John Paton Russell v Corrections Officer Reid
[2016] VSCA 207
•31 August 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0046
| JOHN PATON RUSSELL | Applicant |
| v | |
| CORRECTIONS OFFICER REID and ORS | Respondents |
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| JUDGES: | OSBORN, BEACH and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 August 2016 |
| DATE OF JUDGMENT: | 31 August 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 207 |
| JUDGMENT APPEALED FROM: | [2015] VSC 729 (Rush J) |
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TORTS – Appeal – Battery – Claims by prisoner against prison officers – Defences – Self-defence – Lawful authority – Defence provided by s 23 of the Corrections Act 1986 – Whether trial judge erred in finding defences established – No error established – Application for leave to appeal granted – Appeal dismissed – Corrections Act 1986, s 23.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J A F Twigg QC with Ms F R Cameron | Victorian Bar Pro Bono Scheme |
| For the Respondents | Mr R I Gipp | Victorian Government Solicitor’s Office |
OSBORN JA
BEACH JA
McLEISH JA:
Between October 2011 and July 2012, the applicant was a prisoner in the Melbourne Remand Centre. In the proceeding below, the applicant claimed damages in respect of three incidents. Each incident was described, and pleaded by the applicant, as a battery. The first incident occurred on 11 January 2012, and the second and third incidents both occurred on 25 June 2012. The defendants in the applicant’s proceeding were the State of Victoria and four of its employees, described by the applicant as Corrections Officer Reid, Corrections Officer Tomkinson, Corrections Officer Paton and Corrections Officer Payne.
On 16 December 2015, after a six-day trial, a judge of the Trial Division dismissed the applicant’s proceeding and gave judgment for the defendants.[1] The applicant seeks leave to appeal and (if leave is granted) to appeal against the orders made by the judge.
[1]Russell v Corrections Officer Reid [2015] VSC 729 (‘Reasons’).
The proceeding at first instance
At trial, the applicant made complaint about three incidents. While the judge made findings that were unfavourable to the applicant in respect of all three incidents, there is no challenge by the applicant to the judge’s findings and conclusions with respect to the third incident. Accordingly, it is only necessary for us to deal with the first and second incidents.
In respect of the first incident, the applicant alleged that on 11 January 2012, he was punched in the area of both shoulders by Senior Prison Officer Reid. It was alleged by the applicant that the punches caused the applicant to fall backwards and hit his head and lower spine on a concrete floor.
As for the second incident, the applicant alleged that on 25 June 2012, he was struck by Prison Officer Supervisor Tomkinson to the left and right shoulder. The applicant’s case at trial was that he was then pinned to the bed in his cell by Mr Tomkinson and Senior Prison Officer Paton, and that he was punched by Mr Paton ‘numerous times to his right shoulder and back’.
In respect of the first incident, the respondents denied the applicant’s allegations and relied upon the defence of self-defence and s 23 of the Corrections Act 1986 (‘the Act’). Section 23 of the Act provided:
23.Control of prisoners
(1)An officer may give any order to a prisoner which the officer believes to be necessary for the security or good order of the prison or the safety or welfare of the prisoner or other persons.
(2)A prison officer may where necessary use reasonable force to compel a prisoner to obey an order given by the prison officer or by an officer under this section.
(3)Where a prison officer uses force to compel a prisoner to obey an order the prison officer must report the fact forthwith to the Governor.[2]
(4)Where a Governor uses or orders the use of force to compel a prisoner to obey an order the Governor must report the fact to the Secretary.
(5)A prison officer is not liable for injury or damage caused by the use of force in accordance with this section.
[2]The word ‘Governor’ is defined in s 3(1) of the Act to mean ‘the Governor of a prison and includes a person nominated by the Secretary to act as the Governor of a prison’.
In respect of the second incident, the respondents again denied the applicant’s allegations and relied upon the defence of self-defence. While the judge recorded that at trial each respondent relied upon s 23 of the Act,[3] we were told by counsel for the respondents (who was counsel for the defendants at trial) that the respondents did not rely upon the s 23 defence with respect to the second incident.
[3]Reasons [13].
Turning again to the first incident, Mr Reid gave evidence of a confrontation with the applicant at ‘lock-up’ time, approximately 7:50 pm. Notice that ‘lock-up’ was about to occur had been given over a public address system. The applicant was supposed to be in his cell. Mr Reid and the applicant were at the applicant’s cell door. The applicant was directed to ‘step back’. Mr Reid said that the applicant ‘kept coming towards me and then basically walked toward me where we were standing toe to toe’. Mr Reid gave evidence of pushing the applicant away, into his cell.
In dismissing the applicant’s claim in relation to the first incident, the judge said:
In my opinion the action of Reid in pushing Russell away, into his cell, in the circumstances was reasonable and proportionate. Two open hands delivering a ‘push’ into the cell is, in my opinion, a reasonable response to Russell’s conduct in the circumstances. In my opinion, the evidence of Russell as to the nature of the force used by Reid is exaggerated. The weight of evidence is that he was not ‘punched’ or ‘hit’ to the chest with clenched fists by Reid. I do not consider the force used by Reid was in anyway excessive, having regard to the circumstances presented to him — that is, dealing with an irritated, angry prisoner who was refusing to obey a direction and presented in a manner whereby Reid, reasonably, could not predict his next actions.
…
Russell has not succeeded in establishing Reid committed an act of battery upon him, thus there is no need for me to assess damages. In my opinion, any injury suffered by Russell as a consequence of the first incident was mild and is best described as a temporary aggravation of pre-existing injuries.
Finally in relation to the first incident, it is necessary to consider s 23 of the Corrections Act. A prison officer has power under s 23(1) to give an order if the officer believes it to be necessary for the security or good order of the prison. In my opinion, a prison officer faced with a recalcitrant prisoner at lock-up would be entitled to give the order in this case given by Reid. On the evidence, there are two compelling reasons justifying the order of Reid. Firstly, the evidence of Reid that Russell was in an agitated state, close to his person and Reid was unsure of what he would do next. Secondly, Russell remained the final prisoner in the unit to enter his cell for lock-up. Whilst Reid did not specifically state in his evidence he gave the order because he believed it ‘to be necessary for the good order of the prison’, the overwhelming inference is that was his motivation for doing so, ie, preventing any escalation of the altercation with Russell and completing lock-up. In these circumstances, Reid was entitled to ‘use reasonable force to compel’ Russell to obey the order given. As my findings make clear, I find the force used by Reid to compel Russell to obey his order was reasonable and proportionate to the circumstances he then faced.[4]
[4]Ibid [39], [46]–[47].
In respect of the second incident, Mr Tomkinson gave evidence that he attended the applicant’s cell (with Mr Paton) to investigate a number of prison incidents alleged against the applicant. Mr Tomkinson said that during the course of their attendance on the applicant, the applicant became angry, jumped up, yelled out an obscenity and ‘came at me’. Mr Tomkinson said that he was surprised at this action and that he pushed the applicant away with his right hand to the applicant’s chest, with an open palm. As a consequence of the applicant’s actions, Mr Tomkinson and Mr Paton tried to restrain the applicant face down on the applicant’s bed.
Mr Paton described Mr Tomkinson pushing the applicant away from him with an open hand as the applicant had lunged towards him. Mr Paton said that the force used by Mr Tomkinson was minimal. After this, Mr Paton grabbed the applicant’s right arm and Mr Tomkinson grabbed his left arm and they restrained him on the bed in the applicant’s cell. The applicant was restrained in this manner for approximately 40 seconds. Mr Paton denied punching the applicant at any time.
In dismissing the applicant’s claim in respect of the second incident, the judge said:
I do not accept Russell’s evidence that this second incident was caused by Tomkinson in some way reacting to his insistence that any conversation between the two of them be conducted in an interview room. As is apparent, I do not accept the evidence of Russell that these officers were trying to incite an incident.
Russell would have it that it was his request for the interview to be conducted in an interview room that sparked Tomkinson to assault him at a time when Tomkinson had folders in one hand. This request, on Russell’s evidence, turned a previously ‘jovial’ prison officer with whom he had a good relationship into a person prepared to suddenly turn on him, punching him and manhandling him, and all this occurring with the cell door open and Tomkinson holding in one hand a number of folders.
I have viewed the CCTV footage of the second incident. It shows Tomkinson entered the cell and Paton stood at the open door of the cell in a relaxed manner. Conversation occurred in the cell for approximately one minute and 28 seconds. At this stage, Paton entered the cell. Shadows reflected on the floor of the cell, captured on the CCTV footage, suggest a confrontation and, during the confrontation, Tomkinson is seen to place files he was holding in one hand on the bed in the cell. As discussed earlier, I do not consider Tomkinson would commit a premeditated assault on a prisoner with one hand.
As stated, at the commencement of the confrontation, Paton is shown to enter the cell and eventually the two prison officers are seen to force Russell face-down onto the bed, with him being restrained, his arms being held behind his back; Paton is seen to indicate a need for assistance and, shortly after, Tomkinson semi-closes the door of the cell. Bromley then arrives, enters the cell and closes the door of the cell. Later, the CCTV footage shows Russell being escorted from the cell in handcuffs by Bromley and Paton.
On close consideration of the CCTV footage, I find that it broadly supports the evidence given by Tomkinson and Paton concerning the incident.
Why was the door of the cell closed, thus blocking the CCTV camera to a limited view of Russell’s cell? Russell suggested the door was closed to prevent any recording of further events, assaults, in his cell on CCTV. At the time the door was closed, Russell was being restrained on the bed in his cell. Tomkinson stated in evidence that the cell door is closed in such circumstances ‘because we don’t want other prisoners to become involved and they do at times become involved which would then exacerbate what we are trying to contain at that time’. It would seem to me that if these prison officers had come to Russell’s cell intent on inciting an incident as alleged by Russell, the cell door would have been closed at the outset, rather than after the occurrence of the second incident.
The CCTV footage does show other prisoners in and around the immediate area of Russell’s cell. I accept the importance from the prison officers’ point of view of reducing the chances of other prisoner involvement by closing the door. The CCTV footage does show Paton restraining Russell face-down on the bed, but there is nothing to suggest he was punching him in the back. The CCTV footage demonstrates that Russell’s level of agitation was such that it took the two prison officers to force him face-down onto the bed.
In my opinion, the response of Tomkinson and Paton in restraining Russell was reasonable and proportionate to the situation that Russell had created.[5]
[5]Ibid [61]–[68] (footnote omitted).
Grounds of appeal
The applicant’s proposed grounds of appeal (grounds 1–6 relating to the first incident, and grounds 7 and 8 relating to the second incident) are as follows:
1.His Honour did not apply the law to the facts as he found them; any contact that goes beyond the ordinary incidents of social intercourse is offensive. His Honour did not expressly find that Officer Reid's contact with Mr Russell was within the ordinary incidents of social intercourse, and, on the facts as found, it was not open to His Honour to conclude battery was not proven, as Officer Reid's contact was offensive.
2.His Honour did not expose his process of reasoning that led him to conclude that Officer Reid's contact with Mr Russell was not offensive.
3.His Honour had no evidence before him on which to find that Officer Reid's actions were based on reasonable grounds necessary. His Honour's finding that Officer Reid's actions were undertaken in self-defence is incorrect, there was no evidence before the Court from which to infer that Officer Reid believed on reasonable grounds that when he pushed Mr Russell that what he was doing was necessary.
4.His Honour's finding that Officer Reid's actions were lawful is incorrect because the finding is not supported by evidence that Officer Reid had complied with s 23 of the Corrections Act.
5.His Honour's reasoning with respect to the defence under s 23 of the. Corrections Act and self-defence is conflated. His Honour considered that the sole test for both defences was whether the actions of the corrections officers were reasonable and proportionate. Such findings are necessary but not determinative for the defences to succeed, as each defence requires satisfaction of other elements.
6.His Honour took into consideration his personal view of Mr Russell, which is an irrelevant consideration. Whether Mr Russell had a misplaced sense of entitlement was irrelevant to the facts to be determined. His Honour's judgment of Mr Russell's personality was prejudicial and contrary to justice and fairness.
7.His Honour's reasoning with respect to the defence under s 23 of the Corrections Act and self-defence is conflated. His Honour considered that the sole test for both defences was whether the actions of the corrections officers were reasonable and proportionate. Such findings are necessary.
8.His Honour's finding at [81]–[83] of his reasons are inconsistent with the evidence.
The first incident
The judge described and analysed the evidence given about the first incident in some detail.[6] The judge accepted the evidence given by Mr Reid and two other prison officers, Ms McGill and Ms Bowman. In summary, their evidence was that Mr Reid was assisting with lockup. Prisoners were required to be in their cells. The applicant and Mr Reid were in the vicinity of the applicant’s cell door. The applicant was being antagonistic, bordering on aggressive. The applicant was told on a number of occasions to move away from Mr Reid. Specifically, the applicant was told to ‘Step back’. Notwithstanding these requests, the applicant did not move. Mr Reid said that the applicant kept coming towards him, and that he was unsure what the applicant’s next movement would be. In those circumstances, Mr Reid placed his hands on the applicant’s chest, straightened his arms and pushed the applicant. The applicant stumbled backwards and landed on his bottom in his cell. The judge concluded that the push was delivered to the applicant in the upper chest area with Mr Reid’s open hands ‘applying minimal force to the upper chest area of [the applicant]’.[7]
[6]Ibid [14]–[38].
[7]Ibid [35].
Grounds 1 and 2
In grounds 1 and 2, the applicant makes complaint about a statement in the judge’s reasons that the applicant ‘has not succeeded in establishing [that Mr Reid] committed an act of battery upon him’.[8] The applicant contended that, having regard to the judge’s findings of fact, it was not open to the judge to conclude that no battery had been committed. It was submitted that any contact that goes beyond the ordinary incidence of social intercourse is offensive and constitutes a battery. Mr Reid’s contact with the applicant was a battery. Battery having been established, it was submitted that the matter fell to be dealt with by reference to one of Mr Reid’s affirmative defences (self-defence or s 23 of the Corrections Act 1986).
[8]Ibid [46].
Moreover, if the judge concluded that the contact between Mr Reid and the applicant was not offensive, then it was submitted by the applicant that no path of reasoning was disclosed by the judge for this conclusion.
Initially, counsel for the respondents sought to contend that the judge did not find that pushing the applicant was a battery because the pushing was not ‘offensive in the sense that it [went] beyond that which is part of the ordinary incidents of social intercourse’[9] in a prison. That submission only had to be stated to be rejected.
[9]Cf Slaveski v Victoria [2010] VSC 441 [241]–[242].
Whether the judge affirmatively found that no battery was committed during the first incident, or whether, when read fairly, the judge’s reasons disclose no more than that the applicant failed in his cause of action for battery with respect to the first incident, may be debated. However, even if one accepts the applicant’s contentions, the applicant will not succeed in this Court in respect of the first incident unless he can successfully attack the judge’s conclusions with respect to the defences of self-defence and s 23 of the Corrections Act 1986. The applicant attacks the judge’s conclusions on those issues in grounds 3, 4 and 5. Accordingly, it is necessary to turn to those grounds.
Grounds 3, 4 and 5
As we have said, in grounds 3, 4 and 5, the applicant makes complaint about the judge’s treatment of the issues of self-defence and the statutory defence provided by s 23 of the Corrections Act 1986.
The defence of self-defence is made out by a person when that person believes upon reasonable grounds that it was necessary in self-defence to perform the action in respect of which complaint is made. In Watkins v Victoria,[10] this Court said:
In determining whether the defendant believed that the force used was necessary, consideration should be given to the fact that a person who has reacted instantly to imminent danger cannot be expected to weigh precisely the exact measure of self defensive action which is required.
The proportionality of a defendant’s response to the harm threatened is just one factor to take into account in determining whether the defendant believed that his actions were necessary.
In a civil trial — by contrast with the situation in a criminal proceeding — it is for a defendant who pleads the defence to establish it. Insofar as proportionality of response is relevant to a conclusion whether the defendant believed on reasonable grounds for him or her to do what he did, the burden of establishing proportionality rests on the defendant.[11]
[10](2010) 27 VR 543 (‘Watkins’).
[11]Ibid 561 [72]–[74].
The applicant’s complaints in grounds 3, 4 and 5 are:
(a) there was no evidence before the judge on which his Honour could find that Mr Reid’s actions were, based on reasonable grounds, necessary;
(b) there was no evidence that Mr Reid’s actions were undertaken in self-defence, and no evidence from which the Court could infer that Mr Reid believed, on reasonable grounds, that when he pushed the applicant, what he was doing was necessary;
(c) the judge erred in accepting the s 23 defence because there was no evidence of compliance with s 23 (either in relation to the requirements of sub-ss (1) and (2) or with respect to the requirement of sub-s (3), which subsection required a report of the use of force by Mr Reid ‘forthwith to the Governor’); and
(d) the judge erred in considering both the s 23 defence and self-defence by reference only to whether the actions of Mr Reid were reasonable and proportionate.
During the hearing, the applicant contended that the order given by Mr Reid to ‘step back’ was not an order ‘necessary for the security or good order of the prison or the safety or welfare of the prisoner or other persons’.[12] While it was conceded by the applicant that an order in terms such as ‘get back into your cell’ would be capable of being an order of the kind contemplated in s 23(1) of the Act, it was submitted that merely ordering a prisoner to step back (without more) could not satisfy the section. We reject that submission. Given the location of Mr Reid, with his hand on the applicant’s cell door at the time he told the applicant to ‘step back’, it seems to us that the order to step back was, in the circumstances, the equivalent of an order to the applicant to get back into his cell — it then being lock up time.
[12]Cf s 23(1) of the Act.
We turn now to the complaints made by the applicant concerning the judge’s treatment of the s 23 defence, summarised in paragraph [21] above. There is no substance in any of these complaints. While it may be accepted that Mr Reid did not give express evidence that he had made an order pursuant to s 23 of the Corrections Act 1986 or that, in pushing the applicant, he was using reasonable force to compel the applicant to obey an order he believed necessary for the security or good order of the prison, in the circumstances of this case as found by the judge, his Honour was well entitled to draw all of these inferences. In our view, it was plain on the evidence that when Mr Reid pushed the applicant Mr Reid was acting as permitted by sub-ss (1) and (2) of s 23 of the Act. While it may have been preferable for Mr Reid to have given express evidence about the matters relevant to s 23 which the respondents’ cases at trial relied upon in order to defeat the applicant’s claim in respect of the first incident, it was not necessary in the circumstances of this case for Mr Reid to expressly state all of these matters in evidence. All of them were inferences capable of being drawn in a civil trial, and were open to be drawn by the judge, on the evidence, in this case.[13] We see no error in the judge’s conclusion with respect to the s 23 defence, when the judge said:
Finally in relation to the first incident, it is necessary to consider s 23 of the Corrections Act. A prison officer has power under s 23(1) to give an order if the officer believes it to be necessary for the security or good order of the prison. In my opinion, a prison officer faced with a recalcitrant prisoner at lock-up would be entitled to give the order in this case given by Reid. On the evidence, there are two compelling reasons justifying the order of Reid. Firstly, the evidence of Reid that Russell was in an agitated state, close to his person and Reid was unsure of what he would do next. Secondly, Russell remained the final prisoner in the unit to enter his cell for lock-up. Whilst Reid did not specifically state in his evidence he gave the order because he believed it ‘to be necessary for the good order of the prison’, the overwhelming inference is that was his motivation for doing so, ie, preventing any escalation of the altercation with Russell and completing lock-up. In these circumstances, Reid was entitled to ‘use reasonable force to compel’ Russell to obey the order given. As my findings make clear, I find the force used by Reid to compel Russell to obey his order was reasonable and proportionate to the circumstances he then faced.[14]
[13]Cf DPP v Smith [2002] VSC 603.
[14]Reasons [47].
With respect to s 23(3) of the Corrections Act 1986, the applicant submitted that there was no evidence that Mr Reid reported the use of force against the applicant ‘forthwith to the Governor’. It was submitted that the failure to establish this fact deprived Mr Reid (and by extension the State of Victoria) of the defence provided in sub-s (5). We disagree. The defence in sub-s (5) is given in respect of a use of force made in accordance with sub-s (2). The use of force is lawful because it was no more than reasonable force to compel a prisoner to obey a relevant order, and it was necessary as required by that sub-section. The defence provided by sub-s (5) is not predicated upon a compliance with the administrative requirements of sub-s (3). In any event, we note that according to a computer generated incident report, in which it is stated that the incident was entered at 21:59:49, a ‘Use of Force Register’ was completed and ‘information [was] sent to Directorate’ on or before 12 January 2012.
What we have said about the s 23 defence and the judge’s treatment of that issue is, subject to what we say about ground 6 below, sufficient to dispose of the applicant’s complaints about the judge’s rejection of his claim with respect to the first incident. However, for completeness, we should say that the applicant’s submissions about self-defence in respect of the first incident are not entirely without substance. Whether Mr Reid in fact gave evidence capable of establishing that he acted in self-defence may be debated having regard to his evidence that he was trying to force the applicant into his cell for ‘lock-up’. But in view of our conclusion about the s 23 defence it is not necessary for us to resolve the issues raised by the applicant in respect of the defence of self-defence.
Finally in respect of these grounds, the judge did not conflate the defence under s 23 of the Corrections Act 1986 and self-defence.[15] As we have said, it was well open to the judge to conclude that the elements of the s 23 defence were made out. At issue at trial was whether the actions of Mr Reid were reasonable and proportionate. The judge considered that issue in some detail, and found in favour of the respondents. There was no error in that conclusion; nor was there any overlooking by the judge of any other element of the s 23 defence. While it may have been preferable if the judge’s reasons had more closely followed the statutory text, by referring to the use of reasonable force that was no more than necessary to compel the applicant to obey Mr Reid’s order, in our view the use of the phrase ‘reasonable and proportionate’, in the context of the trial that was conducted and the evidence that had been called, does not disclose any conflation or other error on the part of the judge.
[15]Cf ground 5.
Ground 6
In ground 6, the applicant makes complaint that the judge took into consideration a personal view about the applicant which was ‘an irrelevant consideration’. Specifically, the applicant makes complaint about the following passage in the judge’s reasons:
On my assessment of Russell, I find he is a person who has a misplaced sense of entitlement, a person that does not readily accept direction, particularly if he feels himself aggrieved. This is most likely the way he felt at the time of his encounter with Reid. I accept Reid’s evidence that after directing Russell to move on a number of occasions, Russell responded with the words: ‘Well what are you going to do about it?’.[16]
[16]Reasons [32].
There is nothing in this complaint. The judge had the benefit of hearing and seeing the witnesses. Conclusions about the personalities and demeanour of the witnesses were a necessary part in the assessment of their motivations, their credibility and their reliability so far as their evidence was concerned. There was no error in the judge making the observation he made about the applicant and about which complaint is now made.
The first incident: conclusion
For the reasons given above, the applicant has not made out any of his proposed grounds of appeal with respect to the first incident.
The second incident
The judge commenced his analysis of the second incident with a description of the evidence given by the applicant on the one hand, and the evidence given by Mr Tomkinson and Mr Paton on the other hand. The judge viewed CCTV footage of the second incident. The judge did not accept the evidence of the applicant. He considered that the CCTV footage broadly supported the evidence given by Mr Tomkinson and Mr Paton. The judge concluded that the response of Mr Tomkinson and Mr Paton in restraining the applicant was ‘reasonable and proportionate to the situation that [the applicant] had created’.[17]
[17]Ibid [68].
Ground 7
Ground 7 is the equivalent of ground 5 that was advanced by the applicant as one of his complaints about the judge’s conclusions in respect of the first incident. There was no substance in that ground with respect to the first incident. Similarly, there is no substance in this ground with respect to the second incident.
The evidence of Mr Tomkinson and Mr Paton, if accepted, made out the defence of self-defence (or perhaps more correctly, in Mr Paton’s case, defence of another). The issue for the judge’s determination was whether the actions of the relevant corrections officer were reasonable and proportionate. On the evidence accepted by the judge (and about which no complaint is made) there can be no doubt that Mr Tomkinson and Mr Paton used reasonable force in defence of themselves.
Ground 8
Having concluded that the applicant failed in respect of his claim for damages arising out of the second incident, the judge then turned to the third incident before making the findings in [81]–[83] that are sought to be impugned in ground 8. In paragraphs [81]–[83] of his reasons for judgment, the judge said:
When after the second incident (as demonstrated by CCTV footage) Russell was seen by a nurse in the holding cell he offered his left arm for examination, not his right shoulder or arm. Later, the nursing notes of the St Vincent’s outpatients at MRC record that Russell attended on 25 June 2012 at 1415, complaining of injury to the right shoulder. It is recorded in the notes that Russell claimed he was punched to both sides of both shoulders and his arms were pulled behind him. At the time of presentation, the notes record that he only complained of pain in the right shoulder. The nurse recorded in the notes that Russell had ‘an old bruise’ on his right arm, lower than where he was claiming to have pain.
Russell was seen again in outpatients on 28 June 2012 by Dr Bruce McLaren. Dr McLaren noted that movements of the right shoulder were restricted by pain, but passive abduction to 90 degrees was ‘okay’. Dr McLaren recorded that Russell was worried about tendon damage and as a consequence he made arrangements for an ultrasound of the right shoulder. The report of the ultrasound on Russell’s right shoulder dated 27 July 2012 was tendered in evidence. The report referred to the following: ‘the long head of the biceps appears heterogeneous. Fluid and synovial thickening evident within the biceps tendon sheath…some tendonopathy of the subscapularis with apparent partial thickness tear…synovial thickening demonstrated throughout the shoulder’ – the conclusion stated: ‘Appearances suggest significant abnormality of the supraspinatus, infraspinatus and long head of biceps tendon’.
All these findings are consistent with wear and tear of the right shoulder structure and an inflammatory process associated with an older shoulder joint. There is no evidence that the appearances reported upon in the ultrasound were caused as a consequence of the second or third incident. The second incident may have produced a painful reaction in Russell’s right shoulder as he resisted the officers involved who were trying to restrain him; so much is apparent from the CCTV footage. However, there is no evidence to indicate that Russell suffered a discrete rotator cuff injury in the second or third incident. The conclusions of the ultrasound report are not demonstrative of any form of traumatic injury.[18]
[18]Ibid [81]–[83] (citations omitted).
The applicant makes complaint that the above findings are ‘inconsistent with the evidence’. It is not necessary for us to consider the correctness of that contention. It is sufficient to say that, whether or not there is any inconsistency between these findings and the evidence, it cannot affect the outcome of this proceeding. Prior to making the findings that the applicant now seeks to impugn, the judge had already concluded that the applicant had not made out a case in respect of the second incident. The applicant has not established any error in respect of the reasoning that led to that conclusion, or any error with respect to that conclusion.
The second incident: conclusion
For the reasons given above, the applicant has not made out any of his proposed grounds of appeal with respect to the second incident.
Conclusion
While we will grant the applicant leave to appeal, the appeal must be dismissed.
Finally, the Court would like to record its appreciation for the valuable assistance the Court received from senior and junior counsel for the applicant, who acted for the applicant on a pro bono basis.
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