Eighteen South Australian prison guards and a nurse at the centre of a coronial investigation into the death of an Aboriginal man in custody have lost their Supreme Court bid to have the deputy coroner thrown off the inquest.
- Wayne Fella Morrison died in a prison transport van in September 2016
- Justice Malcolm Blue has found the deputy coroner was not biased during her inquest
- But he limited the scope of the inquest so witnesses would not be compelled to answer questions
But the Supreme Court ruling means that deputy coroner Jayne Basheer would not be able to compel them to answer questions about the September 2016 death in a prison van.
Wayne Fella Morrison died in the Royal Adelaide Hospital three days after being pulled unresponsive from a prison transport van at Yatala Labour Prison.
He was restrained with handcuffs, ankle flexi-cuffs and a spit mask and placed face down in the rear of the van, with eight prison officers accompanying him from the prison’s holding cells.
It has been alleged Mr Morrison became violent in the holding cells before his bail hearing and assaulted several prison officers.
Eighteen prison guards and a nurse asked the Supreme Court to determine whether Ms Basheer had the power to force them to give evidence at the inquest into the death of Mr Morrison at the Northfield prison.
Of those 19 witnesses, seven have already given evidence at the inquest, four are part-way through and eight are yet to give evidence.
In 2018, lawyers for the prison guards argued they should be able to exercise privilege against self-exposure to a penalty, privilege against self-incrimination, and that the Coroner’s Court was not entitled to look at what happened after Mr Morrison was pulled from the van.
They also accused Ms Basheer of having “apprehended bias” because she had a previous association with the Correctional Officers Legal Fund and a law firm at the heart of the inquest.
But the deputy coroner rejected those arguments and said the question of self-incrimination could be dealt with on a case-by-case basis.
She said a coronial inquest differed from other court proceedings and was not bound by the rules of evidence.
But lawyers then appealed Ms Basheer’s decision in the South Australian Supreme Court, which this week found the deputy coroner did not deny penalty privilege or legal professional privilege to the prison guards and there was “no reasonable apprehension of bias”.
“There is no basis on which a fair-minded lay observer might apprehend that the coroner might not bring an impartial mind to the resolution of the question she is required to decide by reason of pre-judgment,” Justice Malcolm Blue found.
He found that Ms Basheer had “no obligation” to disclose that she had an association with the Correctional Officers Legal Fund in 2010 and 2011, between five and six years before Mr Morrison died.
“The fact that the [deputy] coroner did not make that disclosure does not carry evidentiary weight in the circumstances in relation to the question of reasonable apprehension of bias,” he said.
He said Ms Basheer’s previous association with the fund was “slight” and she had no previous associations with any of the prison guards involved in the current inquest.
Incident reports were not completed by prison guards
During the inquest, it was revealed that some prison guards did not complete incident reports at the advice of their lawyers.
Justice Blue found the deputy coroner could not make a finding of misconduct or recommend disciplinary action in her final recommendations against those officers who did not complete incident reports.
“The substantial majority of correctional officers did provide incident reports, including the van officers,” he said.
“In general, those who did not provide incident reports tended not to have participated in the incidents that occurred on that day and were merely observers.”
He said it was “conceivable” that Ms Basheer could “make recommendations concerning future compliance with that provision that might, in the opinion of the coroner, prevent or reduce the likelihood of a recurrence of a similar event”.
But he said the deputy coroner “lacks power” to made misconduct findings against the individual officers.
Legal privileges were not denied to guards
In February 2019, lawyers for the prison guards claimed on dozens of occasions that Ms Basheer denied legal professional privilege to officers giving evidence during the inquest.
“I have concluded that the [prison guards] have failed to demonstrate any occasion on which [Ms Basheer] made an erroneous ruling or otherwise acted in a manner that infringed legal professional privilege on any of the alleged occasions,” Justice Blue found.
But Justice Blue overturned an order made by Ms Basheer that the guards could not refuse to answer questions or present documents because it could leave them open to civil or criminal proceedings.