that the burden of proof lay with the Respondent to establish, to a reasonable satisfaction, based on non-inexact proof or indirect testimony, that the Applicant acted with the use of excessive force in the circumstances in relation to KK.
43 It was submitted that, in determining whether the Department of Juvenile Justice had discharged its burden in that regard, the Commission will have regard to the:
- good record of the Applicant; and
- circumstances immediately preceding the physical contact between the Applicant and detainee KK.
44 It was pointed out that the evidence concerning the good record of the Applicant was uncontradicted.
45 So too was the evidence relating to the circumstances leading up to the alleged physical assault. KK had approached Mr. Sexton in an aggressive manner making verbal threats to his physical safety. The Applicant had acted in urgent self-defence to resist the imminent and reasonably apprehended physical threat posed by KK.
46 The CCTV footage was dismissed as being of limited value for a number of reasons. Firstly, it lacked sound and therefore the allegations made by Mr. Sexton as to threats made by KK have not been rebutted; secondly, the footage does not show the head sections of either Mr. Sexton or KK and therefore any exchange between them and cannot be confirmed or refuted; and, thirdly, it does not record the real time movement of the parties thereby giving a more sudden and dramatic appearance to the movements than would have been the case in reality.
47 Nevertheless, the footage did serve to collaborate the Applicant's evidence that KK had approached him and made a threat close to his ear using a rolled up piece of paper following which he had retreated and then returned and approached him a second time.
48 It was pointed out that even if the Commission were to determine that the Applicant used somewhat more force than was necessary in the circumstances, the matter would not end there. The Commission would be required to make a determination that such excessive use of force warranted summary dismissal.
49 It was submitted that the termination was unreasonable and unjust for the following reasons. Firstly, there was no excessive use of force; Secondly, no accommodation had been made for Mr. Sexton acting in self-defence in accordance with the Department's Guidelines. The Commissioner's attention was drawn to Reg. 50, Use of Force, of the Children (Detention Centres) Regulation 2005 which sets out a series of exceptions to the bar to the use of force against detainees in Juvenile Detention Centres. One such exception, in Reg. 50 (1)(b), is for the purpose of protecting the officer or other persons from attack or harm.
50 It was pointed out that when the Commission has regard to the Investigation Report in an analogous situation involving Youth Officer Haldane, the level of discretion that Juvenile Justice Officers must have in dealing with detainees and within the Guidelines would become obvious. Mr Haldane was found to have committed use of force but no action had been taken against him. The unequal treatment of the two officers would give rise to a justifiable sense of grievance on the part of Mr. Sexton and would highlight the unfairness in the treatment.
51 It was further submitted that the termination was harsh for the following reasons. Firstly, the evidence before the Commission that the Applicant was provoked by KK in serious circumstances had not been refuted; Secondly, the Applicant gave evidence that he had received minimal training. The training on the use of force was of two days' duration with one day only being utilised for practical training; Thirdly, the Applicant's employment record with the Department was exemplary as evidenced by the statements tendered by his previous unit co-ordinators. The contents of those statement had not been contradicted in any way; Fourthly, the Applicant's future prospects of employment have been severely restricted by the Category 1 report to the Commission of Children and Young people; and fifthly, regard should have been had to the prior record of KK. The evidence before the Commission demonstrated that KK had perpetrated serious physical violence upon other detainees, other staff and upon himself.
52 Mr Chin took the Commission through that evidence in support of the contention that it was understandable that Mr. Sexton would have reasonable apprehension in the circumstances. The Applicant had read KK's record, was aware of his violent nature and prior attempts at self-harm and had received four separate threats of violence when he re-acted to the situation. Despite that knowledge, he had acted in accordance with the Department's guidelines. He had initially prolonged the verbal interaction with KK and when that failed, had used force as a last resort.
53 It was submitted that in order to find that the Applicant used excessive force, the Commission must be reasonably satisfied that Mr. Sexton did not act reasonably in self-defence. In order to arrive at that finding, the Commission would have to find that Mr. Sexton was not subject to an imminent physical threat. The onus, it was submitted, was on the Respondent to reasonably satisfy the Commission in relation to that contention. It was pointed out that the Respondent had not called any evidence to positively rebut the evidence of Mr. Sexton as to the imminent physical threat posed to him by KK. It was therefore impossible for the Commission to find that the burden has been discharged by the Respondent in rebutting the proposition that Mr. Sexton was the subject of an imminent physical threat by KK.
54 The Commission was invited to draw an adverse inference, on the basis of the principles established in Jones v Dunkell ((1959) 101 CLR 298) against the Respondent for its failure to call evidence, particularly from KK, to contradict the Applicant.
55 It was not at issue that there was no injury sustained by KK. He merely stumbled.
56 It was considered that in one of the questions asked during the Investigation Interview, that Mr. Pell had conceded that some contact was proper:
"Q. 232: Do you agree that for you to have held him at arms length and called Mick McGavin out of the UC's room, that would have been a better alternative than to push and continue to push KK away?"
57 The authorities from this Commission clearly establish a distinction between perpetrating some form of physical force upon others in the workplace in circumstances out of the ordinary course of duties on the one hand and in self-defence on the other. It was submitted that the situation in question, on the evidence, was very clearly one in which the latter prevailed as Mr. Sexton was acting in self-defence.
58 The legislation governing the use of force against juvenile detainees recognises that an inevitable consequence of the very difficult job of the Juvenile Justice Officers is that, on occasion, inevitably, they will have to engage in the use of force and if they do so in self-defence, their actions will be tolerated.
59 It cannot be denied, considering the nature of KK, that Mr. Sexton was in a very difficult position on the day.
60 It was concluded that the Commission can only find that Mr. Sexton had acted in self-defence on that day.
61 Mr Chin took the Commission to the relevant authorities in that regard:
Woods v Hunter Area Health Service [1999] NSWIRComm 102 (19 March, 1999) per Harrison DP
HREA on behalf of Robert John Drinan v Hunter Area Health Service [2002] NSWIRComm 270
NSW Nurses Association on behalf of Gary Jefferey v Department of Community Services (Unreported, IRC NSW, McLeay, C, 553 of 2000, 14 July, 2000)
Luke v Handicapped Children's Centre (Unreported, IRC NSW, Connor, CC, 2586 of 1993, 16 March, 1994)
62 It was concluded that for all of the above reasons, Mr. Sexton should be reinstated with remuneration ordered that he would have received but for the dismissal.
63 In addition, a determination was being sought, pursuant to Section 175 of the Act that the actions of Mr. Sexton did not constitute reportable conduct pursuant to s. 39 and s.33 (1) of the Commission of Children and Young People Act 1998.
64 If the Commission was not minded to grant the primary remedy being sought, then the Applicant would seek a determination pursuant to s.175 of the Act that the Department of Juvenile Justice's notifications to the CCYP ought not to have been a notification of a category 1 reportable conduct and that it ought to have been, at most, a notification of a category 2 classification in accordance with the applicable Working with Children Check Guidelines.
65 Consequent to that, a direction be issued by the Commission that the Department of Juvenile Justice make a submission to the CCYP to alter the notification from Category 1 to Category 2 in accordance with the Commissioner's determination under s. 175.
66 It was submitted on behalf of the Respondent that it took objection to a comparison being made with Haldane as each case ought to stand alone and be decided on its own merits. The same argument would apply to the authorities cited on behalf of the Applicant.
67 Ms Anderson noted the requirement in the Corrective Services Case for a "positive" finding to be made that the misconduct occurred and respectfully pointed out that the word "affirmative" may have more appropriately reflected the intention espoused by the Commission in that decision.
68 It was further noted that none of the authorities relied on by the Applicant gave consideration to the Child Protection Legislation and to that extent were of very limited assistance except perhaps for the decision in Drinan which, in turn, referred to a decision by the Government and Related Employees Appeal Tribunal in Samad v Public Service Board (Appeal No. 1395 of 1982; 05/11/1982). That matter went to the Court of Appeal which upheld GREAT that a psychiatrist who kicked a patient should be dismissed. It was held by GREAT that there was no excuse in circumstances of psychiatric hospitals for a patient to be punished for behaviour that was a product of their psychiatric illness.
69 It was submitted that the same principle would apply to Jails and Detention Centres. It was not for employees to decide to punish a prisoner or a detainee over and above what the system has meted out to them, eg. confinement in a holding room or writing them up, as are provided in detention centres.
70 It was pointed out that Mr. Sexton should have nipped it in the bud as soon as he received the first threat. During cross-examination, he agreed that he should have taken some option other than continue sitting on the table.
71 It was noted that Mr. Sexton had made allowances for KK's behaviour - it was Christmas Day and he had not had any visitors. Nevertheless, the Respondent believed that a threat such as that made by KK should not have been tolerated under any circumstances. Yet he tolerated it on a second occasion and Mr. Sexton only took action when KK came back a third time.
72 It was not suggested by the Respondent that Mr. Sexton intended to inflict any harm on KK. There was an intention, however, to demonstrate to KK, by an inappropriate means (that is, by the use of physical force) just who was in control.
73 It was not in issue that Mr. Sexton pushed KK. The question, however, remained: Was that an assault? Ms. Anderson rejected any attempt to label the assault as "technical" or otherwise.
74 The Respondent did not dispute that detainees in juvenile detention centres were the most troubled, difficult young people in the system. It was accepted that no-one could get into what Mr. Sexton's mind was at the time in question. He said he had been anxious and stressed. Nevertheless, the question as to whether an action constituted self-defence should not be viewed subjectively by the person perpetrating it. The question as to whether a person could have been in such a state of fear as to occasion the use of physical force should be assessed objectively by the Commission otherwise "rafferty's rules" would apply at detention centres.
75 Viewed objectively, the Commission may find that it was an unreasonable belief by Mr. Sexton that a boy with no object in his hand other than a cone of paper could have put him in a state of fear for his safety.
76 Irrespective of the criticisms made of the CCTV footage, it was submitted that it cannot be disputed that Mr. Sexton pushed KK.
77 In relation to the alleged concession by Mr. Pell during the Investigation Interview with Mr. Sexton, Ms. Anderson submitted that any views expressed by Investigators were immaterial. He was entitled to his opinion as an individual - but that was all it was. The interview transcripts were only tendered for the sake of completeness and merely to ensure that the full picture was before the Commission.
78 In his own evidence to Mr. Pell, Mr. Sexton admitted that he had been stressed and anxious and nearly lost it resulting in his pushing KK more than was necessary.
79 The Respondent emphasised Guideline 1 of the Department's procedure with respect to the use of force:
"Force must be avoided until it is the only remaining method available to manage a dangerous or threatening situation".
80 Objectively viewed, there was no dangerous or threatening situation.
81 Pursuant to the Child Protection legislation, even if an action might not be proven according to the balance of probabilities in disciplinary proceedings, so long as the employer does not come to the view that it did not happen or that it was frivolous, vexatious or misconceived, then the employer is obliged to submit a report on the incident. On viewing the CCTV footage, there was no doubt that notification of the incident had to be made to the CCYP.
82 Further "physical assault" is defined in the "Working with Children Check Guidelines" as including the following three elements:
- an act committed on or towards a child; and
- involves either the application of force to a child or an act that causes a child to think that immediate force will be used on them, and ;
- is either hostile or reckless (a reckless act is one where the person foresees the likelihood of inflicting injury or fear and ignores the risk).
83 It was submitted that, objectively viewed, Mr. Sexton's action was both hostile and reckless although it was conceded that there was no malice involved or intended. However, it was intended, and did achieve, a measure of fear in KK, as instead of acting offensively, he had yielded and gone backwards. In the circumstances, therefore, the report to the Ombudsman and the NSW CCYP was appropriate as was the decision to terminate Mr. Sexton's employment.
84 It was noted that, like Samad, Mr. Sexton's was a hard case in view of his unblemished record. However, the legislature and the Community dictates had to be met. They fully expected the Department to implement the legislation and not to tolerate any behaviour that constituted child abuse even if it were to be an assault at the bottom end of the range.