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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 QC, 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.

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