Russell v Corrections Officer Reid & Ors [2015] VSC 729 (16 December 2015)

JOHN PATON RUSSELL	Plaintiff

v

CORRECTIONS OFFICER REID CORRECTIONS OFFICER TOMKINSON CORRECTIONS OFFICER PATON STATE OF VICTORIA CORRECTIONS OFFICER PAYNE	First Defendant Second Defendant Third Defendant Fourth Defendant Fifth Defendant

TORTS – Allegations of battery committed by prison officers employed at the Melbourne Remand Centre – Three separate incidents – Physical contact admitted by the prison officers – Whether or not physical contact was lawful – Physical contact not unlawful – Physical contact reasonable, appropriate and necessary – No award of damages – Slaveski v State of Victoria & Ors [2010] VSC 441 – Zecevic v Director of Public Prosecutions [1987] HCA 26; (1987) 162 CLR 645 – Watkins v State of Victoria & Ors (2010) 27 VR 543 – Corrections Act 1986 s 23.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person

For the Defendants	Mr R I Gipp	Victorian Government Solicitor’s Office

1 The plaintiff, Mr John Paton Russell (‘Russell’), was born on 3 November 1938. Russell is self-represented in this proceeding.

2 Between 21 October 2011 and 13 July 2012, he was a prisoner, held in the Melbourne Remand Centre (‘MRC’) pending trial for attempted murder; he was bailed from MRC on 13 July 2012. On 4 July 2013, the criminal charges which had caused his detention were withdrawn. Russell stated in evidence that he had never been the subject of any form of conviction in his life. He had never been held in custody prior to this time.

3 There is scant evidence concerning Russell’s life prior to his being held at the MRC. Russell stated in evidence he undertook some charity work with a group called ‘Victims of TAC’ prior to his detention. In a report of Dr David Weissman of 2 May 2007 [1] concerning a Transport Accident Commission (‘TAC’) claim, it is stated that Russell had not worked since 8 May 1998, the date of the first of two motor vehicle accidents Russell was involved in. Russell had apparently worked as an earthmoving labouring contractor. The second motor vehicle accident involving Russell occurred on 27 October 2003. Russell suffered significant injuries in both accidents. I will deal with the sequelae of the injuries sustained in the motor vehicle accidents later in these reasons.

4 By Amended Writ, Russell claims damages for injuries he alleges were sustained as a consequence of the commission of the tort of battery whilst he was held in the MRC. The first of the unlawful physical contacts is said to have occurred on 11 January 2012, the second and third unlawful physical contacts are said to have occurred on 25 June 2012. All unlawful physical contacts are said to have been committed by prison officers employed at the MRC.

(i) that on 11 January 2012, he was punched in the area of both shoulders by the first defendant, Senior Prison Officer Reid (‘Reid’). The punches caused Russell to fall backwards and consequently sustained injury when hitting his head and lower spine onto the concrete floor (‘the first incident’);

(ii) that on 25 June 2012, he was struck by the second defendant, Prison Officer Supervisor Tomkinson (‘Tomkinson’) to the left and right shoulder. He alleges he was then pinned to the bed in the cell he was then occupying by Tomkinson and the third defendant, Senior Prison Officer Paton (‘Paton’) and was punched by Paton numerous times to the right shoulder and back (‘the second incident’); and

(iii) by amendment to the Statement of Claim made on 6 October 2015, just weeks prior to the commencement of the trial, Russell alleges against the fifth defendant, Operations Manager Payne (‘Payne’) that on 25 June 2012, when being held in a holding cell, immediately after the alleged conduct by Tomkinson and Paton, that Payne took hold of his right arm, grabbing different areas of his right arm by force (‘the third incident’).

6 Russell claims the first incident caused various injuries, including injury to the lower back and lumbar spine, abnormal ringing pitch in the head, intermittent shaking of hands, anxiety headache and chest pain, depression and mood swings, sleeping difficulties and pain at night and psychological impairment. Russell claims that the second and third incidents resulted in a rotator cuff injury to the right shoulder and psychological impairment.

7 During the course of the trial, a number of documents from the Court Book were tendered into evidence. Other materials, some of which are contained in the Court Book, were also tendered in evidence both by the plaintiff and the defendants. In submissions, the parties have referred to documents contained in the Court Book, some of which were not tendered in evidence. In the circumstances of this trial, particularly having regard to the plaintiff being an unrepresented litigant, I will treat the Court Book in its entirety as an exhibit in the proceedings, but only refer to those documents that are relied upon by plaintiff or defendants during the trial or in submissions.

9 I have no doubt he was a difficult prisoner to manage in the MRC. In his time at the MRC, he had written at least 70 letters of complaint to the Department of Justice, and the evidence suggests he had difficulty coping with the prison regime in place at the MRC.[2] Whilst I accept for an elderly gentleman with previously diagnosed depression and an obsessive, compulsive personality, incarcerated for the first time, the demands of prison routine are likely to be onerous, I also have no difficulty, on the evidence, in accepting that Russell was quick to anger, hostile to authority, obstinate, often demanding and rude, and very easily agitated concerning any real or perceived injustice within the prison system. At times during the trial he was quick to display irritability when requested to address relevant issues or evidence was given that he did not agree with.

10 Each of the three alleged incidents involve physical contact of one form or another by the prison officer defendants with Russell. Russell’s claim in each alleged incident is pleaded in battery. Kyrou J, in Slaveski v State of Victoria & Ors,[3] conveniently described ’battery’ as follows:

11 The question for my determination is whether the physical contact comprising each of the incidents was legally justified, recognising that the onus for proving this lies with each defendant. It is for the defendants to establish that the force used was reasonable. In Zecevic v Director of Public Prosecutions, Wilson, Dawson and Toohey JJ described self-defence in the following terms:

12 The Victorian Court of Appeal in Watkins v State of Victoria & Ors, in considering the nature of the force used in self-defence, stated as follows:

13 A further matter relied upon by each prison officer defendant in defence of these claims is s 23 of the Corrections Act 1986:

14 Russell stated that the alleged battery by Reid was preceded by a discussion that occurred in the Bellbridge Unit of the MRC earlier on 11 January 2012. He stated Reid was in the Bellbridge Unit, dressed in gym attire. Russell stated he was a ‘unit rep’ and, as such, he took up a grievance of a fellow prisoner that concerned hours of access to the gymnasium at the MRC with Reid on the understanding Reid was concerned with the operation of the MRC gymnasium. Russell stated he approached Reid, who he said was at the centre console of the Bellbridge Unit,[7] to raise his concern. Russell stated in evidence that Reid responded: ‘You don’t talk to [me] through that beard’.[8]

15 Reid denied he had been at the Bellbridge Unit prior to 7.00pm. At approximately 7.00pm when the MRC gymnasium was shut he attended the Bellbridge Unit to assist with lock-up. To the allegation that Russell and a fellow prisoner had approached him at approximately 2.00pm in the Bellbridge Unit, he stated: ‘That didn’t happen’.[9] He said he was in the recreation centre, where the gymnasium was located, until 7.00pm on that day.

16 Russell alleged a meeting occurred with prison officers before the alleged battery. He stated a Prison Officer Walsh had interviewed him about the number of letters of complaint he was writing to the Secretary of the Department of Corrections. Russell stated that it was put to him at this meeting that it was creating a lot of work, as the Secretary had to respond to each of his letters. Russell said he was warned at that meeting that if he did not stop he would ‘suffer the consequences’.[10]

17 Russell submitted that both these matters, the alleged conversation with Reid about a fellow prisoner’s gym hours and the threat he alleged was made concerning his letter writing, were in some way associated with the alleged battery by Reid that night. As I understand it, it is alleged by Russell that there was some form of plan or arrangement to antagonise him which led to the circumstances of the first incident.[11]

18 Evidence was given of the system of locking prisoners in their cells at night. Notice is given of the lock-up count at approximately ten to eight by a public address announcement across the entirety of the MRC. There is a further announcement after five minutes, indicating five minutes to count and at eight o’clock the count, with prisoners in their cells, is commenced and the cells are locked.

19 Russell stated that he recalled Prisoner Officer McGill (‘McGill’) was on duty at the officers’ post or console, which is at the centre of the Bellbridge Unit. He stated that the lock-up or count was called at ten to eight. He considered this was early. Russell stated that he asked McGill for some time because of the volume of paper he was working on at an adjacent table. Russell said he eventually went to his cell. He said his cellmate, with whom the accommodation was shared, had already been counted. He went into his cell, turned around and faced the open doorway. Russell said he could see a prison officer standing on the platform above the staircase at another level of the Bellbridge Unit, which indicated to him the count in that section must have been completed. He said he was standing in the doorway of his cell and Reid was at the doorway with the cell door in his hand; Russell stated Reid just stood there and then, without warning, raised both arms and ‘hit me simultaneously with all his strength’ with his closed fists to the upper chest.[12] Russell stated he flew through the air, almost did a flip, landed on his head, travelling six feet before he landed.[13]

20 Arrangements were made for Mr Russell to obtain evidence from Mr Brian Bell (‘Bell’) via video link. Bell is currently an inmate of the Beechworth Prison. On 11 January 2012, Bell occupied an adjacent cell to Russell, ie, Russell was in cell three and Bell in cell four. The cells were internally interconnected. Bell said he assisted Russell in his cell immediately after the first incident. He pushed the emergency alarm and waited with Russell for a response. He did not see the incident, but stated Russell informed him that he had been ‘pushed back’.[14] Bell stated he was asked the next day if he saw anything, but responded ‘I didn’t see anything’.[15]

21 Reid, in his evidence, stated that he attended the Bellbridge Unit after finishing at the recreation centre so as to assist with the lock-up. At the time of the first incident, he said that Russell was meant to be at his cell for lock-up and that he was not. He stated he recalled Russell speaking with McGill at the console desk and remonstrating with her, and he eventually turned from McGill at the console desk to walk towards his cell. He was the last prisoner to go to his cell. Reid stated: ‘...He kept on coming towards me and then basically walked towards me where we were standing toe to toe’.[16] Reid said he was unsure what Russell’s next movement would be. Reid told him to move back on two to three occasions. Reid said Russell did not move back. On the final occasion, Reid stated: ‘I need you to move away...in a more stern voice and he sort of puffed his chest out a little, if you like and said, “Well, what are you going to do about it?”, something along those lines’.[17] Reid said that he was not sure what Russell’s next reaction would be, so he placed his hands on Russell’s chest, straightened his arms to create a little bit of distance.[18] Reid said his hands were open, not clenched. He said after he pushed Russell, that Russell stumbled back and landed on his bottom in the cell. At the time of the push, Reid said Russell was a metre to a metre and a half outside the entrance to his cell. When pushed back, Reid stated Russell said, ‘Police...get the police. I’ve been assaulted. Assaulted, get the ambulance’.[19]

22 Reid stated that by the time he pushed Russell, McGill had walked to his left hand side. After he had pushed Russell, he walked forward and locked the cell. Reid said he then made a written report concerning the incident.

23 McGill stated in evidence that she was the senior prison officer on duty, in charge of the Bellbridge Unit, and was at the console desk when she heard raised voices at the time of the lock-up. She stated she heard and saw Reid saying to Russell that he should get in his cell. McGill described Russell as quite agitated and that he was located in Reid’s personal space, within a metre of Reid. She said Russell did not move after being requested to do so. She said she saw Reid use his left hand to push Russell: ‘I wouldn’t even describe it as a push, I think it was just a – a very minimal push’.[20] She said Russell stumbled back into his cell.

24 McGill said she did not leave her desk. Contrary to Reid’s evidence, she said she was not at his side at or about the time Reid pushed Russell.

25 Prison Officer Bowman (‘Bowman’) said she was on duty at the time of lock-up in the Bellbridge Unit. She stated she was upstairs at a level immediately above Russell’s cell. I consider it is likely that Bowman is the prison officer observed by Russell on the upper level as he slowly moved towards his cell for lock-up.[21] She said she heard raised voices between Reid and Russell and described what was going on between the two of them as an altercation. She described Russell as being antagonistic, bordering on aggressive.

26 Bowman, as a consequence of observing the altercation, immediately came down the stairs to stand beside Reid in case he needed assistance. She said Russell was in the doorway of his cell. Reid repeatedly said to Russell words to the effect: ‘Step away from me’.[22] When she arrived at the cell, both Russell and Reid were in the same position that she had earlier observed. Bowman said she was standing to the right of Reid and saw him apply minimal force with his open hand (it may have been two hands) to Russell’s chest. She said Russell took a step back, stumbled and landed on his posterior in his cell. She said Reid then secured the door and she recalled Russell reaching for the buzzer inside his cell.

27 Russell put to Bowman in cross-examination that she was in fact not present at the time of the alleged battery; Bowman stated she was definitely standing there. When it was put to her that Reid had stated it was McGill, not herself, that had been with him at the doorway to the cell, she said: ‘That is not the case’.

28 Russell disputed that he was told by Reid to move away from him into his cell. He said if such evidence were given, that would be ‘make believe’.[23]

29 The evidence of three prison officers is that Russell was told to move away from Reid on a number of occasions. McGill has been a prison officer for 19 years, Bowman for ten years. Both presented as impressive, credible witnesses. Both stated in evidence that their attention was drawn to the entrance to Russell’s cell on this day because of the audible requests by Reid for Russell to move. I have particular regard to the evidence of Bowman in this respect; she made her way from the upper level of the Bellbridge Unit to the entrance to Russell’s cell because of raised voices and Reid requesting Russell to move away. I have no doubt such requests were made by Reid, and no doubt that Russell, agitated and angry, ignored the requests. I have no doubt Bowman was in a position to observe this.

30 Reid admits pushing Russell from the position where he refused to move into his cell. Observations of that contact by McGill and Bowman were that Reid used the palm of his hand(s) to the chest of Russell with minimal force, pushing him backwards. Reid stated his action was in part motivated by uncertainty as to Russell’s immediate actions; ‘to create a little bit of distance, in case he decided to do something else’.[24]

31 Russell would have it that Reid’s contact with him was without any preamble, that there was no contact or discussion prior to the alleged battery, that Reid just stood, holding the door to the cell and, without any forewarning, raised his hands, forming fists, and hit Russell with great force to the upper chest. As is apparent, I do not accept this account. As stated above, Bowman attended Russell’s cell and McGill’s attention was drawn to the area of the cell because they heard Reid giving Russell a direction to move away.

32 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?’.

33 Russell’s account of the alleged first incident as recorded in nursing notes made on his attendance at the St Vincent’s outpatient clinic at the MRC at 2130 on 11 January 2012 is not as direct as the evidence given to the Court, but does provide some insight into his level of agitation at the time. The nursing notes state as follows:

34 On the evening of 11 January 2012, Russell was moved to the Chilwell Unit of the MRC for hourly observation. The nursing notes record that Russell ‘claims he was assaulted but has claimed this in the past also – incident form completed’.[26] On 12 January 2012, the nursing notes record the following history: ‘Fell yesterday after an assault around 2000 hitting head to floor’.[27] On 13 February 2012, the following history was recorded in the nursing notes: ‘Pt claims he was “pushed” into his cell. Denies any new injuries but went on and on about his neck injury’.[28]

35 I consider the account of the first incident attributed to Russell in the nursing notes of 13 February 2012 most likely represents in fact what happened on 11 January 2012 following the first incident; that is, that Reid ‘pushed’ Russell into his cell. I accept the evidence of the prison officers (Reid, Bowman and McGill) that the push was delivered to Russell in the upper chest area by Reid using his open hands, applying minimal force to the upper chest area of Russell. According to Bell, the first person to receive an account of the incident, Russell told him he was ‘pushed back’. I consider the use of the word ‘push’ important – it connotes a very different scenario to being ‘punched back’. The push caused Russell to tumble backwards into his cell. He fell, initially onto his buttocks and, in the course of the fall, it is likely that he hit his head when he made contact with the floor of his cell.

36 Russell, in his written submissions, contended that Reid’s evidence of holding the cell door open at an angle of 45 degrees and that at the time he pushed Russell he was standing 1½ metres from the entrance to his cell meant ‘it would be impossible for Mr Reid to push the plaintiff by force to the chest area and be able to pass a door that was held at an angle of 45 degrees from the position that he placed himself in [as marked on Defendants’ Exhibit 4]...’.

37 I do not consider Reid’s description of the first incident creates a situation that made it is ‘impossible’ to push Russell. Reid’s evidence is that he pushed Russell into his cell when he was unsure of Russell’s next movements and in fact Russell moved towards him at or about the entrance to the cell.[29] I consider it readily understandable that at the time Reid pushed Russell, he was no longer holding the cell door, but was using his open hands to push Russell away from himself into his cell. The distances provided by Reid as to his own and Russell’s positions prior to the push, in my opinion, are plausible and reasonably consistent with the event as described.

38 Russell also submits the evidence of Reid is unreliable because Reid stated at or about the time the push was delivered to Russell, McGill was at his left hand side. As I have previously set out in these reasons, it is the evidence of McGill that she stayed at the centre console desk of the unit; Bowman gave evidence, previously referred to, which I accept, that she came from the floor above Russell’s cell to assist Reid when she first observed the raised voices and the confrontation between Reid and Russell outside Russell’s cell. That Reid has confused Bowman for McGill in the circumstances is understandable. McGill was the prison officer who Reid observed speaking with Russell immediately before the first incident. Further, I agree with the submission made on behalf of Reid that this contradiction of evidence tends to refute the suggestions of Russell that the prison officers have colluded together in giving their evidence.

39 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.

40 In the notes of attendance with the night nurse on 11 January 2012, Russell’s main complaint as recorded was ‘a sore neck’. On 12 January 2012, his complaints as recorded were ‘hitted [sic] head to floor’ – ‘pain jaw, neck, Lt [left] shoulder and Lt [left] leg’ – ‘bruises scalp and Rt [right] wrist’. The complaints of pain to the neck were recorded in nursing notes on 13 January, 22 January, 1 February, 5 February and 27 February. I observe that there was no recorded complaint of some of the claimed injuries in this action, including ‘ringing pitch in the head’ and ‘intermittent shaking of hands’.

41 Russell attended St Vincent’s Hospital on 12 January 2012 for review, accompanied by prison officers. From what I can glean from the medical records tendered, CT scans of the head and neck were conducted. These scans excluded cervical spine and inter-cranial injury. There was a diagnosis of ‘sprain of neck – injuries of muscles and tendons involving multiple body regions’.[30]

42 It is convenient to briefly refer to Russell’s prior medical conditions. In medical reports concerning TAC claims for injuries suffered in previous motor vehicle accidents tendered by Russell,[31] it is apparent he suffered from continuing sequelae of some significant injuries. Dr David Weissman, in his report of 2 May 2007, stated that Russell told him that he continued in 2007 to suffer from left shoulder pain, restriction and pain of fingers in the left hand and from headaches, this being due to the motor vehicle accident in 1998. Further, Russell complained of continuing right knee pain and lower back pain, such that he sometimes used a crutch ‘when his back is killing him’. Russell complained of problems relating to concentration and memory, he had developed and continued to suffer from panic attacks, he complained that he wakes up with pain in his back and needs to take medication during the night – all this following the 2003 motor vehicle accident. Russell told Dr Weissman that he suffered from psychiatric problems after the 1998 motor vehicle accident. Weissman diagnosed chronic post traumatic stress disorder from the motor vehicle accidents, with depression that had stabilised; he said the plaintiff had an obsessive compulsive personality.

43 The findings of Dr Weissman were confirmed in a further tendered medical report of psychiatrist Dr Nigel Strauss dated 12 October 2006 that also concerned his TAC claims. Dr Strauss diagnosed depression. Russell complained to Dr Strauss of significant mobility problems due to right knee injury, right ankle injury and continuing neck pain, which he said required cortisone injections. Russell complained to Dr Strauss of poor sleep. Dr Strauss was of the view that his injuries had stabilised.

44 A further report tendered by Russell was from orthopaedic surgeon Dr Michael J Shannon dated 7 May 2007. Dr Shannon recorded a complaint of ‘acute lower back pain’ due to ‘severe longstanding degenerative change at all levels of the lumbar spine’. Previously, Dr Shannon had reported on 13 November 2001 concerning an injury from the first motor vehicle accident: ‘mild supraspinatus tendonitis of the left shoulder and marked cervical degenerative disease of the cervical spine explaining continuing pain in the neck’.

45 I refer to these reports because it is apparent that prior to the first incident in January 2012, Russell suffered from significant pre-existing physical and psychiatric injuries.

46 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.

47 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.

48 Russell alleges in his Amended Statement of Claim that on 25 June 2012, he was sitting in his cell in the Chilwell Unit when Tomkinson and Paton entered the cell and Tomkinson struck him ‘with his right closed fist to his right front shoulder area and then struck me with his right closed fist to me left shoulder area in quick succession whilst I was standing’.[32]

49 Russell alleges that after this battery, Paton pinned him face-down onto the bed with all his weight and placed his left arm across the back of his neck and then punched him numerous times to the rear of his right shoulder and back.[33]

50 Russell claims he suffered injury to his right shoulder rotator cuff, pain in the shoulder and restricted use of the right arm.

51 In evidence, Russell stated that on the date of the second incident, he was in the Chilwell Unit of the MRC in cell 15 on A side of the Unit.[34] Russell said he was reading and writing at his desk in his cell: ‘I was thinking I was going to die in the place and I would make an entry for every single thing...’.[35]

52 Russell said Tomkinson and Paton entered his cell, and Tomkinson stated: ‘What have you done this time?’ Russell said Tomkinson is normally a jovial character, but he (Russell) thought any conversation should be conducted in an interview room. Russell stated that he was informed the visit to his cell by prison officers was to discuss his refusal to take food the day before.[36] Russell stated that he believed the two prison officers were in his cell, trying to incite an incident.[37] Russell stated he said: ‘Listen Ian, you know the score, you know, if you want to talk to me it should be in the interview [room] – I’ve said this before’.[38] Russell said that Tomkinson was affronted by this statement.

53 Russell alleged in evidence that Tomkinson hit him with his right hand to his right left shoulder, throwing him against the wall, that Tomkinson grabbed his beard and threw him around so he was face-down on the bed. Russell stated Tomkinson and Paton then fixed his arms behind his back, and forced his arms up his back. Russell contended that the actions of Tomkinson and Paton were motivated by proving a point – ‘because I’d asked for something which I felt was fair – that is, the interview room’.[39] Whilst on the bed, he was handcuffed. Prior to being handcuffed, as I understand his evidence, he alleges Paton punched him from behind on the shoulders and upper arms. Russell stated: ‘He just punched me as if I was trying to resist and it was quite a few punches’.[40]

54 Tomkinson gave evidence that he had been a prison officer for 20 years. He had been promoted at the time to the position of Supervisor, a role that meant he had responsibility for a unit containing 100 prisoners, and such responsibility included investigating complaints against prisoners.

55 Tomkinson stated in evidence that he believed at the time he was attending Russell to investigate a number of prison incidents alleged against Russell. His memory had been jogged by the CCTV footage, which he said showed him carrying a number of files. Tomkinson stated an interview of a prisoner concerning incidents could be conducted in the prisoner’s cell, in a supervisor’s office or in a holding cell; he stated it is a judgment call, often made after speaking with staff as to where it is best to conduct the interview. He said there was no such thing as a interview room. As an aside, Russell did not satisfactorily explain what it was about being interviewed in his cell that caused him to complain. One might have thought it was a more convenient and less confronting environment for an interview than a holding cell or the supervisor’s office.

56 At the time, because of conduct issues, Russell was in lock-down; that is, he was separated from other prisoners. Tomkinson stated that he had previously had a number of dealings with Russell over different prison incidents. He thought he had a good relationship with Russell. That assessment is supported by Russell’s own evidence that he had found Tomkinson to be jovial. Tomkinson stated Russell had never indicated he was in any way dissatisfied with the manner in which he had been involved with him during his incarceration in the MRC.

57 Tomkinson stated he entered the cell and that Russell stood up. Russell said he asked him to sit down so as not to be confronting. Tomkinson said there may have been an icebreaker: ‘What have you been up to now?’, but there was no aggression.[41] He said that he commenced talking about a particular incident and, for no apparent reason, Russell became angry, jumped up, yelled out an obscenity and ‘came at me’.[42] Tomkinson indicated he was surprised at this action, that he pushed Russell away with his right hand to his chest, with an open palm. He said Russell went backwards, but came at him again. Tomkinson said he was surprised by the actions and that, as a consequence of Russell’s actions, he and Paton tried to restrain him face-down on the bed. Tomkinson said Russell was angry and swearing. He believed Bromley came to assist with the application of handcuffs. Tomkinson did not carry handcuffs because he was a supervisor. Once Russell had been handcuffed, he was placed in the holding cell. Tomkinson denied grabbing Russell by his beard. Tomkinson said Russell may have stated at some stage he wished to go to an interview room, however he stated there are no ‘interview rooms’ in the Unit.

58 Paton is a senior prison officer and has been a prison officer since 2006, posted at the MRC. He said Tomkinson was his superior officer on the day. Paton said it was at the direction of Tomkinson that he accompanied Tomkinson to Russell’s cell. He said he did not carry handcuffs, and stated that the handcuffs that were eventually applied to Russell were brought to the cell by Bromley.

59 On arrival at Russell’s cell, he said that Tomkinson entered the cell and he stood at the door. He described a conversation between Tomkinson and Russell. He said Russell was seated and, during the conversation, he pushed out of his chair, lunging towards Tomkinson. Paton described Tomkinson, with his open hand, pushing Russell away from him as he lunged towards him. He said the force used by Tomkinson was minimal. After this, Paton grabbed Russell’s right arm and Tomkinson grabbed his left arm, and they restrained him on the bed in his cell. Paton described Russell’s upper torso as being face-down on the bed. He said he was restrained face-down on the bed and, during this period, he was yelling and resisting. As referred to above, Russell, in his own evidence, stated he was resisting Paton. Paton called for handcuffs in a loud voice. Paton stated that Russell was restrained in this manner for approximately 40 seconds until Bromley arrived. He said Russell resisted during this time, right up until the application of handcuffs. He was then conveyed to the holding cell. Paton denied punching Russell at any time.

60 Bromley had no recollection of the events, apart from what he had seen on the CCTV footage. The totality of his involvement, which was not disputed by Russell, was the supply of handcuffs, handcuffing Russell in his cell and then eventually escorting Russell, with Bromley, to a holding cell.

61 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.

62 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.

63 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.

64 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.

65 On close consideration of the CCTV footage, I find that it broadly supports the evidence given by Tomkinson and Paton concerning the incident.

66 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’.[43] 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.

67 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.

68 In my opinion, the response of Tomkinson and Paton in restraining Russell was reasonable and proportionate to the situation that Russell had created.

69 Russell alleges that after the second incident, he was taken to a holding cell in the Chilwell Unit. He alleges Payne entered the cell ‘took hold of the plaintiff’s right arm with force at a number of points up the plaintiff’s right arm up to his right shoulder’.[44] Russell claims this action of Payne caused ‘pain, fear and distress...and aggravation of the right shoulder rotator cuff injury, partial thickness tear, pain throughout the right shoulder and restricted use of the right arm’.[45]

70 Russell stated in evidence that initially he had a cordial discussion with Payne concerning what had occurred earlier that day with Tomkinson and Paton. Payne was accompanied by Bromley. Russell said that during the discussion he alternated between sitting and standing because he had trouble with his knees. Russell, relying on having viewed the CCTV footage, stated:

71 Russell, in the course of cross-examination, rejected the proposition that Payne was trying to take hold of his right arm because he was unsteady on his feet. Russell said that he was not aggressive, not physical, and that Payne was trying to prevent him from sitting down.

72 Payne has been a prison officer for over 20 years. He holds the rank of Operations Manager with the Security and Emergency Services Group of Corrections Victoria. He was acting in that capacity on 25 June 2012, he was in charge of an area of the MRC that included the management units and the Chilwell Unit where Russell was detained.

73 As Operations Manager for the Chilwell Unit, it was his task to investigate incidents such as that which occurred between Russell and Tomkinson and Paton. This incident had been reported to him; it was his task to find out what happened, to look after the welfare of staff and prisoners and the placement of the prisoner post-incident. It is for this reason he attended the holding cell where Russell was located.

74 Payne had no independent recollection of any of the events alleged to comprise the third incident. He had seen CCTV footage and agreed it depicted him.

75 Payne agreed the CCTV footage showed him making contact with Russell, but he denied there was any form of assault; he said the CCTV footage demonstrated that Russell had stumbled and that he had taken hold of Russell’s right arm in an attempt to assist him. He said at no stage prior to being joined as a defendant to the proceeding, a matter of weeks before the commencement of the trial, was he aware that Russell had made a complaint against him.

76 I have reviewed the relevant CCTV footage closely a number of times. The CCTV footage shows Payne and Bowman in the holding cell with Russell. Bowman is seen to remove the handcuffs, holding Russell’s hands behind his back. There is conversation between Payne and Russell. Approximately a minute after Payne and Bowman entered the cell, Russell appears to move back to take a seat on a bench-like seat in the cell. Russell is on the left hand side of Payne when he moves to the seated position. Payne is seen to put his left arm out in a motion of assisting Russell to be seated. Payne’s left arm appears to be under and supporting Russell’s right arm. Russell is then seen to stumble forward, and Payne uses his left and right hands in an effort to support Russell. With this contact by Payne, Russell appears to react aggressively, jerking away from Payne. Payne maintains a grip of Russell’s right arm, under and supporting the upper area and holding the mid-wrist area whilst handcuffs are reapplied, this time restraining Russell’s hands to the front to permit him to use medications which are later supplied.

77 Russell, in Court, described Payne as a ‘thug’. I take a very different view of Payne. The CCTV footage, in my opinion, establishes that Payne’s physical contact with Russell was a responsive action to assist Russell to move to a seated position and then assist when Russell appears to stumble forward. The maintenance of the hold of Russell’s right arm by Payne occurred after Russell had made a sudden and seemingly angry response to the offered assistance. In my opinion, Payne’s actions and contact with Russell, as shown on CCTV footage, were entirely reasonable and consistent with his evidence to the Court.

78 I do not accept that Payne grabbed Russell’s right arm up to the shoulder as pleaded by Russell. Photographs tendered by Russell of bruising of the front of the upper shoulder area of the right arm are inconsistent with any physical contact of Payne with Russell in the third incident.

79 Further, I had the opportunity of observing Payne in the witness box. He demonstrated a calm and considered demeanour, consistent with the senior position he holds in the prison service.

80 I do not consider there was any form of battery or assault committed by Payne on Russell and reject the allegations of Russell.

81 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.

82 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.[47] 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’.

83 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.

84 I have found that the actions of Reid, Paton and Payne were reasonable and appropriate in the circumstances presented to them. Thus, there is no need for me to assess quantum of any injury sustained by Russell. That said, the limited evidence would suggest at best for Russell a temporary aggravation of an underlying degenerative process of the right shoulder. I note that a medical report tendered by Russell of Dr Shannon of 13 November 2001 indicates similar degenerative processes taking place in Russell’s left shoulder.

85 The State of Victoria is sued by Russell as fourth defendant. The State accepts it will be vicariously liable for the conduct of the prison officers. There is no finding to be made against the State as the plaintiff has not made out his claim against the prison officers.

^[7] The prison officer in charge of a particular unit will be normally situated at the centre console, where a view can be obtained of cells on both sides of the unit.

^[8] Russell, Transcript at 50.24. Russell has, and apparently had, a thick and long grey beard.

^[36] In cross-examination, Russell said he was to be questioned about his failure to take his medication the day before (Russell, Transcript at 194.19).

JUDGE:	RUSH J
WHERE HELD:	Melbourne
DATE OF HEARING:	26, 27, 30 November and 1, 2, 3 December 2015
DATE OF JUDGMENT:	16 December 2015
CASE MAY BE CITED AS:	Russell v Corrections Officer Reid & Ors
MEDIUM NEUTRAL CITATION:	[2015] VSC 729

Supreme Court of Victoria

Russell v Corrections Officer Reid & Ors [2015] VSC 729 (16 December 2015)