Report on investigations into the use of force at the Metropolitan Remand Centre and the Melbourne Assessment Prison

Report snapshot

For as long as I have been in my role as Ombudsman, allegations of excessive force against prisoners have been high on the list of themes complained about to my office.

Foreword

For as long as I have been in my role as Ombudsman, allegations of excessive force against prisoners have been high on the list of themes complained about to my office. Sometimes they become public interest (whistleblower) complaints referred by IBAC.

Despite their frequency, some 31 per cent of matters referred to us each year by IBAC, none have resulted in my reporting to Parliament –until now.

These allegations are usually hard to investigate, and harder to substantiate. Prisons are inherently challenging environments.Prisoners can frequently exhibit violent and unpredictable behaviours. Many prisoners have complex needs which can result in behaviour that endangers themselves, prison officers or other prisoners. The use of force by prison officers may frequently be necessary in the interests of safety and good order of the prison. Allegations may also be vexatious.

But sometimes they are justified. And when there is a justifiable complaint about unreasonable force, prisoners face uniquely difficult circumstances. The imbalance of power between a prisoner and prison officer is acute. While allegations of assault are sometimes referred to the police, many of their investigations, like our own, go nowhere for lack of evidence. Prisoners themselves may be reluctant to co-operate for fear of reprisal. The culture of silence within prisons makes it harder to obtain objective evidence than in other environments.

Many reports, from many agencies, over many years, have sought to examine the extent and nature of this problem. Most recently, IBAC tabled a Special report on corrections in June2021 which highlighted four cases and made extensive recommendations for addressing workplace culture.

My report examines a small number of incidents of use of force, all matters referred by IBAC about two Victorian prisons, in that broader context.

It follows eight separate incidents alleging excessive force, with injuries ranging from minor bruising to a broken wrist, at the Metropolitan Remand Centre and the Melbourne Assessment Prison. We substantiated four of the eight cases, but all showed concerning behaviour or poor decision making by officers.

While this is a small number, the evidence of our investigations – in the context of previous reports, reviews, and the overall data illustrates the persistent and endemic nature of the problems, despite the best efforts of Corrections Victoria to address them.

Allegations of unreasonable use of force do not appear to be declining. The incidents in this report present a disturbing picture; even when the allegations were not substantiated, we found officers used force on people with acquired brain injuries or other vulnerabilities, because the prison environment had created a situation where it became necessary.

For example, a young man with an acquired brain injury who thought he was going to court that day and expected to be allowed home, found out after waiting more than two hours that the court cells were full and he had been left behind. Not surprisingly he was upset. Upon being taken back to his cell, he responded
with verbal threats. This resulted in a physical altercation with five officers. We did not substantiate that the force was excessive, but we had little doubt it could have been avoided if the situation had been handled better.

The shifting population of remand prisons, where officers are largely unable to develop positive working relationships with prisoners, increases the likelihood of incidents escalating and force being used. However, these cases are still suggestive of the broader prison culture.

Corrections Victoria has undoubtedly worked hard to address the problem, including increasing the use of body worn cameras, and it says its recruitment is focused on finding candidates with the appropriate attitude and capabilities.

But the problem remains. Among other things, performance management processes still do not do enough to identify and act on patterns of poor officer behaviour. A culture of silence in which officers do not report wrongdoing by their fellows has long been known to exist within the prison environment. However, as the evidence in this report also shows, strong leadership within a prison can help shift this culture and support greater accountability for officers who cross the line.

This report makes several recommendations which I hope help to address the problems, and I am pleased that Corrections Victoria has mostly accepted them. I also welcome the continuing Cultural Review of the AdultCustodial Corrections System commissioned by the Government, with its intention to improve the safety and wellbeing of both staff and prisoners.

There is no easy fix for these longstanding and sometimes intractable issues, and this report does not purport to solve them. Its purpose is to expose what is too often hidden behind prison walls and to encourage actions in addition to words, in the interests of everyone’s safety. And to ensure that our prisons are what we signed up for in our Charter of Human Rights legislation: places where prisoners have the right to humane treatment when deprived of liberty.

Deborah Glass

Ombudsman

Background

Why we investigated

In early 2019, the Ombudsman began investigating a complaint that a prison officer ‘choked’ a prisoner in an unmonitored cell at the Metropolitan Remand Centre (‘MRC’). In 2020, we concluded the prison officer had used unreasonable force.

The Independent Broad-based Anti- corruption Commission (‘IBAC’) then referred further complaints involving the use of force by MRC officers to the Ombudsman, which we investigated at the same time.

While there were no obvious links between the cases in terms of the alleged victims or individual officers involved, some recurring themes suggested systemic problems with the use of force and the workplace culture at the MRC.

In September 2020, the Ombudsman began investigating a similar complaint about unreasonable use of force at
the Melbourne Assessment Prison (‘MAP’) involving specialist Security and Emergency Services Group (‘SESG’) officers based at the MRC.

This report collates and highlights the issues identified by these eight investigations into allegations of unreasonable use of force. We substantiated four of the eight cases, but all showed concerning behaviour and poor decision making by officers.
This report also considers broader data and complaints related to the conduct of prison officers.

The eight investigations and the prisoners who were alleged to have been subjected to unreasonable force are listed in the summary panel. The prisoners and officers referred to throughout this report have been given pseudonyms to protect their privacy.

Other reviews and investigations

In 2017, the Justice Assurance and Review Office (‘JARO’) – then known as the Office of Correctional Services Review – examined the use of force in Victorian prisons. Their unpublished report is the most detailed analysis we found of the use of force in Victorian prisons in recent years. We considered this information in preparing this report.

In 2019, the Ombudsman reviewed all allegations of unreasonable use of force on prisoners received from IBAC which we dealt with in 2017-18 and 2018-19. This unpublished review identified some common themes discussed in this report.

In June 2021, IBAC released its Special report on corrections: IBAC Operations Rous, Caparra, Nisidia and Molara, which looked at corruption risks in the corrections sector. It identified similar themes to those discussed in this report, including:

• excessive use of force
• failure to activate body worn cameras
• issues with internal investigations and reporting
• the potential for a workplace culture of ‘masking or covering up’ corrupt conduct.

This report builds on IBAC’s Special report on corrections by providing further insight into the corruption risks and cultural issues surrounding the use of force in Victorian prisons.

The same month IBAC released its report, the Victorian Government announced an independent Cultural Review of the Adult Custodial Corrections System. The Cultural Review, currently underway, is examining both private and public prisons and aims to ensure:

• the wellbeing and safety of staff within the adult custodial corrections system
• the system is safe for people in custody, promotes rehabilitation and caters to their needs.

We intend for this report to inform the Cultural Review.

The Victorian corrections system

Victoria has 14 prisons. Three are privately operated and the other 11 are publicly run, including the MRC and the MAP.

Corrections Victoria is the unit within the Department of Justice and Community Safety (‘the Department’) responsible for the oversight of all prisons.

In June 2020, Victoria held in prison 136 people for every 100,000 adults living in the state. This is a 27 per cent increase from June 2010. The increase was largely made up of prisoners on remand (awaiting the outcome of court proceedings).

Corrections Victoria data shows the percentage of unsentenced prisoners grew from 18 per cent in 2010 to 35 per cent in June 2020. This trend has continued. At 31 January 2022, 44 per cent of the 6,663 people held in Victorian prisons were unsentenced.

Due to this increase, remand prisoners are now housed at 10 Victorian prisons, rather than exclusively at special remand facilities. In December 2021, there were 2,563 people on remand in Victoria and only 20 per cent of these were held at the MRC.

The Metropolitan Remand Centre

The maximum-security MRC has general accommodation, protection, orientation, special needs and management units. At 28 February 2022, it held 700 prisoners.

The MRC is a ‘front-end’ prison, meaning it holds people pending trial, appeal or sentencing.

Most prisoners at the MRC are on remand. If found not guilty, they return to the community. If convicted and sentenced, they are transferred to another prison. Some prisoners at the MRC have been sentenced and are awaiting appeals. A small number are sentenced prisoners from the MAP.

Prisoner turnover at the MRC is high compared to most other prisons. About 150 new prisoners arrive at the MRC each week and about the same number leave.

The MRC is a complex environment for prisoners and officers. The high turnover makes it difficult for staff to get to
know prisoners, develop relationships and understand likely trigger points for incidents. Many men housed at the MRC have mental health conditions and some are withdrawing from drugs and alcohol when they arrive.

The Melbourne Assessment Prison

The maximum-security MAP provides assessment and orientation services. At 31 January 2022, it housed 172 prisoners. This includes prisoners with complex needs, such as those awaiting placement at a secure forensic mental health hospital and those arriving direct from court or police custody who may have an untreated mental illness or be suffering from drug or alcohol withdrawal.

The MAP is also a ‘front-end’ prison and is the first point of contact for all male prisoners entering the prison system
in Victoria. Corrections Victoria has commented that MAP is ‘perhaps the busiest prison in the state, with many prisoners arriving for assessment or being transported out to other facilities daily’.

Prison officers

The prison officers involved in the incidents discussed in this report include general duties officers, and officers from both the Emergency Response Group (‘ERG’) and the SESG.

General duties officers

The main responsibilities of general duties prison officers are supervising prisoners and maintaining the security and good order of the prison. Their day-to-day activities include searches, escorts, observing and assessing prisoner behaviour, operating security equipment, preparing reports and responding to incidents. They also have case- management responsibilities for individual prisoners.

Emergency Response Group

ERG officers provide support in response to prison emergencies. They are usually general duties officers who have more training and qualifications. They are authorised to use tactical equipment, such as batons and capsicum spray.

They ordinarily perform general duties but may be rostered to perform specific ERG duties, such as escorts of prisoners on handcuff regimes in management units.

Security and Emergency Services Group

Specially trained SESG officers provide a range services across Victorian prisons, including emergency incident management, high-security escorts and dog handling.

SESG units are based at a number of prisons across Victoria. SESG officers are rostered to patrol different prisons and can be sent to any prison across the state to conduct searches and patrols, or respond to emergencies.

SESG officers carry and are trained to use tactical equipment, such as batons and capsicum spray. They are also responsible for training other staff, including general duties officers, in tactical operations.

The use of force in Victorian prisons

Within prisons there are times when it is both necessary and lawful for officers to use force on prisoners. Given the acute power imbalance between prisoners and prison officers, and the need for accountability of prisoner officer conduct, the use of force is regulated by laws, policies and procedures and is subject to various layers of scrutiny

The law allows a prison officer to use force against a prisoner if:

• they have a lawful reason for using it
• the force used is proportionate (not unreasonable in terms of the level or type of force and the length of time it is applied)
• the use of force is consistent with Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter of Rights Act’).

Terms

When discussing the use of force in prisons, the terms ‘unreasonable use of force’, ‘unlawful use of force’, ‘excessive use of force’ and ‘assault’ are sometimes used interchangeably. This reflects the varying terms and definitions in the relevant Victorian legislation, policies and reporting frameworks.

This report uses the term ‘unreasonable use of force’ to describe a use of force without a lawful reason or where the force used was disproportionate.

Any unreasonable use of force may also be unlawful, excessive, a criminal assault and a breach of the Charter of Rights Act.

When force can be used against a prisoner

The Corrections Act 1986 (Vic) allows prison officers to use ‘reasonable force to compel a prisoner’ to comply with an order which they believe to be ‘necessary for the security and good order of the prison or the safety or welfare of the prisoner or other persons’.

The Crimes Act 1958 (Vic) allows any person (including a prison officer) to use force ‘not disproportionate to the objective’ that they ‘believe on reasonable grounds’ to be necessary to prevent an indictable offence. Indictable offences in the prison context may include assaults on staff and assaults on other prisoners.

The use of force in prisons is further guided by the Commissioner’s Requirements, a statewide policy applied to both public and private prisons. Based on the Corrections Act and the Crimes Act, the Commissioner’s Requirements state that ‘reasonable force’ may be lawfully used by prison officers on prisoners to:

• compel a prisoner to comply with a lawful order
• prevent a prisoner from escaping custody
• prevent the commission, continuance or completion of a crime
• arrest someone believed to be committing or have committed a crime
• prevent a prisoner from assaulting another person or being assaulted
• control a situation where a person is using or threatening to use force against another person
• prevent a suicide.
  

The JARO’s unpublished 2017 analysis found the most common events leading to the use of force were prisoners being ‘non-compliant’, attempted assaults on staff, and prisoner fights.

Corrections Victoria data from 2018 to 2021 shows these three reasons remain among the most common, with ‘non- compliance’ topping each of these years.

In May 2020, the Commissioner’s Requirements were updated. Before this, when force was used to ensure compliance, non-compliance was defined as a prisoner simply ‘refusing to follow an order’. Under the updated requirements, the refusal to follow an order must constitute ‘an unreasonable risk to the safety of a person, or to the security and good order of a prison’ in order to justify reasonable use of force.

The Commissioner’s Requirements were also updated to state that ‘other options such as containment must be considered first, unless impractical or unsafe in the circumstances’.

‘Reasonable’ use of force

The Commissioner’s Requirements reflect the relevant provisions of the Corrections Act, the Crimes Act and case law. ‘Reasonable’ force is defined as force which is the ‘minimum amount required for the minimum time’ and ‘not disproportionate’ to achieve the ‘safety and good management of the prison’.

The Commissioner’s Requirements state:

• officers should attempt to resolve the situation using communication skills
• reasonable force should only be used to control a prisoner ‘where no other means of control are suitable or available’
• ‘physical intervention must only be used as a last resort’
• officers must assess tactical options and minimise the risk of injury
• when using force, officers will act with ‘humanity, caution and prudence’
• when using force, no person should be exposed to undue risk
• where force is required, officers must only use force that is ‘reasonable and necessary to control the situation’.
  

The Commissioner’s Requirements provide a range of tactical options for managing and controlling prisoners, ranging from officer presence and negotiation through to using capsicum spray, batons and firearms.

Human rights

Any use of force within a Victorian prison must always be considered in light of the Charter of Rights Act. Sections 10 and 22 state:

• a person must not be treated or punished in a cruel, inhuman or degrading way
• a person deprived of liberty must be treated with humanity and with respect for their inherent human dignity.
  

A human right may only be limited in a reasonable and justified way. Such limitations must account for:

• the nature of the right being limited
• the importance of the purpose of the limitation
• the nature and extent of the limitation
• the relationship between the limitation and its purpose
• any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

In the context of use of force in prisons this means using force as a last resort, where non-violent de-escalation techniques have failed. This is also demonstrated by training staff to manage challenging prisoner behaviour in different ways.

Oversight and review mechanisms

Use of force incidents and allegations of assault by prison staff are subject to a range of internal and external reporting and review mechanisms.

Prisoners, or any other person, can also report an allegation of unreasonable use of force directly to an external body, such as Victoria Police, the Ombudsman or IBAC.

Frequency of use of force incidents

A ‘use of force incident’ is an incident in which a prison officer reports a use of force through the prison’s incident reporting system. The JARO’s 2017 analysis found that in 2014 and 2015, the MAP had the highest monthly use of force incident rate per 100 prisoners across Victorian prisons. The MAP was followed by the Dame Phyllis Frost Centre, the MRC and Port Phillip Prison.

More recent Corrections Victoria data shows the MRC recorded the most use of force incidents over the last three
years, with a total of 709, followed closely by the MAP with 699. Figure 2 shows the number of incidents at seven Victorian prisons. (The remaining prisons each had fewer than 80 incidents in total across the three years.)

The JARO’s 2017 review noted the prisons with the highest rates of use of force were all ‘front-end’ prisons and stated:

this higher rate may in part be affected by these prisons accommodating prisoners who have recently been recepted, who may be experiencing withdrawal from alcohol and drugs, and/or are new to the corrections system.

In response to a draft of this report, the Department also stated that high rates of mental health issues may also impact the number of use of force incidents at particular prisons. It further stated:

The context of a use of force incident in Victoria is important. Any time an officer puts a hand on a prisoner it is reported as a use of force. This can include if an officer places a hand on someone’s arm or back to guide them to where they are needed to be.

While this may be so, the number of recorded incidents does not suggest these lower-level uses of force are routinely reported.

Frequency of complaints about use of force incidents

The Ombudsman has taken complaints from prisoners and about prisons for decades. Prisoners can access a direct free phone line to our office or can write. Other parties can also complain to us about prisons and the treatment of particular prisoners.

In 2020-21, the Ombudsman received 3,367 complaints about Corrections Victoria. Most were about day-to-day issues such as access to medical treatment, placement within the prison system, property and visits.

About 3 per cent alleged improper conduct by prison officers, such as:

• misuse of position, authority or power
• serious professional misconduct
• misuse of information
• bribery, extortion or secret commissions
• detrimental action
• unreasonable use of force.
  

When prisoners and other parties make an allegation to a prison that a prisoner has been assaulted by a staff member, it is recorded as an incident of ‘alleged assault by staff on prisoner’ in the prison incident reporting system. Some of these will also have been reported as ‘use of force' incidents.

Figure 3 shows the number of allegations of assault by staff on prisoners received by Corrections Victoria over a 10 year period.

Figure 4 shows the number of cases involving allegations of unreasonable use of force received by the Ombudsman and the number of allegations of assault by staff on prisoners received by Corrections Victoria over the last three financial years.

Not all allegations reported to the Ombudsman are reported to prisons directly. The allegations made to Corrections Victoria related to 10 different prisons. The Ombudsman received complaints about 11 of the 14 Victorian prisons.

There was an increase in use of force complaints to the Ombudsman in 2019-20, and a significant drop in
2020-21. This is possibly related to differing restrictions imposed on prisoners during the COVID-19 pandemic and associated impacts on access to complaint services.

The MRC consistently accounts for more than a quarter of prison-related unreasonable use of force complaints made to the Ombudsman.

The MRC also accounted for a third of all allegations of assault by staff on prisoners received by Corrections Victoria over the past three years.

Substantiating complaints about use of force incidents

The number of substantiated complaints about unreasonable use of force in prisons is relatively small compared to the number of complaints made.

In response to a draft of this report, the Department stated that the reason for the low number of substantiated complaints is that ‘many were vexatious’.

However, the investigation formed the view that part of the reason for the low substantiation rate is that it can be
difficult to obtain conclusive evidence of unreasonable use of force. There are also many situations where a complaint is not ‘vexatious’, but rather, a prisoner genuinely believes the force used against them was unreasonable, despite it having been used in accordance with policies and procedures.

Between 1 July 2018 and 30 June 2021, the Department received 142 allegations of staff on prisoner assaults and referred 32 matters for employee misconduct assessment. Of these 32 matters:

• 10 did not progress to formal misconduct investigations into allegations of excessive use of force
• seven progressed to formal investigation but were not concluded by 30 June 2021
• 15 progressed to formal investigations and were concluded.

Of the 15 investigations concluded, five were substantiated, three were incomplete due to the employee resigning and seven were unsubstantiated.

In the same three-year period, the Ombudsman received 139 allegations involving unreasonable use of force, investigated 12 allegations and substantiated four. It is not unusual for allegations of assault or unreasonable use of force to be made about situations where officers have not reported using force. This means no use of force records would have been created about the incident. If prisoners do not promptly make an allegation of assault to the prison or an external body, there may be no contemporaneous incident reports or other records created about the event, and relevant surveillance footage may be destroyed.

Even when incidents are reported, there is often insufficient or inconclusive evidence. As discussed later in this report, closed- circuit television (‘CCTV’) does not record sound and many incidents occur where there is no surveillance. Where footage is available, with fast-paced violent incidents it can still be hard to identify the actions of individuals and determine if the use of force was reasonable.

It can also be difficult to substantiate allegations because the culture in some parts of the prison system discourages officers from reporting on each other. In many cases there is nothing more than the prisoner’s word against the officer’s word.

The Ombudsman does not investigate most allegations of unreasonable use of force because of this lack of corroborating evidence. Of the complaints referred to the Ombudsman by IBAC in 2017-18 and 2018-19, 84 per cent did not proceed to investigation. This is why the number of complaints received is useful to consider, along with substantiated assaults. The fact that an allegation was not substantiated does not mean that an unreasonable use of force did not occur – the absence of evidence leaves many allegations neither substantiated nor unsubstantiated. Of the eight allegations of unreasonable use of force discussed in this report, the Ombudsman substantiated four.

During an incident

What we say and how we say it can be so powerful in keeping the environment calm.

Corrections Victoria recruitment material

If you get offended by somebody mouthing off at you, you are in the wrong workplace if you are working as a prison officer.

Prison officer

The problem with difficult situations is that they can arise very quickly with no warning and if you do something that management deems wrong, you can find yourself unemployed. Staff are seen as liabilities. Things don’t always go as the training manual says they will.

Prison employee

In any prison, decisions about using force often need to be made quickly and always carry a degree of risk. The most immediate and obvious risk is to the physical safety of those involved or nearby. Incidents also carry the risk of psychological trauma or injury.

In ‘front-end’ prisons in particular, officers face the challenges of quickly evaluating prisoners with complex needs, trying
to develop or maintain constructive relationships and deciding the best way to de-escalate issues. Some prisoners are in prison for the first time and most are facing the stress of pending court cases. Language and communication difficulties can also make defusing incidents harder.

Officers involved in use of force incidents can also face legal, employment and reputation-related risks.

During our 2019 investigation OPCAT in Victoria: A thematic investigation of practices related to solitary confinement of children and young people, the Ombudsman surveyed Port Phillip Prison staff on issues including training and support. Some talked of needing to make rapid decisions and the additional pressure created by fearing ‘a wrong call’:

The problem with difficult situations is that they can arise very quickly with no warning and if you do something that management deems wrong you can find yourself unemployed. Staff are seen as liabilities. Things don't always go as the training manual says they will.
– Prison employee with more than 10 years’ experience

[We are a]lways questioned on use of force used even when appropriate. We are trained to use it but always the way we are accused sometimes you hesitate to do anything with fear of being punished for doing our job.
– Prison employee with 5-10 years’ experience

Prisoners involved in use of force incidents also risk being subject to disciplinary processes with serious consequences, including possible criminal investigation and charges.

The most obvious way to reduce these risks is to avoid use of force incidents whenever possible. The Commissioner’s Requirements state that officers must try to de-escalate situations before using force.

Other ways Corrections Victoria reduces risk include widespread prison surveillance through CCTV and body worn cameras (‘BWC’), as well as officer training and clear reporting requirements.

However, as the eight case studies in this report show, these strategies are not always effective. We saw several examples where officers could have avoided using force if they had handled the situation better. We also saw examples where officers incited or escalated situations.

In this chapter, we discuss two themes arising from the cases we investigated:

• whether prison officers use de-escalation techniques to avoid and resolve incidents in line with requirements
• the adequacy and appropriateness of surveillance, including CCTV and BWCs, during use of force incidents.
  

Escalation or de-escalation

The Commissioner’s Requirements and Corrections Victoria training programs set out tools and strategies prison officers can use to manage prisoners in the pressured and sometimes violent prison environment. Response options include ‘non-contact’, ‘less than lethal force’ and ‘lethal’.

Non-contact and less than lethal force options are regularly used by prison officers to control prisoners, prevent injury, stop an incident spreading and maintain order.

De-escalation is the first tactic prison officers should use to manage an incident. It involves using time, space and calm communication to defuse heightened or escalating prisoner behaviour. It aims to control a situation with no injury to the prisoner or officers and without using force.

The Commissioner’s Requirements make it clear that physical force is a last resort and that ‘negotiation and communication’ is the most fundamental tactical option available to officers.

Other non-contact options include officer presence, or disengaging from the prisoner. A technique known as ‘ICE’ (isolate, contain and evacuate) includes moving other prisoners away from the incident, containing a prisoner in their cell, and allowing them time to calm down.

In the second part of JARO’s report on the Review of the application and management of reasonable force in the corrections custodial environment, one MRC staffer with more than five years’ prison experience reflected:

Prisoners often display a lot of bravado to advertise their toughness to other prisoners, once you remove them from the group situation the performance is over and a dialogue can start.

In response to a draft of this report, the Department noted that it is not always appropriate to remove a prisoner from a situation as a de-escalation technique because this often requires force, which escalates the situation further.

Less than lethal force options include ‘empty hand’ tactics such as:

• guiding a prisoner with hands and arms
• restraining a prisoner using hands and arms (including ‘taking a prisoner to the ground’)
• defensive tactics (like standing at a distance)
• delivering authorised strikes.

Prison procedures and officer training are focused on officers selecting the most appropriate tactical option based on the prisoner’s behaviour, the surrounding situation and factors such as the availability of backup and the prisoner’s history.

General Managers of Victorian prisons must ensure officers complete approved training for the security level of the prison they work in. This training includes ‘appropriate use of force’ and ‘prisoner management and conflict resolution’.

Use of force training materials provided by the Department indicate that prison officers are trained in de-escalation techniques in workshops which include different scenarios and incidents.

The training manual teaches officers to identify prisoner behaviours which indicate an incident may be escalating towards violence, and officer behaviours that might escalate conflict. It teaches ‘tactical communication’ strategies to de-escalate incidents and gain prisoner compliance without physical confrontation.

All staff are required to complete online learning and a practical assessment each year in use of force and de-escalation techniques. ERG members do other monthly training, which may include training in use of force.

Individual staff training records are kept centrally by the Department. Each prison is responsible for ensuring staff complete annual training requirements.

In February 2022, the Department advised us that it was not compliant with the training requirements as the COVID-19 pandemic had affected face-to-face training. The Department stated this training was delivered where possible.

The Department also advised it has recently conducted its first ‘whole of package’ review of its tactical options training since 2017. It told us that it is making changes as a result, which are expected to be ready for teaching to operations staff and new recruits from early 2023. It is also trialling a new de-escalation model at Barwon Prison, which will be evaluated and considered for adoption in the broader training program.

In six of the eight cases discussed in this report, officers failed to avoid or de-escalate situations or behaved in a way that escalated conflict.

Concerningly, some prison officers not only failed to apply tactics that could have avoided violence but behaved in a way that created incidents. This behaviour violates the Commissioner’s Requirements, the Code of Conduct for Victorian Public Sector Employees (‘Code of Conduct’) and the Charter of Rights Act.

In three cases, witnesses said prison officers attempted to incite prisoners to engage in violence before any physical confrontation took place.

In two cases, the evidence shows the officers instigated the violence.

Incidents that could have been avoided

The case involving prisoner Mr Russo at the Melbourne Assessment Prison is an example of officers exercising poor judgement which led to an avoidable violent incident.

The second case where allowing time for the prisoner to calm down could have averted the use of force was an incident involving Mr Wade at the Metropolitan Remand Centre.

The case we investigated involving Mr Novak showed multiple missed opportunities for de-escalation. It illustrates how interactions between staff and prisoners can escalate over days, with one incident linked to the next. It is one of several cases we investigated where use of force incidents were preceded by earlier altercations.

Prison officers inciting prisoners and instigating incidents

In some investigations, such as the case of prisoner Mr Lloyd, we saw evidence of prison officers deliberately or recklessly inciting and instigating violent incidents.

This case also shows that the ability to defuse situations varies from officer to officer. The CCTV footage shows that Officer Munro engaged with the prisoner verbally and physically and did not exercise physical or emotional self-control.

By contrast Senior Officer Nelson, another officer with more experience involved in the escort, maintained his professional composure throughout despite Mr Lloyd’s resistance and likely provocation.

Another case where there is evidence an officer tried to incite a prisoner to violence is that of Mr Snow. In this case, the Ombudsman substantiated the allegation of unreasonable use of force.

Our investigation into the case of Mr Griffin also shows prison officers behaving in a way that contravened the Code of Conduct, the Commissioner’s Requirements and the Charter of Rights Act.

Another case we investigated involved Mr McPherson. This case did not show a failure by officers to de-escalate a situation, but rather a deliberate escalation where an officer incites a prisoner and instigates an assault.

Surveillance

The use of CCTV and BWCs in prisons is primarily guided by the Commissioner’s Requirements and Deputy Commissioner’s Instructions. The Commissioner’s Requirements say that while human rights and a prisoner’s dignity must be considered, surveillance is necessary to create a safe environment for prisoners, officers and members of the public.

Prisons use surveillance to:

• keep good order
• prevent injury to officers, prisoners and the public
• identify behaviours such as self-harm and smuggling of contraband
• help investigate allegations of unreasonable use of force and inhumane treatment by prison officers against prisoners.

CCTV can be used for live monitoring of prisoners and for producing recordings as evidence where an incident occurs that may be subject to later review or investigation.

Everyday surveillance footage from CCTV and BWCs in prisons is only required to be kept for seven days. The Commissioner’s Requirements mandate that recordings related to an incident involving use of force or an allegation of a staff assault on a prisoner must be retained for seven years.

This footage can protect officers from suspicion, complaints and further investigation. It can also help investigators determine whether a prisoner was treated in accordance with relevant laws and policies.

For reasons discussed throughout this report, without this footage it can be difficult to substantiate allegations of unreasonable use of force.

CCTV

Fixed CCTV cameras record images but not sound. They are mounted in many areas of prisons, but do not cover all spaces prisoners access. Areas not covered by CCTV cameras are known as ‘blind spots’. These include spaces where no cameras are installed, and those parts of a room or corridor not visible on footage even where there is a camera.

All prisoner cells are blind spots as none have CCTV cameras. There are also no CCTV cameras in many staff areas.

The Ombudsman’s 2019 review of prisoner assault allegations to our office found that of the incidents complained about in 2017- 18 and 2018-19, 33 per cent did not occur in the presence of CCTV. In another 23 per cent, it was unclear whether the incident occurred in the presence of CCTV or not. Of the incidents which did not occur in the presence of CCTV, half were in prisoner cells and a further 36 per cent were in other areas which did not have cameras.

Corrections Victoria reports it is working to improve CCTV coverage in prisons:

the minimum standard for CCTV for all medium and maximum security locations, is 100% coverage of all ‘holding’ or common areas, 100% of the time.

It states that Loddon and Marngoneet prisons are currently undergoing upgrades to meet this standard but that all other medium- and maximum-security locations (including the MRC and MAP) already comply.

Of the eight incidents detailed in this report, only one was captured on CCTV. This was the incident in which Mr Wade’s wrist was fractured when his handcuffs were being removed through a cell door. Corridors outside prisoner cells are monitored, but the footage in this case was not conclusive. It is hard to see each person’s actions during the incident as four officers are crowded around the door and sometimes positioned in a way that blocks the camera’s view.

The other seven incidents occurred in blind spots:

• Three occurred in the corridor and area outside the unit's holding cell.
• Three occurred in the prisoners’ cells.
• One occurred in a supervisor’s office.
  

Even when incidents occur in blind spots, CCTV is valuable in helping establish the facts from footage of prisoners and officers immediately before and after incidents.

The Ombudsman also investigated cases where CCTV captured glimpses of incidents.

The incident with Mr Novak, who was allegedly thrown against a wall and punched after being told he was being moved to the Attwood Unit, took place outside the unit holding cell. CCTV footage shows his head and body suddenly jerk backward and forward. His head then moves out of camera range. Our investigation could not substantiate the allegation of unreasonable use of force, but noted all three officers’ incident reports were inconsistent with the CCTV footage.

In response to a draft of this report, in relation to the inconsistency between the officer incident reports and the CCTV footage, the Department stated:

Staff do not get to see footage before writing reports and they are written from their own memory of the events. They are also not to collaborate with other staff.

There is also partial CCTV footage of what happened in the cell in the incident with Mr Russo.

Body worn cameras

BWCs record video and audio. They can assist in resolving conflicting accounts of an incident, and can record incidents in areas not covered by CCTV, such as prisoners’ cells. The use of BWCs is also intended to be a de-escalation tool on the basis that if
a prisoner knows they are being recorded, they may moderate their behaviour.

BWCs are generally used by SESG supervisors and ERG officers in public prisons, and by equivalent specialist response officers in private prisons. General duties officers do not routinely wear BWCs, which means there is usually no BWC footage of incidents unless specialist officers attend.

In some cases where specialist officers attend there is still no footage of incidents, because some fail to turn on their BWCs.

BWCs are worn on the left-hand side of an officer’s vest at chest level. The cameras have a 150-degree field of vision, night vision and the capability to record 30 seconds prior to activation if on standby.

To turn the camera on, officers press the camera button once for buffering and again to activate. A red light indicates the camera is recording. Officers are required to announce when the camera is activated. Footage is date and time stamped and cannot be deleted by an officer once the camera is activated.

The Commissioner’s Requirements state that BWCs must be activated:

• when an incident is taking place
• where an officer believes a situation is escalating and may result in the use of force
• where the safety of any person is compromised
• when prison property is being vandalised
• when a code is called.
  

There are reasons why officers may not activate cameras. Officers interviewed as part of our eight investigations said they were fearful of physical harm if they looked away from a prisoner to activate their camera during a difficult or violent situation. Others spoke of difficulties pressing the button twice to activate the camera.If an officer fails to use their BWC during a serious incident, it can leave them open to suspicion and further complaints and investigations.

BWC footage is one of the few sources of evidence not based on a subjective recollection of the incident. It can help substantiate witness accounts of events and establish how the prisoner was treated.

BWC footage was available of only two of the eight incidents discussed in this report.

In three cases, the officers present were not wearing BWCs.

In the other three cases, the officers said there was no reason to activate their cameras. One of these was the incident involving Mr Wade, where he had his wrist fractured while handcuffed. We concluded it was likely the officers involved considered transferring Mr Wade to his cell to be 'routine' and not requiring the use of BWCs. The other two unrecorded incidents were the McPherson and Griffin cases, in which the officers denied any incident took place at all.

In the two cases where BWC footage was available, it was only partial because officers activated cameras after the incident started or turned them off during.

In the incident involving Mr Russo, who was taken to his cell and allegedly kicked after trying to get the attention of the SESG dog, Supervisor Ramsey only activated his BWC once Mr Russo was secured on the floor. Supervisor Ramsey said he did not want to take his eyes off the prisoner to turn his camera on because he was concerned for his safety.

The footage showed Mr Russo being verbally aggressive, saying ‘fuck off dog’ and ‘you’re a weak fucking dog’.

Mr Russo can also be heard specifically mentioning that officers failed to use their BWC, saying ‘if your cameras were on, you’d see it. They weren’t even on me’.

While Mr Russo is being secured face- down on the floor, a few more exchanges occur where officers respond to an apparent threat to shoot them. This is not audible on the footage, and Mr Russo can be heard denying he said this while the officers restrain him.

Just before the officers help Mr Russo stand up, the prisoner exclaims ‘[t]hat Alsatian is fucking cool isn’t it!’, then the footage ends.

A member of Corrections Victoria staff who reviewed the incident acknowledged that no body worn cameras were activated and that officers ‘went into the cell when they could have just secured him in there’.

The review stated that given Mr Russo’s ‘belligerent behaviour’ the SESG supervisor should have activated his BWC when staff made the decision to follow Mr Russo into his cell. It also stated:

The use and activation of body worn cameras has been the subject of ongoing discussion over the past 18 months or so, given the number of incidents and reviews highlighting staff failure to comply with policies.

The Department audits use of force incidents monthly and between July 2019 and December 2021 audited 267 incidents. In 11 of these cases, around 4 per cent, the general manager of the relevant prison was asked to issue a reminder about activating BWCs.

The Ombudsman, IBAC and JARO have all examined regulations and procedures surrounding the use of BWCs.

In its Special report on corrections, IBAC noted interference with video recordings was an issue in prisons across Australia. The report further noted alleged assaults frequently occur in CCTV blind spots, something also noted by the Ombudsman in our investigations and other complaint data.

In the Ombudsman’s 2019 review of prisoner assault allegations, 88 per cent were either not captured by BWCs or the Ombudsman was unable to access the footage. In many cases there was insufficient information to determine why no BWC footage was available. Some of these incidents were attended by officers without BWC. Others should have been captured but officers did not turn on their cameras.

It was hard to draw firm conclusions about this, as it was not always clear from the files why there was no BWC footage. It
is possible footage was not captured for valid reasons.

Alternatively, it is possible BWCs were not used in order to avoid detection of improper prison officer conduct and behaviour.

In January 2020, Corrections Victoria strengthened the Commissioner’s Requirement on BWCs to include a direction that:

when an alarm or Code is raised, control room staff will issue a reminder to staff to activate their Body Worn Camera. Staff responding to incidents must activate their Body Worn Camera as soon as they can, to enable footage to be captured at the earliest opportunity.

Corrections Victoria told us it is expanding its BWC program. They are buying 135 new cameras for the SESG, so every operational member can wear one. They are also replacing older BWCs at some prisons and expanding their use into medium-security prisons.

Conclusions

The cases discussed in this chapter show failures by prison officers to adequately de-escalate and avoid use of force incidents. While acknowledging prison officers work in a challenging environment and using force will sometimes be necessary, the actions and decisions of some officers are inappropriate and not in accordance with the law and the Commissioner’s Requirements.

There is a clear disconnect between Corrections Victoria’s intentions and the actions of some officers on the ground.

In response to a draft of this report the Department emphasised that the incidents in the report should be considered in context. It stated that there were 25,308 incidents in Victorian prisons in 2021 and that:

[m]ost incidents are managed well by staff but all incidents should be taken seriously, responded to appropriately, and any cultural issues identified addressed.

The Commissioner’s Requirements make it clear the use of physical force should be a last resort, but some prison officers are escalating situations rather than defusing them. This means officers are unnecessarily endangering themselves and prisoners. For some officers, the use of force seems to be the first resort, rather than the last.

Corrections Victoria’s current recruitment material focuses on ‘soft skills’ and building relationships, but some officers are
inciting violence and instigating incidents. Corrections Victoria’s hiring and vetting practices are not always effective in filtering out inappropriate applicants.

The role of prison officer requires a high level of resilience, good judgement under pressure and empathy. A person who has difficulty controlling their emotions, or who is capable of using unreasonable force without provocation should never have been hired as a prison officer.

It is often hard to judge whether the use of force by officers was justified because of a lack of objective evidence. The frequency with which use of force incidents occur in CCTV blind spots is concerning. This issue was also raised in the IBAC Special report on corrections.

In a number of our cases, officers took prisoners to unmonitored areas to discuss or address an issue with behaviour. Some witnesses gave evidence about the importance of having these conversations in private, as the presence of other prisoners has the potential to ‘inflame’ prisoner behaviour.

Isolating prisoners from others is a legitimate de-escalation technique, but it can create problems where they are moved into a CCTV blind spot. Any conversation in which prisoner behaviour is being addressed has the potential to escalate.

When incidents do occur in CCTV blind spots, the officers involved can face suspicion about their actions and motives. Having these types of conversations in a private but monitored area, such as a holding cell, protects both staff and prisoners.

A number of incidents we investigated occurred in corridors outside holding cells, which are CCTV blind spots. Holding cells are used for containing prisoners after incidents or when transferring them to places they may not wish to go. Given this, corridors outside holding cells are high-risk areas for incidents and should be covered by CCTV.

Another way of mitigating the risks of confronting prisoners in CCTV blind spots is by using BWCs, but officers frequently fail to use BWCs as required. As with CCTV avoidance, not using BWCs raises concerns about the motivation and conduct of officers and can lead to further complaints and investigations.

Choices by a prison officer such as avoiding surveillance can not only increase the likelihood of complaints and impede investigations but can also indicate ‘masking behaviours’. The IBAC Special report on corrections describes masking behaviours as those which ‘cover up the wrongdoing of colleagues’. These may be ‘deliberate or unintentional behaviours which have the effect of concealing what really occurred’.

After an incident

The majority of all reports written after a use of force incident in my experience are inconsistent with each other … due to a number of factors … this is probably difficult to comprehend if someonehas never dealt with threatening and potentially violent behaviour on a daily basis over a number of years.

Prison officer

You’re complaining to thin air, nothing gets done anyway. And then your jail just gets harder.

Prisoner

Use of force incidents and allegations of assault by staff on prisoners are subject to a range of reporting, review and investigation requirements.

The Commissioner’s Requirements and the Corrections Act lay out rules for reporting use of force incidents. They cover the obligations on officers to report and document use of force incidents, be it to prison authorities, the Department or Victoria Police.

The Independent Broad-based Anti- corruption Commission Act 2011 (Vic) also contains mandatory reporting requirements which may be triggered by a use of force incident or an allegation of assault. Allegations about unreasonable use of force in prisons can also be reported to external bodies such as the Ombudsman, IBAC or Victoria Police voluntarily by any person.

The rules governing reporting the use of force in prisons aim to ensure that incidents are reported promptly and accurately in order to support accountability, ensure appropriate medical responses and enable effective oversight.

They also require that evidence be secured to allow for further review and investigation:

Following a use of force incident or immediately upon notification of an assault or alleged assault:

• prisoners must be referred for medical assessment;
• photographs of the prisoner must be taken, and/or
• a copy of any available CCTV, video camera or Body Worn Camera records must be created and retained in accordance with taping protocols and retention periods.

In the eight incidents detailed in this report, we found concerning cases where officers did not follow procedures or where investigations reached conclusions we did not agree with. In this chapter, we discuss two themes arising from the cases investigated:

• the adequacy and accuracy of incident reporting
• whether incidents are investigated thoroughly and impartially.

Incident reporting

Use of force against a prisoner or an allegation that an officer has assaulted a prisoner are both deemed ‘notifiable incidents’ by the Commissioner’s Requirements. There are strict reporting timelines for notifiable incidents.

Officers must submit incident reports by the end of their shift so their recollections are fresh and the reports can be provided to monitoring or oversight bodies promptly.

Each prison also has a Use of Force Register in which every use of force must be recorded. The Commissioner’s Requirements state the Use of Force Register must record basic information about the event, such as time, location, who was involved and the sort of force used. It also requires officers to detail ‘events leading up to the incident, including other avenues explored to resolve the matter’.

While our investigations reviewed a range of incident records which adhered to reporting and notification requirements, we found others which did not.

In response to a draft of this report, the Department stated that the Corrections Victoria Monitoring, Standards and Review Unit has mechanisms in place to review the quality of incident reporting.

The Department also informed us that since 2018, data about incident reporting has been collected as part of the monthly use of force audit process. This data includes whether the appropriate notifications were made after the incident, whether staff reports were included in the incident report pack, whether prisoners were referred for medical assessment, and whether CCTV footage was retained following the incident. Whether staff activated their BWCs has also been recorded since October 2021.

Between 2018 and 2021, the percentage of incidents where CCTV footage was not retained has reduced from 15 per cent
to 4 per cent. For the same period, the percentage of incidents where staff reports were not included in the incident pack has reduced from 5 per cent to 0 per cent.

The Ombudsman accepts incident reporting will never be perfect, given the pressures of the prison environment. In a fast-moving and violent incident, recollections between officers can vary and it may be difficult to recall and include all relevant details.

Even considering these difficulties, the Ombudsman found cases where the way officers reported incidents did not meet acceptable standards. There is evidence suggesting under-reporting of alleged assaults and use of force within the prison system and at times, inaccurate or deficient reporting.

Prisoner reluctance to report allegations of unreasonable use of force

In 2017, the Ombudsman published a report on Implementing OPCAT in Victoria: report and inspection of the Dame Phyllis Frost Centre (‘DPFC’).

The report found:

[e]leven per cent of women who responded to the prisoner survey said they had been assaulted by staff while at DPFC. A further three per cent said they had been sexually abused by staff. Forty-five per cent said that staff had threatened or intimidated them.

However, only a third reported an incident and only 13 per cent said the prison had acted. The report identified common reasons given by prisoners for not reporting incidents, including:

• fear that reporting would make the situation worse
• fear of reprisals by officers or other prisoners
• reluctance to be labelled a ‘dog’ or a ‘dobber’
• lack of confidence the matter would be dealt with confidentially
• fear of not being believed if the report concerned the conduct of an officer
• past experience of no action being taken
• belief that their concern would not be taken seriously.
  

The evidence of Mr Griffin, who was ‘choked’ in his cell by officers at the MRC, echoes some of these concerns. He said that while he did not feel officers were trying to deliberately deter him from making a complaint, he felt intimidated:

It’s all intimidation in a way. [It] took three people to establish nothing … they made me feel bad. [I] felt like a shit … for saying something about it but at the end of the day no one needs to go through that if you haven’t done nothing, you know what I mean.

Mr Griffin said he wanted to go to the prison’s medical centre because his throat was sore for weeks afterwards and it was ‘[h]ard to eat, hard to drink, hard to swallow’, but he didn’t because he was worried about retaliation for complaining. He said ‘because you’re complaining to thin air, nothing gets done anyway. And then your jail just gets harder’.

Failure to report incidents

Mr Griffin’s case also shows officers failing to report allegations of assault.

The officers who used unreasonable force on Mr Griffin maintain that no force was used and that no notifiable incident took place. The unit staff who heard Mr Griffin’s complaint never reported it as an incident of alleged assault, so there was limited written documentation available about the incident. The only reason the surveillance recordings from the unit that day were retained was because of the complaint made to the Ombudsman, which resulted in us contacting the prison to secure the footage.

Cases such as Mr Griffin’s, where there is an alleged assault on a prisoner but officers have not reported any use of
force, are common. Of the 163 allegations of assault by staff on prisoners recorded by Corrections Victoria between July 2018 and November 2021, only 62 were reported as a use of force incident. Eight of these allegations were determined by the Department to be substantiated assaults; and of these, only five had been recorded as use of force incidents.

This means that unless the prisoner makes an allegation of assault promptly, there may be limited records of the event. Surveillance footage may also be destroyed, injuries will not be photographed and medical records will not be created – all of which will hinder any later investigation.

This highlights the critical importance of having a culture which does not deter prisoners from making allegations, takes them seriously when they are made, and ensures reporting and notification requirements are followed.

Our investigations saw further examples of officers failing to make incident reports for notifiable incidents involving use of force or allegations of assault. One of these was the case of Mr Lloyd.

In the incident involving Mr McPherson, the officers involved only submitted incident reports at a supervisor’s request after allegations of assault were made against them.

Cases such as this demonstrate the importance of having different complaint mechanisms available to prisoners. Mr McPherson reported the incident to the ALO, with whom he felt comfortable, rather than to unit staff, supervisors or prison management.

Having a range of complaint avenues, some which prisoners may trust over others, can mitigate some of the deterrents to prisoners reporting use of force allegations.

Inadequate incident reporting

In the case involving Mr Lloyd, who was allegedly kicked in the head after the court transport van left him behind, none of the incident reports recorded any injuries to the prisoner. Because officers did not report any injuries, no photographs were taken. Yet the CCTV footage showed red marks on his body and blood coming from his mouth.

When speaking generally about incident reporting, one Senior Officer told investigators:

The majority of all reports written after a use of force incident in my experience are inconsistent with each other and
that of CCTV footage … due to a number of factors including individuals’ adrenal responses, their physical positioning during the actual incident, that staff training regarding report writing stresses the importance of not colluding, and also the fact that staff are not able to review CCTV footage in order to see if their recollection of the incident is accurate. I understand that this is probably difficult to comprehend if someone has never dealt with threatening and potentially violent behaviour on a daily basis over a number of years.

The challenges to accurate reporting highlight the need for staff to clearly understand reporting requirements.

In response to a draft of this report, the Department stated:

The nature of incident reporting and eye- witness testimony means there can be variation in accounts. When reports are too similar this can suggest collusion. This does not mean the reporting is inaccurate or there is a lack of understanding of requirements.

One officer told investigators incident reporting was covered during his initial training at the MRC, including how to write a basic memo about who and what was observed, and what action was taken. Apart from that, he said, officers only received ‘on the job training’.

Another officer told investigators incident report training occurred at recruit level and was not repeated annually. She said when writing an incident report, officers should include what they saw, what they did,
and who was present if relevant. She said officers would not necessarily list everyone present as the supervisor would do that after collating reports.

Ombudsman investigators heard differing views from prison officers about writing incident reports, including when they should be filed and what should be in them.

The Commissioner’s Requirements specify what information should be recorded in use of force incident reports. However, some of these directions are open to interpretation. For example, they say the use of force register must include a ‘description of force used’.

Cases handled by our office show that officers sometimes use the phrase ‘minimum force’ in incident reports when asked for a ‘description of force used’. The description field is intended to capture details of the technique used. This issue was identified by the 2019 Ombudsman review of unreasonable use of force files. While writing ‘minimum force’, may technically satisfy the reporting requirements, failing to include practical details can mask the facts and impede reviews, regardless of an officer’s intention.

IBAC identified similar issues in its Special report on corrections. IBAC reviewed all prison reports related to the use of force incidents it investigated and noted in ‘many cases, witnesses failed to refer to their colleagues’ actions or provided an abridged version of their observations’. IBAC said that this suggested officers were engaging in masking behaviours.

As well as specifying what should be in incident reports, the Commissioner’s Requirements direct officers to provide a ‘full and detailed report covering all aspects of the incident’. In practice, this direction is interpreted inconsistently by officers.

In one of our investigations an officer was asked why some officers present at an incident were mentioned in one officer’s report and not in another’s. The officer told investigators: ‘Because each officer that uses force writes a report, and that’s forwarded to the Governor. [The] Governor will have each report, [and] will know who did what’.

This approach of not including full details in reporting can create an impression that officers are hiding something. More complete reports would help allay any suspicion of unreasonable force.

Some officers stated only officers ’directly involved’ needed to make reports. Not obtaining reports from all officers present is a wasted opportunity to gain witness accounts. Arguably officers present but not directly involved in using force may make more accurate reports than those affected by adrenaline.

One potential cause for poor reporting, suggested by an MRC supervisor, is staff inexperience:

I’ll be honest, there’s probably people in our workforce … they don’t know they’ve got to do that [report an allegation] … there’s a big turnaround of staff … the way it is at the moment unfortunately … you might sometimes have a day there’s no permanent staff whatsoever so depends on the level of training or how good their leader or supervisor seniors are.

The supervisor said they coached, mentored and trained their officers but ‘[you] can’t reach out and train everyone’.

In its Special report on corrections, IBAC recommended the obligations to report corrupt conduct be strengthened by amending the Corrections Act to require all officers to report to the prison governor or IBAC if they have a reasonable belief another officer has engaged in corrupt conduct. It also recommended imposing a penalty for non-compliance. It noted similar provisions exist in New South Wales, South Australia and the Northern Territory.

Some of the evidence in this section suggests officers engaged in masking behaviours. This and evidence of other possible masking behaviour, including false incident reporting is discussed in the following chapter, ‘Culture’.

Misconduct assessments and investigations

The use of force requires robust oversight to hold individuals and the system accountable.

In public prisons, one review method available to the Department is an employee misconduct investigation. The Integrity, Legal and Law Reform Group does a preliminary assessment of whether there is sufficient evidence of alleged misconduct before starting a formal investigation.

Over the last three years, 32 use of force incidents in prisons have been
referred for formal employee misconduct investigations.

Our investigations reviewed a range of documents related to the Department’s employee misconduct assessments and investigations. In some cases, the Ombudsman disagreed with the Department’s conclusions and had concerns about how particular pieces of evidence were assessed.

The four cases discussed in this section are the four cases in which the Ombudsman disagreed with the findings of departmental assessments and investigations and substantiated allegations of unreasonable use of force. This report does not question the integrity of the Department staff who investigated these cases. We acknowledge that differences in methodology or legal and evidentiary requirements had some impact on our differing conclusions. However, the examples in this section demonstrate some of the challenges faced by prisoners in having unreasonable use of force allegations reviewed within the system and in establishing their credibility as witnesses.

Sources of evidence

When the Department investigates cases involving the use of force in prisons and allegations of assault, the standard of proof required is not the criminal standard of ‘beyond reasonable doubt’. Department investigations, like Ombudsman investigations, are guided by the lower standard of ‘on the balance of probabilities’.

The Department also faces similar evidentiary challenges to the Ombudsman in investigating unreasonable use of force. There is often not enough evidence to substantiate allegations of assault. In many cases, there is insufficient evidence to meet the threshold for investigation or to reach any conclusion.

In response to a draft of this report, the Department stated that in applying this standard, it is also bound by requirements of the High Court of Australia decision in Briginshaw v Briginshaw which states that:

'reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

The Department stated that:

the Investigator making a finding based on evidence must be satisfied to a higher degree for allegations of a serious nature. Allegations of assault or excessive use of force constitute serious conduct and for an allegation to be substantiated, the department must be satisfied to a higher degree on the balance of probabilities that the conduct occurred. If the department, as an employer, fails to do so it risks the investigation being challenged at the Fair Work Commission.

As discussed in the ‘Surveillance’ section of this report, CCTV and BWC footage can provide critical and objective evidence of events but is often not available. Photographs of prisoner’s injuries and medical reports are also important evidence. But where the incident or allegations are not reported promptly,
this evidence may not exist or may be of limited value.

This means in many cases it is the prisoner’s word against the word of officers. The credibility of witnesses is often at issue in these assessments and investigations.

Perceptions of credibility

The Ombudsman looked at several employee misconduct assessments and investigations where the Department concluded witness evidence about use of force was not credible. In most cases, these witnesses were prisoners.

The Department’s investigator described the CCTV footage of the alleged kick by saying Officer Schwartz ‘appears off balance, leaning on the desk where his right leg appears to be moving’.

The Corrections Victoria review of the incident undertaken as part of the Department’s performance reporting processes described the CCTV footage differently. The review memo stated:

The CCTV does show what appears to be SESG SPO [Schwartz] kicking [Mr Russo] while he is on the ground … this in and of itself is not grounds to find that an assault has occurred as it happened in the context of the use of force.

Discussing this assessment, the reviewer stated that based on his experience reviewing incidents, while prisoners ‘generally don’t tell the truth and will generally exaggerate’, he would lean towards accepting a prisoner’s account if everything else they said was provable.

In this case he did not recall there being any evidence that Mr Russo had lied about other aspects of the matter, but noted that he could only base his conclusion about whether excessive force had been used on the evidence in front of him.

He found the evidence in this case to be inconclusive. He stated:

[Mr Russo] didn’t have any extensive facial injuries to suggest he’d been punched in the face … I think the bottom line is I couldn’t say with any certainty that he had been assaulted.

In Mr Russo’s case the Ombudsman reached a different conclusion from the Department. We found unreasonable force was used, on the basis the incident was entirely avoidable, as discussed in the section on ‘Escalation or de-escalation’.

The following case, of Mr Snow, is an unusual example in that the allegation of unreasonable use of force was supported by both the prisoner and an officer. The resulting employee misconduct investigation found both the prisoner and the officer witness lacked credibility.

The Ombudsman took a different view. Officer Page's credibility did not diminish, but rather increased when she wrote her second report. Doing so was against her own interests and exposed her to potential disciplinary action by acknowledging that her first report was false.

Value of external investigations

One measure used by Corrections Victoria to assess the performance of both public and private prisons is the number of staff assaults on prisoners. The target for this measure is zero.

For an assault to be counted against this measure, the Commissioner must determine an assault has occurred.

The Commissioner’s determination is based on a review of the incident undertaken by the Corrections Victoria Operations Directorate. The directorate has an ‘arms-length’ oversight role in relation to prisons.

Private prisons also face significant financial penalties for failing to meet the target. While this is intended to improve performance, it could lead to under- reporting of incidents. In its Special report on corrections, IBAC noted that financial incentives linked to performance could encourage prisons to manipulate data to ensure they meet targets.

It further stated that this could lead to the development of a culture that discourages the reporting of misconduct.

In this context it is particularly important that there are external, independent avenues available where prisoners and others can make complaints and have them investigated impartially. Independent investigations are especially valuable in prisons, which are closed environments operating away from public view.

Allegations of assault can be made directly to Victoria Police; however many prisoners are reluctant to use this option, as shown in the Mr Griffin and Mr Snow cases.

The Ombudsman and IBAC provide important avenues for complaints without involving police.

The Department is required to report an incident to IBAC under section 57(1) of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) where the Secretary suspects on reasonable grounds that ‘corrupt conduct’ has occurred. Unreasonable use of force on a prisoner can meet the definition of corrupt conduct. In its Special report on corrections, IBAC noted some examples of delays in such notifications, but said it had seen an increase in mandatory notifications and improvements in timeliness since late 2018.

If an allegation is determined by IBAC to be a ‘public interest complaint’ (under the Public Interest Disclosures Act 2012 (Vic), there are a range of protections for the person making the allegation. These include confidentiality around their identity and protection from detrimental action against them for making the complaint.

This is particularly relevant for complaints about use of force incidents in prisons, where both prisoners and officers fear repercussions for reporting incidents.

An investigation by the Ombudsman or IBAC can scrutinise evidence from prison officers and prisoners with an
independent eye, examine whether policies and procedures were followed and make findings on allegations.

Ombudsman investigations also consider broader questions such as whether officers tried to de-escalate a situation and whether officers breached the Code of Conduct. This means we may conclude that an officer acted inappropriately in a case where the Department did not find any formal misconduct.

In response to a draft of this report, the Department stated that it also considered de-escalation and whether an officer’s conduct contributed to the incident. It stated that while this may not lead to misconduct being substantiated, it would be noted as poor situational management.

Conclusions

This chapter has examined what happens after an unreasonable use of force incident. For some prisoners, unfortunately what happens is nothing. The Victorian prison system has strong mechanisms in place requiring allegations of unreasonable use of force to be reported and reviewed. Despite this, there is evidence indicating allegations of assault are under-reported.

The incident reporting requirements are comprehensive but are not always followed. Prison officers sometimes fail to report incidents as required, and prisoners are often reluctant or unwilling to report these incidents themselves.

There are many reasons why prisoners may find it difficult to report allegations of unreasonable use of force. Some are concerned they will not be believed or their allegation will not be properly investigated. Others fear their remaining prison time will be harder if they alert authorities.

These concerns are exacerbated in a remand setting where officers have little time to establish relationships with prisoners, but the issue exists across the prison system. The power imbalance between officers and prisoners leaves some prisoners feeling they are better off not reporting incidents. The evidence contained in this report suggests these concerns may be justified.

Strategies such as monthly random audits of use of force incidents can pick up some cases of unreasonable use of force which have not been reported as alleged assaults.

In response to a draft of this report, the Department informed us that between 2018 to 2021, the MRC has consistently had more incidents reviewed through random monthly use of force audits than
other prisons. Therefore, the MRC has been subjected to a greater level of oversight.

It also said that the monthly use of force audits provide feedback to prison’s General Managers and note any issues or instances of good practice. This data provides statistical evidence of trends that need to be addressed and will enhance Corrections Victoria’s oversight of use of force incidents.

While this is a positive development, not all incidents are captured by these audits.

Even when incidents do make it to a formal staff misconduct investigation, the chances of unreasonable use of force being substantiated are low. This is especially true where there is no objective evidence, such as CCTV footage, which is often the case. Even when footage is available, it can be hard to interpret. What is described
as a ‘leg moving’ by one person, may be described as a ‘kick’ by another. CCTV evidence may not be enough to determine whether the force used was the minimum amount necessary.

Where there is no CCTV footage, investigations rely on reports from those present. Multiple officers are able to provide reports. In contrast, prisoners have less opportunity to provide official accounts directly and often there are no other witnesses. Our 2019 review of unreasonable use of force allegations found 85 per cent of incident reports lacked the prisoners’ account of events.

In response to a draft of this report, the Department disputed that prisoners do not have an opportunity to provide their account. It stated that:

• staff reports can detail allegations made by prisoners
• BWC can be used when interviewing prisoners
• incident reports will contain details of allegations
• misconduct investigations interview prisoners when they agree to participate
• prisoners can make allegations to integrity agencies.
  

Even when a prisoner’s account is recorded, it is usually in contrast to officer accounts which support each other. In the next chapter, we discuss the culture of silence within some areas of the prison system which encourages officers to lie to protect each other from allegations of misconduct.

Given the seriousness of such allegations, and the consequences for officers if found guilty, it is fair and reasonable that the required standard of proof be high. However, a system where the weight of evidence usually favours officers discourages prisoners from complaining.

In response to a draft of this report the Department disputed that the weight of evidence favours officers and that prisoners are discouraged from making complaints.

For prisoners, the system creates a vicious cycle. Prisoners know that they are unlikely to be believed when they allege assault. They know that even if a report gets made, they are likely to be considered not credible and that an officer’s version of events will be believed over theirs. They know that officers are rarely found to have acted wrongly, and they therefore conclude there is no point in complaining. This leads to the under-reporting of incidents and impacts the prisoners’ attitude towards prison officers.

Some incidents not reported to the prison or identified by departmental audit processes will be picked up by the Ombudsman or IBAC. Some prisoners feel safer making an allegation to an independent body. They either feel they will be taken more seriously, or seek the confidentiality and protections offered by the public interest disclosure legislation.

However, despite this range of reporting and oversight mechanisms, some use of force incidents and assaults are never identified or reviewed and are slipping through the cracks. This means it is impossible to capture the true extent of the use of force in Victorian prisons.

Culture

If you don’t have the ability to empathise with others, no matter their background, then this job is not for you. Establishing boundaries is important, but we still need to forge respectful, compassionate connections with prisoners.

Corrections Victoria recruitment material

When I was a young prison officer, I did see an officer assault a female prisoner, wrote something in a report and then … I had to change the report before it got anywhere else but I was only young at the time ...I think there’s a bit of pressure out there and let’s just put it this way, after I wrote the report … you were known as a “dog” and a “rat” … That’s basically what you’re regarded if you write an officer up.

Prison supervisor

I think that [the 2015 MRC riot] had a lot to do with some of the poor culture up there. There was a lot of issues even bringing in case management to that location, and pushback from staff … you know, “they’re only remandees, they’re only with us even for a short stint – why do we even need to get to know them, let them out and lock them up”.

Prison manager

The Commissioner’s Requirements state:

Correctional employees are required to conduct themselves professionally in the manner in which they communicate and behave with prisoners, offenders, and visitors to and families of prisoners. This is critical in a correctional environment, where the power imbalance that exists between correctional officers and prisoners and offenders, and the ‘closed’ and residential nature of prisons, places an enhanced obligation on employees to act with the highest level of integrity and respect …

Interviews with prison officers conducted during our investigations provided insights into the challenges of being a prison officer and the sometimes tense relationships between staff and prisoners, particularly at the MRC. While we found examples of prison officers who acted with honesty and integrity and senior staff who encouraged good behaviour and accountability, we also found concerning evidence of behaviours and attitudes not in line with the values and expectations of the Code of Conduct and Commissioner’s Requirements.

IBAC’s Special report on corrections highlighted a culture of excessive use of force among tactically trained officers, and evidence of masking behaviours which ‘cover up the wrongdoing of colleagues’. The report noted that masking behaviours can be ‘deliberate or unintentional’ but either way have ‘the effect of concealing what really occurred’. The report also found limited staff awareness of human rights within Victorian prisons.

Evidence from our eight investigations and other Ombudsman complaints and reports indicates problematic aspects of the culture within the Victorian prison system. These aspects echo those identified by IBAC.

In this chapter, we discuss two themes arising from the eight investigations and other relevant evidence:

• the lack of respect in prisons, demonstrated by officers making threats and retaliating against prisoners
• the culture of silence, in which officers protect each other from scrutiny.

Culture lacking in respect

The actions of individual officers and managers are crucial to developing a strong culture of integrity and respect in prisons. Effective relationships between staff and prisoners support the security and good order of prisons by encouraging prisoner compliance and minimising the need to use force. These relationships are complex, because prison officers are expected to contain and control prisoners yet also contribute to their rehabilitation and welfare.

The recruitment section of the Corrections Victoria website indicates a strong drive by the Department to recruit prison officers with qualities that would contribute to a relationship-focused culture. The recruitment material states no previous corrections experience is necessary, but seeks staff with qualities like empathy, resilience, emotional intelligence and good communication skills.

The Code of Conduct and the Commissioner’s Requirements state that prison officers are expected to lead by example and demonstrate ‘respect for others, including other correctional employees, prisoners and offenders’.

The Commissioner’s Requirements also prohibit certain behaviours including:

• disclosing personal information about … others that might increase vulnerability to threats, risks to safety, blackmail or other pressure being applied
• innuendo and gossip
• discriminatory comments and/or jokes (e.g. sexual, religious or racist)
• jokes or comments trivialising family violence and/or promoting violence in general.

Threats and unprofessional language and comments

Our investigations and other complaints received by our office, demonstrate that not all officers are adhering to the expectations set out in the Commissioner’s Requirements. The case of Mr Ruiz shows officers at the MRC using unprofessional and threatening language during an incident.

While the prison officer’s threat to break Mr Ruiz’s neck occurred during a serious and violent incident, the Ombudsman also receives complaints about officers directly or indirectly threatening prisoners in non- physically violent situations.

In November 2020, after observing a pattern of complaints, the Ombudsman began to track allegations of threatening behaviour towards prisoners by prison staff. Between November 2020 and December 2021, the Ombudsman received 24 allegations of officers threatening prisoners. Six of those complaints related to staff at the MRC. Some included allegations of unreasonable use of force and verbal abuse.

In the 2017 Ombudsman report Implementing OPCAT in Victoria: report and inspection of the Dame Phyllis Frost Centre, 45 per cent of prisoners who responded to our survey said they had been threatened or intimidated by staff. Forty-seven per cent said staff had made insulting remarks about them, their family or their friends.

Retaliation

In the case of Mr Ruiz, as discussed above, the actions of the officer in placing the prisoner face down on the gravel rather than the path had the appearance of payback. In that case the officers had grounds for using force but subjected a prisoner to additional discomfort that was avoidable. We also saw cases where the use of force incident itself seemed to be retaliatory.

In four of our eight investigations, evidence suggested the incident occurred in retaliation for earlier prisoner behaviour towards officers.

In the Mr McPherson case, we saw both threatening and retaliatory behaviour by prison officers.

There is a need to strengthen information security culture in prisons. While the comments made by officers about Mr McPherson’s offending history were false, this case highlights the power imbalance between prisoners and prison officers around information.

In its Special report on corrections, IBAC discussed misuse of information as a corruption risk. It noted the power of knowledge within prisons and the serious consequences accessing and releasing
a prisoner’s confidential information can have for their safety and security.

In 2020-2021, the Ombudsman received at least 10 complaints regarding prison officers disclosing prisoner information to other prisoners. Most of these allegations related to information about offences, but some related to sensitive information about health or previous employment. Some of the complaints alleged information was deliberately disclosed to incite violence from other prisoners. Some also expressed concern about the safety and welfare of the prisoner as a result of the information being disclosed.

The McPherson case and other complaints of this type demonstrate the vulnerability of prisoners to the misuse of information and the potential for information to be used to retaliate, threaten and incite.

Mr Snow also believed the incident in which he was slapped while sitting in his cell was retaliatory. He said it was triggered by an altercation in which he had called Officer Georgiou ‘scum’ after one of his friends had been caught graffitiing and was told to clean it off.

Comments by Officer Georgiou at interview suggest a belief that retaliatory violence against prisoners by officers is acceptable in some situations.

Officer Georgiou’s willingness to make these comments at interview, despite his later qualification of the statement, suggests there may be broader cultural issues around integrity, use of force and retaliation in prisons.

Another example of allegations of retaliatory violence was seen in the case of Mr Russo.

Patterns of behaviour

Some officers mentioned in this report were involved in more than one of
the investigated incidents. Some of our investigations found disrespectful behaviour or attitudes by particular
officers indicating they may not be suitable for their roles.

Prison officers undergo various recruitment checks. As well as initial applications and interviews, they complete a police record check, psychometric testing, personality assessments, role plays and a ‘situational judgement questionnaire’.

Despite these screening processes, suitability issues can arise after an officer is hired. We have seen patterns of complaint about particular officers. The behaviour complained about is often not as serious as unreasonable use of force, but includes disrespectful behaviour such as abusive language, threats or retaliation. In many cases these allegations do not meet the threshold for investigation or there is a lack of evidence.

Some officers with multiple allegations made against them are considered problematic by their colleagues as well as by prisoners. In one case, officers told a prisoner they couldn’t get involved and that he should call the Ombudsman instead. This example suggests a weak integrity culture in the prison.

Some prisoners who contacted us about these officers wanted to remain anonymous and said they were scared of retaliation, including isolation, if they complained. They said they had seen the officers do it to other prisoners.

Prison records showed other staff informally raised concerns about the officers but did not want to formalise complaints for fear of retribution.

In some cases, the officers have been subject to performance management or misconduct processes. However, it is not clear that their suitability is being effectively addressed in unsubstantiated cases. Sometimes even when officers are the subject of multiple complaints, they resist feedback on conduct issues.

While unproven allegations need to be carefully considered, a mass of similar allegations lends weight to their credibility. As discussed earlier in this report, proving allegations is difficult and just because an allegation has not been substantiated does not mean it isn’t true.

This is particularly important where the conduct may not reach the level of misconduct, but there are strong indicators inappropriate attitudes and behaviours may be entrenched.

Culture of silence

The United Nations Convention against Corruption: Handbook on Anti-Corruption Measures in Prisons from 2017 notes that the unique environment in which prison officers work can contribute to a strong team spirit amongst staff. It observes this positive aspect can turn into a ‘suffocating’ mentality involving ‘pacts of silence’:

Prison staff may … refuse to co-operate in the investigation of critical events of staff misconduct in order to protect fellow staff members or fail to report information that may give rise to an allegation of staff misconduct. Many prison staff members would rather risk being subject to disciplinary sanctions themselves than violate a potential ‘code of silence’ within the correctional community.

During our investigations, the Ombudsman observed:

• of the 29 prison officers we identified as present during the use of force incidents, none provided evidence adverse to a colleague in their initial incident reports
• of the 22 officers interviewed who witnessed the incidents, only one gave evidence critical of a fellow officer.
  

This was despite the Ombudsman substantiating unreasonable use of force in four of the eight investigations, and identifying actions and decision making of concern by the officers involved in the remaining four.

The absence of officers willing to give evidence against their colleagues in these investigations is consistent with the Ombudsman’s experience in handling prison complaints more broadly. While it is common for the Ombudsman to receive allegations about improper conduct by public officers from their colleagues in other areas of the public sector, it is very rare within the prison system. Most disclosures about improper conduct come from prisoners.

‘Us vs them’

The starkest example of prison staff being reluctant to give evidence against fellow officers and of masking behaviour was the case of Mr Snow.

As discussed earlier, the departmental investigation into this incident found Officer Page was not a reliable or credible witness because she had given two versions of events. The Department did not appear to consider the pressure that the culture of silence would have had on Officer Page not to ‘lag’ on her colleagues, especially as a new employee at the MRC.

Evidence from our interviews shows management at prisons are aware of the existence of a culture of silence
among some staff at the MRC. One MRC supervisor said:

There is a percentage of [MRC] staff, that are, ‘You never rat on a blue shirt. Never. That's the lowest of lowest’ ... that whole stigma, there is still that.

Another MRC supervisor gave similar evidence, saying there was ‘pressure’ out there not to be a ‘rat’ or a ‘dog’.

During interviews, four officers with between five- and nine-years’ experience involved in the use of force incidents under investigation were asked about the phrase ‘dogging on a blue shirt’. Despite this phrase appearing to be known among corrections staff, all four officers denied knowing the term or what it meant.

Within a culture of silence, officers are expected to cover for one another even for less serious matters.

Shortly before the Mr Snow incident, Officers Georgiou and Page and a third officer were involved in another incident with a different prisoner.

Officer Page stated Officer Georgiou told the prisoner he had a bad attitude, to which the prisoner replied ‘just you and me, it’s not fair, three against one’. At that point, Officer Georgiou drew his baton.

Officer Page said:

I know [Officer Georgiou] drew his baton first because [Officer Georgiou] was sort of egging him on ‘let’s go let’s go’ and then he drew his baton and the prisoner pulled out his blade almost in self-defence and it escalated from there.

The prisoner eventually dropped the blade onto the floor, after which Officer Georgiou retracted and secured his baton.

After the incident, Officer Georgiou and the third officer involved told Officer Page their reports would not say Officer Georgiou had drawn his baton, because ‘you can’t draw your baton without calling a code’. Officer Page told Manager Dalton that Officer Georgiou told her not to mention a baton being drawn in the prisoner’s cell.

The third officer involved in the blade incident also omitted the use of the baton from his report.

The Mr McPherson case also contains evidence indicating masking behaviours.

The frequent absence of CCTV and BWC footage of incidents has been discussed in earlier chapters and is another possible indicator of masking behaviour.

The prevalence of use of force incidents occurring in CCTV blind spots and the de-activation or failure to activate BWCs during incidents, gives the impression officers are deliberately avoiding surveillance. This is particularly evident in the Mr Ruiz incident, where Senior Officer Parrino manually turned off his BWC after Mr Ruiz began shouting ‘stop fucking hitting me!’.

In the case of Mr Griffin, the prisoner was moved into a CCTV blind spot and described one officer using his body to block visibility into the cell.

At interview, Officers Beringer and Averill were both shown CCTV footage of Mr Griffin interacting with other prisoners immediately following the incident, including the interaction shown in Figure 7 earlier in this report. They both denied the CCTV footage showed a prisoner pointing at Mr Griffin’s throat.

Officer Averill said ‘I can see him put his hand on [Mr Griffin’s] shoulder’. When Officer Averill was shown footage from a second CCTV camera, he said ‘I can see him gesturing towards [Mr Griffin]’. Investigators asked again if he could see the other prisoner gesturing towards Mr Griffin’s throat. Officer Averill repeated ‘I can see him gesturing towards [Mr Griffin]’.

Officer Beringer said ‘[i]t just looks like he [the other prisoner] is pointing at something or gesturing’. When asked which part of Mr Griffin’s body the prisoner was pointing to, Officer Beringer said ‘to me it just looks like he’s pointing to his chest’.

During the Mr Griffin investigation, the Acting Senior Officer denied Mr Griffin’s allegations were reported to him by unit staff. He gave evidence that in his 13 years as a prison officer he had ‘never’ had a prisoner report that a prison officer had mistreated them. He said:

Prisoners complain all the time, they do what’s called officer shopping until they get the answer they want on a particular issue and when they don’t and you happen to be the senior officer for the day the prisoners will say ‘Senior, this person’s not doing what I want them to do’ but in terms of physical mistreatment, no, no, I have never had a prisoner come to me and say this officer has assaulted me or mistreated me in any way. Never.

This statement is at odds with evidence the Ombudsman and Corrections Victoria have collected regarding the frequency of allegations of assault by prison officers on prisoners at the MRC.

The evidence of Officer Page and in other complaints considered by our office shows officers being unwilling to give evidence against their colleagues because they fear retribution or exclusion.

The potential impacts of a ‘don’t dob on a blue shirt’ culture were examined by a coronial inquest into the suicide of prison officer William ‘Bill’ Maxwell. Officer Maxwell killed himself in March 2018 at the Dame Phyllis Frost Centre, where he worked.

Officer Maxwell restrained and handcuffed a prisoner during a violent incident at the MAP on Christmas Eve 2016. The prisoner hit an officer, who later kicked the prisoner in the head.

As in the Officer Page case, in his first incident report Officer Maxwell did not mention an officer striking the prisoner. In his second incident report, he said he had seen an officer’s leg ‘lash out’ and strike the prisoner in the head. In a more detailed, signed statement Officer Maxwell named the officer he had seen strike the prisoner.

In evidence to the Coroner, William Maxwell’s wife said he had been the subject of workplace bullying and had been ostracised and segregated from other staff. She said she believed the harmful workplace culture was responsible for his death.

She said her husband told her that MAP staff told him he shouldn’t have ‘dogged on a blue shirt’. In evidence to the Coroner, she explained that the mentality of prison staff was that ‘if you dob on a blue shirt, you are not to be trusted’.

The Coroner found there was a toxic culture at the MAP when Officer Maxwell was employed there, particularly when one officer wrote up another. She said:

There were remnants of old-school beliefs and an accepted unwritten code that you should always have another officer’s back and never dob on or make an adverse statement about a fellow officer. There was also a strong belief that if you did, there would be consequences.

However, the Coroner concluded there was insufficient evidence to find Officer Maxwell was bullied at the MAP. She said he had been experiencing a personal crisis in the days before his death and that and other factors may have influenced his decision to kill himself.

The Coroner noted evidence that Corrections Victoria had made changes in an attempt to create a more positive and improved workplace culture since Officer Maxwell’s suicide, including introducing the 2019-2022 Cultural Reform Strategy.

Attitudes towards external scrutiny and the credibility of prisoners

Another concerning facet of prison culture is the attitude expressed by some prison officers about the investigation process. Some comments demonstrated a resistance to external scrutiny flowing from an ‘us vs them’ mentality.

One example of this was expressed by an MRC officer interviewed in relation to the Mr Lloyd incident.

Similar attitudes towards external oversight surfaced in a staff survey we did at Port Phillip Prison for our 2019 report, OPCAT in Victoria: A thematic investigation of practices related to solitary confinement of children and young people. In response to the survey, one officer with more than 10 years’ experience stated:

Don't you lot have something better to do, wonder what the community would think about this waste of money.

Another officer with more than 10 years’ experience said:

Victorian prisons are a joke with far too many outside agencies trying to get involved. Prisons in Victoria are a holiday camp. Spend the money elsewhere.

Conclusions

The cases discussed in this chapter show a range of examples of officer conduct falling short of expected standards. While these cases are only a small sample, it appears that the cultural issues they illustrate may exist across the broader Victorian prison system.

In response to a draft of this report, the Department stated it:

encourages staff to speak up to report improper conduct and does not consider any proportion of excessive use of force to be acceptable.

The Department also said that it wanted to learn from the examples in the report and welcomed opportunities for improved practice. However, it wished to highlight that the examples represented a small proportion of the complaints and allegations investigated or substantiated.

Effective and respectful prisoner- staff relationships encourage prisoner
compliance and contribute to the safety and security of the prison environment. The underlying attitudes towards prisoners held by staff influence whether effective and respectful relationships can be built.

The way some officers speak to prisoners shows a distinct lack of respect. The language used by officers needs to be considered in the context of the prison environment and the conduct of the prisoners involved in the incidents. However, the examples we saw of inappropriate, unprofessional and threatening comments made by officers towards and about prisoners, still fall well below acceptable standards.

The nature of some of these comments suggests a dehumanisation of prisoners which is linked to the ‘us vs them’ mentality described by some witnesses. This attitude indicates a lack of awareness or attention to the Charter of Rights Act and the requirement to treat prisoners with respect for their inherent human dignity.

The ‘us vs them’ approach also has the potential to promote conflict and escalate or incite use of force incidents. It can contribute to retaliatory behaviour by prison officers against prisoners.

The examples of retaliation provided in this report show a culture exists within some parts of the prison system in which it is considered acceptable to use force to punish.

The failure by prisons to adequately address this type of behaviour contributes to a culture of tolerance that risks prisoner and staff safety and wellbeing.

There is evidence that prisons are not always effectively managing officers with patterns of inappropriate behaviour.
This sends the message to officers and prisoners alike that there are few consequences for acting in breach of the Commissioner’s Requirements and the Code of Conduct.

Managing problematic officers is made more difficult by the culture of silence. Some officers have described being reluctant to report their colleagues for unreasonable use of force or other misconduct, for fear of retaliation.

While it is critical for prison officers to support each other and to maintain a professional distance from the prisoners in their custody, an ‘us vs them’ culture of silence does not support integrity. At its worst, this culture can dehumanise prisoners, promote the unreasonable use of force and encourage masking behaviours.

This culture of silence has long been noted as a characteristic of prison workplaces. The evidence in this report confirms that pockets of it, at the least, still exist within the Victorian prison system.

The example of Officer Page in the Mr Snow case demonstrates the importance of strong leadership and support from management in shifting this culture and supporting transparency and accountability.

The ‘us vs them’ mentality also feeds problematic attitudes towards oversight. We acknowledge it is natural to feel discomfort about involvement in a misconduct investigation, or about giving evidence which might damage the career of a colleague. However, some of the comments made by prison officers during our investigations, and their tone, showed a resistance to transparency and a culture which sees outside oversight as a ‘waste of time’.

This type of attitude has been expressed to our office by multiple officers from different prisons. This indicates these cultural issues are not specific to the MRC but exist across the prison system, and have for some time.

In its Special report on corrections, IBAC identified opportunities for the Department and Corrections Victoria to
strengthen the prevention and detection of corrupt conduct. These included addressing workplace culture, ensuring thorough staff vetting and ensuring IBAC is promptly notified of suspected corrupt conduct.

The Ombudsman supports these proposals and emphasises the importance of rigorous recruitment and vetting processes for prison officers as well as careful performance management where conduct or suitability issues are identified.

The Department’s responses to the Ombudsman’s draft investigation reports

In response to the draft reports on the Ombudsman’s investigations detailed in this report, the Secretary of the Department of Justice and Community Safety submitted:

DJCS is committed to the delivery of a safe and humane correctional service and has implemented a number of measures in recent years to improve the operation of our correctional system. Corrections Victoria has updated corrections policies and practices, restructured prison reporting lines, and strengthened training, integrity and oversight across the prison system.

More generally and as you are aware, the Victorian Government has commissioned an independent cultural review of the adult corrections system (the cultural review), and DJCS is now implementing its own Integrity Strategy. These key pieces of work are part of our ongoing commitment to strengthening integrity in the large DJCS portfolio where there are unique corruption vulnerabilities and challenges.

DJCS is committed to continuous improvement in the correctional system and will continue to take action to reduce the risk of inappropriate, corrupt, and unethical behaviour amongst staff, and investigate those who do not meet our high standards.

There remains more work to do, and I note the important role your office plays in identifying opportunities for improvement.

Overall conclusions

This report examines a small number of incidents of use of force, but in a broader context, which includes evidence from multiple sources over many years, and indicates the extent and nature of the issues.

It must be acknowledged that prisons are inherently challenging environments, that prisoners can frequently exhibit violent and unpredictable behaviour as a result of which force may be necessary in the interests of safety and good order, and
that allegations made by prisoners are not always justified.

But the evidence from these investigations and other complaints received by my office, combined with previous reports and reviews, illustrates the persistent and endemic nature of the problem, despite the efforts of Corrections Victoria to address the issues. Allegations of unreasonable use of force do not appear to be declining and the incidents in this report present a disturbing picture.

Our investigations focused on incidents which occurred at the MRC and the MAP. The likelihood of use for force incidents happening and escalating is greater in these remand environments, given their shifting populations. However, these cases point to broader cultural issues. The underlying causes for force being used unreasonably against prisoners are the same across the prison system.

Corrections Victoria has updated the Commissioner’s Requirements to clarify and limit when force should be used. They are increasing the use of BWCs, and their recruitment is focused on finding candidates with the appropriate attitude and capabilities.

But the problem remains. In some cases, performance management processes are failing to identify and act decisively on patterns of poor officer behaviour. Corrections Victoria needs to focus on improvement actions in this area and ensure that these actions translate into meaningful cultural change. So long as the culture of prisons goes unchanged, unreasonable uses of force and assaults will continue to happen.

In response to a draft of this report, the Department stated:

It is not a matter of [Corrections Victoria] identifying patterns of behaviour. It must respond in line with the parameters of
its operating environment. This includes the [Victorian Public Service] Enterprise Agreement, whole-of-government Management of Misconduct Policy and various legislative and policy requirements.

The aim of this report is to shed light on the issues raised by these investigations and consider their relevance to the broader prison system. While it does not purport to solve these longstanding and sometimes intractable issues, it seeks to expose what is too often hidden. By better understanding the causes for unreasonable use of force and the circumstances which allow a negative culture to flourish, prisons can take more effective action.

Reports like this one and IBAC’s Special report on corrections can inform the Victorian Government’s Cultural Review of the Adult Custodial Corrections System and contribute to improving the safety and wellbeing of staff and prisoners.

Recommendations

Our recommendations are informed by our investigations and other complaints. We provide these recommendations for change to the Department for action, but also to inform the Cultural Review of the Adult Custodial Corrections System in generating options to ‘drive cultural change and promote appropriate behaviour that is consistent with a culturally safe and integrity based corrections system’ in Victoria.

It is recommended that the Department:

Recommendation 1

Increase officer accountability for body worn camera activation by adding fields to incident reporting templates to capture:
a. whether each officer was wearing a body worn camera
b. if so, whether the body worn camera was activated for the duration of the incident
c. reasons for any failures to activate a body worn camera for the duration of the incident.

Department response:
Accepted.

Recommendation 2

Improve compliance with body worn camera activation requirements by establishing quarterly audits of BWC activation data across all Victorian prisons.

Department response:
Accepted in principle.

Recommendation 3

Improve CCTV coverage of use of force incidents in Victorian prisons by:
a. eliminating CCTV blind spots in corridors and entrances to unit holding cells
b. conducting a review of at least 12 months of data about use of force incidents, assaults and alleged assaults by staff on prisoners, to identify high-risk locations in order to eliminate CCTV blind spots in these locations.

Department response:
Accepted in principle (part a) and not accepted (part b).

Recommendation 4

Issue formal guidance to prison officers requiring them to use CCTV-monitored areas, such as holding cells, whenever possible while having conversations with prisoners in which they address prisoner behaviour.

Department response:
Accepted in principle.

Recommendation 5

Review the effectiveness of current training programs for prison officers in de-escalation techniques, including considering more frequent training.

Department response:
Accepted.

Recommendation 6

Review the practice of securing prisoners to cell doors by placing a baton through their handcuffs while their hands are through the trap, with a view to:

• determining whether this is an appropriate restraint technique
• if so, ensuring that there are appropriate procedures, guidance and training in place around the use of this technique.
  

Department response:
Not accepted.

Recommendation 7

Review the information provided to prisoners during orientation about use of force to ensure that prisoners are receiving clear information about their rights and their avenues for complaint.

Department response:
Accepted.

Recommendation 8

Review recruitment, vetting and probation processes for public prisons to ensure they are rigorous and effective in screening out unsuitable candidates.

Department response:
Accepted.

Recommendation 9

Ensure that private prisons have recruitment, vetting and probation processes in place which are rigorous and effective in screening out unsuitable candidates.

Department response:
Accepted in principle.

Recommendation 10

Ensure prisons are actively monitoring and addressing officer conduct issues by:
a. developing a centralised system for accessing information about officer conduct complaints and investigations
b. incorporating regular reviews of complaints against individual officers into annual performance development cycles
c. providing additional training and support to managers to help them effectively address officer conduct issues though performance development and management processes.

Department response:
Accepted.

Recommendation 11

Build a culture of transparency by:
a. reporting publicly and annually on the number of:

• use of force incidents
• alleged assaults by staff on prisoners
• staff on prisoner assaults in the Victorian prison system for the previous 12-month period.
  

b. reporting to the Victorian Ombudsman every six months on the number of:

• use of force incidents
• alleged assaults by staff on prisoners
• staff on prisoner assaults for each Victorian prison, by month, for the previous six-month period.
  

Department response:
Accepted in principle.

Recommendation 12

In addition to the recommendations made above, the Ombudsman supports the following recommendation made by IBAC in its June 2021 Special report on corrections:

That the Victorian Government amend section 22 of the Corrections Act 1986 (Vic) to introduce a statutory obligation on corrections officers to report to the prison governor or to IBAC if they have a reasonable belief that another officer has engaged in corrupt conduct, and that an appropriate penalty for failing to comply with section 22 be imposed.

Department response:
Accepted in principle.

Victorian Ombudsman’s Update Draft Omnibus Report — DJCS response (May 2022)

Appendix 1: Jurisdiction and procedural requirements

Authority to investigate and make enquiries

The Ombudsman has jurisdiction under the Ombudsman Act 1973 (Vic) to investigate public interest complaints about conduct by or in an ‘authority’ or ‘public interest disclosure entity’.

The MRC and the MAP are part of Corrections Victoria, which is a business unit of the Department of Justice and Community Safety. The Department is an ‘authority’ by virtue of section 2(1)(a) of the Ombudsman Act.

The seven public interest complaint investigations referred to in this report were conducted pursuant to section 15C of the Ombudsman Act, which provides that the Ombudsman must investigate a public interest complaint, subject to sections 15D, 15E and 17. The eighth matter was determined by IBAC not to be a public interest complaint and was
investigated pursuant to section 16A of the Ombudsman Act, using the Ombudsman’s own motion powers.

The investigation also used the Ombudsman’s own motion enquiry powers under section 13A of the Ombudsman Act to gather further information which was used in this report.

Procedural fairness and privacy

Each investigation referred to in this report was reported separately to the Secretary of the Department of Justice and Community Safety and the Minister for Corrections. Those investigation reports contained adverse comments or opinions about individuals that are also in this report. In accordance with the requirements of the Ombudsman Act, each of those individuals was given a reasonable opportunity to respond to the relevant material in the individual reports before they were finalised and their responses were fairly set out.

All individuals referred to in this report have been deidentified. Each individual has been given a pseudonym in order to protect their privacy.