Police v McGuire

The Legislation

1. The relevant provision pursuant to which the Defendant was charged provides as follows: - 61 Common assault prosecuted by indictment Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.

Cautionary Criminal Trial Directions and Onus and Standard of Proof

1. Sitting as both the tribunal of fact and law, to the extent that questions of law such as onus and standard of proof arise, it is apposite that I direct myself as though I were directing a jury on the application of the law to the facts, as they found them to be, in matters prosecuted on indictment. Cautionary criminal trial directions apply to a magistrate or judge sitting alone as they do to a trial before a judge and jury: Fleming v R (1998) 197 CLR 250; [1998] HCA 68. For abundant clarity, set out below are the matters in respect of which I directed myself.
2. It is imperative, at the outset, to observe that these are criminal proceedings and, as such, the Prosecution bears the onus of proving all the elements of the offence, beyond reasonable doubt: Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7; Woolmington v DPP [1935] AC 462. Section 141(1) of the Evidence Act 1995 (NSW) preserves the common law position. That onus rests with the Prosecution from start to end and does not shift to the Defence.
3. The Defence, however, bears an evidentiary onus, on the balance of probabilities, of proving facts that would bring its case within the scope of any statutory defences or common law defences, ever mindful, though, not to reverse the onus of proof: Colosimo & Ors v Director of Public Prosecutions (NSW) [2006] NSWCA 293 at [19]. It is then for the Prosecution to negative or disprove the existence of such facts to the requisite criminal standard, beyond reasonable doubt: s.419 of the Crimes Act 1900 (NSW). To the extent that an onus is cast upon an accused, the Court is to find the Defence case proved if it is satisfied that the case has been proved on the balance of probabilities: s.141(2) of the Evidence Act 1995 (NSW).
4. Three further matters should be borne in mind when arriving at a concluded view as to whether the Defendant is guilty or not guilty of the offences with which he has been charged.
5. First, it is erroneous for a tribunal of fact to consider each item of evidence separately and eliminate it from consideration, no matter how or by whom it was raised, unless satisfied beyond reasonable doubt. The evidence must be considered as a whole, not in isolation: Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7.
6. Secondly, if upon a review of all the evidence the tribunal of fact is left with reasonable doubt about whether the Prosecution case has been made out, a verdict of acquittal must be returned: Woolmington v DPP [1935] AC 462.
7. Thirdly, the Defendant's good character was raised and it was conceded by the Prosecution that he had no prior criminal convictions. This impacts upon the fact finding exercise by requiring that I direct myself along the lines referred to in R v Murphy (1985) 4 NSWLR 42. There are two limbs to the traditional direction.
8. First, I take into account the fact that as the Defendant has an unblemished reputation, this leads to the presumption that he is not capable of committing the crimes which are the subject of the charges. Authority for this proposition is found in Attwood v R (1960) 102 CLR 353 at 359. Character cannot alter proven facts, but when I am considering whether the Prosecution has proved its case beyond reasonable doubt, I must take into account the presumption that the Defendant would not commit a crime. This is the propensity limb of the direction.
9. Secondly, there is another aspect to good character, that is, that a person of good character is presumed to tell the truth. I am required to take into account good character in assessing the credibility of the Defendant. Put another way, I can presume that the Defendant would not have lied, because a person of good character will tell the truth. This is the credibility limb of the direction. Of course, a person of good character can commit a first crime and can tell a lie, but both are unlikely. In considering the explanation proffered by the Defendant in his Record of Interview and in-court testimony and the weight I should give to it, I am required to bear in mind that it was made by a person of good character and the Defendant is entitled to have that taken into account when I decide whether I believe his explanation in whole or in part.

Legal Principles

1. The essential ingredients or facts that the Prosecution must prove are as follows: - 1. a striking, touching or application of force (or threat of immediate force) by the Defendant to the alleged victim; 2. that such conduct was intentional (or reckless, in the sense that the Defendant realised that the complainant might be subject to immediate and unlawful violence, however slight, as a result of what he was about to do, but yet took the risk that that might happen); 3. that such conduct was without the consent of the alleged victim; 4. that such conduct was without lawful excuse.
2. Recklessness was not averred as part of the Prosecution case and it does not fall for consideration.
3. Unless the Prosecution proves every one of these essential ingredients, the Defendant is not guilty. The Court, as the tribunal of fact, can only find the Defendant guilty if the Prosecution proves each of these matters beyond reasonable doubt.
4. One further matter, however, is enlivened by the evidence adduced in these proceedings, namely, that of lawful excuse and / or self-defence.
5. It is well established that in cases where the issue of lawful excuse arises, the Prosecution must prove beyond reasonable doubt that the assault was not consented to, or that the Defendant was not acting in lawful self-defence. The use of reasonable force when the necessity to act in self-defence arises is a complete defence to an allegation of common assault where the Prosecution is unable to negative such self-defence, beyond reasonable doubt.
6. That said, the tribunal of fact is to decide any issue sufficiently raised either by the Defence or by the evidence on its own, irrespective of whether it is in the accused's best interests, even if such issue had an air of unreality to the case sought to be made by the Defendant in relation to some other issue: R v Stokes and Difford (1990) 51 A Crim R 25, per Hunt CJ at CL referring to R v Lawson and Forsythe [1986] VR 515; (1985) 18 A Crim R 360 at 548 (VR), 394 - 395 (A Crim R); R v Marshall (unreported, NSWCCA, 17 July 1990).
7. Self-defence is a question of fact to be decided by the tribunal of fact within the parameters of s.418 of the Crimes Act 1900 (NSW), which codified the common law principles outlined in Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645; (1987) 25 A Crim R 163; [1987] HCA 26.
8. Section 418 of the Crimes Act 1900 (NSW) provides as follows: - 418 Self-defence - when available (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them.
9. The various circumstances in which the defence will operate are discernibly set out in s.418(2). In R v Katarzynski [2002] NSWSC 613, Howie J at [20] resolutely summarised the position as follows: - "The question now posed for the jury, where there is evidence raising self-defence, is not the same as it was at common law after Zecevic v DPP (Vic) (1987) 162 CLR 645; 25 A Crim R 163 and as it was considered in R v Conlon (1993) 69 A Crim R 92. The questions to be asked by the jury under s.418 are: (1) is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself; and (2) if there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them. The question posed by s.418(2) concerning the belief of the accused is "determined from a completely subjective point of view" whilst whether the conduct is reasonable is "an entirely objective assessment of the proportionality of the accused's response to the situation the accused subjectively believed he or she faced"."

Senior Constable Debbie Coppard (Officer-in-Charge)

1. The Statement of Senior Constable Jennifer Ward, the officer-in-charge, dated 13 June 2017, was tendered into evidence as Exhibit 1. Her evidence, without trivialising her involvement, was administrative and investigative in nature.
2. During her evidence-in-chief, the following further documents were tendered and admitted into evidence without objection: - 1. The transcript of the Record of Interview ("ROI") between police and the Defendant on 14 June 2016 (Exhibit 2); 2. The Statement of Ms Angela O'Gorman (Conduct Officer at FACS) dated 18 January 2018, to which the department's business records relating to the Defendant's employment were annexed (Exhibit 3); and 3. Two Client Incident Report forms dated 2 March 2016 (relating to the alleged assault upon Ms Kauley, reported by Ms Maxine Woodward) and 6 March 2016 (relating to the alleged assault upon Ms Connell, reported by Mr Jonathan Foo), together with a "Predict, Assess and Respond To Challenging/Aggressive Behaviour ("PART") Training Attendance Sheet confirming attendance by the Defendant (and 16 others) at the PART training program on 21, 22 and 23 February 2012 (Exhibit 4).
3. Her evidence in cross-examination was as follows: - 1. The initial report which triggered the police investigation came from Ms Kellie McLean of FACS; 2. She took a statement from Ms Maxine Woodward on or about 21 April 2016; 3. She took a statement from Mr Jonathan Foo on or about 5 May 2016; 4. The Defendant voluntarily presented himself to police and participated in an electronically recorded interview on or about 14 June 2016, during which he was cooperative; 5. She agreed that at Q134 of the ROI, the Defendant stated that the alleged victims were aggressive and dangerous people and that both Ms Woodward and Mr Foo essentially said the same thing; 6. She subpoenaed the behaviour management plans pertaining to the two alleged victims from FACS but they were never produced; 7. She subpoenaed the incident reports pertaining to the two allegations the subject of the proceedings from FACS but they were never produced; 8. She was only able to discover the diagnoses of the two alleged victims by virtue of what employees of FACS told her; 9. She agreed that at Q136 of the ROI, the Defendant stated that he did not feel that he had assaulted anyone and that he referred to using his PART training; 10. She agreed that the Defendant mentioned his PART training during the ROI; 11. She agreed that she may have obtained from both the Defendant and another person the names of the PART trainers who had instructed him; 12. She also agreed that the Defendant rang her and later posted to her his PART training certificate; 13. She conceded that she had not made any enquiries as to whether any of the other staff employed at the Johnson Road facility, including Ms Woodward or Mr Foo, had undertaken the PART training; 14. She corresponded with Ms Jenny Sleath (Practice Support Coordinator, FACS, ADHC) via email in or about September 2016 and asked Ms Sleath to review all the information in relation to the matter and to provide her comment; 15. She forwarded a copy of the ROI to Ms Sleath but could not recall when; 16. She conceded that she did not obtain a statement from either Ms McLean or Ms Sleath; 17. She conceded that she was unable to recall when she first spoke with Ms Sandra Kelleher (Director of MTU Training Concepts Pty Limited and PART trainer); 18. She did not ascertain whether Ms Sleath was a PART trainer and, rather, just took the word of Ms McLean that Ms Sleath was the person who was involved in that area of commenting on the information provided.
4. Senior Constable Ward was not re-examined.

Ms Maxine Woodward (Disability Support Worker)

1. Ms Maxine Woodward's evidence-in-chief was as follows: - 1. She was a disability support worker employed at the Johnson Road facility and witnessed the first incident on 2 March 2016 between the Defendant and Ms Kauley; 2. She had worked as a disability support worker for a total of 13 years, three years of which were at the Johnson Road facility; 3. Notwithstanding this, she had worked with the four residents, Ms Suzanne Kauley, Ms Kathryn Connell, Mr Albert Clyburn and Mr Barry Green, for approximately nine years following their recent move from Abuklea Road, Ryde to the Johnson Road facility; 4. At different times, she worked day shifts, evening shifts and night shifts at the Johnson Road facility; 5. During the day shifts, when all four clients were home, there were two disability support workers present at the home; 6. During the night shifts, when all four clients were home, there was one disability support worker present at the home; 7. Often, there was an overlap between some day and afternoon shifts; 8. Ms Kauley was about 25 years of age, severely autistic and disabled. She understood everything one would say to her, was very needy and relied on the staff a great deal, requiring assistance with clothing, food, drink, comforts and showers; 9. Ms Kauley had severe autism and behavioural issues and there was a Behaviour Support Plan regarding the policies and procedures on how she should be dealt with; 10. She had read Ms Kauley's Behaviour Support Plan; 11. During her 13 years as a disability support worker, she had undergone training including manual handling, first aid, Certificate III (which related to how to look after clients) and this training aligned with the policies and procedures in place to properly deal with client behaviour; 12. There was much documentation in place to look after Ms Kauley alone and how to deal with her needs was all documented; 13. Ms Kauley was aggressive, very difficult and a challenging client. A "time out" procedure was in place for when Ms Kauley became too aggressive, and would involve taking her to, and leaving her to calm down in, a locked area; 14. There were many times when she had to deal with Ms Kauley becoming aggressive and, along with another staff member, she would take Ms Kauley to a safe, quiet area away from other clients and staff; 15. When asked to explain what she meant by "take", she stated that the client would be "escorted" very gently with each staff member taking one hand of the client and walking her to the locked area; 16. She further explained that she would "maybe just link my arm in with [the client's] and the other staff member on the other side" would do the same at about elbow level; 17. She had never needed to be more "hands-on" with Ms Kauley because if Ms Kauley protested, did not want to go or began running around, she would just let her go in the hope that Ms Kauley would calm down. She stated that they were not permitted to use "aggressive force" because Ms Kauley had a physical restraint order in place; 18. She explained that, because there was an "RPA" in place (a Restricted Practice Authorisation), any time they wanted to physically restrain a client, they needed to go through stringent meetings to decide whether that client could be physically restrained and that Ms Kauley had such an order in place. She further explained that they were allowed by the Department (FACS) to physically restrain Ms Kauley because a panel of "maybe three people … decide[d] whether we can - and there's a lot of factors that go into deciding that. It's because we look for any alternative rather than [to] restrain her"; 19. Although she was not sure what RPA stood for, owing to her severe dyslexia, she did, however, understand that the document related to what a carer could and could not do; 20. Her understanding was that the RPA allowed carers to "gently take [Ms Kauley] by the hand, by linking elbows, and take her down to the restraint area and give her time out, lock her in that area until she calms down, with staff assistance"; 21. She did not know whether there was any other level of restraint permitted under the RPA; 22. On 2 March 2016, all four clients were at home and she was rostered on for the day shift between 3.00 p.m. and 11.00 p.m. at the Johnson Road facility. The Defendant was the only other employee with whom she was working that day and was rostered on for the day shift either between 1.00 p.m. and 7.00 p.m. or 3.00 p.m. and 11.00 p.m.; 23. At that stage, she had only worked with the Defendant about three times in the preceding two to three months; 24. Having worked with the Defendant on a few shifts prior to the incident on 2 March 2016, she had observed the Defendant "yelling, irrational, loud and scary". (Notwithstanding this, she stated, in cross-examination, that prior to the incident on 2 March 2016, she had never seen the Defendant yell or scream at anyone); 25. As to the incident the subject of Sequence 1 on 2 March 2016, she observed the Defendant lose his temper quickly with Ms Kauley by yelling at her and physically grabbing her by the shoulders and taking her into the lounge area. More generally, she was of the opinion that the Defendant had a "real short fuse" when it came to Ms Kauley and Ms Connell; 26. She stated that at about 6.00 p.m., Ms Kauley was walking freely between the inside and the outside areas of the house, whereas she and the Defendant were trying to eat their dinner on the large table outside, under the pergola. Ms Kauley was not saying anything, but was making a "slight squealing sound". She stated that Ms Kauley "was being difficult … walking around the table … banging the table, tipping up chairs, tipping up pot plants"; 27. After a while, the Defendant got up and screamed at Ms Kauley. She was asked to recall what the Defendant said and she responded that she was "not sure what he was exactly saying, he was screaming at her "Susan, stop it", or something like that"; (bb) At one point, the Defendant stood up and, placing both hands on her shoulders, "grabbed [Ms Kauley] from behind on the shoulders". The Defendant "directed her, screaming … pushing her into the lounge area." She described this as having taken place with the Defendant's hands on Ms Kauley's shoulders, over a distance of about three to four metres, from the outdoor area, through the sliding door and into the lounge area; (cc) She stood up and then saw the Defendant "push [Ms Kauley] down onto the lounge", "holding her by the shoulder[s]" to "make her sit." She observed that the Defendant was "not having very much success, because [Ms Kauley was] protesting in every way she can." Ms Kauley was "forcing herself back up and [the Defendant] was forcing her down." Ms Kauley was "just aggressive, trying to … force herself back up", "had tears [and] … was actually crying." Throughout all this, the Defendant was telling Ms Kauley to "sit" in a "loud, aggressive tone"; (dd) On each occasion on which she was asked what the Defendant was saying when his voice was raised at Ms Kauley, she stated that the Defendant said, "Stop it, Susan. Stop it, Susan." This, she stated, made her "scared about the whole situation"; (ee) The Defendant "ended up giving up because [Ms Kauley] was just getting … escalating" and the Defendant "just walked away", back outside because he had not finished his meal. She stated that at this stage, she "went inside and … started doing the dishes and things like that." She felt that she could not speak to him after that and "just didn't feel comfortable at all". She was of the opinion that the Defendant had "lost control of himself" and that made her feel "very uncomfortable"; (ff) She stated that Ms Kauley then "just walked around" going "in and out, in and out, in and out" and that she gave her a drink and otherwise was caring for her needs; (gg) The next morning, she reported the incident to the team leader, Ms Jenny Cummings, by filling out an incident report.
2. In the period of the lengthy adjournment between Day 1 of the hearing on 6 February 2018 and Day 2 of the hearing on 12 November 2018, additional documents were served by the Prosecution on the Defence. Before the commencement of Ms Woodward's cross-examination on 12 November 2018, the following documents were tendered and admitted into evidence by consent: - 1. The Participants' Manual - "Predict, Assess and Respond To Challenging/Aggressive Behaviour (PART) (2010 edition, MTU Training Concepts Pty Limited) (Exhibit 5); 2. The Behaviour Support Plan and Submission (proposal) for Restricted Practice Authorisation (following the previously approved three-month RPA dated 26 April 2017, that is, after the alleged offence date of 2 March 2016) in respect of Ms Suzanne Kauley (Exhibit 6); 3. The Behaviour Support Plan dated updated in April 2017 (but apparently in place since June 2008, that is, before the alleged offence date of 6 March 2016) in respect of Ms Kathryn Connell (Exhibit 7).
3. Ms Woodward's evidence in cross-examination was as follows: - 1. Despite her nervousness, she recalled that RPA stood for Restricted Practice Authorisation and that this gave carers the power to do certain things; 2. There was an RPA in place for Ms Kauley as at 2 March 2016 and she understood that this allowed her to use physical restraint where necessary; 3. When asked about whether Ms Kauley's RPA outlined the specific method of physical restraint, she stated that this was achieved by being gentle, with two staff, to redirect Ms Kauley into her own area where she could calm down and be locked in; 4. When asked about whether Ms Kauley's RPA outlined a particular method of physical restraint, she stated that she understood it to involve taking the client gently by the shoulders and / or hand so as to take the client to a safe area. She later agreed with the proposition that this involved placing both hands on the back of Ms Kauley's shoulders and that, normally, there were two staff members; 5. There was an RPA in place for Ms Connell as at 6 March 2016 and she understood that this allowed her to use physical restraint where necessary and lockdown; 6. When asked about whether the Ms Connell's RPA outlined the specific method of physical restraint, she stated that it did and was basically the same thing, but was unable to recall it off by heart; 7. She agreed that the Johnson Road facility was a very challenging house and that Ms Kauley and Ms Connell could be very aggressive at times. One of the male clients, Mr Barry Green, would have regular fits and fall over; 8. Both Ms Kauley and Ms Connell were on PRN medication in case their mood escalated, but was not administered at that particular time. (In the context in which this evidence was given, I understood this to mean pro re nata medication, which they were given for aggressive behaviour when required or as needed, as opposed to a regular dose at specific times); 9. The move from Abuklea Road, Ryde to the Johnson Road facility was unsettling for Ms Kauley and Ms Connell; 10. She did not pass on to the Defendant any information about Ms Kauley or Ms Connell. She was not aware of whether the Defendant had undergone any induction and did not ask the Defendant whether he had read the Behaviour Support Plans or RPAs in respect of Ms Kauley and Ms Connell; 11. She denied ever saying to the Defendant that he needed to stand up to Ms Kauley and Ms Connell or "they'll eat you alive"; 12. She had undertaken the PART training twice, once at the old house at which she was employed (by a trainer whose name she could not recall) and once at the new house (by Ms Jenny Sleath); 13. In response to the types of restraint she was taught, she stated that this involved gently trying to distract the client with another staff member, to redirect them to an area where it was safe and, thereafter, to lock them down; 14. When asked about whether she had been taught something similar to a "half-Nelson" type of physical restraint (in which one would stand behind the subject client, placing both hands from the outside of the client's arms and then placing one's own hands behind the client's low to mid-back area), which was demonstrated to her during cross-examination, she stated that she was not sure; 15. Somewhat contrary to her evidence-in-chief, she stated that she had only ever given evidence about the incident on 2 March 2016. She denied having given evidence to the effect that she had seen the Defendant yell and scream at clients in the past. More specifically, she confirmed that prior to the incident on 2 March 2016, she had never seen the Defendant yell or scream at anyone; 16. She recalled telling the Defendant that he was doing fine in response to him having asked her how he was going in his role as carer at the Johnson Road facility; 17. She denied any knowledge of Ms Kauley having punched the Defendant in the face a few times and any knowledge of Ms Connell having spat at the Defendant, however, had become aware of certain matters outlined in incident reports when she was rostered on for duty; 18. She could not recall any incident reports written by the Defendant; 19. She recalled Ms Connell biting one of the male clients, Mr Albert Clyburn, on the nose and drawing blood; 20. She recalled Ms Connell hitting Ms Kauley at times; 21. She could not recall Ms Kauley assaulting others in the house and, therefore, taking her outside, nor could she recall Ms Kauley being aggressive on 2 March 2016. However, after being shown in paragraph 13 of her statement to police, in which she stated that Ms Kauley was becoming aggressive and trying to hit other clients, she agreed that this was something she could have said; 22. She agreed that, afterwards, while she and the Defendant were eating dinner on the table outside, Ms Kauley came outside and was banging on the table, overturning chairs, overturning pot plants and trying to lift the table. She agreed that this behaviour continued for a few minutes while she sat down for a cup of coffee. Contrary to her evidence-in-chief, she denied the assertion put to her that Ms Kauley was making squealing sounds because Ms Kauley was "not really vocal"; 23. She agreed that Ms Kauley's behaviour was escalating; 24. She agreed that Ms Kauley was known to be responsive to the words "Stop it. Stop it" when said in a firm voice; 25. She agreed that Ms Kauley had an issue or an obsession with food and people eating, but that this related to Ms Kauley's food, which she would eat fast; 26. As to the events the subject of Sequence 1 on 2 March 2016, she stated that the Defendant stood up and got very angry. She estimated the time between the Defendant standing up at the table outside and getting Ms Kauley to the lounge area to be about one minute. She estimated the time during which the Defendant attempted to push Ms Kauley down into a seated position onto the lounge to be also about one minute; 27. She denied that the Defendant used anything like a "half-Nelson" type of physical restraint. She denied that the Defendant attempted to pull, rather than push, Ms Kauley down when he had brought her to the lounge area. She disagreed with the suggestion that Ms Kauley was not making noise at the time. She stated that Ms Kauley was unhappy and making noises but that (contrary to her evidence-in-chief) she was not crying. The Defendant was screaming at Ms Kauley and was "over-the-top". Although she could not be sure and did not distinguish between noises suggestive of pain as opposed to noises suggestive of Ms Kauley not getting her way, she believed that Ms Kauley responded with noises indicating that she was physically upset; (bb) She denied the suggestion that the Defendant was not screaming but, rather, was using a firm voice. She stated that Ms Kauley banged her hands on the table in front of the Defendant's plate and that what concerned her was the Defendant's reaction, it being "incredibly confronting and violent." She felt as though she could not say anything because he "completely lost it"; (cc) When it was put to her that the Defendant only used the words "Stop it" and "Sit down", she stated that, although she could remember the words "Stop it", she did not know what words the Defendant used but that the words were said with "such rage"; (dd) When the Defendant walked back from the lounge area to the table outside, she did not say anything to him. Ms Kauley immediately began walking around again, something she normally did. She was of the view that there was no way the Defendant could get Ms Kauley to sit down because she was autistic and would not do so; (ee) She checked on Ms Kauley afterwards and came to the view that she was alright; (ff) She continued to work with the Defendant after that time but brought up her concerns with the team leader, following which she decided to "watch for that sort of rage" or "him losing control"; (gg) Between 2 March 2016 on 6 March 2016 there were no discussions about what she would have liked to see happen nor did she have any conversations with the Defendant; (hh) Although unrelated to Ms Kauley, when asked whether she had made certain requests of the Defendant to keep Ms Connell out of the laundry, she agreed that this may have been the case but that she was not sure.
4. Ms Woodward's evidence in re-examination was as follows: - 1. On the question of whether there needed to be a specific authorisation to use a physical restraint, she stated that there needed to be an RPA in place before one could use the training; 2. On the question of what the procedure was when dealing with clients without RPAs in place, she stated that there was no special way because there was nothing in place and that it was somewhat difficult because they were moving clients; 3. Linking arms and hands was an example of the PART training she acquired; 4. It was her function to deal with client personal hygiene and care. It was not her role to supervise or train staff; 5. She did not say anything to the Defendant because the situation was very confronting and took her by surprise. She thought that by speaking to the Defendant, it might escalate and, therefore, it was not wise to do so; 6. The Defendant did not interact with Ms Kauley after she slammed her hands on the table. Rather, his reaction was "explosive"; 7. She denied that she was trying to get the Defendant into trouble and that in the eight or nine years she had worked with Ms Kauley and Ms Connell, she had not put in any reports in relation to the conduct of others; 8. Although she was not working with the Defendant on 6 March 2016, she was unable to recall whether she had worked any shifts with the Defendant between 2 March 2016 and 6 March 2016.

Mr Jonathan Foo (Disability Support Worker)

1. Mr Jonathan Foo's evidence-in-chief was as follows: - 1. He was a disability support worker employed at the Johnson Road facility and witnessed the second incident on 6 March 2016 between the Defendant and Ms Connell; 2. He had worked as a disability support worker for about two years at the time of this incident in 2016; 3. All of the four clients at the Johnson Road facility had a mental disability. Ms Kauley will had a severe case of autism and was non-verbal; Ms Connell had a milder level of disability. Although she was able to speak, she was unable to express herself very well due to her cri du chat syndrome; Mr Clyburn was suffering from the onset of dementia and was unable to concentrate; and Mr Green, although on the quiet side as he got older, was known to be quite violent in earlier years; 4. He had undergone Non-violent Crisis Intervention ("NVCI") training with Ms Jenny Sleath (Practice Coordinator, FACS, ADHC); 5. Ms Connell was hard to predict because it depended on how she felt that day, whether she was moody, whether she was happy or whether she was expecting someone to visit her. She had a tendency to be very obsessive about certain things and this was something they had to look out for; 6. They always had problems dealing with clients with the type of disability under which Ms Connell was labouring because they would not understand what was happening or what was being said and vice versa. The carers dealt with matters according to their training, noting that they also had an RPA in place in the event that Ms Connell became extremely violent and aggressive. This would allow them to lock her out and let her cool down; 7. On 6 March 2016, he was working with the Defendant who was new to the Johnson Road facility and whom he had known for about a month; 8. He was in the kitchen preparing food for dinner and, for the safety of the clients, he would lock the entry door to the kitchen. He was able to see the clients through what I understood was an opening in the wall, but was not able to physically supervise them; 9. Before he entered the kitchen to commence food preparation, he told the Defendant to look after the clients while he was cooking; 10. At one point he heard the Defendant "screaming". While in the kitchen, some three to four metres away, he saw the Defendant "dragging" Ms Connell out. He stated that the Defendant had Ms Connell in a "headlock". This was not a conventional headlock in which one encircles another person's head to the side of one's body. Rather, he explained that the Defendant's hands were placed behind Ms Connell's neck (in what I understood was something similar to a "full-Nelson" type of physical restraint, in which one would stand behind the subject client, placing both arms under the client's arms and then placing one's own hands behind the back of the client's neck); 11. In terms of stature, Ms Connell was a smaller woman; 12. Ms Connell was initially in the laundry and on that day was obsessed with her handkerchief. Earlier, he had put Ms Connell's handkerchief in the laundry to be washed with other items of clothing. He stated that nobody was allowed in the laundry because it contained a washing machine, dryer and other chemicals and, therefore, there was the potential for injury; 13. When explaining what he meant by "screaming", he stated that he heard the Defendant saying words to the effect of, "Stop it. Stop it" very loudly and upon turning to look, he saw the Defendant "pulling" and "dragging" Ms Connell out. He observed the Defendant's face was "bright red with anger" and that Ms Connell was "resisting him by kicking or whatever, you know, they wrestled". He explained that Ms Connell was trying to do her best to free herself; 14. He stated that the Defendant was dragging Ms Connell to her room to allow her to cool down, because there was an RPA in place; 15. He was very surprised by the Defendant's anger. He had never seen someone so angry before, given that what they usually did was to simply "stand there, [block her path], stop her, talk to her and say, "No … you will get the handkerchief when it's all finished and done." Normally, Ms Connell would just walk back to her room after which they would lock her in there for about five minutes or ten minutes to cool down; 16. In the past, when he had situations where he was required to block Ms Connell's path, it had always been effective; 17. After the Defendant had put Ms Connell in her room on her lounge chair, the Defendant locked her door. He stopped cooking for a few minutes and went into Ms Connell's room to check on her. Although she appeared a little flustered and her face was red, he did not see any injuries and he returned to the kitchen to continue cooking; 18. He did not talk or interact with the Defendant because the Defendant was so angry. Later that evening though, he wrote an incident report about the way the Defendant behaved and left it to management to decide what to do; 19. In response to what was somewhat of a leading question in-chief, he agreed with the proposition that without an RPA he was not, as a disability support worker, allowed to go "hands on at all". When dealing with a client in respect of whom an RPA was not in place, he stated that "you would have to defend yourself, right, as much as possible without hurting the client"; 20. In response to what was also a leading question in-chief, he agreed with the proposition that the carer needed to be "reactive", as part of a "defence mechanism", rather than take a "positive action"; 21. As to how he became aware there was an RPA in place in respect of Ms Connell, he stated that upon being inducted he was shown her file, in which there was an RPA, a lifestyle plan and other relevant information.
2. Mr Foo's evidence in cross-examination was as follows: - 1. There was both a Behaviour Support Plan and an RPA in place in relation to Ms Connell; 2. In response to whether the Behaviour Support Plan contained details about restraints that could be used with respect to Ms Connell, he stated that the document contained information more along the lines of how one might support her in her daily activities. He stated that the RPA was the document which would "tell [you] directly what to do"; 3. He was again asked whether he could recall if the Behaviour Support Plan contained any information in relation to what kind of restraints could be used. In what one might regard as being non-responsive or indicative of doubt, he replied, "Not in - as would refer that you're going to read the RPA"; 4. He was asked to clarify whether what he meant was that the RPA contained the kind of restraints which could be used, as opposed to the Behaved Support Plan, to which he replied, "Because the RPA changes, you know, from time to time, so"; 5. Eventually, he concluded that as at 6 March 2016, there was an RPA in place which permitted the use of physical restraint with respect to Ms Connell "in terms of sending her to a place so that she can be excluded and allowed to cool down"; 6. He was asked whether the RPA gave any details as to how one could get Ms Connell to her room, to which he replied, "Not really. I mean, that's why we are trained to do this Non-violent Crisis Intervention, to use the defensive means of getting her there without hurting yourself and the client"; 7. He agreed with the proposition that there was no detail as to what restraint moves one could use provided that one was protective of the client, "as well as not putting too much force on the client. That's where we went for our training, the Non-violent Crisis Intervention"; 8. He recalled that the Non-violent Crisis Intervention training he received was run by Ms Jenny Sleath from one of the government departments; 9. He agreed that the training did not teach him any particular restraint holds but "teach you how to defend yourself, if she start to hit you, or she start to bite you, you know, or she grab your hair, how to stop her from doing all those things"; 10. As an example of some of the types of things he was taught, he stated, "Well, for example, if she wants to grab your hair, you're supposed to do a certain posture, you shoot down and then you free her arm from your hair." This was demonstrated as involving ducking down and then lifting both hands up with palms facing each other; 11. After again being asked, more pointedly, as to whether he had been taught anything about how to escort or restrain someone, he replied, somewhat circuitously, "Well, usually when that happens, if you really need to escort someone, you should have a two to one, get someone to help you"; 12. When pressed on the issue of whether he had ever been taught any particular method of restraint or escorting, he responded, "I can't recall at this stage now for a while"; 13. He had not done the PART training course but he had, on previous occasions before 6 March 2016, placed Ms Connell in her room. In response to whether he had previously used some force to get Ms Connell into her the room, he responded "basically I just did what I said. Basically you stop her from doing whatever she want to do." Later, he denied using force. He stated that although he could not speak for anyone else, Ms Connell would usually listen to him. He would stand and present as an obstacle to Ms Connell. In circumstances where Ms Connell might have been in the laundry, he would stand in front of the laundry door to stop her from going in. He would tell her to go away somewhere until her handkerchief was ready, and if she wanted to come in, "then you just have to defend yourself, stop her from coming in." He stated that one needed to be patient. Generally, he would "use a hand to stop her from coming in" and after a while, she would stop, turn around, and upon telling her to go to her room, she would usually go; 14. Neither he, nor anyone else he could recall, had ever pushed Ms Connell into her room; 15. Although he did not have a direct line of sight from the kitchen into the laundry, as soon as he exited the kitchen, he could see the incident taking place about five metres away; 16. He agreed that Ms Connell had assaulted other clients at the home and that she had been assaulted by other clients. He stated that it was "a two-way street." Ms Connell was known to have an issue with one of the other clients at the home, Mr Albert Clyburn. He stated that although it had been an issue a long time ago, the two would regularly try to bite each other. However, he stated that Ms Connell did not have an issue with any of the staff. He was unable to recall whether Ms Connell had bitten Mr Clyburn on the nose and had drawn blood on the day before the alleged incident, which took place on 6 March 2016; 17. He agreed that Ms Connell had to be restrained in a special seatbelt when travelling on a bus, for her own safety, but denied that it was because she would sometimes attack other clients on the bus; 18. He was junior to other employees at the Johnson Road facility and was employed on a temporary, part-time basis. As such, he did not give the Defendant any information about dealing with particular clients; 19. He agreed that he told the Defendant to watch over the clients but denied telling him to keep Ms Connell out of the laundry and away from the washing machines; 20. He was aware that Ms Connell had obsessive behaviour in relation to her handkerchief, that she would often go into the laundry to get it and that she would sometimes put it in the dryer on its own. He agreed that Ms Connell's entry into the laundry was a risk to her safety; 21. He stated that when Ms Connell was in an obsessive frame of mind, the carers would "simply lock the laundry door" rather than stop her from entering. This evidence, however, was revealed to be at odds with the Client Incident Report Form completed by him on the evening after the incident, at 8.00 p.m. on 6 March 2016. He later agreed that under the heading "Follow up recommendations", he typed his recommendation that "a lock to be added to the laundry door" as there was no lock on it; 22. He agreed that the laundry area was a dangerous place for Ms Connell to be in, there was a risk of injury if she entered therein and did not see what happened between the Defendant and Ms Connell in the laundry area; 23. The first thing he heard the Defendant say, many times, were the words "Stop it" because it was "very loud"; 24. Upon seeing the cross-examiner demonstrate how the Defendant's hands might have been used to take hold of and restrain Ms Connell (with his hands at the bottom or the lower or middle back, as opposed to behind the client's neck), he stated that "I always use the word 'head lock' but that's how I remember it"; 25. He stated that Ms Connell was in pain and "moving quite a lot in reaction to what [the Defendant] did." When asked to elaborate, he stated that he did not think she was "waving her arms and kicking her legs". Rather, he thought that she was "struggling". Later, he stated that he could, in fact, "see a bit of kicking, trying to kick to get herself free"; 26. He was unable to see, at the angle from which he was observing, whether Ms Connell was trying to spit on the Defendant, only that the Defendant was dragging her backwards; 27. He reiterated that Ms Connell was struggling to free herself and that it was "very unlikely" that she was trying to return to the laundry "because she is already sloping backwards" and that the Defendant was "big compared to her"; (bb) He also reiterated that he did not remember seeing Ms Connell spitting at the Defendant. However, he recanted after being shown paragraph 8 of his statement to police, in which he stated that Ms Connell "was resisting him and struggling with him. She was spitting and trying to bite him … and kicking out and trying to break free of him to get back to the laundry". In response to what his position was regarding this paragraph of his statement, his evidence was that he agreed with it; (cc) It was suggested to him that the Defendant was not screaming but, rather, was saying "Stop it" to Ms Connell loudly and firmly. In response to this, he stated that the Defendant was "screaming … very loud"; (dd) He disagreed with the suggestion that the Defendant did not lock the door after he placed Ms Connell in her room; (ee) He agreed that while the Defendant was moving Ms Connell towards her room and she was struggling, resisting, kicking out, trying to bite, spitting at the Defendant and trying to get back to the laundry, he did not make any attempt to assist in any way because he was in the kitchen, cooking; (ff) Contrary to his earlier evidence, he stated that he did not try to leave the kitchen because this would have created a fire hazard. When he was pressed in this regard, he stated that these events "only happen maybe a few second" and that from the moment when he heard the Defendant's voice to the point at which the Defendant placed Ms Connell in her room it was "maybe 30, 40, 50 seconds" and over "quite quickly"; (gg) After she had been placed in her room, he checked on her but did not see any marks on her neck or elsewhere; (hh) He did not have any conversation with the Defendant afterwards; (ii) He could not recall telling the Defendant that Ms Connell's handkerchief was part of her obsessive behaviour; (jj) Prior to this incident, he had never seen Ms Connell spit on the Defendant, nor was he aware of this having happened.
3. Mr Foo's evidence in re-examination was as follows: - 1. As to why he had not told the Defendant about Ms Connell's Behaviour Support Plan and RPA, he stated that he was a more junior to the Defendant and it was not his place to tell the Defendant to read the client's file. As far as he was aware, the Defendant was a full-time employee and had been in the industry for 10 or 15 years. If anything, he would ask the Defendant for advice. In addition, he was not one of the key workers for Ms Connell; 2. As to the words used, he stated that the Defendant said, "Stop, Kath" in a loud voice, many times; 3. As to Ms Connell's stature, he stated that she was of medium build and shorter than 163 centimetres.

Ms Jenny Sleath (Practice Support Coordinator, FACS, ADHC; PART trainer)

1. Ms Jenny Sleath's evidence-in-chief was as follows: - 1. She was a Practice Support Coordinator with Cerebral Palsy Alliance, which had been transferred from FACS in March 2018; 2. In 2016, she was employed by FACS, ADHC; 3. She held a Degree in Social Work, a Diploma of Disability, a Certificate IV in Frontline Management and a Certificate IV in Workplace Training and Assessment; 4. In 2016, she was the Practice Support Coordinator for the Hornsby region and provided on-the-job training at all the homes which fell within the northern Sydney district, of which the Johnson Road facility was part; 5. She had been asked to review the actions of the Defendant in respect of the incidents on 2 March 2016 on 6 March 2016, based on his responses in his Record of Interview with police, as well as from various witness statements; 6. Based on the training she had provided, she formed a view on the issue of whether the Defendant's actions accorded with the training; 7. She was aware of most of the staff that worked at each facility. In respect of the Defendant, he had something in the order of 20 to 25 years' experience in the area of disability support care; 8. She had been asked to make enquiries regarding the Defendant and whether he had been trained under NVCI or PART. Her enquiries revealed that the Defendant had attended a PART training course on 21, 22 and 23 February 2012; 9. She explained the difference between PART training and NVCI training. Both training programs were very similar. The cornerstones of the training were self-protection and, if there was a requirement to intervene, doing so in a safe manner; 10. Both training courses were run to give staff skills around the physical handling of clients, self-protection and safe handling when a physical restriction was required. They also provided an understanding of how RPAs operated, something which extended to things other than physical restriction, such as locked cupboards and the like. PART training was the original program used by FACS in the northern Sydney district for as long as she could remember. More recently, however, when she came into the role of Practice Support Coordinator, there was a shift to the new program, NVCI, as part of FACS standardised training, which was adopted across the State; 11. As Practice Support Coordinator, she was trained in delivering the training and did so on a regular basis; 12. She explained that RPAs were formal documents that allowed carers to make any kind of restraint on a person to whom they provided care, whether that be a physical restraint or an environmental restraint; 13. The process of bringing into effect an RPA involved convening a panel consisting of an expert, a manager and a member of the public to ensure transparency and accountability. Any Behaviour Support Plan in respect of a client is also taken into consideration. Similarly, consideration was also given to whether restricting a person's freedom or liberty was justifiable. After taking into account all of these considerations and upon reaching the conclusion that a restriction was justifiable, then an approval would be given and an RPA would come into effect. Nonetheless, she reiterated that all other alternatives were first explored in order to protect the rights of the individual; 14. On the issue of why all staff were required to be trained in physical restraint holds or restriction of movement, in circumstances where one could only use such restraints where there was an RPA in place, she stated that any staff member who was at any time working with a client who had the potential for aggressive behaviour would receive training as a priority. In the field of working with clients with disabilities, there was a potential that if they became agitated or upset at any time, some clients would become physically aggressive and unpredictable things could happen. She gave the example of a client running onto a road. If that were a busy road and the client had no road sense, the support worker would be in a position where he or she would have to "morally … try and keep that person safe." In the case of a client who ran towards a busy road with no road sense, the worker ran to stop him or her, they both fell to the ground and the client's shoulder was broken, that would be considered "reasonable force" because the carer prevented the client from running onto the road. In the event that a disability support worker was required to use some kind of physical restraint to stop something catastrophic happening, she stated that "we would prefer they use a restraint hold that is safe and that limits the possibility of injury to the person rather than just crash tackling them or - or whatever it might be. It's a difficult path to walk"; 15. It was not always the case that carers were required to use techniques in respect of which they were trained PART or NVCI. Often, it depended on who the behaviour support clinician (carer) was. The carer could, for whatever reason, use a restraint hold that was dictated by PART training or NVCI training because it was the most suitable type of restraint for the individual client. Alternatively, she stated that the carer might use "some other restraint hold", but when that happened, staff were trained on how to do so and there would be information about that in the documentation, being the Behaviour Support Plan and the RPA; 16. The staff had access to the Behaviour Support Plan and the RPA; 17. The expectation was that staff would, within the first few shifts of working in a particular place, familiarise themselves with any safety plans, risk profile documents and RPAs; 18. She was aware that the Defendant had been a disability support worker for about 20 to 25 years and, having worked a couple of shifts with the him some time ago at a different unit altogether, her recollection from one of their conversations was that he had a degree in social work as well; 19. In relation to those "one or two shifts" during which she worked with the Defendant, she conceded that as it was quite some time ago, her memory was hazy and not very strong. She recalled disagreeing with the Defendant on the quality of standard of care they would provide on shift; 20. After the learned prosecutor demonstrated something similar to a "full-Nelson" type of physical restraint (in which she stood behind the volunteer, placing both arms under the volunteer's arms and then placing her own hands behind the back of the volunteer's neck), she was asked whether that type of restraint, either according to PART training or NVCI training, was an "approved technique" which was "sanctioned by the Department". Her emphatic response was "Never, ever, under any circumstances". Her reasons were "because it pose[d] substantial risk to injury of the neck, … shoulder joints" and "because it would be deemed degrading and humiliating to the person that it's being done to"; 21. After the learned prosecutor demonstrated something similar to a "half-Nelson" type of physical restraint (in which she stood behind the volunteer, placing both hands from the outside of the volunteer's arms and then placing her own hands behind the volunteer's low to mid-back area), she was asked whether that type of restraint, either according to PART training or NVCI training, was an "approved technique" or a "technique that [had] been taught". Her response was that she had never seen it, it was not a technique taught by her under NVCI training and that she could not imagine that that would be part of PART training; 22. There were varying versions of restraints that could be used depending on the person and the situation. A whole range of factors needed to be taken into account including the particular unit, the particular individual, other residents, staffing levels, particular types of behaviours and the physical size and strength of the individual. Wherever possible, a two-person hold would be used so as to minimise the risk; 23. In cases where there was an RPA in place, the first port of call was that "We always look for the least restrictive option. That is always the case". 24. She stated that "Staff were taught and regularly reminded that evacuation in the case of a behaviour happening - evacuation and removal of themselves and other clients from the area is the first port of call." Not placing a physical restriction on someone "if we can possibly avoid it" was "that highly valued"; 25. If a client was exhibiting aggressive behaviour and posing a risk of injury to others, the preference was for the carer to remove themselves and the other clients from the aggressive client and leave them to calm down, even if this meant evacuating everyone out of the facility. She went on to say that "even if this person is having a major behaviour and they're doing some thousands of dollars' worth of damage, that's fine. We would rather them do that than place a physical restriction on them in any way"; 26. After reviewing Ms Woodward's statement, the autistic behaviour exhibited by Ms Kauley in slamming her hands on the table in front of the Defendant was, in her view, "pretty standard behaviour". If this was regular behaviour that an individual had, it could be an expression of something or an indication of an escalation of behaviour and one would "need to know and have read the Behaviour Support Plan to know … whether that's an aggressive behaviour or not". If it was indeed aggressive behaviour, one would not immediately proceed to a physical, personal restraint; 27. In relation to movement from one place to another, she was asked whether holding someone from the shoulders and pushing them towards a particular area would be acceptable practice under the training which carers received. She stated that this was not appropriate and that placing one's hands at the top of a person's shoulders created a high risk of the person tripping and falling forwards, face down; (bb) In relation to sitting, she was asked whether pushing a person in a downwards fashion so that the person would sit down, while that person resisted, was a practice taught by her organisation. She replied, "Under no circumstance". This was "just not something we would do" because it was humiliating and degrading to the person and there was "nothing justifying a restrictive practice"; (cc) If the use of physical force was required, it was necessary to complete an incident report form immediately. If an unauthorised restrictive practice was used because of an emergency situation, that was considered a "Category 1 reportable incident" and would need to have been reported to the Ombudsman. There were very strict time frames and reporting requirements in this respect and every staff member in the district attended the Ombudsman's training regarding abuse, neglect, ensuring only authorised practices were used and the consequences of using unauthorised practices; (dd) She was not aware of any restrictive practices in relation to the laundries at residential care homes. This was only applicable if it was specific to an individual and it was deemed not to be safe for that individual to be there. She was not aware as to whether there was any such practice in place in respect of Ms Connell; (ee) From an occupational health and safety perspective, regular reviews were conducted and all white goods were tagged and tested on a yearly basis. Any appliance that was not in good working order was required to be reported and repaired immediately, particularly if it related to, for example, a lid opening when the washing machine or dryer was still spinning. If the "automatic shut off" was in disrepair, that would be considered a high priority and it would be repaired immediately or discarded. More generally though, clients were encouraged to participate in their own personal care and their own routines and cleaning and having a client put their own washing into a washing machine, fill the soap dispenser, switch it on and close the lid was something which was supported and encouraged "if they had capacity to do that"; (ff) She was unable to say specifically what type of machines were in place at the Johnson Road facility but that "almost all the machines - well, in fact, it must be the case that all the machines in the area are Speed Queens, because I know that the person who has been responsible for purchase of whitegoods and all other equipment across the district for a number of years always put Speed Queen machines in place. Now, they're industrial machines. They're very fast, they're very powerful, and they've got a very strong locking mechanism on them for safety, for that reason". She agreed with the leading question asked of her that "if a client was to go in there when the washing machine was going, they couldn't open the lid whilst it was going"; (gg) In or about 2009, she had worked with Ms Connell (and Mr Green), for about 12 months when she was team leader at the unit where Ms Connell previously resided. She described Ms Connell as a client who had "a lot of behaviours of concern, quite high behaviours of concern, self-injurious and … challenging at times." (hh) There were times when it became necessary for her to use physical restraints on Ms Connell. She stated that "because of [Ms Connell's] erratic - sometimes escalations - there was a very clear and should still be a very clear one-person hold in place for emergencies, particularly when you're in the community or when you think there's danger." (ii) On one occasion during an outing with Ms Connell, they were at a hamburger shop that was quite narrow and Ms Connell was insisting on having a second drink. She tried to support her and encourage her not to have a second drink and to exit the shop and move on. As this was happening, she could see that Ms Connell's behaviour was escalating and "in the back of my mind I was thinking, 'I may need to do a restriction here, which is going to be my last resort'." She saw an elderly couple enter the hamburger shop and the elderly man was on a quad stick and she could see that Ms Connell was going to start swinging her arms in close proximity, about two metres away. She restrained Ms Connell using a one-person hold. She had "trained all the staff in it - and this isn't part of any NVCI, this is just a restraint that's used specifically for [Ms Connell] because of her type of behaviour." (jj) She described the one-person hold whereby "You grab the back of the shirt like that, you grab the belt here, and you lift and tilt … And so she's slightly off her centre of balance, but because you've got her by the belt, she's not going to fall forward, because you're constantly stopping her from falling forward." This gave her control, did not hurt the client and prevented the client from being able to hit her. On this particular occasion, as she was taking Ms Connell outside, moving her forward, Ms Connell put her arm out and narrowly missed hitting the elderly man. She was pleased that she "got it right on that occasion and kept everybody safe". In terms of its effectiveness, this was "a very good move for her, yeah" although she conceded that Ms Connell "doesn't like it"; (kk) She had also used this particular restraint a couple of times inside the unit, in particular because she would bite another resident and it was necessary to move her into "exclusionary time out". The first option was always to invite Ms Connell to go to time out and she would only ever use the restraint move if Ms Connell was posing a physical threat. She stated that "because we had that RPA in place, we had the option to … put her directly into time out rather than evacuating the whole house, because it did happen on a regular basis"; (ll) She reiterated that this was a point of last resort, especially if Ms Connell was posing a danger to someone. In terms of escalation, she stated that, first, she would invite Ms Connell using words such as "That's enough, let's go. Let's just go and have some time out. Please, let's go." If, however, Ms Connell was biting the other resident who was deaf and blind and had him cornered then she would "have to, at some point, make something different happen". It was entirely dependent on the circumstances and that if Ms Connell was pulling hair, biting, drawing blood or physically assaulting someone, that is, posing a "serious incident of harm to either herself or another person", then the use of a physical restraint was an "absolutely last resort".
2. Ms Sleath's evidence in cross-examination was as follows: - 1. She had undertaken PART training but was not a PART instructor. She was a qualified NVCI instructor and Managing Actual and Potential Aggression ("MAPA") instructor; 2. In or about 2015, all FACS agencies across the State decided that the preferred program for self-defence and any restrictive practices would be the NVCI, a product offered and run by an American-based company, the Crisis Prevention Institute; 3. From 2015, NVCI training commenced and PART training was no longer being offered. Although she was trained in MAPA, which was the new version of NVCI, MAPA was never delivered in the district and was irrelevant; 4. At the time, NVCI involved actual demonstrations of restraint techniques. Since then, the techniques had changed again somewhat and were transferred to the Cerebral Palsy Alliance; 5. The PART training was a three-day course and the NVCI training was a two-day course; 6. The NVCI course was broken up between "theory, with an emphasis on thinking about what a crisis situation [was] and risk managing on the spot, and understanding … the cycle of escalation and behaviours and … jazz hands defensive behaviours" (moving someone away or blocking a strike) and restraint holds practical training involving "releasing from holds … hair grabs, bites, risk grabs", techniques to get oneself released from different kinds of holds without injuring oneself or the client; 7. The restraints taught under NVCI were not the same as the restraints taught under PART; 8. Her enquiries revealed that the Defendant had completed the PART training program on 21, 22 and 23 February 2012; 9. As to the question of whether there was any requirement for carers to undertake PART training or NVCI training, her initial response was qualified. She stated that "as a priority, a staff member who [was] working in a unit where there [were] potential behaviours of concern that could cause risk or where there might potentially be a need for some kind of restraint in an emergency, [was] always given a priority." Later, she stated that it was her understanding that it was not a requirement; 10. Ordinarily, when a carer was employed at a new house, he or she would undergo an induction process, which the team leader would ensure took place; 11. The induction process would involve "taking the person through the particular aspects of a house, where certain facilities are, talking through who all the residents are, doing a familiarisation with the physical premises, highlighting any risks or any peculiar information about the unit and also talking through the regular routines of the clients' likes, dislikes, things that would help the person settle in quickly and cover all their responsibilities"; 12. She stated that "depending on the unit and the circumstances and the staffing levels" and the fact that "you may have only two to three hours" to do a "bus run to familiarise them and introduce them to day programs", the induction may or may not have included showing the person the Behaviour Support Plans and the RPAs; 13. Although there is no strict time limit within which to do so, the responsibility rests with carers to read, and acknowledge such reading by signing, the Behaviour Support Plans, Epilepsy Management Plans, Manual Handling Plans and PRM Administration Plans; 14. In relation to the particular restraints she was asked to review by the Prosecution, based on documents provided to her before the hearing, on which she was "offering an opinion", she stated that she did not know what was meant by the word "headlock", whether it be something similar to a "full-Nelson" type of physical restraint or a headlock to the side of the holder's body. Whatever the case, she stated whether it be that kind of restraint, or holding Ms Connell's arms by her side, or forcing or pushing Ms Kauley downwards to sit down "absolutely, 100% that neither of the things that were described … would be acceptable to us"; 15. Indeed, as to the suggestion that the Defendant might have been facing Ms Kauley, holding her by the hands and pulling her downwards, that too would not be permitted "without a restrictive practice authorisation used in strict accordance with the requirements that all other actions have been taken first, and that it was in accordance with the actions specifically described in that restrictive practice authorisation"; 16. Curiously, she stated that she was not qualified to comment on, and could not recall as it had been a long time since she had done PART training, the issue of there being, in fact, a restraint in PART training where one forces or pushes someone to sit down; 17. Similarly, she could not recall there being, in fact, a restraint in PART training where one put one's arms around the front of the persons arms and then on their back; 18. She accepted that sometimes, in the heat of the moment, even when one was using PART training techniques, one could still simply not do the particular restraints taught and needed to do the best he or she could; 19. She agreed that while the restraints to which she referred earlier were "preferable", they were not always the most suitable in the moment and, sometimes, one might not be able to use them at all. She stated that "sometimes in the heat of the moment, when it is justified, you need to do what is required to keep people safe"; 20. Due to a very high workload and her belief that it was not relevant, she was not aware and did not know whether there was an RPA in relation to Ms Kauley as at March 2016; 21. She agreed that the effect of Ms Kauley's Behaviour Support Plan meant that restrictive practices which had previously been used in respect of Ms Kauley were not effective, did not help, did not support her and, she speculated, the practices would have caused an escalation of her behaviours; 22. In circumstances where someone's behaviour involved banging on the table, pushing over pot plants, upturning chairs and lifting (but not overturning) the table, she would have expected the carer to follow the Behaviour Support Plan and start by talking calmly to the person, offering them support, seeking to find out what was causing the distress. However, she stated that "none of those things matter. The chairs, the tables, the pot plants. We can do thousands of dollars' worth of damage. I would expect that person to remove themselves and the other clients to safety if they felt that the situation was getting out of control"; 23. In relation to what she might have expected the Defendant's co-worker, with greater experience, to have done, she conceded that "disabilities … is rocket science. It's not an easy thing to always call and disability support workers generally will look to each other to gauge a reaction to see who is going to do what and … the worst thing a disability support worker could do is smash into an interaction in between a client and a worker because that can inflame a situation"; 24. She stated that some staff often had "very funny ideas about what should and should [not] be done" and that sometimes it was "really good to go back to policy, procedure and the documents" and sometimes even to retrain; 25. She agreed that it did not necessarily follow that because something was in a Behaviour Support Plan, all the staff would follow it; 26. She all but agreed with the assertion that different staff had different ways of dealing with things that might have been outside of policy. She would have expected staff to be following the Behaviour Support Plans because there was a "tremendous amount of training put in to making sure that staff understood what their obligations were, particularly in relation to their obligations under abuse and neglect as described by the Ombudsman, and the amount of training that they had around that and around incident reporting"; 27. There were less and different types of restraint holds taught under NVCI training than there were under PART training; (bb) The restraint holds taught under PART and NVCI, which later evolved into MAPA, were safe and designed to limit the potential for injury to the person being restrained, to reduce the amount of possible escalation to behaviours that might follow. She stated that "as long as you're doing it in a way that's safe to the person, either restraint is fine, as long as it doesn't injure the person"; (cc) If a restraint was required, the main priority was to "use the least restrictive option … to preserve the dignity of the individual and to avoid injury".
3. Ms Sleath's evidence in re-examination was that while she was trained in NVCI, she had attended PART training probably as far back as the Defendant had.

Ms Sandra Kelleher (Director of MTU Training Concepts Pty Limited and PART trainer)

1. The Statement of Ms Sandra Kelleher, dated 28 August 2017, was tendered into evidence as Exhibit 9. The statement attested to the following: - 1. She held tertiary qualifications in education, social welfare, assessment and workplace training, psychology and was a PART trainer; 2. Prior to 2001, she was employed, at different times, as a human resources manager, policy officer and child protection case worker and senior training officer with FACS, and a probation and parole officer with the Department of Corrective Services; 3. PART training had been in operation in Australia since 1989 and she had been associated with it since approximately 1990; 4. In 2001, she and a colleague became directors of MTU Training Concepts Pty Limited and became an accredited PART trainer, delivering the three-day PART training course (which included restraint techniques) to approximately 200 staff per year in the disability, health and education sectors; 5. In 2007, MTU Training Concepts Pty Limited purchased the copyright for PART training in Australia, New Zealand and the South Pacific; 6. The PART training restraints are based on 13 key principles, namely: - 1. Making restraint a last resort; 2. Focusing on outcomes, including considering the impact on the client and staff post-incident; 3. Using crisis communication and evasion, including patience, self-control and a willingness to call for help; 4. Assessing the risk, including using the most dignified and least restrictive method possible; choosing the method of restraint that balances dignity and self-control with safety; taking into account one's size, medical condition, previous history, relationship to intervening staff members, available resources, the physical environment, program activities, the time of day and the effects of physical exertion; 5. Getting a grip, including grasping an attacker's clothing, if possible, between the joints to limit the capacity to attack; 6. Using weight and leverage not strength, so as to decrease client movement; 7. Maintaining a safe ratio, including undertaking high-level restraints with two or more staff who have a 100% height and weight ratio compared to the client; 8. Protecting breathing and circulation, including ensuring that there is no pressure or touching of the "window of safety" from the base of the skull down to the pelvis and the width of the client's body; 9. Avoiding pain, including an understanding that pain-inducing methods are ineffective, punitive and abusive, and that when an attacker has a psychiatric or developmental disability, is under the influence of alcohol or drugs, or has a history of being abused, permanent damage may be done before the client registers intense pain; 10. Taking only reasonable risks, including a consideration of the level of danger with the risk of the restraint, what might happen if staff did not restrain and what the risk might be if staff did restrain; 11. Restraining as a team, so as to enable the client's breathing and circulation to be checked, noting that "one-on-one situations" can be dangerous and should be avoided; 12. Following the team leader, where one staff member is identified as the primary decision maker and speaker; 13. Reviewing what one has done, including reviewing the successes or failures and implementing restraint reduction plans; 1. PART training taught only six types of manual restraints, namely: - 1. Two and three person standing; 2. Two and three person escort; 3. One person escort, holding from the rear at the top of one's shirt and at the pants belt line; 4. Two and three person seated; 5. Two and three person wall; 6. Two to seven person prone (face down) restraint; 1. She was contacted by the officer-in-charge in relation to the allegation that the Defendant assaulted Ms Kauley and Ms Connell. She was provided with copies of Ms Woodward's statement and Mr Foo's statement, together with the Defendant's Electronically Recorded Interview of a Suspected Person ("ERISP") in which he denied the allegations of assault and physically demonstrated on video how he held the two clients and that the restraint holds were ones which he was taught in PART training; 2. She was asked by the officer-in-charge to review the ERISP and witness statements and to confirm if the movements the Defendant demonstrated were PART training techniques; 3. Having reviewed her records, she confirmed that the Defendant received the PART training manual (Exhibit 5), attended the PART training program on 21, 22 and 23 February 2012 and received Certificate No: 3007611; 4. One of her colleagues presented the first two days of the program. She presented the last day of the program, training disciplines in evasion and restraint techniques. The restraint techniques included two and three person standing; one, two and three person escort; and two and three person seated. Other restraints were demonstrated but not taught; 5. She confirmed that the Defendant's statement to the effect that he used a PART training technique by holding the hands or arms of Ms Kauley while standing front on to her was not a PART training restraint technique. She stated that PART training restraints were "mostly undertaken from the side of the client" and that there is a "one-person moving escort in which the client is secured at the top of the shirt and on the trouser / pants belt line"; 6. She confirmed that the Defendant's statement to the effect that he used a PART training technique to restrain Ms Connell in which he held her arms behind her back when moving her to her bedroom was not a PART training restraint technique. She stated that PART training restraints did not use movements or holds such as bending the arms behind one's body towards one's back because this could cause pain and injury to the joints of the person being held and such a restraint did not comply with the 13 key principles of restraint referred to earlier.
2. Ms Sandra Kelleher's evidence-in-chief was as follows: - 1. The restraint component of the PART manual (Exhibit 5) was one of 12 chapters in the training manual; 2. The PART training course was about managing behaviour. Chapter 3 dealt with professionalism. Chapter 4 dealt with preparation. Generally, chapters 1 to 4 were about preventative measures including attire, mobility, history, background, observations, self-control and the distinction between dangerous and challenging behaviour; 3. Chapter 6 dealt with the legal framework within which carers operated, including the Crimes Act 1900 (NSW), and that if there was a level of danger present, what a corresponding response to such danger might be, including the concept of reasonable force. She described the concept of reasonable force as involving a hierarchical options-based response, where a client's behaviour at the lowest level was termed "challenging behaviour" and at the upper level, "dangerous or violent behaviour". Emphasis was placed on the concepts of duty of care and negligence and particularly with regard to responding to violent behaviour, including a consideration of the work, health and safety legislation, the responsibilities of employers, the responsibilities of persons in charge and the responsibility of employees; 4. Chapter 7 related to crisis communication and de-escalation. Chapter 8 related to evasion and chapter 9 related to restraint. The training manual was structured in such a way as to accentuate preventative measures as a first response, then crisis communication and de-escalation, then evasion, and, finally, restraint as a last resort, depending on the behaviour of the client; 5. Chapter 10 dealt with incident documentation, chapter 11 dealt with the process of debriefing and chapter 12 dealt with skills evaluation. 6. In relation to property, dealt with in chapter 4, unless there was a plan in place that made provision for a restraint to prevent damage to property, this was considered a low-level threat; 7. The only type of one-person restraint taught was the escort restraint, that is, holding a person with one hand at the top of the shirt and another hand on the trouser / pants belt line; 8. There were five reasons as to why something similar to a "full-Nelson" type of physical restraint (in which one stood behind the client, placing both arms under the client's arms and then placing one's own hands behind the back of the client's neck) was not approved and did not meet the 13 key principles of PART training. First, the holder would be too close to the person's head and could get head-butted. Secondly, interlocking one's hands or arms under the shoulders of another would not be biomechanically sound in that it would potentially hyper-extend one's shoulder exposing that person to injury. Thirdly, the holder's feet and lower body would be too close to the person being held and their feet could be stepped on or they could be kicked in the shins from behind. Fourthly, if the holder's arms were intertwined around the other person, they could lose balance causing them to fall and injure themselves as well. Fifthly, none of the restraints taught involve touching any part of the client's head; 9. There were six reasons as to why something similar to a "half-Nelson" type of physical restraint (in which one would stand behind the subject client, placing both hands from the outside of the client's arms and then placing one's own hands behind the client's low to mid-back area) was not approved and did not meet the 13 key principles of PART training. First, pulling back on a person's arms past their natural shoulder placement could cause hyperextension of the shoulder muscles. Secondly, the holder would need to move in close to the person, thereby exposing the holder to the risk of injury by being head-butted. Thirdly, the person would be in a position to take hold of the holder. Fourthly, the person being held could kick the holder in a backwards motion. Fifthly, by virtue of the manner in which the holder interlinked their arms around the person, if the person fell, so too would the holder. Sixthly, one should never put one's hands on a client's back, which was referred to as the "window of safety", that is, from the base of the skull, down to the lower part of a person's spine. Pressure in that area, she stated, could cause someone to have a medical episode; 10. There were three reasons as to why taking hold of a person from the shoulders from behind and pushing them forward was not approved and did not meet the 13 key principles of PART training. First, it would not be a secure enough hold, in that the holder would not be able to support the person if the person tried to move in a different direction. Secondly it involved touching one's "window of safety". Thirdly, people were not supposed to be pushed; 11. Whilst a technique was taught in training so as to forcibly place someone into a seat, referred to as a "seated restraint", it was not a one-person restraint. It was one which was required to be carried out by two people; 12. As to pushing someone in a downwards fashion from the shoulders so as to force the person to sit into a chair while the person was resisting such force, she stated that such a restraint was not an approved PART training technique; 13. She categorised client behaviour into two distinct categories, namely, challenging behaviour and dangerous behaviour. To be considered dangerous behaviour, the behaviour would need to meet a level of danger towards oneself or others, such that the person needed to be restricted in movement to prevent harm to themselves or others; 14. In terms of a hierarchical response to one's behaviour, a one-person or two-person seated restraint would not be appropriate for challenging behaviour. Using one's hands to bang on a table would be challenging behaviour, given that nobody was being hurt, unless the client was exhibiting such self-injurious behaviour, which would justify a higher level of intervention. Similarly, upturning and damaging pot plants or chairs would be challenging behaviour, given that nobody was being hurt; 15. As to whether the behaviour of a client entering the laundry and putting into, or taking out of, a dryer, a handkerchief, was considered dangerous behaviour, she stated that such a determination would depend on whether the client regularly put the handkerchief into the dryer. There would need to be a plan in place regarding what the client was permitted to do. She stated that if the obsessive behaviour exhibited by client was a known behaviour, then staff should rely on what was in the Behaviour Support Plan. The "mere reference of a dryer" in a laundry did not cause her grave concerns as a trainer; 16. If there was no imminent harm to oneself or to another, the first response would never be a form of restraint; 17. In the hierarchy of responses to different behaviour exhibited by clients, first, if it was challenging behaviour the initial response would start with the individual's Behaviour Support Plan and policies. Secondly, if that did not work and the behaviour was escalating in danger, the next response would be crisis communication de-escalation. Thirdly, if a client's behaviour was escalating further in danger where one was trying to hurt oneself or someone else, the next response was evasion, including exit, evacuation, lock down and / or restraint.
3. Ms Kelleher's evidence in cross-examination was as follows: - 1. When dealing with dangerous and aggressive behaviour, she recommended that after the initial three-day PART training course, carers should undergo an annual one-day, eight-hour refresher course; 2. She understood that the Defendant had attended the PART training course in 2012 and 2007 but that the reason she was unable to find evidence of the 2007 attendance was that the PART training was previously owned by a Victorian company and, in 2007, her company (MTU Training Concepts Pty Limited) purchased the PART training program and she did not have all the earlier records. Further, FACS had internal trainers who were certified to provide PART training in-house and who may have kept their own records; 3. Between 2007 and 2012, whilst PART training concepts remained consistent, more detail was included in the training manuals; 4. If carers were working with clients where restraint was part of their individual plan, then they would need regular training in order to implement that individual plan for that client, including whatever techniques were required for behaviour management; 5. Most of the chapters in the PART training manual were prescriptive. In relation, however, to chapter 6 (which dealt with the legal framework) and whether it was prescriptive or advisory, she stated that "we would say that you should comply with legislation"; 6. She agreed that some of the matters in the restraint portion of the PART training manual which were very prescriptive included the need to try to avoid risk of injury to a person; not holding them in a fatiguing position where they were struggling to breathe; not making contact with one's private parts; complying with policies and procedures; and complying with legislation; 7. As to the actual techniques of restraint, she was asked whether she accepted that, in the heat of the moment, a person might not use those techniques to the letter. She replied that "they need to comply with the 13 principles of restraint. And if the action they are using does not comply with the 13 principles of restraint, I would say that that would not be an approved technique". She was pressed further on this question, and asked, in the real world, where a carer was required to respond immediately, whether the carer was required to "pause and … go through [the] list of 13 principles before they [took] any action." She stated that in the real world, depending on an employee's level of experience, training and understanding of the client's individual plan, this was what they worked towards; 8. She agreed that manual restraint involved a range of things including holding someone in a certain position until things had calmed down and / or escorting them from one place to another; 9. After the resolution of a Prosecution objection, she was asked to comment upon whether a restraint would be in the range of appropriate responses in circumstances where a client had assaulted an employee in the past, had attempted to assault a client on this particular day, and was banging forcefully on a table, upending chairs, upending pot plants and attempting to lift a table, all indicative of behaviour which was escalating, and other techniques of de-escalation were known not to work. She responded in a variety of ways. First, she stated that there were still a range of considerations that were required. A client was not hurting themselves or anyone else by banging on a table. There was still the option to exit, evacuate or lock down everyone else as opposed to engaging in a physical restraint of someone. Secondly, priority was placed on the contents of one's Behaviour Support Plan. Just because an individual's behaviour had been escalating and she had attempted to hurt people in the morning, that did not mean that one would use the same physical restraint in the afternoon while the individual was banging on a table. There was the option of talking the individual down; 10. She was asked to comment upon whether a restraint would be in the range of appropriate responses in circumstances where a client was going into the laundry and using the dryer repeatedly, the carer was relatively new to the home and to the client, the carer had been told to keep that particular client out of the laundry for safety reasons, and the carer formed the subjective view that what the client was doing was creating a fire hazard. She responded in a variety of ways. First, priority was placed on the contents of one's Behaviour Support Plan. Secondly, a one-person restraint was a particular technique and she did not know whether or not it would be appropriate in the circumstances. Thirdly, whilst the carer might have been new to the home and to the client and may not have read the plan, if they were an experienced staff member, they would have been familiar with the policies and procedures and the use of general behaviour management responses for the level of behaviour; 11. She recognised that often, when dealing with situations in practice that were rapidly unfolding, carers might not always follow PART training to the letter; 12. She agreed that, in the analysis of a carer's actions towards a client, the most important thing was that the carer followed the particular plan set up for a specific client, as well as the policies of the department. This, I understood, was a combined reference to FACS and ADHC.
4. At the close of the Prosecution case, the Defence conceded that there was a prima facie case in respect of both charges.

The Evidence in the Defence case

1. The Defence opened its case and chose to call evidence.

Mr Thomas McGuire (the Defendant)

1. The Defendant's evidence-in-chief was as follows: - 1. He was 64 year old married man with one child, who had worked as a disability support worker at various locations for over 20 years. He had degrees in English and social work; 2. Throughout his employment in the disability support field, he had been assaulted many times by those for whom he was caring. He had been bitten, scratched, cornered and punched by clients. One day, he made his own enquiries about, and undertook, the PART training program; 3. Over the years, he sustained injuries to his back from lifting a client. His cheek bone had been broken by a one particular client who punched him three times. He had also sustained other injuries from "flying feet and fists"; 4. He did not have a criminal record and was not aware of any incident reports made by colleagues in the past in which excessive use of force had been alleged against him; 5. He had undergone PART training in or about 2007 and again in 2012, which gave him greater confidence in dealing with clients; 6. He had undergone an additional, special PART training course, also in 2012, in relation to a particular client (Mr Jamie Dalton) at a different facility ("the Brush Road facility") and who had a tendency to strike his forehead with his fists. One of the physical restraints which he was taught, in relation to this particular client, involved having him sit in a chair, holding his hands down while facing him, so that he could not strike his head, and waiting until he calmed down before letting go. Other techniques he was taught included using a one-person escort to take the client to his bedroom in circumstances where the corridor was too narrow and a two-person escort was unable to be used. This involved placing the client's hands behind his back. This was demonstrated in the witness box as involving two hands behind the client's back and with the carer's arms around the client's elbows, which then rested behind the client's back near his waist; 7. About three days after he started working at the Johnson Road facility, he took two to three weeks off to have some surgery, after which he returned to work; 8. During the three days before his surgery, he was given an induction of sorts by one of the supervisors. He stated that it was not a full induction. It involved an outline of the challenging behaviours and the fact that there was a short time out for both Ms Kauley and Ms Connell, in case they needed to go to the toilet; 9. He was not shown the Behaviour Support Plans or RPAs of any of the clients who resided there. He readily conceded, though, that it was his responsibility to review these documents. He stated that he should have done so, but had not been there long enough. It was "very full on, so getting to a stage where I could sit down with the documents was something that, while I regret, I didn't know where they were, and it was very hard to get into the office, because there were always people there"; 10. There was a lot to do because two of the clients were prone to assaulting each other and one of the clients had epilepsy and drop seizures. This, he said, required him to keep an eye on him. That particular client, he explained, would just drop to the ground and no one seemed to pay much attention to it, so he hovered around the client to ensure he did not fall; 11. Prior to his surgery, the range of behaviour he witnessed included Ms Connell suddenly approaching and attacking either Ms Kauley or one of the male clients without warning. He was required to separate the two of them and, indeed, filed a number of incident reports including placing a call to the union; 12. Regarding discussions with co-workers about the behaviour of clients, Ms Woodward told him that if he did not stand up to the clients, they would eat him alive. The other co-workers did not pay much attention to him. On one occasion, when an incident was taking place between Ms Connell and Ms Kauley, he queried another carer as to whether he was going to do something about the incident but the other carer told him to go home. He was somewhat concerned that people did not seem to take the assaults (mainly those by Ms Connell on Ms Kauley and one of the male clients) seriously; 13. In terms of any measures put in place so as to limit this behaviour, he stated that there was supposed to be a staff member outside the kitchen when Ms Connell and Ms Kauley were together. There were also regular time outs. He recalled Ms Connell spending several time out periods in her room, after having been placed there by other carers, but he did not see what restraint techniques they had used to place her in her room; 14. In the short time during which he was employed at the Johnson Road facility, he had been assaulted by Ms Kauley on four occasions, all of which involved her punching him in the back, the last of which also involved her punching him in the ear while showering her. As to the last of those assaults, he had to turn his back to her so as to avoid being assaulted but she punched him in the ear nonetheless. He had also been assaulted on three occasions by Ms Connell. On each occasion, she spat in his face. One of those occasions also involved her trying to claw at him. Neither of the two male clients had ever assaulted him; 15. There was no training given in relation to dealing with clients who would spit at him; 16. On the Friday before the second incident, he made a complaint to the union to the effect that management was trying to reduce staff numbers on the bus down to one person, even though Ms Connell was getting out of her seat and attacking another client while on the bus. He also complained about the level of assaults in the home from Ms Kauley upon staff, and Ms Connell upon other clients; 17. On or about 14 June 2016, he received a call from management to inform him that he should not return to work because there had been two complaints, one for allegedly assaulting Ms Kauley and one for allegedly assaulting Ms Connell. On the same day, he voluntarily gave a Record of Interview to police, but had difficulty recalling the events as they had taken place over three months earlier; 18. In the brief time he was employed at the Johnson Road facility, he had seen her display behaviour which involved banging on the table and upsetting a whole lot of objects all over the house. However, he and the other carers would normally not intervene as this was merely annoying behaviour. 19. However, on 2 March 2016, the occasion the subject of the first charge, this was not the case as Ms Kauley's behaviour was escalating so he physically restrained her and escorted her into the house using the technique demonstrated (that is, something I understood to be similar to "half-Nelson" type of physical restraint, in which he stood behind Ms Kauley, placing both hands from the outside of her arms and then placing his hands behind the her low to mid-back area); 20. As to his purpose for doing so, he stated that it was to get her away from the area where the table, the food, the pot plants and the chairs were. He said that he "was trying to get her to her bedroom, because I'd seen other staff put her in her bedroom, but I was unable to get as far as the bedroom so, when we reached the couch, that was it. I just tried to sit her down. It didn't work, so I walked away"; 21. He described the technique used to sit her down. He stated that he tried to put his hands on her shoulders and sit her down but because she would not do so, he described it as a lost cause and he walked away. He was unable to get her to her bedroom; 22. His physical restraint of her happened very fast and was less than a minute. Her escalating behaviour on the other hand was for several minutes and involved upturning the pot plants, upturning the chairs and banging on the table right next to him. He thought the next thing to happen would be her punching him. These were the reasons why, he said, he decided to escort her away from that area; 23. He readily conceded that he was mistaken and that he erroneously thought that the restraint which he used was part of PART training. He believed that the restraint which he had been taught in relation to Mr Dalton at the Brush Road facility where he had previously been employed could also be used in the present circumstances. He stated that the one-person restraint, which had been demonstrated by Ms Sleath in her evidence (holding a person with one hand at the top of the shirt and another hand on the trouser / pants belt line), was not very effective because it left the client's arms free; 24. He also readily conceded that pushing downwards on one's shoulders, so that they would sit down or holding one's hands so that they would remain seated, was something he had not been taught but, drawing from his experience with Mr Dalton at the Brush Road facility and other clients elsewhere, where it had been effective, it put the client into a safer position doing so. This, he freely accepted, was obviously a mistake in relation to Ms Kauley. His purpose in trying to get Ms Kauley to sit down, he said, was "to get her away from a challenging situation. I was hoping, you know, once she was seated, that she'd calm down"; 25. He did not fill out an incident report in relation to this event because he did not regard it as a major incident. Carers were moving Ms Kauley to her bedroom all the time. Although he had failed to move her to her bedroom, he stated that he got her out of a challenging situation. Incident reports were usually filled out in relation to client-on-client assaults or if there was a major assault on a staff member. In relation to the assaults where he was punched by Ms Kauley, he reported them to his manager but did not complete formal incident reports. When pressed about this, he stated that it did not seem important and that unless something major happened, which required him to take time off work on workers' compensation, it was very rare that a staff member would file an incident report; 26. As for the spitting, this was something to which he had been subjected regularly over the years at various facilities. One was able to complain about spitting but unless there was a management plan in place to handle spitting and to get a person out of the way, it was best to simply avoid the person; 27. On 6 March 2016, the occasion the subject of the second charge, Ms Connell attacked one of the male clients earlier in the day by jumping on top of him on his face, biting him and drawing blood; (bb) He and another carer took Ms Connell to her bedroom and called a doctor in relation to the bite injuries sustained by the male client; (cc) Later that day, Ms Connell again attacked the same male client, whereby she jumped on top of him and the Defendant pulled her off; (dd) Later that day, Ms Connell attacked Ms Kauley, however, he was not involved in that incident; (ee) In the evening, Ms Connell came out of her bedroom and went to the laundry. His co-worker, Mr Foo, told him to watch the clients and not to let Ms Connell into the laundry. Mr Foo did not provide a reason and only said, "Keep her out." Ms Connell kept entering the laundry with a single handkerchief, placing it into the dryer and turning the dryer on. This was the first thing he noticed when he entered the laundry and which caused him concern. He turned the dryer off. Ms Connell removed the handkerchief from the dryer and took it back to her bedroom. She then returned a few times with the handkerchief, pushed past him, put the handkerchief in the dryer and turned it on. He again turned the dryer off. This happened two or three times. Then, in a loud voice, he said, "Stop it." He thought that she was going to set the house on fire, because the dryer was operating without a full load of clothes but only a single handkerchief inside it or that she would burn herself, because the dryer was hot inside; (ff) He stated that he seemed unable to stop her. He then restrained her in the manner demonstrated (that is, something I understood to be similar to the "half-Nelson" type of physical restraint, in which he stood behind Ms Connell, placing both hands from the outside of her arms and then placing his hands behind the her low to mid-back area), escorted her to her bedroom and placed her inside. In response, Ms Connell tried to bite him. She struggled and managed to get away from him a little. She tried to spit at him and he became concerned. He remained behind her because he did not want to be bitten or spat at; (gg) He readily conceded that he erroneously thought his restraint was an approved PART training technique. Relevantly though, he stated that because she was wearing a dressing gown and loose clothing, using the one-person restraint demonstrated by Ms Sleath and Ms Kelleher, where one is held with one hand at the top of the shirt and another hand on the trouser / pants belt line, would have been impractical. In any event, he clarified the restraint used and agreed that the back of his hands were against the waist / lower back of Ms Connell; (hh) From a timing perspective, from the point at which he took hold of Ms Connell to the point at which he placed her in her room, "it was very quick … about half a minute" and his reason for doing so was to get her away from the laundry, in the hope that she would calm down in her bedroom; (ii) Again, he readily conceded that he had used this method of restraint with Ms Kauley and Ms Connell in the past. He stated that the two-person escort taught in PART training involved linking the hands at the back and, therefore, he thought he could use the same technique in a one-person escort; (jj) He denied losing his temper, either in his interaction with Ms Kauley on 2 March 2016, or with Ms Connell on 6 March 2016; (kk) He stated that, because of the stressful environment within the house, he was "trying to do the right thing … I felt like this was the right thing to do"; (ll) He was asked whether he had any expectations of his co-workers. He stated that there was poor communication in the house as between the various employees and he did not think that they would help him. He stated that "The people didn't speak to each other … People just weren't talking to each other. They weren't explaining things." He recalled that a person had been brought in during team meetings to help them communicate; (mm) He recalled that in other homes where he had worked previously, when a carer commenced a restraint on a client, the other staff would keep the other clients away, redirect the other clients or help with the restraint; (nn) The induction he had received at the Johnson Road facility was not as thorough as those which he had undergone at previous locations where he was employed; (oo) In relation to Q196 of the ROI, he explained that he was under the impression that he had handled both Ms Kauley and Ms Connell in accordance with his PART training and, indeed, he expected that PART training would exonerate him. He had hoped that the police would get in touch with someone from PART training in this regard. That, he said, would clarify why he took the actions he did. Indeed, after the ROI with police, he voluntarily took his PART training certificate to the investigating police to show them, together with an address of the PART training people, because he was not sure whether they had managed to locate anyone from PART training; (pp) He did not feel that he had assaulted anyone or that his behaviour was excessive in the circumstances.
2. The Defendant's evidence in cross-examination was as follows: - 1. As to his physical interaction with Ms Kauley on 2 March 2016, he denied that he was aggressive or annoyed; 2. He asserted that Ms Kauley was being aggressive as opposed to annoying; 3. The first time he had heard the details of the allegations of impropriety on his part was when he was interviewed by police. During the interview, he informed police that nothing out of the ordinary had happened which is why he made no report. In relation to his responses at Q50 and Q51 of the ROI, in which he told police that Ms Kauley started banging her hands loudly on the surface of the table right beside him and that he might have restrained her from doing so but did not hit her or do anything untoward, he denied the assertion put to him that he had restrained her because her banging was annoying. Rather, he asserted that Ms Kauley's conduct was becoming dangerous and she had a history of hitting him and, indeed, she was quite capable of hitting him back; 4. He agreed that Ms Kauley behaved in this manner regularly, either when she wanted food or when she wanted attention; 5. He agreed that he told police at Q63 of the ROI, that he did not scream at Ms Kauley but, rather, he used his teacher voice and said "Stop it, Suzanne"; 6. He denied the assertion put to him that he did not intend to take Ms Kauley to her bedroom after restraining her; 7. At Q65 to Q69 of the ROI, he disagreed with the police, as he disagreed with the learned prosecutor, and denied the assertion that he "lost it" and said words to the effect of, "Stop your bloody in nonsense". He recalled restraining Ms Kauley and getting her into the lounge room, then attempting to sit her down; 8. He stated that Ms Kauley's behaviour had an element of danger to it given her history of punching staff and that all behaviour which led to these types of incidents was both annoying and challenging; 9. He emphatically denied the suggestion put to him by the learned prosecutor that his responses were a recent invention; 10. He agreed that safety was paramount within the home and that Ms Kauley had a history of assaulting other clients. He denied the assertion that he was not really trying to put her in a safe place or that he was not trying to ensure the safety of other clients. He also denied the assertion that he was trying to remove her from his personal space so that he could, presumably, eat his dinner in peace. He also denied the suggestion that he had placed Ms Kauley in the very place, that is, in the lounge room, in which another client, Ms Connell, was also situated and with whom she had a tendency to argue, assault and be assaulted by. He stated that the lounge area within the home was large, as was the space between Ms Kauley and Ms Connell, and that he always kept an eye on the two of them; 11. He readily conceded that he did not tell the police at Q70 of, or elsewhere in, the ROI that he was trying to take her to her bedroom; 12. He agreed that at Q83 of the ROI, he told police that he was trying to remove Ms Kauley from a situation where she was "being noisy, banging all that sort of thing." In context, though, he also stated that he did not use excessive force. Rather, he used the minimum force required; 13. He agreed that he had worked at many different facilities over the 25 years during which he was employed in the industry and that working with people with disabilities was difficult. He also agreed that he had been assaulted multiple times (seriously on one occasion involving a broken cheek bone) and that it was not part of the job to be a punching bag, matters which formed the basis of his seeking out, of his own volition, the PART training course, which made him feel more confident in his interactions with challenging and dangerous clients; 14. He agreed that he had not complied with PART training techniques on this occasion; 15. He agreed that the starting point for any intervention with a client was crisis communication. He denied, however, the suggestion that he had yelled at Ms Kauley or Ms Connell, thereby aggravating the situation; 16. He agreed that the core features of PART training included controlling oneself, keeping calm, identifying and alleviating concerns, evasion and safety. He also agreed that he knew that when there was a failure in this regard, one had the ability to use approved PART training restraint techniques in circumstances where a client, such as Ms Connell, had an RPA in place. He also knew that Ms Kauley had time outs. He conceded that he was sufficiently versed and was aware of the difficulties and challenging behaviour within the home. He had seen the way the clients behaved towards one another and the level of aggression they were capable of using; 17. He could not explain why he had, as it was put to him by the learned prosecutor, "departed so far from the PART training, and missed the two most vital steps at the start, and went straight to hands-on, to remove somebody from a table that they were banging when nobody was physically at risk at that point"; 18. He denied losing his cool on this one occasion in 25 years due to his irritation as opposed to the dangerous behaviour of Ms Kauley or Ms Connell. He also rejected the proposition that he did not do what he was trained to do and went hands-on without putting steps in place to try to de-escalate the situation. He readily conceded that he used an unapproved restraint to move Ms Kauley from the outside area to the inside of the house when the events referable to her were unfolding. He agreed that, in this regard, he "got it wrong"; 19. As to his physical interaction with Ms Connell on 6 March 2016, he agreed that he had not told police in the ROI about Mr Foo advising him not to let Ms Connell into the laundry, something which he mentioned in his oral evidence; 20. He also agreed that he had not asked Mr Foo why Ms Connell should not be allowed in the laundry; 21. In circumstances where Ms Connell had come and gone to and from the laundry on two or three occasions, he was asked to explain why he did not simply follow her to her bedroom and, in the least restrictive manner, shut her door and initiate time out at that point. He replied that he did not believe that time out was necessary at that point; 22. He made no secret of the fact that he could have unplugged the dryer entirely had he been thinking straight but, because Ms Connell was exhibiting challenging behaviour, he was worried that it would escalate, which was why he kept turning the dryer off; 23. As to whether there was a potential danger or an actual danger, he stated that the actual danger would be if the dryer heated up and burnt the house down. Obviously, he said, this would have taken some time but there was no way could keep her out of the laundry; 24. In response to why he found it to be a stressful situation, he explained that the dryer could stay on with one small handkerchief in it which would heat the house up; 25. He agreed that at Q111 of the ROI, he stated that he was concerned not only about Ms Connell's safety regarding the dryer but also about her safety and her ability to access the washing machine; 26. He denied at Q110 of the ROI, as he did in his oral testimony, that he locked his hands behind the back of Ms Connell's neck when removing her from the laundry; 27. He agreed that he had told police at Q111 of the ROI, that Ms Connell had placed a single handkerchief in the dryer and turned it on, and that he was concerned about her safety in this regard and her safety in being able to access the washing machine as well. He agreed that he had made no mention of the washing machine in his oral testimony. He denied the assertion that Mr Foo had placed the handkerchief in the washing machine and turned it on. He stated that the handkerchief was with Ms Connell and in the dryer but that she had at one stage searched for it in the washing machine; (bb) It was put to him that it was never acceptable practice to place someone in a "full-Nelson" or a "half-Nelson". He stated that he did not put anyone in a "full-Nelson" or a "half-Nelson" and denied dragging Ms Connell backwards as suggested; (cc) In relation to questions about whether he adequately familiarised himself with the clients' management plans and, specifically, that he did not ask to see the folders which were in the manager's office, thereby failing to "upskill" himself, he stated that there were a lot of things he should have done differently and that was perhaps "why we're in court"; (dd) He disagreed with the proposition that his "actions were so violent that a co-worker believed there could be an injury"; (ee) He stated that he did not know that Ms Connell had a fetish with the handkerchief until Mr Foo told him after the events had unfolded; (ff) It was put to him that his concern was not about danger at all. He reiterated that in both cases it was about danger and he believed he had done the right thing. He emphasised that in neither case did he lose his temper or use excessive force; (gg) He elaborated on what he said at Q122 of the ROI, to the effect that in hindsight, perhaps he should have left Ms Connell alone and that he did not know about her handkerchief being a fetish; (hh) Notwithstanding the learned prosecutor's persistence that he had "no cause to go hands-on and restrain [Ms Connell] at that point [because] there was no danger", he denied such propositions on the basis that he perceived there to be a necessity to intervene; (ii) He denied that he was the aggressor in his interaction with Ms Kauley on 2 March 2016. He disagreed with the assertion that she was "merely" hitting the table in front of his meal. First, there were more actions on the part of Ms Kauley which rendered the question asked of him out of context. Secondly, he confirmed, yet again, that her behaviour was escalating; (jj) It was put to him that Ms Kauley's behaviour was only escalating in relation to property. He agreed as much but stated that in his view "she was about to escalate with people"; (kk) Given the rapid and repetitive nature of the escalating behaviour in both cases, he agreed that he did not engage in the strategy of crisis communication; (ll) He agreed that in respect of the first incident on 2 March 2016, there was a co-worker nearby, but he did not have a discussion with her or turn to her for guidance; (mm) He disagreed with the assertion put to him that he had overreacted and restrained the clients without cause. He stated that every restraint and every critical incident was different. He maintained that he had not overreacted in either of the two cases.
3. The Defendant's evidence in re-examination was as follows: - 1. In relation to the incident regarding Ms Kauley on 2 March 2016, having regard to her banging on the table, upturning pot plants and overturning chairs, he believed that her behaviour was escalating and that he made a quick decision to intervene. Ms Woodward, he said, chose to make a slow decision in that regard; 2. Although he agreed that Ms Kauley's banging on the table alone was not dangerous behaviour, his decision to intervene was as a result of a combination of factors, including her upturning pot plants, overturning chairs, her previous behaviour in coming up behind him and punching him, the necessity, therefore, to watch his back every time he was near her and the fact that she had been aggressive with other clients earlier in the day; 3. He agreed that while the incidents were unfolding, he truly believed that he was acting within the parameters of his PART training but the acceptance that his actions did not coincide with PART training was with the benefit of hindsight; 4. As to the question of his departure from the PART training techniques, he made no secret of the fact that he made a number of errors, particularly by not reading up on each client's plans, given that he had been there for three weeks. He emphasised that it was a stressful situation and that he should have done better in that area and other areas. In any event he accepted that as far as restraining people was concerned, it was a matter of last resort. He believed that his actions were the best option at the time. He wanted to get both of them back to their bedroom. In Ms Kauley's case it was impossible to do so because her stature was that of a larger young woman. In both Ms Kauley's case and Ms Connell's case, both being women, and with him being a male carer, he was mindful that where he placed his hands was at the back of his mind and was an awkward issue. He had never restrained female clients before.

Consideration

1. Ms Woodward's evidence was broad, generalised and infused with opinion. Although her evidence was that the Defendant was screaming at Ms Kauley, on each occasion on which she was asked to clarify what was said, she stated that the Defendant was saying "Stop it, Susan. Stop it, Susan." If said with a raised voice, these words were hardly the result of malevolence or cruelty towards the client. In fact, they were entirely consistent with one of the components of the PART training which required engagement. Put another way, the Defendant was communicating disapproval to the client of her actions, even if it be in an austere, verbal manner.
2. I was troubled by the fluidity in the understanding of what the carers believed was permissible when they were required to engage physically with a client. There was a tendency to elevate the training, policies and procedures to a level above what even the criminal law deemed permissible.
3. Much of the aggression of Ms Kauley and Ms Connell was corroborated by Ms Woodward in her evidence. This gave credence to the Defendant's subjective belief of a reasonable possibility that his conduct was reasonably necessary. Ms Woodward's characterisation of the Defendant was coloured by opinion (in expressions such as "explosive", "confronting", "over-the-top" and "such rage"), which was not borne out by the limited temporal interaction between the Defendant and the alleged victims on the relevant dates.
4. When Ms Woodward and Mr Foo were pressed on what, rather than how, the Defendant was saying, they both testified, without the gloss of opinion, that he was telling Ms Kauley and Ms Connell to "Stop it" loudly. This was objectively corroborative of the Defendant's version as to his verbal communications with both of them.
5. Mr Foo's own comprehension of the policies was at times nebulous. So much was made clear from his agreement, on the one hand, that one could not be "hands on at all" in circumstances where an RPA was in place and, on the other hand, one could defend oneself "as much as possible without hurting the client" in circumstances where an RPA was not in place. Such rationalisation does not sit well with the criminal law, particularly with respect to self-defence, which, depending on the circumstances, is a complete defence to the alleged offending and offences ranging from the insignificant to the extreme, including homicide.
6. In any event, even if the tribunal of fact were to conclude that one could defend oneself "as much as possible without hurting the client", in the present case neither client was physically hurt and self-defence in defence of another or to protect property from destruction, damage or interference is equally as valid as a self-defence in defence of oneself, provided the objective and subjective aspects of the test outlined in s.418 and the decision in R v Katarzynski [2002] NSWSC 613 are adequately made out.
7. There was much to be said about the lack of reality conveyed through Ms Woodward's evidence regarding the manner by which a client exhibiting challenging, difficult and aggressive behaviour was dealt with. The tenor of her evidence demonstrated, as a matter of necessity, the regular corporeal nature of the interactions between care workers and clients. While, at first blush, one might be left with a sense of unease in this regard, it was all but conceded that physical intervention and restraint of some kind was often essential. Even on the Prosecution case, invoking, for example, a "time out" procedure when a challenging and difficult client became too aggressive, would involve taking the client, obviously using a range of physicality depending on the resistance offered, to a locked area. To simply equate "taking" a client from one place to another mid-way through an outburst, with the milder, more tempered designation "escorting", did little to convey the reality of the situation in which one might find oneself. This was especially so when confronted with a veritable combination of difficult and challenging behavioural issues including hyperactivity, aggression, outbursts, impulsivity, compulsivity and previous or impending violence.
8. The determination of the Court, as the tribunal of fact, which must reach findings of fact according to the high standard of proof required in the criminal law, apprised of all the facts in relation to the behaviour displayed by the client in question and the conduct of the Defendant in response, can never be supplanted by policies and procedures, no matter what their legitimacy may be in a civil setting.
9. It is accepted that the utilisation of physical force in an environment such as this cannot go unchecked. Each case, though, must be assessed on its merits. There is a need for circumspection to ensure that any physical interaction is not a cloak for aggression. However, it is important to be ever mindful of the special relationship between carer and patient. The Defendant was under a duty of care to ensure that the clients, particularly Ms Connell, did not expose themselves to harm.
10. Needless to say, many of the reported decisions in this area (outlined below) involved excessive or gratuitous violence in the form of acts in which carers struck a client rather than acts of restraint to avert harm, as was the case here.
11. In R v Slater (1987) 44 SASR 136, the South Australian Court of Criminal Appeal dismissed a conviction appeal in which, following a trial by jury, a carer was found guilty of assault occasioning actual bodily harm as a result of kneeing an intellectually disabled patient with severe behavioural problems to the lower abdomen and groin area, after the patient had taken hold of the carer's hair, in part on the basis that his response in self-defence was excessive.
12. In R v Lister [2009] QCA 368, the Queensland Court of Appeal dismissed a sentence appeal in which, following a trial by jury, a carer was found guilty and sentenced in relation to one count of unlawful deprivation of personal liberty and two counts of common assault of two young boys suffering from severe autism and a susceptibility to tantrums, which had the potential to escalate to violence. As to the six to nine year old boy, the carer tied the young boy's arms and legs to the railings on the side of a toilet and left him restrained that way on the toilet seat, telling his co-worker that the child would not be allowed off until he defecated. On another occasion, the carer struck the same young boy on his arms, his back and the back of his head with a plastic fly swatter a number of times. As to the 15 year old boy, the carer held the boy down while another carer rubbed chilli onto his mouth. Adopting the remarks of the sentencing judge, the Court of Appeal confirmed that the carer's conduct went beyond what could be regarded as reasonable in a civilised society and inflicted unjustifiable suffering on unfortunate and very vulnerable children.
13. In Smith v R [2007] NSWCCA 135, the New South Wales Court of Appeal allowed a sentence appeal in which, following a plea of guilty entered in the District Court, a carer was convicted and sentenced to full-time imprisonment in relation to one count of common assault of a young woman with a number of developmental and physical problems. The incident involved the young woman being in the tailgate area of a station wagon vehicle, restrained by one hand to a cargo barrier by a pair of handcuffs, where the assault took the form of the carer gripping the young lady's hair, hitting her head against a side window of the vehicle and slapping her in the face.
14. In R v Timbreza [2012] NSWDC 142, a carer, employed as an assistant in nursing at an aged care facility, pleaded guilty and was sentenced in the District Court of NSW to full-time imprisonment in relation to eight counts of aggravated indecent assault and four counts of common assault of a 91 year old man suffering from dementia and who was regarded as a vulnerable, high-care resident. The assaults, which the sentencing judge found were done out of pure malice, took the form of touching the victim with a rubber hose (the shower head of which had been removed) around his anal area while showering him; reaching out and slapping the victim to the back of his head with an open hand; reaching out and striking the victim to the back of his head with an open handed slap; raising her hand over the victim's head and striking downwards with the back of her hand onto the crown area of the victim's head using the knuckles of her fingers; holding the metal pipe end of a hose (the shower head of which had been removed) about 10 cm from the victim's anus with water striking him directly on the anus while showering him; vigorously rubbing a towel back and forth in a scrubbing motion, despite protestations to cease doing so, to the victim's genital and anal area while laughing at him and telling her co-worker that she hated the victim; using her fingers to strike one of the victim's testicles, hitting them with some force; pushing and applying downward force onto the victim's left knee, which was permanently bent up at a 45 degree angle and which involved a physical impairment such that he could not support his own weight or move around unassisted.
15. It is tolerably clear that restraining a client exhibiting challenging or aggressive behaviour, for her own protection or the protection of others and property, even if it be via unconventional means which might have on this occasion deviated from training modules, policies and procedures, is far less egregious than the intentional, malicious or unwarranted striking of a client.
16. I rejected the Prosecution's assertion, through the evidence of Mr Foo, that a carer needed to exercise some defence mechanism and be reactive, rather than proactive when dealing with situations of this kind. This is contrary to the principles outlined in Morgan v Colman (1981) 27 SASR 334, in which Wells J (at 337) held that: - "(d) a person who, according to the circumstances as he understands them, genuinely believes that he is threatened with an attack, is not obliged to wait until the attack begins. A person so threatened may use reasonable measures to make the situation safe, and he does not act unlawfully merely because he forestalls or tries to forestall the attack before it has begun."
17. The corollary, in my view, is that a person who is tasked with caring for another in the circumstances of these proceedings need not wait until the client has upturned or damaged chairs and pot plants (in the case of Ms Kauley) or injured herself by taking out of, or putting into, a spinning washing machine or hot clothes dryer a single handkerchief thereby, exposing herself to bodily injury or others to a fire hazard (in the case of Ms Connell). This does not detract from the concept of reasonableness, cognisant though not to conflate the test.
18. There are two means by which the Defendant's actions are to be assessed. First, the Court must consider whether the fourth element outlined earlier in these reasons, that is, whether the conduct was without lawful excuse, has been proved by the Prosecution beyond reasonable doubt. Secondly, in the event that the conduct was found to be without lawful excuse, the Court must consider whether self-defence, according to the test outlined above, has been negatived by the Prosecution beyond reasonable doubt.
19. I was prepared to overlook the inarticulacy of Mr Foo's evidence. However, there was an air of haziness which I struggled to demystify and which did not sit well with me. Given that the denouement of the Prosecution case was that the Court was being asked to accept that the Defendant engaged in unlawfulness and overreacted by using inappropriate or excessive force contrary to plans, policies and procedures in place, his responses to many of the pointed questions asked of him in cross-examination suggested a generalised, oversimplified and elementary knowledge of the same training, policies and procedures which the Defendant was said to have breached. Whatever the case, a breach of protocol, which might have civil ramifications, did not automatically translate into a breach of the criminal law. There will, of course, be instances where this will be the case. In my view, this was not one of them.
20. There was an element of reconstruction in his evidence, as over two years passed since the incident. It was easy to allege impropriety at the Defendant's handling of the situation as it unfolded. Not only was Mr Foo's evidence (that they would simply lock the laundry door) inconsistent with the Client Incident Report Form completed by him on the evening of the incident (in which he recommended that a lock be fitted to the laundry door), but it was also inconsistent with other components of the form.
21. The contemporaneity in the form's completion within hours of the incident is salient. Whilst Mr Foo made reference in the form to being "concerned about the excessive force used by the [Defendant] on restraining [Ms Connell]" and placing her in a "headlock … with both arms and [dragging] her back to her room", he also made reference to telling the Defendant "to keep [Ms Connell] away from the operating washing machine for her own safety". This was contrary to his oral evidence in which he specifically denied telling the Defendant to keep Ms Connell out of the laundry and away from the washing machines. In fact, so concerned was Mr Foo, that his recommendation, under the headings "actions taken to prevent recurrence" and "follow up recommendations", was that the time out procedure was "to be implemented to stop [Ms Connell] from her obsessive behaviour and not to injure herself with the washing machine" and that [Ms Connell] "should be separated from [the] laundry".
22. There were many internal (and external) inconsistencies in the evidence given by both Ms Woodward and Mr Foo. Mr Foo's own evidence was admitting of the potential for injury in the laundry, hence, the reason why he stated that nobody was allowed in the laundry.
23. This bespeaks an acute awareness of the significant risk of harm posed by Ms Connell's behaviour which, if apparent to Mr Foo, without a direct line of sight from the kitchen into the laundry, but upon exiting the kitchen was some five metres away, must certainly have been evident to the Defendant who had been face-to-face and engaging with Ms Connell for some time. The significance of this was that the Defendant was better placed to assess the situation or, put another way, the reasonable possibility that the Defendant (from a subjective perspective) believed that his conduct was necessary in order to defend himself, another person or to protect property from destruction, damage or interference.
24. From a criminal law perspective, the likelihood that Ms Connell's obsessive behaviour (regarding the handkerchief, washing machine and dryer within the laundry) could result in damage to property, including the potential for a fire, was real. It was difficult to comprehend what else might have been the result of a clothes dryer, in full cycle, being used to dry a single piece of material measuring 20 square centimetres. The Defendant's conduct in response enlivened the self-defence argument.
25. From a civil law perspective, the likelihood that Ms Connell's obsessive behaviour (regarding the handkerchief, washing machine and dryer within the laundry) could result in serious personal injury, which the Defendant was employed to prevent, was likewise just as real. Similarly, it was difficult to comprehend what else might have been the result of a cognitively challenged client opening, closing, operating, placing in and retrieving from, a washing machine or clothes dryer, in full cycle, a single handkerchief. The Defendant's conduct in response enlivened the argument that it was with a lawful excuse.
26. The fact that he conceded that the events happened over a few seconds amplifies the very subjective nature of the incident and the judgment call the Defendant was required to make. In R v Conlon (1993) 69 A Crim R 92, Hunt J (at 97), in a judge alone trial, urged the exercise of caution in analysing cases involving self-defence to avoid the "unreality of dissecting into minute detail" events that occurred over a short period of time. In finding that the accused was not guilty of murder, but guilty of manslaughter, his Honour "[did] not exclude the likelihood that anger played some small part in reaction of the accused, but anger at finding oneself in a particular situation of being attacked is not in every case inconsistent with fear for one's safety in that attack."
27. Ms Sleath's evidence had a different complexion. As was made clear in an exchange between the bench and the learned prosecutor, she was not called to proffer evidence as an expert. Although she gave a statement to police, she did not provide an expert's certificate or report in accordance with s.177 of the Evidence Act 1995 (NSW). Rather, her evidence was related to the training she provided to home care staff employed at various locations and the guidelines, practices, policies and procedures for dealing with clients.
28. Ms Sleath's reference to aggressive behaviour, agitation, unpredictability, the need to "morally" keep a client safe, the fact that actions in some scenarios would be "considered" reasonable force, the need to use a physical restraint to stop "something catastrophic happening", their (presumably the trainers' and FACS') "preference" that a safe restraint be used which limited the "possibility" of injury, the "most suitable" type of restraint and a suggested full-Nelson type hold being "degrading and humiliating", emphasised the amorphous and subjective nature of the evidence adduced to support the charges. Nowhere was this more evident than in the acceptance by Ms Sleath that it was a "difficult path to walk."
29. The assertion that even if someone exhibited aggressive or major destructive behaviour, causing "thousands of dollars' worth of damage" was "fine", did not accord with the well-established principles regarding self-defence (of property) under the criminal law. It exposed the legal absurdity under the criminal law if the determination as to guilt or otherwise were reduced to a preference in which they (she or FACS) would rather have a client do thousands of dollars' worth of damage than "place a physical restriction on them in any way".
30. Additionally, there were so many changes to the techniques, training programs and accreditations, so much so that what started with PART, was later transferred to NVCI, only to then be transferred to MAPA (although not offered in the district), with training programs run by off-shore organisations such as the Crisis Prevention Institute and local organisations such as the Cerebral Palsy Alliance. There were different types of restraints taught under the different regimes as time passed and one program superseded the other.
31. So much of the Prosecution's theory on the case rested on the alleged impropriety of the Defendant's chosen form of physical restraint when interacting with the alleged victims. Yet, there was an awkwardness regarding her evidence to the effect that there was no requirement to undertake either PART training or NVCI training at all and that the issue lay with the prioritisation of staff members depending on the inherent risks in their particular unit, rather than a uniform application of training across the board.
32. The strength in the Prosecution's argument was diluted by an appreciable degree by the subjectivism in Ms Sleath's analysis of physical restraints, noting their preferability and, in the heat of the moment, when justified, doing what was required to keep people safe.
33. Much of Ms Sleath's evidence was geared towards policy-based propriety based on government departmental or organisational oversight. Nothing in the actions of the Defendant, however, led me to the conclusion that he was either abusive, neglectful or undignified of, let alone injurious towards, those persons under his care. Physical contact of the kind alleged will often look uncivil at the best of times. For the criminal law's best paradigm, one need only look to the physicality involved in arrests carried out by law enforcement officers in circumstances where the antecedent conduct of another often results in a form of restraint and arrest which, justifiably at times, is abrupt, ungracious and indecorous. That, however, does not change the fact that the criminal law recognises that there will be behaviour which will justify, or put another way, excuse as lawful, the use of a restraint, as opposed to gratuitous force, where the circumstances warrant it.
34. Ms Kelleher's evidence bore the same complexion to that of Ms Sleath's. Although she gave a statement to police, she did not provide an expert's certificate or report in accordance with s.177 of the Evidence Act 1995 (NSW), nor was she called to proffer evidence as an expert. Rather, her evidence was geared towards the PART training restraint principles applicable to home care staff employed to care for clients with a variety of challenging behaviours.
35. The PART training manual and Ms Kelleher's evidence was predicated by a desire to achieve best practice in the industry at locations where staff were required to care for individuals with cognitive and other impairments. Understandably, the prominence of the notions of duty of care, negligence and workplace responsibilities, concepts inherently civil in nature, exposed the danger in placing undue weight on matters which had the potential to distract from the real issues applicable in a different regime of analysis, that of the criminal law.
36. The suggestion, for example, that the "mere reference of a dryer" in a laundry did not give her any cause for concern was too simplistic. In the context of the Defendant being responsible for ensuring that Ms Connell did not sustain injury in continually entering the laundry and attempting to place into or remove from the dryer her handkerchief, cause for concern was real and genuine.
37. In any event, putting a theoretical scenario to Ms Kelleher in a clinical environment such as a courtroom and asking her to advise whether she or the PART training principles would "view dimly… or positively" such scenario, was nothing more than a manifestation of opinion evidence of the highest order on which little weight ought to be placed. Whilst reasonable minds may differ about a range of scenarios, it was the Defendant who found himself in the position of having to deal with the challenging and potentially dangerous behaviour of the clients under his care. Decisions of this kind in practice, rather than in the clinical confines of a courtroom, seldom involve time for calm reflection, and one's actions often appear to possess little refinement. This will not always translate into a criminal offence.
38. There was a degree of idealism in the option of "talking an individual down" who was banging on a table, a strategy to which Ms Kelleher referred in cross-examination. First, the conduct in which Ms Kauley was engaging went much further than merely banging on a table. Secondly, the Defendant was apprised of previous assaults on Ms Kauley's part carried out upon others within the home recently and as early as that morning. Thirdly, the behaviour was escalating rapidly and involved overturning chairs and pot plants and, had it continued, might have involved overturning the table, which she attempted but struggled with presumably due to its weight. These matters ought not to be overlooked.
39. There were way too many variables. In a perfect world, one was required to comply with the policies and procedures in place at a particular care facility and referable to one's particular Behaviour Support Plan. However, even the Prosecution's witnesses envisaged that there were factors at play regarding individual clients' behaviours which meant that decisions regarding intervention were often required to be made quickly. A common feature of the Defence case was that the Defendant's actions were against the backdrop of client behaviour which began as challenging and was escalating with an appreciable degree of danger. This is a matter which features prominently in the fact-finding process, with a view to determining the propriety of the Defendant's intervention at law.
40. Ms Kelleher's recognition that carers, in practice, might not always follow the PART training and departmental policies and procedures to the letter, in situations in which events were rapidly unfolding, was sobering. Even more powerful though, was her conclusion that the apex of any assessment of propriety was whether a carer abided by a client's particular plan and departmental policies and procedures. The latter was something I had difficulty accepting because it involved the criminal law being subordinated to, as opposed to being influenced by, operational policies and procedures. In my view, the criminal law, via the relevant statute and well-established common law principles regarding the lawfulness or excusal of one's actions and self-defence, is a structure to which policies and procedures must always yield, not vice versa.
41. I found the Defendant to be articulate, intelligent and experienced in his field. I was not left with the perception of any flagrancy in his conduct, either when giving his testimony or in his physical intervention to restrain the clients whose behaviour was escalating with impending danger. There did not appear to be any persistence, stubbornness, malice or overreaction. His intervention lasted less than a minute and was a response to escalating behaviour which lasted several more. He readily conceded the error in the physical restraint he chose to use, having been based on what he believed was permissible in relation to a client at a previous facility at which he was employed, and which was effective, and was thus permissible with respect to the clients at the Johnson Road facility. He made no secret of this error. Whatever the case, this did not change the fact that he was dealing with escalating aggressive and risk-prone behaviour. In both cases, when met with the resistance received from Ms Kauley and Ms Connell, he did not persist inordinately in his physical restraint.
42. Notably, the impracticality of the approved one-person restraint demonstrated by Ms Sleath and Ms Kelleher, where one is held with one hand at the top of the shirt and another hand on the trouser / pants belt line, in the situation where Ms Connell was wearing a dressing gown and loose clothing, spoke volumes and exposed some of the shortcomings in too readily accepting approved training techniques as being the determinant of propriety in rapidly-unfolding, volatility-prone episodes.
43. So confident was he that he had complied with the techniques he had learned in PART training, that at Q196 of the ROI, as he clarified in his oral testimony, he had hoped the investigating police would make contact with someone from PART training as this would exonerate him. He even delivered, of his own volition, his PART training certificate and an address of the PART training organisation to the investigating officers after he had given a Record of Interview. I found this to be hardly the attitude of someone who was attempting to evade responsibility in relation to conduct which might have been viewed as improper or unlawful. In fact, to the extent that the restraint technique used was contrary to the approved PART training principles and techniques taught, I had no hesitation concluding, as a finding of fact, that he was genuinely mistaken, an error from which he did not seek to resile.
44. The Defendant's description of the challenging and, at times, dangerous state of affairs within the home, was so far removed from the utopian examples to which the Prosecution's training specialists referred. The suggestion that everyone be evacuated and the facility be locked down, after any failure in initial non-crisis intervention and PART training strategies, and while a client overturns chairs and destroys pot plants, potentially exposing herself to injuries or while another client is permitted to burn herself or create a risk of fire by repeatedly turning on a dryer to operate with a small piece of material in it, fails to take into account the practicalities of the situations as they unfolded.
45. He readily conceded that he did not tell the police during his Record of Interview that he was trying to take Ms Kauley to her bedroom when he restrained her, something which he asserted in his oral evidence. This incongruity did little to impugn the Defendant's credibility, especially when considering his evidence that there was nothing out of the ordinary in his actions which featured so prominently either three months later, when giving the Record of Interview to police, or over two years later, when giving oral evidence in court. I rejected the Prosecution's assertion that the Defendant engaged in recent invention.
46. He mentioned his PART training innumerable times throughout the Record of Interview and made it clear that there was only so much one could do. There was a balance and understanding in his rationalisations of the situations. He was neither dismissive nor self-motivated. Departing from PART training, even if he did concede as much, as opposed to assaulting someone, were two entirely different things. True it is that the departure from PART training might be so egregious so as to constitute a criminal offence. However, that was not the case here.
47. His concessions that he used an unapproved restraint and that he "got it wrong" in this regard was no silver bullet for the Prosecution case. On the whole, even though his actions may not have complied with PART training or NVCI training, they were not, in my opinion, unlawful.
48. Regardless of whether Mr Foo recalled the handkerchief being in the washing machine as opposed to the dryer, the fact remains that the Defendant was rightfully troubled by Ms Connell placing into or retrieving from either the washing machine or the dryer a one single handkerchief at a time when either one or both whitegoods were operating or being turned on so as to operate by Ms Connell. The Defendant was better placed than Mr Foo to assess the risk associated with Ms Connell's behaviour and to act accordingly. The Defendant's concern was real and genuine and his physical intervention was entirely justified at law.
49. Notwithstanding that there were some imperfections in the Defendant's evidence and some instances where his responses did not immediately join issue, I found him to be a persuasive, credible witness who gave a practical and realistic account of the events the subject of the charges. This was so after making due allowance for the Record of Interview given three months after the events and his oral testimony given between two and nearly three years after. He readily made concessions against his interests and a great number of matters to which he referred were corroborated by Ms Woodward and Mr Foo.
50. Ever mindful of ensuring that the Court's function, as the trier of fact, is not to simply choose between witnesses, to the extent that there was any inconsistency, I preferred the aspects of the Defendant's account, having found him to be a reliable and honest witness who was better placed to assess the rapidly escalating risk-prone and dangerous behaviour of Ms Kauley and Ms Connell as the events unfolded.
51. In all the circumstances, and as a finding of fact, I was persuaded to the view that the Defendant's conduct was not such as to conclude that it was without lawful excuse. In this regard, I was not satisfied that the Prosecution had adequately discharged its onus of proving, beyond reasonable doubt, this element of the offence.
52. Alternatively, even if I were found to be in error with respect to the conclusion reached in the immediately preceding paragraph, I was satisfied that self-defence was adequately raised by the evidence. I was satisfied, as a finding of fact, that there was a reasonable possibility that the Defendant (from a subjective perspective) believed that his conduct was necessary in order to defend himself, another person or to protect property from destruction, damage or interference and that his conduct (from an objective perspective) was a reasonable and proportionate response to the circumstances as he perceived them. Lest there be any doubt, I was not satisfied, as a finding of fact, that the Prosecution discharged its onus of proving, beyond reasonable doubt, that the Defendant did not carry out the conduct in self-defence.

Verdict

1. I find the Defendant not guilty of both counts of common assault and enter a verdict of acquittal.

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