Daily Reporting: Wayne Fella Morrison Inquest

In Caroline Andersen’s apartment is a half-finished work of art. It was her son, Wiradjuri, Kookatha and Wirangu man Wayne Fella Morrison, who painted it. He was a perfectionist. It was his third attempt, she said, to get it right for her. He didn’t get to finish it.

This week, starting 27 April, the inquest into Fella’s death in custody starts again for another round of hearings. It has been plagued by delays — the last time Fella’s family sat in court was in late 2019 — driven by Correctional Services staff who challenged core processes of the inquest. This time, the inquest opened with a reminder of the delays as Counsel Assisting described what has occurred since it last sat.

In a Supreme Court judicial review, eighteen Corrective Services officers and one nurse sought Coroner Basheer’s removal from the case for apprehended bias and sought to claim a form of novel legal protection called ‘penalty privilege’ — where individuals cannot be forced to produce evidence that would subject them to a penalty. A penalty, Justice Blue then remarked, includes ‘loss of office or dismissal from public service’, ‘exposure to disciplinary sanctions’, and ‘reprimand[s] or reduction[s] in rank.’ The officers won on the question of penalty privilege — it was still available in the SA Coroners Court. They did not succeed on Coroner Basheer’s recusal.

This September marks five years since Fella was placed face down into a South Australian Corrections van, feet tied, hands cuffed and covered in a spit hood. He was surrounded by seven officers who have so far not testified. He never regained consciousness.

In a video released the day before the inquest recommenced, Caroline said: ‘I want to know what happened. I want to know regardless. I want to know what happened in the back of that van.’

Day One

The first day of the inquest saw three witnesses, all Corrections Officers at Yatala Labour Prison where Fella was placed in the back of a van. None of them were involved in using force against him.

The first witness, Michael Penn, contended that the CCTV evidence purported to show him coming in to work the afternoon after Fella was hospitalised was indeed footage of that day. The morning was spent analysing, scene by scene, the footage for clues that would indicate it was anything but an usual day. He remarked: ‘The floor may have had a watery blood solution on the ground. It looked dirty.’

The first thing he learned about there being a death in custody that day, Penn said, was the presence of police officers and an investigator. It wasn’t until that investigator mentioned they were on a coronial matter, he told the court, that he realised there was the possibility of a death in custody.

Once he realised that possibility, Penn said, he called lawyers on behalf of the Correctional Officers’ Legal Fund. He then called another prison officer and ‘advised’ or ‘asked’ him to not upload reports from other officers until they sought legal advice. The effect of not uploading the reports about Fella’s death, he noted during questioning, was that management would not receive them.

Counsel for Fella’s family, Claire O’Connor SC, put to Penn — ‘It certainly wasn’t your role as a Correctional Officer at work that day, to tell him to stop uploading. You were telling him as a member of the executive of the legal fund [for Corrective Services officers]?’

‘Yes.’

O’Connor later asked — 

‘It’s now 2021. Have you got any views now that might assist the Coroner in her findings?’

Penn replied — 

‘I have no view. I feel that by taking this process, I’m actually being bullied into something that should have been protected by legal professional privilege.’

‘By the court process?’ Coroner Basheer asked. 

‘Yes.’

***

The afternoon of the first day was dominated by two witnesses, Shirley Bell and Darren Hills, who gave evidence on administrative concerns at Yatala Labour Prison, including the intake procedures of First Nations peoples. Those in attendance heard that Wayne Fella Morrison was not marked as Indigenous on intake, impacting his treatment and where he was placed inside. Prison management, from staffing to training to administration, Bell told the court —

‘It always has been about the money. It’s still all about the money […] We’re at a critical place in Yatala at the moment […] people locked down for days and days’ without calls, visits or yard [fresh air].’

Hills, who was in Yatala around the time Fella lost consciousness and sought out a nurse, spoke of changes to Yatala Prison practices and Corrections more generally since Fella’s death. Vans, he said, no longer have an area to lay down a prisoner. 

However, he had not heard of nor received a memo about 2020’s SA Ombudsman review around Fella’s death. Similarly, he answered on questioning, there had been no changes to training about intake and First Nations people, no further restraint training offered, and CPR and first aid training occurring only every three years. Hills told the court he had never been told it might be dangerous to put someone in a van, face down with a spithood and restrained.

‘Have you been told anything [about that risk] since [Wayne’s death]?’ O’Connor asked.

‘No, I haven’t.’ he said. ‘You work that out over time.’

On how Fella was restrained, Hills later suggested ‘I may have done it differently. Everyone works differently and thinks differently.’ 

Before the court adjourned for the day, Hills said he didn’t ‘condone’ how Fella was treated.

Day Two

The second day of new hearings in the inquest into the death of Wayne Fella Morrison has adjourned early after a scheduled witness was no longer required to appear. 

Instead, the court heard from Corrections Officer Kym Golding at Yatala Labour Prison, who had already been brought before the inquest in 2018. He was recalled after evidence was raised in a separate inquest about intake processes for Fella.

Golding, the court was reminded, was the officer who completed Fella’s intake interview. In the evidence shared with the court, Golding was not trained in the intake procedures and did not refer Fella to the medical bay with a notice of concern ‘because his score’ of risk ‘was only 8’, short of the 9 he thought required for notice. However, counsel for Fella’s family put to Golding, there were other criteria that Fella met on the forms that required a notice of concern, which Golding had ticked on the paperwork without following through.

‘Did you not understand that that box is telling you when to raise a notice of concern?’ 

‘No.’ he replied.

At times, Golding expressed confusion ‘because there were two’, referring to a death in Yatala fourteen months after Fella’s death at which he also gave evidence.

When asked about his interview and subjective assessment of Fella’s welfare, Golding said:

‘All he wanted to do is get to [a lower security unit] because his brother was there. I said: “Anything like this, they put you into [the high security unit]. Obviously he didn’t want to do that, he just wanted to be with his brother. 

[…]

He wanted to go be with his brother and his cousins, which a lot of them like to do.

[…]

It’s not training, it’s just common sense isn’t it? He was happy, he wanted to go to [the lower security unit], so I was like: “No worries.”.’

Day Three

Something had shifted by the afternoon of the third day. More lawyers appeared at the bar table after lunch, their faces shadowed and attentive. 

The court dismissed Correctional Officer David Haddington after a few questions after lunch. He had given evidence about what occurred in the aftermath of Wayne’s death. In the late morning, he’d testified that he’d been told to stop uploading reports until lawyers attended (‘Well, that seems reasonable.’) — a conversation he later conceded he didn’t remember until ‘Ronnie [Joseph] told me about it.’ When asked about further training he was asked to attend on restraint practices in 2018, the court heard Haddington had replied, calling it ‘garbage’. ‘It was a bit arrogant on my part.’

Before Haddington, Ron Joseph was called. Joseph, another Correctional Officer at Yatala Labour Prison, has been the subject of evidence earlier this week. He ceased uploading incident reports from Correctional Officers at 3.50pm.

‘If the last report is uploaded at 3.50pm, this court proceeds on the basis that about that time Mr Penn phoned you with the request that you stop?’ Counsel Assisting put to him.

‘There’s a possibility.’

‘If it’s at 3.50 and you stop because of the phone call from Mr Penn, that suggests the call happened around the time you’re stopping, yes?’

‘Possibly, yes.’

Under questioning, Joseph replied: ‘It was four and a half years ago, I don’t recall the exact content of the conversation.’ Nor, he later clarified, did he recall where he got each individual incident report from.

After he stopped uploading the reports, the court saw on CCTV tendered, he left the room with a paper folder and a radio. ‘Is it a fair inference that the last vision of this would suggest you’re now leaving the building?’

‘Could be, I don’t know.’

‘Were you taking the material in the folder somewhere to show someone?’

‘I don’t recall.’

The Court was later shown footage of Joseph at the gatehouse with lawyers and other prison staff. ‘You’re talking, you’re gesticulating. What are you talking about?’ 

‘I don’t recall.’

***

The court resumed after lunch at 2.15pm with the news that the inquest will likely return to the Supreme Court for the third time.

It heard an application from Michael Abbott QC, representing Correctional Officers, ‘to test Your Honour’s ruling’ when the matter sits next week to hear from the seven people in the van with Fella as he lost consciousness. The Supreme Court handed down findings last year on the question of penalty privilege — now, the officers were seeking to use it to refuse whole topics of inquiry. 

Counsel for the family submitted that officers should take the stand as witnesses and claim the privilege question by question.

The 2020 ruling provided that: ‘[t]he onus lies on a witness to make a specific claim of penalty privilege before answering a specific question.’ They must ‘demonstrate a real and appreciable danger that the answer may incriminate the person of conduct that may give rise to a penalty.’

Abbott proposed that all the officers in the van with Fella appear on one day, and each be asked the same question that they can then claim the privilege over. They could then, he submitted, get all relevant rulings from the Coroner and apply as one to the Supreme Court. 

‘My intention is to cause minimal disruption.’

 Full submissions will be heard on Monday.

The inquest continues tomorrow with the evidence of Detective Brevet Sergeant Jason Olsen, one of the investigating officers from Police Corrections Section. 

Before the court adjourned for today, he revealed that some investigating police were not allowed into Yatala with their equipment. Olsen told the court that he was told officers had gone home before they could give statements, officers who were later found to be in the prison. The van in which Fella lost consciousness, he said, was cleaned before investigators arrived. 

Day Four

Day four of this sitting of the inquest into Wayne Fella Morrison’s death lasted for less than half an hour.

Detective Olsen gave brief further evidence on his investigation in the evening after Fella lost consciousness in the van.

‘In terms of the evidence you gave yesterday, it appears from your notes that your focus was on a crime that may have been committed against Mr Morrison?’ 

‘Yes.’ Olsen replied.

***

Coroner Basheer set out the plan for the following week of hearings. The officers who were in the van with Fella, who are yet to reveal what happened in those three minutes off CCTV, were set to give evidence. 

Instead, on Monday, the Coroner will take oral arguments on whether those officers must attend court at all in order to claim penalty privilege. 

Her Honour said she anticipated that a ruling would come down on Tuesday afternoon and has tentatively set down Wednesday to commence evidence from the officers.

For now, Fella’s family once again wait.

***

Two further deaths in custody were announced while the inquest into Wayne Fella Morrison’s death sat. One in NSW’s Cessnock Correctional Centre and the other in Port Phillip Prison in Victoria. They are the seventh First Nations deaths inside since March this year.

The inquest continues, and a team of First Nations researchers will keep you updated here as it does.

Day Five

Day five of the resumed inquest hearing into Wayne Fella Morrison’s death in custody lasted for a mere 20 minutes.

The court room was jammed full of lawyers on the left side, with supporters of Fella’s Family on the right, and other supporters pushed out into the overflow hearing room.

Today, Deputy State Coroner Basheer was expected to hear legal submissions on whether the seven prison officers in the van with Wayne in the last conscious minutes of his life would be required to front the court to answer questions publicly.

Counsel for Fella’s family, Claire O’Connor presented a written submission in support of the prison officers taking the stand as individual witnesses.

Coroner Basheer invited Michael Abbott QC, representing the seven corrections officers in the van, time to consider the written submission.

While Abbott stated that he wished to reply to this submission orally, the lawyer assisting the Deputy State Coroner requested time to review the written submission submitted by O’Connor out of respect to the family’s submissions.

Tomorrow we will hear responses to the Fella family’s written submission. We will also hear the further legal arguments from the multiple lawyers representing the seven officers in the van, as to whether they can be compelled to answer the questions Fella’s family have been waiting to ask them for almost five years.

The Deputy State Coroner said she anticipated that she would deliver her ruling on Wednesday afternoon, and has tentatively set down Thursday to commence any questioning of the officers in the van.

Court will resume tomorrow morning at 10am Tuesday 4 May.

Day 6

On the sixth day of new hearings in the inquest into the death of Wayne Fella Morrison we heard arguments around the application of the ‘penalty privilege’ for the seven officers in the van.

To recap, Michael Abbott QC, representing the officers in the van, proposed that the seven officers appear before the court, and each be asked the same question that they can then claim the penalty privilege over. If this privilege is granted, the officers would be excused from answering questions from the Deputy State Coroner and Fella’s family.

Because the ‘penalty privilege’ can only be claimed by an individual, Abbott QC was joined by Allen QC, acting on behalf of the South Australian Department of Correctional Services. A further twelve barristers and legal practitioners were present, each representing the correctional officers. In total, a team of fourteen counsel appeared in the court room today on behalf of the seven correctional officers in the van.

The court opened with comments by Michael Abbott QC on behalf of the seven correctional officers regarding their argument on the application of the penalty privilege.

In Abbot QC’s words, questions asked of the officers over the course of the coronial inquest “would expose each of the seven officers to criminal or civil penalties or indeed disciplinary penalties”.

Speaking on behalf of the officers in the van, Abbott QC submitted that any questions about the correctional officers training, knowledge of procedures and their conduct may lead them to incriminate themselves. Abbott questioned the purpose behind calling on the seven officers as individual witnesses. In presenting his argument, he elected to draw on a cricket analogy:

What would be the point other than to prolong the eventful outcome by questioning a van officer on topics that will go nowhere, as it will infringe to privilege? What is the point? The only point is to produce a very slow and long run up to the crease, which in this case attracts the privilege, which is a no ball.

Because the penalty privilege can only be claimed by an individual, the court then heard from the separate counsels representing each individual officer regarding why they each sought to claim the privilege. The legal counsels representing the seven officers in the van adopted all submissions presented.

***

Court resumed at 12pm after a short break for morning tea. Counsel for the Morrison family, Claire O’Connor SC, responded by characterising Abbott’s submission on the penalty privilege as “frustrating the intention of the Coroners Act to investigate a death in custody”. In her words,

It’s an attempt by these officers to derail this inquest… I am addressing what the reality of this is. Since the beginning of this inquest, there has been every attempt by the correctional officers involved [especially the van officers], to not provide answers to you [the Deputy State Coroner] and to the family members about what circumstances less to Mr Morrison’s death.

***

Today we also heard from Counsel Assisting, who too responded to Abbott’s proposed application of the penalty privilege. Counsel Assisting argued that there would be “great logistical difficulties” in applying the penalty privilege universally to the seven officers in the van, as the penalty privilege can only be claimed by an individual

Counsel Assisting expressed:

You cannot deal with this as a job lot. Not only because they [the seven officers in the van] were seated in different parts of the van, but also because of what they have said in their interviews and incidents reports.

***

The Coroner anticipated delivering a ruling on the question of the application of the penalty privilege by early Wednesday afternoon. The court will not convene for this purpose, and instead the Coroner will provide this ruling via email.

Before the court adjourned for the day, QC Abbott expressed:

Whichever way your honours ruling goes, we have all the van witnesses here on Thursday. Thursday will be the start of the van officers. At some stage the privilege will be taken, at this stage we just can’t say when.

Again, Fella’s family waits.

Day 7

This afternoon the Coroner handed down her decision on the question of the application of penalty-privilege and the privilege against self-incrimination.

The Coroner ruled in favour of Wayne’s family: the seven officers in the van will be called upon to provide evidence as individual witnesses.

This means that each officer will not be able to refuse whole topics of inquiry. Rather, they will have to take the stand and claim the penalty-privilege and the privilege against self-incrimination question by question.

In her ruling, the Coroner also handed down a decision regarding the ordering of witness questioning.

Counsel Assisting would usually be the final party to ask questions of witnesses. As several of the counsel representing the seven in the van have declined to lead evidence, the questioning of the officers will instead be led by David Crocker, Counsel Assisting.

Coroner Basheer set out the plan for hearing evidence from the seven officers in the van.

Two of the seven will appear in the court tomorrow. The remaining officers will give evidence from next Tuesday, with two officers called upon each day.

After nearly five years, tomorrow Fella’s family will begin to come face-to-face with the seven officers who were in the van with Wayne in the final moments of his conscious life.

Day 8

The inquest into the death of Wayne Fella Morrison resumed at 10am on Friday, following Coroner Basheer’s ruling on the application of penalty-privilege and the privilege against self-incrimination. 

The team of lawyers and Counsel representing the seven in the van seemed to have grown this morning, with every seat on the left side of the courtroom occupied by a member of their legal team. The right side of the courtroom was full of supporters of Fella’s Family. Every seat in the overflow room was taken and the court opened a second overflow room to accommodate those who had shown up in support of Fella’s family. 

Mr Trent Hall (Correctional Officer, Yatala Labour Prison) was the first officer called upon to give evidence. Hall was one of the seven guards in the van with Fella, before he was pulled unresponsive from the van in 2016. Today was the first time that Fella’s family had come face-to-face with Hall, since Fella died almost five years ago.

Questioning was led by Counsel Assisting. After just three minutes Counsel Abbott QC, representing the seven in the van, objected to Counsel Assiting’s line of questioning. Hall was stood down by the Coroner, while the Counsels once again submitted arguments regarding the application of the penalty-privilege and the privilege against self-incrimination.

The Coroner directed Counsel Assisting to clarify his intended line of witness questioning. Counsel Assisting stated that he wished to ask Hall about the 2:05 minute journey in the van. 

He wanted to show Hall the CCTV footage from before Fella was carried into the van. He wanted to ask about the journey, including whether Hall had ever travelled in the prisoner transport van on any other occasion, what the expectations are of different guards when transporting prisoners in the van, and whether the van was still reversing into the sally port when the Code Black was called. He also wanted to ask Hall why a Code Black might be called in the prison. He wanted Hall to clarify what was included in his incident report and to ask Hall about “certain observations” that were made in the report.

Claire O’Connor SC, Counsel representing Fella’s family, argued that that the Coroner needs to be satisfied that there was a “real and appreciable risk” that these questions had the potential to invoke the penalty-privilege and the privilege against self-incrimination. 

In her own words: 

We are all sitting here wondering what the “real and appreciable risk” of the officer is in that van. Your honour has to sit back and say, am I satisfied that the answer of any questions in relation to the van pose a real and appreciable risk, or is this just an attempt to come here and not answer questions? 

Counsel Abbott QC submitted that almost every question except the officers’ names, job descriptions, and starting dates exposed the officers to a risk of self-incrimination for criminal offences or civil penalties. 

After a long debate and approximately one hour of submissions relating to the application of the penalty privilege and the privilege against self-incrimination, Hall was called back as a witness. 

Coroner Basheer directed Counsel Assisting to ask Hall questions relating to the journey in the van. 

Counsel Assisting: Mr Hall, did you get into the back of the van with Mr Morrsion?

Abbott QC: My client wishes to claim the penalty-privilege and the privilege against self-incrimination.

Mr Hall: I decline to answer the question on the grounds that I genuinely believe that the answer may incriminate me on the grounds of a civil offence or a disciplinary penalty. 

Hall was once again stood down by the Corner, and Counsels continue to make arguments regarding the real and appreciable nature of the risk of self-incrimination for criminal or civil penalties. 

The witness was called back to the stand by the coroner at 11:53am, and Counsel Assisting was directed by Coroner Basheer to repeat the question. 

Counsel Assisting: Mr Hall, did you get into the back of the van with Mr Morrsion? 

Mr Hall: I decline to answer the question on the grounds that I genuinely believe that the answer may incriminate me on the grounds of a civil offence or a disciplinary penalty. 

Coroner: I uphold the claim to privilege and ask Counsel Assisting to proceed to the next question/topic relating to the journey in the van.

Counsel Assisting continued to ask Hall questions relating to the journey in the van. Where Hall sat, if he could see out the back of the van, if he had a radio, if he spoke to any of the officers in the van.

QC Abbott objected to every question, and these objections were upheld by the Coroner.

Coroner: I believe we have reached the point where any further cross examination of this Witness [in relation the journey in the van] is futile.

Hall is once again asked to stand down and the Coroner continues to hear submissions relating to the application of penalty privilege and the privilege against self-incrimination, up until we break for lunch.  

At one stage, Abbott QC notes the impact of questioning on Hall, and how distressing this has been for his client.

‘This has been hanging over his head for 5 years’, Abbott QC stated.  

This was said in front of Fella’s family, who have been waiting for almost 5 years to hear from the officers who were in the van with Fella in the final moments of his conscious life. 

***

The court resumed after lunch at 2:15pm, with Hall once again taking the witness stand.

Counsel Assisting is now asking questions relating to the holding cell. 

Counsel Assisting: Did you respond to a code yellow on the afternoon/late in the morning on the 23rd of September 2016?

Hall once again claims privilege. 

The Coroner asks Counsel Abbott QC to clarify the grounds on which his client is claiming the privilege. In Abbotts own words: 

The answer has the tendency to incriminate himself. Currently on his oath he has not given any evidence to suggest that he was at Yatala prison on the date of the incident. If he admits that he was there, then that strengthens the case.

The Witness is once again asked to stand down by the Coroner, while Counsels submit arguments relating to the application of the penalty-privilege and the privilege against self-incrimination.

Counsel Abbott QC opposed Hall being questioned about whether he was present for the Code Yellow because, Hall’s answer may place Hall at the scene. This is despite the CCTV footage showing Hall getting into the van. 

Coroner: Are you suggesting if he [Hall] responds to a question about a Code Yellow he may incriminate himself?

Counsel Abbott: Yes he would. Because that places him there. He will be incriminating himself from his own mouth. The privilege against self-incrimination extends to the witness giving any answer that may incriminate him to a crime or expose him to a penalty.

Coroner: Are you suggesting there is some question mark in terms of Department knowledge of whether or not Mr Hall was there?

Counsel Abbott: No. 

Coroner: This is what it sounds like

The witness is called back into the courtroom, and Counsel Assisting is directed by the Corner to repeat the question about the Code Yellow. 

Hall claims the privilege. This time however, he is directed by the Coroner to answer the question. This means that the Coroner does not agree with QC Abbott’s submission regarding the application of the penalty privilege and privilege against self-incrimination. If Hall refuses to answer, he would be in contempt of the court. 

At this point, Abbott QC asks for an adjournment to test the Coroner’s ruling in the Supreme court. 

The Coroner noted that Abbott QC can contest the ruling with an injunction, but she did not intend to wait any longer. 

“There’s been delays, it’s been 5 years now this family has waited. I intend to press on”, stated Coroner Baheer. 

If Abbott QC is successful in testing the Coroner’s ruling the evidence will be struck from the record. 

In the final hour of court today, Counsel Assisting asked Hall at least 40 questions. All of which Hall claimed the privilege. 

The Coroner directed Hall to answer many of these questions. 

If Abbott QC tests this ruling in the Supreme Court these answers may be struck from the public record. Consequently, we will not relay the answers here at this point, but the questions included the topics of the quality of the training and supervision Hall received, whether Hall wore gloves and the presence of blood, who else was there, and the duties of different officers in the team including supervision roles.  

Today, we were meant to hear from two of the seven officers in the van, however there were delays in Witness questioning, with the majority of the day spent listening to arguments around the application of the penalty privilege and the privilege against self-incrimination. 

The inquest will resume on Tuesday at 10am, starting with the remainder of Hall’s evidence.

If you haven’t already, please sign the petition launched by Fella’s family last week calling for an immediate and permanent ban on the use of spit hoods across the continent. 

Change.org/banspithoods 

Day 9

The coronial inquest into the death in custody of Wayne Fella Morrison continued on Tuesday 11 May 2021.

As usual, the courtroom was brimming with lawyers for the guards and the state. Mob continued to show up to support Fella’s family in the overflow courtroom to watch via videolink.

The inquest commenced where it ended last Friday, with Officer Hall – one of seven officers who were in the van with Fella – refusing to answer questions by claiming the privilege of self-incrimination or penalty. This ‘privilege’ means witnesses don’t have to answer questions which could implicate them in a criminal offence or civil penalty, like a fine or disciplinary proceedings.

The majority of the day, like much of the inquest so far, has faced delays and much of the court’s time has been spent dealing with regular objections from lawyers about technical legal arguments relating to privilege, while Fella’s family silently watches on. Coroner Basheer described an application from officer Kay to avoid giving evidence as “blatant rudeness, to be blunt, and a dismissive attitude towards the work of this court”.

Fella’s family, as we know, have waited five long years for answers from these officers who were in the back of the van with Fella when he took his last conscious breath.

Coroner Basheer acknowledged that:

I sometimes feel that people are forgetting that this is an inquest into the death of a young man who had never been in prison before, a young man who was deeply loved. And I ask people to remember that.

On Tuesday morning, the Counsel assisting wanted to show Hall a video of the holding cells. We are shown the footage. We see Fella being brought into the holding cells. Several minutes pass, then Fella comes back into view. He is wrestled to the ground and forcefully restrained by a group of guards.

Abbott QC for Hall argued that he did not have to answer questions about the video, his involvement in the restraint or other officers’ involvement:

Coroner Basheer: Your claim is that anything on the topic is evidence. 

Abbott QC: Again it’s not a matter of other evidence, it’s a question of my client from his own mouth incriminating himself… privilege protects him, it may be insufficient shield but it is a shield.

This was on the basis that on the medical evidence from Dr Cheryl Charlwood (Forensic Pathologist, Forensic Science SA), the incident of restraint shown in the footage is “one of the potential causes and causation of death”. In light of this, Abbott QC argued, Hall could not be asked any questions about his involvement in this incident, for risk of self-incrimination, not only of disciplinary proceedings but offences relating to s 31 of the Work Health and Safety Act. Under that section, a failure to discharge duties could give rise to reckless conduct, with a penalty of up to 5 years imprisonment.

Counsel Assisting conceded this point:

It may well be that any question of Mr Hall about what he did in terms of the restraint, and we know from other material he is involved, is on the wrong side of the line of privilege.

Abbott QC later stated:

It looks like a joint enterprise… If a man can say ‘I didn’t rob the bank’, but he can be asked if he heard one of his friends asked about robbing a bank, it implicates him. It’s the same thing.

The Coroner ruled that officer Hall doesn’t have to answer questions about the video, or what happened when the guards restrained Fella, to avoid incriminating himself. The questions and answers from officer Hall about what happened in the van, the entry to the prison, and the holding cells from Friday afternoon from 3.49pm to mid-Tuesday morning are struck from the record so he doesn’t incriminate himself.

I am satisfied that the privilege is properly invoked from the point at which Mr Hall arrives in the vicinity of the initial restraint. For that reason I do expunge from the transcript questions given from pages 5528-5558.

The process is slow and frustrating, most of all for the family who are watching this process unfold. Coroner Basheer had this to say: 

It must be causing a lot of trauma to the Morrison family to come here each day and listen to these complex legal arguments about privilege, when what they are wanting is answers.

The guards’ answers to questions are frustrating for the family to sit through. When officer Hall does answer questions, his responses are unclear. On multiple occasions, he doesn’t remember or doesn’t answer the question properly – saying “I can’t be sure”, “I don’t have any memory”, “possibly”, “I might have been.” At one point, the lawyer assisting the Coroner asks “You are doing the best you can here in giving truthful answers?” and he responds, “Yes.”

In the afternoon, the lawyer assisting the Coroner tries to get officer Hall to accept an employee incident report, which bears his signature, and his interview with investigator Muller as a true and correct record of what happened, but his lawyer claims privilege, again. Coroner Basheer was not impressed with Abbott QC: 

You’ve been here a day and half, and you haven’t discussed this with him? I find that extraordinary. It’s one thing to start out with the application that the witnesses shouldn’t take the witness box and now I’m being told there’s some broad claim of privilege without lawyers of your skill having discussed key documents with the witness.

In the end, the Coroner directs Hall to answer whether he wishes to review the documents, and he declines.

The day ends with Hall admitting that, to his knowledge, the training for Yankee supervisors hasn’t changed since Fella’s death in 2016. And that he hasn’t received any training since it happened. 

It’s a striking admission to conclude the day.

The inquest will return tomorrow with Hall continuing to give evidence, and more guards scheduled for later in the day. At the current pace, the inquest will drag on excessively, while Fella’s family wait in vain for answers. 

Day 10

Wayne Fella Morrison’s inquest resumed at 9.30am on Wednesday. You could feel the tension in the room today. 

First up, O’Connor SC for Fella’s family noted the futility in continuing questioning of Trent Hall, one of the officers who were in the van with Fella: “my client does not want us to ask any more questions of a witness who is not going to answer what happened.” Abbott QC (for Hall) objected on the basis that this submission was “purely for publicity.” The Coroner noted that Hall was asserting his legal rights in a “robust way”, as the law currently applies. Hall was then dismissed as a witness. 

Barrister Jane Powell appeared for the next witness, Mr Jean-Guy Townsend (Correctional Officer, Yatala Labour Prison), who was sworn in. Townsend was also an officer who was in the van with Fella, who could shed light on those crucial missing three minutes before Fella was pulled unconscious from the van. The court is told that he is no longer a Correctional Officer, and he does not appear in uniform. 

Counsel Assisting questions Townsend, who informs the court that he worked at Yatala Prison since 2014. The highest rank he obtained was “CO2”, which is one of the more junior roles without supervisory responsibilities. 

A few minutes into his testimony, Townsend claims the privilege on the grounds of self-incrimination. We observe a similar pattern with Townsend from the last few days of the inquest with Hall. The witness takes the stand, is asked a question, they claim privilege on the basis of self-incrimination and/or penalty privilege, and then are stood down while there are submissions between counsel and the Coroner on whether privilege applies to that question. 

The Coroner upholds claims of privilege (meaning that the witness does not have to answer) for questions on the topic of the van, the sallyport, the restraint and the Code Yellow. Further, the Coroner rules that the following topics risk self-incrimination:

– any events leading up to Mr Townsend’s role in the original restraint

– his role in loading Fella into the van

– circumstances in the holding cells.

For other topics, the Coroner directs Townsend to answer the questions. 

Counsel Assisting notes that immediately after Fella was taken from the prison in an ambulance to hospital, there was a meeting held in front of the sallyport, described by many witnesses as a “hot debrief”. When asked if he was present at the meeting, Townsend claims privilege but is directed to answer. Townsend describes this as a “Tool Box” meeting. We are told, this is a meeting of the officers involved and at least one manager. 

Counsel Assisting asks Townsend what the manager (Mr Hoskins) said at the meeting:

Counsel Assisting: I understand you may not know the exact words, but what was he talking about? What topics?

Townsend: He spoke about a job well done in a crisis situation. He or another manager went on to talk about the deceased’s offences, why he was in custody, and he confirmed that he was Aboriginal or Torres Strait Islander.

This is extremely confronting and difficult evidence for the family to hear, that after Fella is pulled unconscious from the van, and he never regains consciousness, the officers are told that they did a “job well done”, and are reminded that Fella was Black and of his offences. 

Also at this “hot debrief”,  Townsend tells the Court that the manager, Mr Hoskins, referred the officers “to the Employee Assistance Programme, asked anyone who had a dirty or ripped uniform to change, or go home to change, and to submit reports.”

Counsel Assisting: What did you do to the clothing you took off?

Townsend: I claim privilege

Counsel Assisting: Did management tell you what to do with the clothing when you removed it? 

Townsend: No

Townsend tells the court that the police ultimately seized the clothing from him, and escorted him home. Townsend declines to see a transcript of the interview that he did with Don Muller, the investigator, in March 2017, as well as a copy of the incident report that he filed. 

Before morning tea break, the Coroner made a direction for the witness to view footage which Counsel Assisting intended to show him. After we return, the Coroner is told that he did not watch it. What we then hear from the Coroner is quite extraordinary, emotional and powerful:

I have ruled that the gatehouse is a permissible topic, if I’m wrong so be it… If I’m wrong I’m wrong but I will not tolerate any further delay in these proceedings and have the Morrison family sit at the back of this court and be subjected to what they must wonder is a derailing of their one hope that this inquest might actually probe something that was of interest to them.

 All they have seen from start to finish is a display of lawyers asserting what I accept is their legal rights. But if you think I am frustrated, it is because I am. So I will adjourn until 3 o’clock and please, when I come back, please I assure you I will be composed… And I’m reaching a point where I will decline to hear further submissions. 

There was a feeling of overwhelming emotion in the overflow courtroom, where Fella’s family supporters were gathered. Latoya Rule, Fella’s sibling, responded on Twitter:

For the record: at no other time have I felt validated in my grief by anyone in the court room than the last hour where Coroner Basheer told the court of her frustration, and I feel as though she sees us… and that’s important. No hope in the system, I have hope in people.

After lunch, Powell describes an interview from a taxi driver that drove a corrections officer to gatehouse: “Overheard a phone call with a colleague that was defensive in tone… comments were made to the effect of that’s right keep it in the plastic bag it destroys the DNA.”

Townsend is then taken through the video footage, which he has now viewed. Townsend gives evidence that he was advised by Miss Bell “to not speak about it till we speak to our legal counsel”. In contrast to the evidence received yesterday by Mr Hall, who could not recall if two men in footage wearing suits were lawyers, or why he was in a room with them, Townsend tells the court that he was in the small room “to be attended by my legal counsel” and agreed he had a long discussion with one of the lawyers.

Townsend is asked about the Corrections Specialised Controls, Restraints and Defensive Techniques (CRDT) training that he received:

Counsel Assisting: First, do you agree that it is your opinion that the CRDT that you had received is not efficient or overly safe?

Townsend: Privilege

Coroner: I direct you to answer

Townsend: That is my opinion

He then went on to clarify that he meant “It’s not actually dangerous, but there are risks…” He is then dismissed as a witness. 

Mr Mail, another officer in the van, was sworn in. After only brief questions, court was adjourned. Court resumes 10am-12.45pm tomorrow.

Day 11

Court resumes at 10am this morning. Things are moving at a faster pace today and there are now a number of empty seats on the right side of the courtroom, which previously were full of lawyers and counsel representing the seven guards in the van. 

Officer Mail is the first witness called upon to give evidence. Mail began giving his evidence yesterday afternoon. He is one of the 5 prison guards who were seated in the back section of the van with Fella, before Fella was pulled unconscious from the van. 

Counsel Assisting begins by asking Mail questions relating to the journey in the van – if Officer Mail was present, who else in addition to Mail got into the back of the van with him, and what he heard and saw on this journey. 

The Counsel representing Mail objects to each of these questions and claims the privilege on behalf of her client.

These objections are upheld by the Coroner, as are the witness’ claim to the privilege. 

The witness is now questioned by Counsel Assisting about whether he was present for the “tool box” meeting that took place outside of the sally port.

In Mail’s words, a “tool box” meeting is a “debrief after a major significant incident”.

Counsel Assisting: Her Honour has also received evidence that after Mr. Morrison was taken away in an ambulance from the sally port, there was a meeting on the concrete entrance just outside of the sally port… Were you present for any of that meeting?

Officer Mail: Not that I can recall.

Counsel Assisting then goes on to ask the witness a number of questions relating to the attempts that Officer Mail made to locate a debrief meeting after Fella was pulled unconscious from the van, and transported by ambulance to the hospital. 

Mail states that he went to the visits area and the briefing room in an attempt to find out if a debrief was happening. Counsel Assisting also questioned the witness about whether he was contacted by a supervisor or a manager about his requirement to attend a debrief meeting prior to signing off from his shift that day. 

Mail “did not recall” being contacted by a supervisor or a manager about any sort of debrief meeting. 

Questioning now turns to the Muller interview. Counsel Assisting asks Officer Mail about the interview that he completed with Mr. Muller, about 6 months after Fella’s death. Mail is asked if he agrees that he was interviewed, and made aware that the interview would be recorded and transcribed.

Counsel Assisting goes on to question: You don’t want to read it? You don’t want to tell your Honour if the contents are correct? Whether there is some change that needs to be made? 

Officer Mail: No sir. 

Coroner: I take it that you want to take the privilege in respect of those last three questions?

Officer Mail: Yes, privilege.

Before Mail’s evidence concludes, questioning reverts back to Mail’s attempt to locate a debrief meeting after Fella was taken to hospital by ambulance. Mail states that because he wasn’t able to find a debrief meeting, he clocked off from his shift and went home. 

Counsel Assisting: Do you come back to the Yatala site later that day? Why do you come back?

Officer Mail: I was asked. I had two police officers ask me if I would return. 

Counsel Assisting: So they came to your house?

Officer Mail: *Nods*

Counsel Assisting: Before they came did you know that they were coming to your house?

Officer Mail: *Nods*

Counsel Assisting: Did the police officers want the clothing that you had worn that day at work?

Officer Mail: Ah yes sir, they did take it.

***

Court resumes after a short break, and Officer Shillabeer is called to the stand to give evidence. Shillabeer was also in the back of the van with Fella, in the final moments of his conscious life. 

Before questioning begins, the Coroner interjects:

Is it necessary for Mr Shillabeer to chew gum? Perhaps if you just remove yourself and address that.

Counsel Assisting begins by asking Shillabeer a number of questions about when he began working as a correctional officer, how long he’d worked at Yatala Prison and his current rank.

Counsel Assisting then begins to question Shillabeer about the journey in the van, to which Shillabeer claims the privilege. The Coroner upholds these claims. 

Questioning moves onto the events that occurred in the holding cell. Counsel Assisting asks Shillabeer if he intends to claim the privilege to any question about what he did, saw or heard in the holding cell when Fella was restrained and when he was carried from the holding cell to the van.  

At this stage, the Counsel representing Shillabeer objects, on the basis that she believes answering these questions implies that Officer Shillabeer did observe these things.

Counsel Assisting is directed by the Coroner to clarify his line of questioning.

Counsel Assisting: The first question is, are you going to answer any questions about the restraint? The second is are you going to answer any questions about the carrying?

Coroner: I understand. My question is given the direction of proceedings and the law that I remind myself of, and I am compelled to apply, what is the purpose?

Shillabeer is now asked by Counsel Assisting about the “meeting” held on the concrete outside of the sally port. 

Counsel Assisting: Were you at that meeting? Were any managers at that meeting?

Officer Shillabeer: *nods*

Counsel Assisting: Did Mr. Hoskins’ say anything about whether the officers had done a “good job” or not done a good job?

Officer Shillabeer: I do not recall.

At this stage, the Coroner interjects and cautions the team of counsel representing the seven in the van not to laugh together at jokes during proceedings, stating, “they’re not funny to me or to the Morrison family.” 

Despite not representing either of the witnesses giving evidence today Abbott QC later stand to speak and responds to the comment by the Coroner: 

You said earlier we were making jokes, we weren’t, we are dealing with this matter very seriously.

Coroner: Perceptions are interesting things, between you it may not have been a joke, but I have been urging empathy and respect, especially for the members at the back [referring to Fella’s family].

Abbott QC: I have empathy for everyone involved in these proceedings, and I am not guilty of making jokes.

Questioning now turns to the Muller interview. Like the witness before him Shillabeer states that he does not want to read or adopt the interview that he completed with Mr Muller. 

Before court concludes today, Counsel Assisting shows Officer Shillabeer CCTV footage recorded in the gatehouse at Yatala prison just hours after Fella was taken to hospital. 

Counsel Assisting: So, the video shows that you come out of the room as Mr. Staples goes into the supervisor’s office?

Officer Shillabeer: Yes.

Counsel Assisting: The vision shows Ms Bell on the telephone and you waiting nearby. Why are you waiting?

Officer Shillabeer: I don’t recall.

Counsel Assisting: When was the next time you spoke to any manager?

Officer Shillabeer: I don’t recall

Counsel Assisting: Did Ms Bell telephone you after you had left the gatehouse later on the Friday?

Officer Shillabeer: I don’t recall

Counsel Assisting: And you’re doing the best you can to assist her honour?

Officer Shillabeer: Yes. 

Day 12

Today saw three witnesses give evidence, all Correctional Officers at Yatala Prison who travelled in the van with Fella in the final moments of his conscious life. 

Earlier this week when Officer Townsend gave evidence, Coroner Basheer upheld Townsend’s claim to privilege for questions relating to the restraint of Fella in the holding cell, the journey in the van, and the sally port. The Coroner also ruled that any questions relating to Townsend’s role in loading Fella into the van, and what happened in the holding cell before Fella was carried into the van all risked self-incrimination, and thus Townsend could claim the privilege.

Despite the Coroner ruling against applying the privilege as a ‘job lot’ to the seven officers in the van, the Coroner’s earlier rulings for Officer Townsend, Officer Mail and Officer Shillabeer provided some inclination that similar rulings on the application of privilege may extend to the three witnesses called upon to give evidence today.  

The First witness was Officer McLeod. McLeod was sitting in the middle section of the van for the 2:05 minute journey to the sally port.  

McLeod was asked about when he began working as a Correctional Officer, when he retired, how long he worked at Yatala prison, and his ranking when he retired. Counsel Assisting then began to ask questions about the Code Yellow called on the Friday 23 of September 2016. 

“I suggest that you did answer a code yellow at the holding cells and that you entered that building through door 7.”

McLeod responds, “I decline to answer on the grounds…”

The Coroner interrupts the witness, “you can just say privilege.”

The privilege is upheld by the Coroner and Counsel Assisting is directed to ask questions relating to the restraint of Fella in the holding cell. 

Counsel Assisting asks McLeod about what he saw in the holding cell and about whether he was involved in the restraint of Fella. The witness claims the privilege.

“I uphold the claim, same reason as for previous witnesses”, said Coroner Basheer. She went on to state, “questioning will be futile, I suggest you move to another topic.”

Counsel Assisting is directed by the Coroner to ask questions relating to the journey in the van. McLeod is asked if he got into the van, and what he witnessed and observed on the journey. 

McLeod claims the privilege in response to all of these questions, and this is upheld by the Coroner. 

Questioning moves to the “tool box” meeting that took place outside of the sally port. McLeod is asked whether he recalls the meeting, if he was present and who was there. McLeod gives evidence that he was there, and that Darren Hosking was the acting manager present at the meeting. 

Counsel Assisting asks McLeod if Hosking made any comment in this meeting about people doing a “good job” in a crisis. 

McLeod: Not at that time no.

Counsel Assisting: Did he say that at any other time?

McLeod: Yes, in an email.

Counsel Assisting: When did the email go out?

McLeod: I can’t remember if the email was sent that day or another day.

McLeod is then questioned about what he did after the meeting, and about whether he completed an employee report form. 

At this stage, Counsel for McLeod objects. She submits that this line of questioning invokes the penalty privilege for her client, specifically in relation to the Work Health & Safety Act. 

This objection is overruled by the Coroner, and the witness is directed to answer. 

Counsel Assisting: You understood you had an obligation to fill out such a report?

McLeod: Yes.

Counsel Assisting: Did you?

McLeod: No.

Counsel Assisting: Why?

McLeod: I was advised not to by legal counsel.

***

The next witness called upon to give evidence is Officer Neil Bradford. Bradford was sitting in the passenger seat, in the front section of the van. 

We witness a similar pattern of questioning for Bradford.

Bradford is asked about when he began working as a Correctional Officer, how long he worked at Yatala prison, and his current ranking. Counsel Assisting then begins to direct questions to Friday 23 of September 2016. 

The Coroner upholds the privilege for all questions relating to the holding cell, Bradford’s role in the restraint and use of force against Fella, the journey in the van from the holding cell to the sally port, and any role that Bradford played in administering CPR to Fella 3 minutes after he was carried unconscious from the van. 

Like McLeod, Bradford is asked if he was present for the meeting that took place outside of the sally port after Fella was taken to hospital by ambulance. 

Counsel Assisting: Can you assist how long you were in the vicinity at the meeting?

Bradford: No, I can’t remember.

Counsel Assisting: At some stage you left.

Bradford: I can’t remember.

Counsel Assisting: You must have left at some stage because you’re here today.

Bradford: Correct.

Counsel Assisting explains to the witness that there is CCTV footage showing Bradford returning to the van after this meeting. This CCTV footage shows Bradford getting into the van, and the van travelling from the sally port to another location in the prison, and then back to the sally port. 

Currently, the Coroner has not received any evidence about this movement of the van. 

Counsel Assisting: I suggest you and Mr Kay are bringing the van back.

Bradford: I can’t remember if Mr Kay was there or not. I was there. 

Counsel Assisting: Do you have any memory of the journey from the sally port?

Bradford: I don’t remember

Bradford is asked why the van was brought back from the sally port. 

Counsel Assisting: Do you have any memory of what’s going on, why you brought the van back?

Bradford: No recollection at all.

Counsel Assisting: You don’t remember if someone asked you? One of the managers?

Bradford: No recollection.

Counsel Assisting goes on to question the witness about further CCTV footage of the witness, which shows him reentering the prison from the gatehouse on the public side of the prison. 

Counsel Assisting: Why are you on the public side?

Bradford: No recollection.

Counsel Assisting: It shows you coming through the non usual entry way, why are you coming in that way?

Bradford: No recollection.

Before Bradford is stood down, Counsel Assisting asks the witness about the employee report that he completed, and his interview with Mr Muller. The witness declines to view, correct or explain anything in the report, or the interview transcript. 

***

After we adjourn for lunch, court resumes with Officer Lachlan Crowe called upon to give evidence. Crowe was one of the five officers who were seated in the back section of the van with Fella.  

After asking Crowe about when he became a Correctional Officer, his current ranking, and where he currently works, Counsel Assisting then asks Crowe about any Controls, Restraints & Defensive Techniques (CRDT) training that he received. 

Counsel Assisting: During initial recruit training you did not receive any CRDT training?

Crowe: We received part training.

Counsel Assisting: You did a CRDT training course 6 months after the Morrison incident?

Crowe: I don’t recall.

Counsel Assisting: What I’m suggesting, is that in the first 16 years of your employment you had no CRTD training?

Crowe: Yeah I had not received any training up to the incident.

Counsel Assisting then proceeds with a similar pattern of questioning for Crowe. Crowe is asked about the holding cell and the restraint of Fella, and what he heard and saw. He is asked about the journey in the van, and what he saw in the sally port. 

Crowe claims the privilege to each of these questions, and this claim is upheld by the Coroner. 

Counsel Assisting then asks Crowe about what he did after Fella was taken by ambulance to hospital. Crowe is invited by Counsel Assisting to adopt, correct or explain the employee incident report form that he completed later that day. 

Crowe declines. 

Counsel Assisting explains that there is CCTV footage of Crowe in the gatehouse later that day, and asks Crowe why he was there. 

Crowe: I was waiting there to be interviewed.

Counsel Assisting: By whom?

Crowe: By police.

Counsel Assisting puts forth that the vision shows Crowe in a group with a number of other officers, including Townsend, Hall and Bradford. In the vision it appears the lawyers are talking to the group. 

Crowe responds, “I agree that they are talking to a number of people, I am still in the corner minding my own business.” 

Counsel Assisting requests to replay the footage, and the witness is stood down by the Coroner. 

“This witness would have you believe he’s just sitting quietly in the corner in a chair waiting for someone to tell him what to do.” 

The Coroner puts forth that even if Counsel Assisting is right, she questions the utility that this evidence will make to her findings.

Before the witness is stood down, he is asked about the interview he completed with Mr Muller, and if he’d like an opportunity to read and adopt it, or make any changes to the transcript. 

Crowe declines. 

Before court adjourned today,  the phrases “I do not recall”, “I don’t remember”, “I cannot recollect” were heard at least 45 times in the courtroom. There were at least 71 individual claims of privilege from the three guards giving evidence.

Court will resume on Tuesday 18 May at 10am, with two witnesses scheduled to give evidence. Mr Keith Timmins and Mr Don Muller, both from the Department of Correctional Services. Mr Muller is the investigator who interviewed the 7 guards who travelled in the van with Fella, 6 months after he passed away. 

1 June, 2021

Every day that the Coroner’s Court has sat for his inquest on Kaurna Country in 2021, Wayne Fella Morrison’s family have sat in the back row of the court and bore witness. From the separate court room offered to media, you can only see the benches of lawyers and Coroner Jayne Basheer. The camera for witnesses, we’re told, is also having technical difficulties. We don’t see the witnesses or Fella’s family, only this process.

Fella’s mum, Caroline Andersen, and sibling Latoya Aroha Rule, are formidable campaigners. 

In May, they brought two confronting visual and performance installations to Adelaide’s court precinct. In one, spit-hooded performers representing the seven Corrections Officers who had refused to give evidence to the inquest stared down members of the public who had to pass them to place flowers into a staged police van. In another, these performers stood in front of bloody handprints over the Supreme Court and a fabric illustrated with three bodies, as Latoya placed flowers before them.

Photo: Charandev Singh

In the inquest that happens inside that building, Fella’s family are sometimes treated as shadows or abstractions, moving in and out of frame only before and after Coroner Basheer has left the court — pointed out only occasionally by the Coroner or their own counsel. This court report wouldn’t be complete without noting that they are not the shadows or afterthoughts that the Coroners Court sometimes makes of them — and nor is Fella.

Indeed, as the main witness for this final week eventually conceded, the political attention and campaign pressure Fella’s family have built after his death has made it a ‘focal point’ for South Australia’s recently announced phase-out of spithoods. That witness will ‘wait to find the outcome’ of the inquest before he’ll say if spithoods contributed to Fella dying — ‘I’m not medically qualified.’

You can sign Fella’s family’s petition here.

***

Photo credit: Sia Duff

Unless there’s yet another exceptional delay, this is the final week of Fella’s inquest. It will conclude with two witnesses. The first is David Brown, the CEO of SA’s Department of Correctional Services. The court heard that Brown provided a ‘late’ statement on Fella’s death, its aftermath and Corrections policy that ran for 29 pages, and contained 18 further annexures. At the time of writing, Fella’s family have not been able to read it.

Brown’s evidence on 31 May concerned systemic factors in SA prisons that related to Fella’s death. Some are especially glaring in the shadow of the Royal Commission into Aboriginal Deaths in Custody’s 30th anniversary. For instance:

• From 2009-2018, there was a 60% growth in imprisonment in South Australia, driven by ‘changes in legislation, policy and policing practices’. 
• South Australia is now constructing 310 extra prison beds to accommodate this growth in the ‘Better Prisons’ program, 270 at Yatala Labour Prison.
• Between 23-24% of people in SA prisons are Aboriginal.
• Various policies and procedures have not been updated as stipulated because of the ‘growth of prison population’ presenting ‘operational challenges’.

Investigations and reports

In his time on the stand, Brown has been asked to account for his Department’s own investigations and responses to Fella’s death. 

To explain the delay in his Department’s report, Brown explained ‘a number of key witnesses’ were not ‘immediately willing and able to give statements.’ He has also repeatedly refused to be drawn on what he understood to be relevant responses to Fella’s cause of death, citing his lack of medical training and the ongoing inquest process.

Training

A key contention in Brown’s evidence has been training, especially whether Corrections Officers who do not have restraint or first aid training should be stood down until their training is up to date. ‘That’s not a position I support.’ He said. ‘Honestly, in any corrections environment there’ll always be a small number of staff whose competence has lapsed.’ He has also suggested that prisons would be forced into lockdowns with staffing shortages if that was mandated. Queensland Corrections and South Australia Police have training compliance regimes, the family’s counsel queried. Brown said he would give ‘consideration to that’ in future. ‘We’re always trying to prevent injury.’

In later discussions around whether Corrections Officers were adequately prepared to meet the health needs of people in prison, the court heard that some SA Correctional Services staff had decades’ old training, including training that didn’t then include positional asphyxia. While, Brown stressed on several occasions, 88% of his staff had Certificates III or IV in Corrections (including, he emphasised, cultural awareness training), family’s counsel pointed out from prior evidence some Officers had only shadowed another officer overnight.

When pressed on the expertise of Correctional Officers, Brown baulked:

‘The people that spend the most time with prisoners are Corrections Officers. I respect their expertise in identifying distress and contributing to that management process. […] It has very much been about trying to ensure we seek out and value the contribution of Correctional Officers.’

The Department’s response after Fella’s death

Brown and the department have previously faced criticism about their treatment of Fella’s family after he lost consciousness and later died. On the day Fella was put into the van, Brown told the court, ‘I was presenting at a positive psychology conference at the Hilton. I noticed staff in an alert state and knew I was needed in a critical incident.’ As he was making calls to address the incident, he conceded on 31 May, he was aware that Fella’s family did not know where Fella was when he didn’t turn up to court. 

When a family member did call, Brown said, his Department did not provide information ‘because they were not the registered next of kin.’ This is a claim Latoya Rule has previously contested. Brown later testified that he asked senior staff to provide information to next of kin and ‘did everything in [his] power’ to ‘ensure access was provided.’

The court heard that Fella’s family spent the night in a carpark waiting for Fella at the hospital, after they were told he wasn’t a patient there. He was there, but was admitted unconscious to that hospital under an alias (‘Ben Waters’). 

Brown said this was ‘because of concern about the level of coverage [Fella’s death] was getting publicly. There are some circumstances where it’s appropriate to use an alias — concern for their safety, or that of the community.’ On 1 June, he also suggested in response to a question from the Coroner, that ‘in every operational scenario, it might not be that it’s appropriate to contact the family.’

The court also heard that, while Correctional Services staff received counselling and debrief support after Fella’s death, imprisoned people who witnessed it and Fella’s own relatives inside received further monitoring and assessment.

***

Photo credit: Charandev Singh

Brown recently, under a recommendation from the SA Ombudsman, wrote an apology to Caroline Anderson, Wayne’s mother. 

The court heard that the apology only contained matters specified in the Ombudsman’s report, not other matters uncovered by the Department’s internal reviews. Brown received legal advice before the apology was written. When asked why he hadn’t broadened the apology, or made it sooner, he replied that there was ‘the coronial process underway.’ He later told the court that he ‘welcome[s] the opportunity to meet with Mrs Andersen if she desired.’

When the family’s counsel later took the court through Brown’s correspondence about the Ombudsman’s report, it was noted that one letter queried whether its findings would be made publicly.

***

When prompted by family counsel Claire O’Connor SC, Brown confirmed to the court that he had been asked to consider giving an undertaking that ‘any officer who gave evidence to this inquest would not be charged under the Public Sector Act’. 

He told the court he refused to give that undertaking — but also confirmed that no officer had yet been reported for a Standard Operating Procedures breach in relation to what happened to Fella at Yatala.

***

The inquest continues on Thursday June 3, with evidence from its final witness, forensic pathologist Dr Cheryl Charlwood.