within a short distance …
439 RA Yes.
440 HL … from prisoner Wirth who's sitting on his bed. And it appears that your left leg comes out in a
kick in a direction towards the prisoner and then he reacts …
441 RA Yes.
442 HL … to that kick by throwing himself backwards. What can you tell me about that?
443 RA When I was talking to, to the prisoner he, he said he had, because I can see he was, he looked like,
he say he had the cold and during the, just after I said, he sneezed and you know I'm sure if
somebody sneezed next to you you're not going to, and all I did was just lean back to, you know I
didn't want to, away from his, from the sneeze. And that's it, there was no, I didn't, I didn't want
to, I don't want to touch somebody who's got the cold you know.
444 HL All right. Okay. I mean what I see on the footage there is what appears to be your left leg come
out in a kicking sort of motion very close to where the prisoner's leg is and then the prisoner
reacting back to that. So you're saying to me…
445 RA Yes.
446 HL … that he sneezed then you moved backwards?
447 RA I, I was like, like this …
448 HL Yeah.
-- 47 of 70 --
48
449 RA … and my leg you know like exactly that.
450 HL All right. So you're saying in the motion of you moving backwards …
451 RA Yeah.
452 HL … your left, your leg's come out …
453 RA Just, just the …
454 HL … in a kicking motion?
455 RA Well it's not a, well if you sitting how can you call it a kicking, I don't …
456 HL All right. Well you're indicating that you leg has come out …
457 RA No.
458 HL … from where its normal position was …
459 RA Yes moving, moving out …
460 HL … and your leg has come towards the prisoner?
461 RA … just like that yes.
462 HL All right. And when your leg came out like that did you make any contact with the prisoner?
463 RA No not, not at all. I, well if you, I can't remember if there was or wasn't but I don't think it did
touch the prisoner at all.
464 HL All right. I mean to be fair to you when I look at the footage what I see is your leg come out and
then after that I see the reaction of the prisoner. So you're saying to me that you thought the
prisoner sneezed …
465 RA Yeah.
466 HL … and then you reacted to that?
467 RA Yeah, it was just, it's just the moving motion back away from, I don't want your germ sort of thing
which …
468 HL Yeah. Okay. So how do you explain the reaction of the prisoner in that he moves backwards?
469 RA Well I move like that and he must have moved back the same thing, you know same motion. I
don't, I don't know.
470 HL All right. Are you saying to me that the prisoner's movement back was his movement in when he
sneezed? Is that what you're trying to say to me?
471 RA Well that's the other, that's the only explanation I can think of.
472 HL And what I'm saying to you is what appears to happen is that your leg comes out and then as a
result of that motion that's when the prisoner moves back.
473 RA Well I think yeah but well if that's, that's the, what the video shows then that's what it, you know I
went back like that you know and he went like that so, because really when you go back you've got
to keep your balance and I must have just lift my leg just to balance myself I suppose. That's the
only other thing I can think of.
474 HL All right. When we were looking at the video footage before by looking at the video footage can
you tell when you think the prisoner sneezed?
475 RA Just, well not long after I came into the cell and he looks like you know he's got the, I said to him
"Are you all right you know?" Then he, he went, and straight and not long he sneezed.
-- 48 of 70 --
49
476 HL If I take you to the spot where you're actually sitting on the ledge there …
477 RA Yes.
478 HL … and you know just prior to you saying that you've moved back and your leg's come out can you
tell me in relation to that movement when you thought the prisoner sneezed, like how long before
that movement did he sneeze?
479 RA Well he sneezed before I went back like that.
480 HL So you're saying it was a fairly instant reaction?
481 RA Yeah, yeah.
482 HL All right. And do you know why the prisoner after your leg comes out moves back in a sudden
sort of reaction? Do you know why he did that?
483 RA I have no idea. I don't know what he was, I don't know why he went like that you know, but that's
only for him to know why.
484 HL Yep.
485 RA He might think that I'm going to do something or …
486 HL Yeah.
487 RA … so he's reacted say, oh but you know that's the only other thing I can think of.
488 HL All right. Because you know to be clear when I watch the video what I see is you sitting on the
ledge there and I see your leg come out and then as a result of your leg coming out and coming
very close to the proximity of the prisoner's leg where he's sitting on the bed, within a very short
time frame after that he reacts indicating to me that it's a possibility as a result of you kicking his
leg.
489 RA Well I don't agree with that you know sorry.
490 HL All right. All right so what you're saying is that you recall sitting there, you recall the prisoner
sneezing …
491 RA Yeah.
492 HL … you recall moving backwards …
493 RA Just, yeah.
494 HL … and your leg coming out?
495 RA Yeah.
496 HL And that's your version of the incident.
497 RA Yes.
498 HL And you're not sure as to why the prisoner reacted in the way he did?
499 RA Well it's only for him to say I'm sorry. But it's like if he says that I'm going to, that's the reaction
that I …
500 HL Yeah.
501 RA Yeah.
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50
502 HL See like when I look at the footage, and I'm happy to show you this again, just prior to you moving
your leg towards the prisoner I don't see any reaction by you in a backwards motion. All I see is
you sitting fairly still …
503 RA Sorry?
504 HL When I watch the footage and I see your leg come out just prior to your leg coming out I don't see
any reaction by you in a backwards motion. All I see is you sitting fairly still …
505 RA Yeah.
506 HL … and then all of a sudden your leg comes out. And I'm happy to show you that again if you
want.
507 RA Well I, I honestly say what, it didn't even, I don't, I didn't even, like the, why would I assault
somebody who's already apologising and sitting on a bed?
508 HL But that's not a question I can answer.
509 RA No.
510 HL All I am doing is putting something to you …
511 RA Yeah.
512 HL … and seeking your response to it.
513 RA Well …
514 HL And to be fair to you I need to put everything to you …
515 RA Okay.
516 HL … and that's why I've looked at the footage again …
517 RA Yep.
518 HL … and shortly before I see your leg come out towards the prisoner I don't see any great reaction by
you in a backwards motion, so can you explain that to me?
519 RA Right well it, there's no, well what am I supposed to explain about? You know it's, he's sitting
down and I'm sitting down. There was no sign of, of any violent…
520 HL All right.
521 RA … that I was you know …
522 HL Okay. Well in relation to that part where you know it's alleged that you've kicked him is there
anything else that you want to say in relation to that at this stage?
523 RA What do you mean?
524 HL Well is there anything else you want to tell me in relation to that? I mean I've understood exactly
what you've said and I've tried to be clear in what I'm putting to you, and I know that what, your
response in relation to that, but is there anything else you want to tell me or anything else you want
to say in relation to that part of the footage?
525 RA Well no.
526 HL Okay. All right. So if we move on now after that's alleged to have occurred …
527 RA Okay.
-- 50 of 70 --
51
528 HL … what seems to happen then is that within a very short period of time, about 30 seconds later, it
appears that your left arm comes out and comes very close to the prisoner's face and once again he
has a reaction where he comes, comes back off, off the bed.
529 RA Yeah.
530 HL Can you tell me about that?
531 RA Well yeah the young, he's not a small person the prisoner so when I lean forward to tell him he
moved. It's just he's probably scared of me …
532 HL Yeah.
533 RA … so, but I said because I often talk with my hands to indicate to him look this is my hands that's
open in front of you …
534 HL Yeah.
535 RA … there's no sign of, I'm not coming to, to assault you or for any type. Now that was, the minute
he apologised to me as I come in the door it's, it's, that's the end of that. He apologised and I've,
I've accepted that.
536 HL Yep.
537 RA So now I have to tell you what as an officer I want to tell you what you have to do from hereon.
538 HL Yep.
539 RA So …
540 HL All right. Well what I see on the footage is that it appears that your hand comes up and it comes
very close to his face in a motion where you actually slap, slapping him or giving him a
backhander in the face, and then he reacts backwards from that. So to be clear, I know that you're
saying that you talk with your hands and you're indicating that that possibly is the motion, but
from what I see on the footage …
541 RA Yeah.
542 HL … it appears to be a backhander that comes very close to his face and then he reacts from that.
543 RA Well again, why would I want to assault somebody who's apologising to me already to …
544 HL I can't answer those type of questions.
545 RA Yeah but …
546 HL I just need you to provide me a response …
547 RA Okay.
548 HL … to what I am saying to you.
549 RA That, oh to put my hand there is part of my safety distance with the prisoner as well in case, in case
he attacks me my hand is there to protect myself. That's the only reason why I have my hands in
front of me because it's a sign, it's a good thing to have to protect myself.
550 HL All right. So had you given you any indication prior to this that he was aggressive or going to
attack you in any fashion?
551 RA No. No. Look …
552 HL So why were you concerned at that stage that he might attack you?
553 RA Because I can't read, we can't, a human being's mind is like that, click.
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52
554 HL Yep.
555 RA One minute it's calm, the next minute he's a prisoner with medical problems.
556 HL Right.
557 RA He can, he can flip like that. At least I'm taking precaution to, to protect myself in case. I mean it
didn't occur at all of any violent from the prisoner on myself but I still have to take that precaution
as part of, as part of our training …
558 HL All right.
559 RA … for my safety.
560 HL All right. Have you got any, you know do you know why the prisoner reacted in that sort of
fashion? It seems to be a similar reaction to when we were talking about before with the alleged
kick where he actually moves back you know quite a, quite, quite some distance and quite quickly
to the response of the act.
561 RA I could honestly say he has a lot of respect for me and he, he tells a lot of, you know he must have
think well because I'm a bigger man he thinks every time I move I'm going to, I'm going to touch
him or assault him. I think that's what he, you know he was very, what's the word when you're a
bit…
562 NL Nervous?
563 RA Yeah, yeah. A bit agitated and nervous and, like you can see that he was upset, he was pissed off
and he keeps saying "Well if these arseholes and, fuck me over I wouldn't be, you know we
wouldn't be here like this." And "They lie to me, they said they're going to take me one place but
instead of taking me to this place they're going to take me somewhere" where he didn't want to go
because somebody there was going to give it to him. So that's what he was upset about because he
thought he was going somewhere but when he got to the reception store he was told he was going
somewhere else where he didn't want to go in the first place.
564 HL Right.
565 RA When he settled down we started, and that's what he's you know told me right whole, though of the
whole days is "They fucked me up, they told me I was going somewhere and when I got down
there they said 'No you're going here.' "And that's when he started to self harm, threatened to self
harm.
566 HL All right. All right. Do you know how you said that his reaction might have been a reaction to
you moving forward, when I watch the footage just before you actually move your hand towards
his face I can't see any movement in your body whatsoever. And then shortly after it looks like
your hand comes in close proximity with his head, you sort of lean forward and start to point
towards him.
567 RA Yeah well I just, like I said I, I did it at home with my 24 year old you know …
568 HL But you're indicating to me that his possible reaction might have been as a result of you moving
forward …
569 RA Yes.
570 HL … and he might have got concerned about it.
571 RA Yeah.
572 HL What I'm saying to you is when I watch the footage …
573 RA Yeah.
574 HL … just prior to you moving your hand towards his head I don't see any movement in your body.
So I don't see the movement forward or anything like that which you're indicating may have
happened.
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53
575 RA Yeah well like I said I, if, if there was any assault occur why would I do it in the cell where the
camera, like I could have just pick him, take him to the exercise yard and, you know what I mean
if that was the case, but it didn't occur to me that, I mean just look at the size of the poor fella.
Why would I want to assault somebody who's already apologising to me prior to coming into the
cell?
576 HL All right well I can't answer those type of questions, but as I said …
577 RA Yeah.
578 HL … shortly after it appears that your hand comes up in close proximity to his head you actually lean
forward towards him and you start to sort of, you know like that you're actually you know giving
him quite a pep talk and you start, and the thing that comes out like this is you're pointing. Do you
remember what that was about?
579 RA I can't, I can't remember. What with me going like this?
580 HL Yeah.
581 RA Yeah. Well I'm telling him, I repeat me saying you know if you keep this behaviour up you're not
going to get out to exercise because that's, you're not going out for smokes, you're not going,
you're going to sit in your cell until you come to your senses …"
-- 53 of 70 --
54
SCHEDULE C
On 12 August 2010 the Applicant was interviewed by Hayden Lenz, the Investigations Manager of the Respondent's
Ethical Standards Unit and Mark Champion also of the Respondent's Ethical Standards Unit in relation to an incident
with prisoner, Shane O'Halloran, on 22 October 2009. The Applicant's then Solicitor, Ben Green, was also present
during the course of the interview. On this date the Applicant was working with Corrective Services Officer Rona
Frankcombe. The following is a relevant extract of that interview:
"737 HL And we believe that that's the 22 nd of October, and then the time frame after that several days later
when the centre became aware of the allegation I believe the general manager called you up to his
office.
738 RA Yes.
739 HL He spoke to you about the alleged incident and as a result of that he asked you to provide an
officer's report.
740 RA Yes.
741 HL Do you agree with that?
742 HL Yes.
743 HL Okay. And then if we look at your officer's report here on the 26th October 2009 it appears that
you completed a report and possibly just got the date as the 14 th wrong when it should have been
the 22 nd
.
744 RA Okay.
745 HL Do you agree with that?
746 RA Yes.
747 HL Okay. All right. So I know that you've provided a version in a couple of different forums here
Rocky of the actual incident, but can you just explain to me in words what…
748 RA Yes.
749 HL … you remember about the incident that day?
750 RA The, the prisoners, one of the prisoners was talking to me about a job in the unit and while I was
talking to this prisoner, prisoner O'Halloran came over and asked me about, it was the mail days.
751 HL Yep.
752 RA Have I got any mail. And I in my response said "No I will talk to you after I've spoken to this
prisoner." And he wasn't happy about that so this prisoner Damien I was talking to at the time told
him to F off and get this idiot out of my face. And I separate the two prisoners and I say "You go
and wait in the exercise yard, I will come and talk to you in a minute." He walk out, then call out
to me "I want to talk to you now." So I've spoken to prisoner Damien Dumagee, then I went up
and I said "What is your problem? Talk to me." He's, all he just said is if, he can see he's taking
his side already. He was all upset but prior to the, I can, there was the young, well as we were
talking to the two young fellas one of them said they've already, they went at it. A prisoner said
they, they had an altercation before, before then yeah. So after that as I was talking to young
O'Halloran outside and I says well, you know (ui) the officer twice. I said you know "If you have
any problem with that you come and see me. I'm the unit manager, I sort it out, not you …
753 HL Yep.
754 RA … and not him. As I was talking to him he went to walk off and walk away and I said "Don't
walk away from me I'm talking to you. You've got to wait, stop and listen to what I have to say."
As he went to walk off I grabbed him by the arm and he went like this, he went, he swung like this
and I stick my hand in front of me and that's when it hit his face. I, with an open, my hand was
open wide just to protect myself with the swing of his arm and it came and hit his face.
-- 54 of 70 --
55
755 HL Yep.
756 RA Now as, again he was sorry, you know he was, he said "I'm sorry, I'm sorry of being", he was
being rude. I said "Hey I'm sorry to have to come to this but there's no need for you to get", I says
"If you have any problem with other prisoner in the unit you only", like he's only come into the
unit but because the kid's come off, he's got tattoos all over his body other kids were constantly
picking on him, and I think that's what this whole thing started because you know you can hear
them when they're, when they're in the yard and they're giving this young fella a hard time you
know. Well they say "You're a tough guy you know" because he's got, he's got a lot of tattoos on
his body.
757 HL Yep.
758 RA And he was getting a bit of a hard time from other kids.
759 HL Yep. All right. And what happened after that?
760 RA So as I said to him look just, I'll call him out here and I called the other prisoner out and I got them
together and I said "Listen if you have, from now if you don't listen to what I'm going to tell you
then you can both go to your units and that's your punishment and you've got to stay in your cell
till you calm down."
…
781 HL Do you remember what sort of time of the day roughly that was?
782 RA Oh well the time's got to be there.
783 HL If you don't remember that's fine.
784 RA Yeah I can't.
785 HL That's all right.
786 RA I can't remember the time.
…
816 RA So I said to him "Well you go and wait out in the exercise yard while I …"
817 HL All right. So whereabouts in the exercise yard did you go and speak to prisoner O'Halloran?
818 RA We go out the door and I said "Wait here till, I'll come back and see you in a minute."
…
850 RA I said "Tell me what's going on and what's your problem?"
851 HL Okay. And you said that at some time after you'd been speaking with O'Halloran he started to
walk away?
852 RA As, as I come out and I says "You tell me what", I says "If you've got a problem you come and
speak to me, you don't take it …
853 HL Yep.
854 RA … and deal with it." So as I, and his words were "You've already taken his side, so F off and
leave me alone." I said "No you won't, because he called me to come and see him and speak to me
outside after I told him to stay outside. As I was talking to Dumagee he would stick his head in
the door and says "I want to talk to you now." So I went outside and to have a chat to him…
855 HL Yeah.
856 RA … and as I was talking to him he turned to walk off and go around to the other side of the yard. I
went to grab his, I said "No you do not walk away when I'm talking to you."
-- 55 of 70 --
56
857 HL Yeah.
858 RA He went "Fuck off" and his hand swung like this…
859 HL All right.
860 RA … and automatically I stick my hand out to, and that's when it hit his face, come in contact with
his face.
861 HL Okay. All right. So what, you know at what stage during the conversation did he start to walk
off? Like how much of the conversation had occurred?
862 RA A few words. And I said "If you have any problems with other prisoners you come", and that's
when he you know in a (ui) those those few words and just…
863 HL All right. So how close to you was he standing when he started to walk off?
864 RA Very, very close, very close.
…
871 HL Yep. And what was his position in relation to yours when you were talking to him?
872 RA He was, he was, we were face to face.
873 HL Face to face?
874 RA Yeah.
875 HL And you said that you were close?
876 RA Yeah.
877 HL Okay. So he starts to walk off?
…
884 RA To walk away towards the other door.
885 HL … away from you and walk beside you and that's when you grabbed his arm?
886 RA I grab his arm and I said "No you don't". I says "I'm talking to you. You don't walk away while
I'm speaking to you."
887 HL All right. And is that normal for you to do, like you know if you're talking to a prisoner and he
decides to walk off that you would grab him by the arm?
888 RA Not always. It's not necessarily in, and they're all different cases but if some kid, if a prisoner was
concerned it all depends what kind of matters it involve, but if it's just like "Don't worry about it,
I'm not wanting, I don't want to go to the education program", and they just walk off you know,
but in this case you can tell there's been a confrontation between the two so you've got to, my job
is to get to the bottom of it…
889 HL Yeah.
890 RA … to make sure that it's not going to carry on and hurt themselves.
891 HL All right. What did you think he was going to do? Like he started to walk off. What did you think
the prisoner was going to do when he was walking off?
892 RA He was upset when I said "No you don't walk away while I'm talking to you."
893 HL Yep.
-- 56 of 70 --
57
894 RA And he says "Fuck off, you're already taking sides."
895 HL Yeah.
896 RA When he swung his arm I stick my hand out in front of me and that's when it hit him on the side of
the face yeah.
897 HL Okay. If you hadn't have stopped him what did you think he was going to do?
898 RA I can't read minds. He might have got around the door and go and start on this young kid. I don't
know.
899 HL Okay.
900 RA But because I took a hold of him, had a chat to him, he calmed down just in time. I went and
grabbed the other prisoner, took him outside, had a chat to them, give them a choice …
…
911 HL Yep. All right. So could you have dealt with that differently in that you know you wanted to
speak to the prisoner. He's begun to walk off and instead of grabbing him by the arm and giving
him a direction to "Wait here, I want to talk to you" without touching him?
912 RA Yes I could have but at the, at the moment I needed, as an officer I needed to let him know I'm in
charge …
913 HL Yep.
914 RA … not you because …
915 HL Yeah. But weren't you giving him a direction saying "Wait here or go somewhere else, I want to
talk to you…"
916 RA Yeah.
917 HL … have given him the idea that …
918 RA I could have…
919 HL … you're an officer, you're in charge as well?
920 RA Yes. But things were going you know 100 miles per hour…
921 HL Did it happen quickly?
922 RA … and then it went when blink, blink, blink.
923 HL I understand.
924 RA It's like you know sometimes you, you action before, because it was very, very quickly.
925 HL Okay. So you're saying it's a sudden decision…
926 RA Yes.
927 HL … and he started to walk off..
928 RA Yes.
929 HL … and you wanted to show him who's in control so you've just grabbed him …
930 RA Yes.
931 HL … by the arm?
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58
932 RA Yes.
933 HL All right.
934 RA It's just, just to get his attention.
935 HL Yep. Okay. And can you sort of give me an idea of how you grabbed him?
936 RA Yeah. As he, well I said "You don't walk away from me."
937 HL Right so you grabbed him sort of around the elbow region …
938 RA Yeah. Yeah.
939 HL … just so that he couldn't keep going so that you could grab his attention?
940 RA Yes.
941 HL All right. And you said his reaction to that was that he got his arm…
942 RA Yeah.
943 HL … and he sort of swung it in a circular motion in front of you?
944 RA Yes.
945 HL All right. Do you know what he was trying to do by that sort of circular motion? Was he trying to
sort of, was he doing it to try and assault you or was he doing it to try and break free of the grip
that you had on his arm or what do you think he was trying to do?
946 RA Oh you can't, I can't really, I can't tell what he's thinking you know because at the time he was
upset so it could have been who cares if you know he doesn't, his action, I don't know. He wasn't
thinking. It could have amounted to an assault but …
947 HL Can you remember which arm you actually grabbed him on?
948 RA I was facing this way…
949 HL Yep.
950 RA … he went to walk away and I grabbed him and I said "Don't … "
951 HL By the right …
952 BG So his left arm?
953 RA Yes. Yes.
954 HL So you've grabbed his left arm?
955 RA Yes.
956 HL And can you remember which arm that he used as…
957 RA The same arm.
958 HL The same arm?
959 RA Yes the same arm.
960 HL Okay. So that would indicate to me that if he's used the same arm he's trying…
961 RA Yeah.
-- 58 of 70 --
59
962 HL … to probably break free …
963 RA Yeah.
964 HL … of the grip that you've got of him. Is that fair to say?
965 RA Yes, that's fair to say.
966 HL All right. Okay. And you said that in relation to that that you put your hand up in front of you?
967 RA Yes.
968 HL All right. Can you remember if that was the same hand that you grabbed a hold of him with …
969 RA Yes. Yes I …
970 HL … or the other hand?
971 RA No it's the same arm, the same hand because I was like this and like that.
972 HL All right. So you've grabbed a hold of his and you know you did a bit of a demonstration on Ben
there.
973 RA Yeah.
974 HL You've grabbed a hold of his left elbow area …
975 RA Yes.
976 HL … with your right hand?
977 RA Right hand.
978 HL Is that correct?
979 RA Yes.
980 HL Are you certain of that?
981 RA Yes.
982 HL Okay. And then you indicated that what the prisoner has done is that he's used the same arm that
you grabbed hold of, the left arm…
983 RA Yeah.
984 HL … and gone in a motion to …
985 RA "Fuck off" yeah.
986 HL All right.
987 RA Yeah.
988 HL Okay. And then you said that you put your right hand up, which is the same arm that you grabbed
hold of prisoner O'Halloran …
989 RA Yeah.
990 HL … and when you've put that up his motion of moving his arm …
991 RA Yeah.
992 HL … has deflected your hand into his face?
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60
993 RA Yeah.
994 HL All right. When I sort of think in my head logically about that, if you've grabbed a hold of his left
arm …
995 RA Yeah.
996 HL … and he flails it out of the way …
997 RA Yeah.
998 HL … I can't see how you would have the time to then put your hand up and in that flailing motion it's
knocked into his face.
999 RA Sorry? He went like that …
1000 HL So what I'm saying is you've grabbed hold of his left elbow with your right hand and then what
you're saying to me is that the same arm that you've grabbed hold of on the prisoner he's used to go
like that …
1001 RA Yeah.
1002 HL … and in his motion of actually moving it across his body you've also managed to get your hand
up and it's deflected into his face?
1003 RA Stick it, stick it in front of me yeah.
1004 HL So for you to do that when I think about it logically that would mean that you would have to be
extremely fast in getting your hand up because all of a sudden you've got hold of it, he uses that to
move it out of the way and then you've had time to get your hand up. Are you sure you used the
same hand as you had hold of the prisoner's elbow with?
1005 RA Yeah I'm sure it was the right hand.
…
1020 HL All right. Well have you got any training like in martial arts or anything like that …
1021 RA No.
1022 HL … that would explain how you could be that fast to get your hand up?
1023 RA Yeah I'm a, I'm a professional boxer as well as a kick fighter…
1024 HL All right.
1025 RA … so you know I reacted …
1026 HL So are you saying your reactions are super fast …
1027 RA Oh …
1028 HL … because of your training?
1029 RA … I was the Australasian champion, boxing champion from, since 1985 for a few years.
1030 HL Okay.
1031 RA And I've, in '96 I won the Queensland Tough Man Competition as, you know what's that?
…
1055 HL … I think it would be very difficult for someone, even someone who's trained like you have, to be
able to react so that the same hand that you've got hold of the prisoner's arm with you can actually
use to block a motion, unless the prisoner was doing it in slow motion.
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61
1056 RA Do you want me to prove a point?
1057 HL No, no you can just, if you want to respond to that you can. I'm just saying …
1058 RA Yeah.
1059 HL … I find it difficult to understand how you could possibly do that, even with all your training.
1060 RA I think you're wrong.
…
1071 HL Okay. So what you were saying was you know when, when you put your hand up to block in his
motion of trying to sort of get rid of the arm that you've got on his elbow …
1072 RA Yeah.
1073 HL … that's actually knocked your hand into his face, is that right?
1074 RA No his hand didn't knock my hands into his face. He swung and my hand went, well I didn't, it's
not a grip as such. It was just, just to get his attention.
1075 HL Yeah.
1076 RA And when he went "Fuck off" …
1077 HL Yeah.
1078 RA … my hand come from here, I don't know how, like the kid is a fairly good, big, big kid …
1079 HL Yeah.
1080 RA … and if it would have hit me on the side of the face there's a chance of me going over.
1081 HL Yeah but what you said to me before is when you put your right hand up to block his actual motion
of swinging his arm in front of his body, his arm has actually knocked your hand into his face.
That's what you said to me before. Are you now saying that that's not right.
1082 RA You've got me. When he swung …
1083 HL Yeah
1084 RA … my hand came off his hand …
1085 HL Yeah.
1086 RA … and I automatically stick my hand in front of me …
1087 HL Yeah.
1088 RA … like so.
1089 HL Yeah.
1090 RA And because he's like that …
1091 HL Yeah.
1092 RA … he's actually moved forwards and that's when my hand came in touch, contact with his face.
1093 HL All right.
1094 RA Because he went "Fuck off."
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62
1095 HL We need to be clear …
1096 RA Yeah.
1097 HL … because what you said to me before …
1098 RA Oh.
1099 HL … was when you had your hand up …
1100 RA Yeah.
1101 HL … his motion of actually moving his arm struck your hand which then hit his face. That is not,
what you're saying to me now is that he moved into your hand when you put it up to block and
there was no contact with the arm that he was using to swing in front of him. Is that what you're
saying to me now?
1102 RA Sorry say that again.
1103 HL Okay. What you said to me before was …
1104 RA Yeah.
1105 HL … that when he used his motion to actually move his arm in front you already had your hand out
and when he was using that motion it's hit his hand, hit your hand which has then caused to hit his
face. That's what you said to me originally and that's why I was asking you all those questions …
1106 RA Oh.
1107 HL … about you know how you can get your hand up so quickly and that.
1108 RA So he went like that, my hand came loose and I stood in front of him like so and that's when it
came and hit the young fella in the face.
1109 HL All right. So if you've got your hand in front of you like that how did it come to hit his face?
1110 RA Because as he went like that he came, he came forward as well.
1111 HL Right.
1112 RA Yeah he's, when I grabbed him like this he said "Fuck off" …
1113 HL Yep.
1114 RA … and as he came forward my hand, I stick my hand out like that and it touched him in the face.
1115 HL All right.
1116 RA Yeah.
1117 HL So was it the motion of you sticking out your hand …
1118 RA Yeah.
1119 HL … that hit him in the face …
1120 RA Yes.
1121 HL … or was it the fact of him coming forward hit your hand?
1122 RA As well. He's come in, at the same time as I sticking my hand in front he came forward as, I think
he lost, sort of leaned forward and lost his balance because he's a big kid and as he leaned right his
face came in touch with my hands.
1123 HL Are you certain about that?
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1124 RA Yes.
1125 HL Because that's not what you indicated to me at the start.
1126 RA Oh sorry yeah I mustn't understand what you …
1127 HL Oh I think you understood …
…
1138 HL All right. So that's your version now that you put your hand up after he's actually swung his arm
…
1139 RA Yes.
1140 HL … and in the motion of you putting your hand up and him swinging his arm there's been
connection between your hand and his face?
1141 RA And his face.
…
1150 HL What was his reaction to your hands and his face coming together?
1151 RA He just, he just, it's just that I touch it in his face and I said "Hoy you know", you know he was,
you know he didn't, he didn't carry on with it. He's just, he's just sorry I'm, well he was out of line,
you know he was being, being rude to me or disrespect to me. And I said "Just calm down." He
was all hyped up and upset and…
1152 HL All right. Do you think he would, the actual contact between your hand and his face would have
resulted in any injuries to him?
1153 RA No. No I can honestly tell you no."
…
1384 HL Okay. Now after this alleged incident occurred do you recall going up to the, being asked to come
up to the general manager's office?
1385 RA Yes.
1386 HL Yep. All right. And do you remember who the general manager who was at that time?
1387 RA He was relieve …
1388 HL Peter Shaddock?
1389 RA Shallock. Shallock.
1390 HL Shaddock.
1391 RA Shaddock yeah.
1392 HL Peter Shaddock. Okay. And do you recall Mr Shaddock telling you that basically he'd received a
allegation that you had struck a prisoner?
1393 RA Yes.
1394 HL Do you recall telling Mr Shaddock and what's happened is that Mr Shaddock's obviously provided
us with a report with a brief précis of the conversation and in that report he says that you said to
him "I did physically grab and strike prisoner O'Halloran across the left side of the prisoner's
face." Mr Shaddock has then said "Would you demonstrate that for me?" And he says that you
then said, you then provided him with a demonstration and that you grabbed the prisoner on the
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upper arm region to block his departure from the area and to turn the prisoner around to face you
as you were still in the process of addressing the prisoner.
1395 RA Yes that's correct.
1396 HL Okay. Mr Shaddock then says that in the demonstration of the striking action it involved you
demonstrating striking the prisoner with an open hand across the left side of the face after which
you said "I hit him something like this."
1397 RA Well, yeah well my language is only, we don't, we only have 17 letters in the alphabet. We don't
have a word for, I was only interpreting from my language to English and, and slap is a slap. It's a
hit to face.
1398 HL Yep.
1399 RA There's no, there's no, I can't remember if there's a word interpreted as a contact to the face, so it's
my, I suppose in the English language I, I don't, I'm only giving…
1400 HL So what were you trying to indicate to Mr Shaddock when he called you up to the office and you
gave him this demonstration? What were you trying to indicate to him?
1401 RA How, how my hand was, was stretched out in front of me of the react of the prisoner and that now
I know it came in contact with the face, with his face.
1402 HL Okay. I mean to be fair to Mr Shaddock what he's indicating is …
1403 RA Yeah.
1404 HL … that it was, he was certain that it was like a strike to the left side of the face and not actually
having the hand in front of the face. That's what he took of your demonstration.
1405 RA Yeah. In our language there's no such word. There's no interpret as strike. A slap it's a bore, a
bore is a slap and that's it and is, if you're defending yourself with your hands like that that's a bore
which is, to me it's a slap.
1406 HL Okay. All right. So during that meeting do you agree that Mr Shaddock asked you to complete an
officer's report?
1407 RA Yes.
1408 HL All right. And is that the officer's report that you see in front of you there that you completed?
1409 RA Yes.
1410 HL Is that your signature?
1411 RA Yes.
1412 HL Okay. And it's dated the 26 th October 2009?
1413 RA Yes.
1414 HL All right. And in that report there you'll see that towards the end of it you talk about he, being
O'Halloran, then turned to walk away and I said "Wait you wanted to talk to me so don't you walk
away." Then you say "I stepped in front of him and as I did this prisoner Shane O'Halloran shoved
me out of the way with one hand. I instantly reacted by using an open hand striking the prisoner
Shane O'Halloran to the side of his face." So it's down in this region here.
1415 RA Shove me out of, well that, that was, look that was all involved in that time where he went like that
and he, the walk, as he was walking he, because we were right in front of each other and a shove
it's, you know he did rub up against my body. That's when I grabbed him and as, as he turned
around I've gone like that.
1416 HL Well before you were indicating to me that he was just going to walk off. You didn't mention
anything about the fact that there had been contact prior to him trying to …
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1417 RA Oh sorry I wasn't, you know it's been, it's been a long time. It's, you know I was just trying to
remember as, as best …
1418 HL All right. So what you're now saying to me is that as he began to walk off and you wanted to stop
him that's when there's been some sort of contact between him and you?
1419 RA Because we, I was standing right in front of him and as he went to talk off he brushed, you know
we were that close because I'm standing here, he's standing there and the door's over here.
1420 HL Yeah.
1421 RA So as he walked past there that's when I grabbed his arm as he was past me and I grabbed him and
that's when he …
1422 HL All right. So what do you mean by he shoved you out of the way?
1423 RA Well as he walked past he went like that, so I grabbed him by the arm as he was going to walk off
and turned that way.
1424 HL All right. Well that would seem to me like a fairly pertinent point…
1425 RA Sorry?
1426 HL … that's part of your version. That would seem an important point which forms part of your
version. Why didn't you tell me that before?
1427 RA Like I said you know it's been, it's been, it's been a long time since, and I've been through, I'll
honestly tell you I've been through hell and back. This time of this punishment they give me
nearly break me and my family up.
1428 HL Right.
1429 RA And there hasn't been, there hasn't been a day go by, even all night last night I haven't slept all
night. I don't drink coffee but I drink eight cups last night. It's been…
1430 HL All right. If I move on, after you've spoken about it that way you can then say "With one hand I
instantly reacted by using an open hand striking prisoner Shane O'Halloran to the side of the face."
1431 RA Because again I was referring to, to the Samoan way of, I couldn't think of any other words to,
to…
1432 HL Well I mean if I look at that you know when someone says "I used an open hand strike to strike the
prisoner to the side of the face" that to me is not that. To me a strike to the side of the face is that.
1433 RA Well that, to me that, to me that is, well that's me, that's a strike you know. Pushing is I'm
defending …
1434 HL Okay.
1435 RA … striking out to defend myself.
1436 HL Yeah. But what you …
1437 BG You should probably explain how this, how this was written.
1438 RA Well I, I was telling an officer because of my spelling and they assisted me to type up the report.
1439 HL All right. So how did they assist you?
1440 RA So I told them what had happened…
1441 HL Yeah.
1442 RA … and he typed it for me.
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1443 HL Yeah. Okay. So who was that officer?
1444 RA Perry, he was a supervisor down at BCC.
1445 HL All right. So as you were saying it he would type it down?
1446 RA Yes.
1447 HL All right. At the end of it prior to you signing it did you check to make sure the contents were
correct?
1448 RA That day I, I wanted, you know that day when I was, when I was asked of being suspended I was
embarrassed and I wanted to knock myself. I just wanted, you wouldn't, you would not believe, I
even, I nearly lost it.
1449 HL All right. So after he typed it and prior to you signing it did you check the contents?
1450 RA What do you mean the content, what's the content?
1451 HL Oh did you …
1452 RA The meaning of the letter?
1453 HL Yeah did you check the actual information in here to make sure it was correct?
1454 RA I read through it and I said, I, you know…
1455 HL You read through it.
1456 RA Well …
1457 HL Were you happy with the language that was in there when you read through it?
…
1467 HL All right. Well do you remember using those sort of terms when he was typing it up? Like would
you have used the terms you know "reacted by using an open hand striking the prisoner to the side
1468 RA I might have, but like I said we don't have a word for striking. You know striking is a slap and
that's that.
1469 HL I accept the fact that you know if you do that that's a strike.
1470 RA Yeah.
1471 HL What I'm, what I'm really I suppose asking you about is the side of the face. Like to me if
someone does that, they do it to their face, but a strike to the side of the face would be that.
1472 RA No his head was turned. His head was turned. Like I said as he was walking off and his, this side
was turned to where I was standing, that's when my hand came toward it and it was the side of his
face.
1473 HL So you're now saying that it actually was the side of his face, it didn't, didn't come into his face,
which is the way you've been indicating to me during the interview that it was like you know front
on?
1474 RA Well he, well the face. Yeah this is his face. This is what I call his face.
1475 HL Okay. All right. Is there anything else in that report that you sort of aren't happy with besides
those parts that you've outlined to me?
…
1497 HL And do you know is it, are you required to complete an officer's report every time you actually
breach a prisoner?
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1498 RA We have a breach report yes.
1499 HL Yeah. And do you regularly complete those breach reports?
1500 RA Not regularly. I mean…
1501 HL How often on average would you complete them?
1502 RA Well like I said I, I think I've, I can't remember how many, but at the end of the day it depends on
the circumstances of the incident that has involved the prisoner. But there hasn't been any serious
incident besides that you know.
…
1527 HL All right. If we go back to your version of this incident, and I understand what you're saying,
obviously you've completed this officer's report on the 26 th and we agree that the incident
happened on the 22 nd, so some four days later. Did you tell anybody about this incident after it
occurred?
1528 RA No the, the incidents, well the thing is we had so many things happening. When was shaken,
shaking, like he wasn't, he wasn't injured and they shook hands and they laugh and walk off and
that's where it finished.
1529 HL So did you tell anyone about it?
1530 RA No.
1531 HL Did you tell Rona about it your colleague?
1532 RA Well I can't, I can't remember if I told Rona.
1533 HL All right. Do you remember telling anyone like the supervisor …
1534 RA No.
1535 HL … or anybody?
1536 RA No.
1537 HL Is there any reason you didn't tell anyone?
1538 RA Oh I didn't, like I said we had other duty to continue with at the time because a lock, a lock away is
probably one of the, you know then I lock away at the same time. It's a very, it's a time you've got
to be very alert and lock, because that's when they play up…
1539 HL Okay.
1540 RA … sneaking things here, there, so …
1541 HL All right. So prior to completing this report you said that you didn't tell anybody as far as you're
aware. Did you complete a report or an incident report or anything like that in relation to the
matter?
1542 RA No, not an incident report because I didn't think it was, oh like I said we, we had the, when the
incident occurred and finished we had the medical came in so we had to line up and it's just things
got away from me I suppose.
1543 HL All right. Is there any, like can you remember what you were working the next day, whether you
were working the next day at all?
1544 RA I can't no.
1545 HL All right. Is there any reason you know when you next commenced work that you didn't tell
someone or you didn't report it in writing?
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1546 RA No.
1547 HL I know you said that you were busy that afternoon with the goings on in the unit. Is there any
reason during on your next shift that you didn't?
1548 RA Well as I was saying I got home and got a phone call from…
1549 HL Can you …
1550 RA No.
1551 HL You can't remember?
1552 RA No.
1553 HL All right. What's your understanding of, like to me on your version of what you've described you
know the prisoner has gone to walk past you and he's made contact with you. You've grabbed him
on the arm. You know he's flailed his hand or arm out of the way and then you put your hand up
and you've had contact with his face. To me that appears to be a significant incident in your day.
What's your understanding of the reporting requirements by the Department in relation to such an
incident? And by, I mean, what I mean by that is do you think you should have reported the
incident according to what the Department requires of you as a correctional officer?
1554 RA Well at the moment there was no serious injury as such I think and, yeah.
1555 HL I mean you know he's walked past you and you've wanted to stop him and there's been contact
there. He's flailed his arm which has required you to put your arm up to defend yourself you
know.
1556 RA Yeah.
1557 HL And the contact's come with his face. I mean that's, to me that's a use of force incident.
1558 RA Like from the prisoner?
1559 HL From you. You've had to use force to you know defend yourself.
1560 RA Well there's force and there's, it's not as, it's not as, like I said you can't be too careful, so by
sticking the hand up it, in case of, of an assault occurred then if it does my hand is there to, to
actually soften the blow of such.
1561 HL I suppose what I'm saying to you is when you take into the circumstance that you know you
provide me from your version in that you know he's calling you names like fuckwit and all these
sort of things and then you know you go out to talk to him and he goes to walk off, you know you
want him to remain so that you can give him some guidance, and then in that he brushes past you,
he flails his arm and you have to put your hand up and that comes in contact with his face. To me
that's a significant issue that you should report on. You should at least tell someone, tell your
offsider, tell your supervisor, complete an incident report, complete an officer's report, and yet you
do nothing of that until you're called up to the office on the 26th of October.
1562 RA Like I said you know it's, it happens so quick.
1563 HL I understand that.
1564 RA And at the time it's, looking after 17 year olds we hardly have time to go to the toilet. Honestly
it's, because …
1565 HL But surely if you would and report this to your supervisor your supervisor would say to you
"Rocky okay this is a significant incident that you need to report on. I'll arrange for someone to
come up and relieve you so that you can do that."
1566 RA It was lock away time. It's, honestly when you've got the lock away and a medical at the same
time it's hard. I can honestly tell you it's hard to find…
1567 HL What about after you've done all that after lock away and after medical?
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1568 RA 12 hours of you know abuse and work you go home to your loved ones.
1569 HL Like I'm even aware that you know most centres would provide you with overtime if there was an
incident…
1570 RA No.
1571 HL … for you to complete your reports and that.
1572 RA No I, things weren't very good for me at the time. I had an uncle and aunty die at the same time.
1573 HL Yeah.
1574 RA The tsunami went for two of my cousins.
1575 HL But what does that have to do, look I understand all that. I've seen that in the documentation.
1576 RA It was really …
1577 HL Now what does that have to do with you not reporting the matter?
1578 RA Like I said you know things were happening then so quick, 12 hours of abuse all you wanted to do
was make sure they're all set and well their medical has been up there, there was no indication of a
serious injury of any type, and I thought well if, I've even spoken to the prisoner and he seems all
right and he apologised and that's where I thought, yeah so…
1579 HL All right. Well looking back on the incident now, your version of the incident, do you think you
should have reported it in some manner?
1580 RA Well now, now I, I'll have to change the way I've got to do things. I think I'm going to have to be a
little bit more alert and, and like I said you know the last few years has been you know.
1581 HL Yeah. All right. But reflecting on what's happened now …
1582 RA Yeah.
1583 HL … and your version of the events do you think back at the time that you should have reported it?
1584 RA I …
1585 HL You should have either, either told your supervisor or completed an incident report or officer's
report?
1586 RA Yes I should have.
1587 HL All right. And why do you think that now upon reflection that you should have done that?
1588 RA Well as an officer it's, we should make notes of any of that incident in case of, of this and a
dispute…
1589 HL Yeah.
1590 RA … comes before the job.
1591 HL Yeah. And was that your understanding at the time that you know if an incident of this nature
occurred that you should report it?
1592 RA Well like you know the things we're going through is just, you know sometimes you just forget,
forget to do things…
1593 HL Yeah.
1594 RA … according to you know…
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1595 HL All right. If I now take you to your letter where I think the Department had written to you and you
responded to the Department, and it's possibly about the suspension. And I don't want to go
through all that side of it. It's probably not relevant here. But in there you actually make a
statement and it says, it will be in your copy there. "I maintain that I did not strike the offender on
the face. It was an accident, an unintentional slap that occurred when the offender lashed out at me
when I placed my arm on him." So to me that statement just sort of contradicts itself in that you
say "I maintain that I did not strike the offender on the face", however you then say "It was an
accident, an unintentional slap."
1596 RA Sorry which …
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Official source: https://www.sclqld.org.au/caselaw/QIRC/2012/027