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Inquest into the death of Mr Ward (2009)

Legal Legal
Friday 14 December, 2012

CORONERS COURT OF WESTERN AUSTRALIA

INQUEST INTO THE DEATH OF MR WARD (File No 8008/08)

SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY
COMMISSION


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Introduction

  1. The evidence in this matter demonstrates a range of systemic failures that
    contributed to Mr Ward’s death. It is vital that these failures be clearly
    identified so that they may be corrected. The evidence also demonstrates a lack
    of respect for the humanity and inherent dignity of Mr Ward on the day he died.
    His death was the direct result of the failure to take adequate care to protect
    his life.
  2. These submissions address:
    • (a) The relevance of human rights law to this inquest generally (Part A) and
      the specific human rights that the Commission regards as relevant (Part B)
    • (b) The discretion and duty of the Coroner to make comments (Part C)
    • (c) The denial of bail by Officer Timmers and Mr Thompson JP (Part D)
    • (d) The quality of the supervision, treatment and care of Mr Ward whilst in
      police custody (Part E)
    • (e) Key systemic deficiencies with the system of prisoner transport in
      Western Australia that preceded and contributed to Mr Ward’s death,
      namely:

      • (a) the design and condition of the vehicle fleet, particularly the relevant
        Mazda van (Part F),
      • (b) relevant policies and procedures relating to prisoner transport (Part G)
      • (c) the standard of training and instruction (Part H)
    • (f) The particular matters in connection with the transportation of Mr Ward
      on 27 January 2008 which were inconsistent with his human rights (Part I)
    • (g) The adequacy of the police investigation into Mr Ward’s death
      (Part J)
    • (h) Permission for the parties to make their submissions public (Part
      K)
    • (i) Comments that should be made by the Coroner (Part L).
  3. The Commission has had the benefit of reading the submissions of Counsel
    Assisting the State Coroner in this matter. The Commission accepts that those
    submissions accurately recite the key factual matters in the inquest. The
    Commission also adopts the findings and recommendations put forward in those
    submissions. The Commission does not wish to replicate unduly the matters
    covered in those submissions. Rather, the Commission seeks to supplement those
    submissions by contributing its perspective on certain key issues arising in the
    inquest, as well as to suggest additional comments that should be made by the
    Coroner.
  4. In making these submissions, the Commission has drawn on relevant
    international human rights instruments and jurisprudence, as well as the
    findings and recommendations of the Royal Commission Into Aboriginal Deaths in
    Custody (‘RCIADIC’) and Reports No 3 and 43 of the Office of the
    Inspector of Custodial Services (‘OICS’). The Commission submits
    that the RCIADIC and OICS reports are of particular relevance and utility to
    this inquest as they highlight matters of ongoing concern in the administration
    of justice and provide useful guidance on the appropriate treatment of persons
    in custody.[1]
  5. At the time of filing these submissions, transcripts for the final three
    days of the hearing had not yet become available. Transcript references have
    therefore not been provided in respect of the evidence of Professor Harding, Mr
    Hughes and Mr Doyle.

PART A: RELEVANCE OF HUMAN RIGHTS TO THIS
INQUEST

  1. The Commission submits that human rights instruments and jurisprudence are
    relevant in assisting the Coroner in making comments in the present inquest.
  2. First, human rights are a legitimate influence on the exercise of the
    Coroner’s statutory discretions and obligations. It is a well settled
    principle of statutory construction that, to the extent of any ambiguity, all
    domestic statutes should be applied as far as practicable so as to conform with
    Australia’s obligations under international
    law.[2] It is also an accepted
    principle that human rights law is a valid influence on the development and
    interpretation of the common law.[3]
  3. Second, the terms of the contractual and policy framework applicable to the
    transportation of prisoners in Western Australia directly incorporate relevant
    human rights standards.[4] The Standard Guidelines for Corrections in Australia, to which Western
    Australia is a party, also expressly incorporate Australia’s international
    obligations in respect of the treatment of persons in
    custody.[5]
  4. Third, the Commission notes that international human rights law provides
    practical assistance in assessing whether the standard of care shown to Mr Ward
    was adequate. This was a point acknowledged by Professor Harding, who agreed in
    his evidence that in assessing prisoner transport standards as part of his role
    as Inspector of Custodial Services, international human rights law provided a
    useful comparative benchmark.[6] Similarly, the Victorian Court of Appeal has recognised that:

    the
    provisions of an international convention to which Australia is a party can also
    serve as an indication of the value placed by Australia on the rights provided
    for in the convention and, therefore, as indicative of contemporary
    values.[7]

PART B: RELEVANT HUMAN RIGHTS

  1. Australia has a number of specific international legal obligations that are
    relevant to this inquest, particularly under the International Covenant on
    Civil and Political Rights
    [8] (‘ICCPR’).

Right to Life

  1. The Commission submits that comments by the Coroner in this inquest are an
    important part of meeting Australia’s positive duty under international
    law to protect life. Such comments may help to identify the systemic failures
    that contributed to Mr Ward’s death and may assist in minimising the
    possibility of similar deaths and hardships in the future. A broad approach to
    the discretion and duty to make comments under the Coroners Act 1996 (WA) (‘Coroners Act’) should therefore be preferred.
  2. The right to life is provided for by article 6(1) of the ICCPRas
    follows:

    Every human being has the inherent right to life. This
    right shall be protected by law. No one shall be arbitrarily deprived of his
    life.

  3. Consequent upon the obligation to protect life, there is a positive duty to
    prevent
    death.[9] In addition, a particular duty is owed to persons in
    detention.[10] In Lanstova v
    Russian Federation,
    for example, the United Nations Human Rights
    Committee (‘UNHRC’)[11] observed that ‘the essential fact remains that the State party by
    arresting and detaining individuals takes the responsibility to care for their
    life.’[12] Similarly, the
    European Court of Human Rights has observed:

    Person in custody are
    in a vulnerable position and the authorities are under a duty to protect them.
    Consequently, where an individual is taken into police custody in good health
    and is found to be injured on release, it is incumbent on the State to provide a
    plausible explanation of how those injuries were caused. The obligation on the
    authorities to account for the treatment of an individual in custody is
    particularly stringent where that individual
    dies.[13]

  4. A further element of this duty is to provide appropriate training of
    personnel, such as police and custodial officers, to ensure that the right to
    life is adequately protected.[14]
  5. In addition to the positive obligation to protect life, there is a further
    obligation on States to fully, publicly and effectively investigate the
    circumstances surrounding a person’s death in State
    custody.[15] The House of Lords has
    relevantly said:

    The purposes of such an investigation are clear: to
    ensure so far as possible that the full facts are brought to light; that
    culpable and discreditable conduct is exposed and brought to public notice; that
    suspicion of deliberate wrong-doing (if justified) is allayed; that dangerous
    practices and procedures are rectified; and that those who have lost their
    relative may at least have the satisfaction of knowing that lessons learned from
    his death may save the lives of
    others.[16]

  6. The House of Lords has further held that, consistent with the State’s
    obligations in respect of properly investigating deaths in custody, the powers
    of a coroner to make comments should be construed
    broadly.[17]

Right
to humane and dignified treatment

  1. Article 7 of the ICCPR provides that ‘No one shall be subjected to
    torture or to cruel, inhuman or degrading treatment or punishment.’ The
    aim of article 7 is to protect the dignity and the physical and mental integrity
    of the individual.[18] The
    prohibition under article 7 has been further articulated under the Convention
    Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment
    (‘Convention Against
    Torture’),[19] to which
    Australia is also a party.
  2. In addition to the prohibition against torture and cruel, inhuman and
    degrading treatment or punishment, article 10(1) of the ICCPR imposes further
    positive obligations which are directed specifically at the rights of detained
    persons. Article 10(1) provides:

    All persons deprived of their
    liberty shall be treated with humanity and with respect for the inherent dignity
    of the human person.

  3. The purpose of article 10(1) is to impose on States a positive obligation
    towards persons who are particularly vulnerable because of their status as
    persons deprived of liberty.[20] Respect for the dignity of such persons must be guaranteed under the same
    conditions as for free persons. That is, persons deprived of their liberty enjoy
    all the rights prescribed in the ICCPR, subject to the restrictions that are
    unavoidable in a closed
    environment.[21]
  4. The State’s duty under international law to provide adequate care to
    persons deprived of their liberty is
    non-delegable,[22] as under the
    Australian common law.[23] The UNHRC
    and the United Nations Committee Against Torture have long expressed concerns in
    this context over the privatisation of prisons and prisoner escort services,
    emphasising the need for States to provide effective training and monitoring to
    ensure that human rights standards are met by
    contractors.[24]

Right
to be free from arbitrary detention

  1. Article 9(1) of the ICCPR provides:

    Everyone has the right to
    liberty and security of person. No one shall be subjected to arbitrary arrest or
    detention. No one shall be deprived of his liberty except on such grounds and in
    accordance with such procedure as are established by law.

  2. ‘Arbitrariness’ is not to be equated with ‘against the
    law’ but rather must be interpreted more broadly to include elements of
    inappropriateness, injustice and lack of
    predictability.[25] In relation to
    remanding persons in custody, the UNHRC has stated that:

    remand in
    custody pursuant to lawful arrest must not only be lawful but reasonable in all
    the circumstances. Further, remand in custody must be necessary in all the
    circumstances...’[26]

  3. In addition, a person’s detention that is initially not unlawful or
    arbitrary may come to breach article 9(1) by reason of subsequent events which
    change the nature of the detention. This might occur, for example, where the
    person is subjected to a further and serious deprivation of their liberty beyond
    what is reasonable and proportionate in the
    circumstances.[27]
  4. International law also creates a presumption in favour of granting bail.
    Article 9(3) of the ICCPR states:

    It shall not be the general rule
    that persons awaiting trial shall be detained in custody, but release may be
    subject to guarantees to appear for trial, at any other stage of the judicial
    proceedings, and, should the occasion arise, for execution of the
    judgment.[28]

Prohibition on systemic racial discrimination

  1. Article 26 of the ICCPR requires States to ‘guarantee to all persons
    equal and effective protection against discrimination on any ground such as
    race’. The prohibition against racial discrimination is articulated
    further by the International Covenant on the Elimination of All Forms of
    Racial Discrimination
    ,[29] to which Australia is also a party.
  2. The obligation to prevent discrimination extends beyond mere legal
    prohibition. It includes an obligation to take positive steps to address
    systemic forms of discrimination that disproportionately impact on particular
    racial groups.[30] The UNHRC, for
    example, has observed:

    ...the principle of equality sometimes
    requires States parties to take affirmative action in order to diminish or
    eliminate conditions which cause or help to perpetuate discrimination prohibited
    by the Covenant. For example, in a State where the general conditions of a
    certain part of the population prevent or impair their enjoyment of human
    rights, the State should take specific action to correct those
    conditions.[31]

  3. The obligation on States with respect to eliminating racial discrimination
    also extends to ensuring that law enforcement personnel are appropriately
    trained on human rights
    standards.[32]
  4. Professor Harding observed in his evidence that Aboriginal persons bear the
    disproportionate burden of the failures and deficiencies in prisoner transport
    identified in OICS Reports 3 and
    43.[33] This represented, in his
    view, a form of ‘systemic racism’ which was unreasonable and would
    not be tolerated by any other racial group of Western
    Australia.[34] Like Professor
    Harding, the Commission does not submit that the circumstances surrounding Mr
    Ward’s death were prompted by deliberate
    racism.[35] However, the notion of
    racial discrimination is not so limited. Rather, it encompasses practices and
    policies which have a disproportionately adverse impact on a particular racial
    group which cannot be justified as being reasonable in all the
    circumstances.[36]
  5. The Commission does not seek to make submissions on whether Mr Ward’s
    death was a consequence of discrimination. Rather, the Commission notes its
    concerns over systemic racial discrimination to highlight the need for urgent
    action to address the widespread problems with prisoner transport in Western
    Australia. In the Commission’s view, the failure to take such urgent
    action potentially puts Australia in breach of its international obligations
    with regard to achieving substantive equality and taking positive steps to
    protect vulnerable racial groups against known risks.

Right to
an effective remedy

  1. The ICCPR also imposes an obligation to provide an ‘effective
    remedy’ in the case of a violation of human
    rights.[37] Vital to providing an
    effective remedy is the prompt and impartial investigation of allegations of
    breaches of human rights by a competent
    authority.[38]
  2. The coronial process is an important part of providing an effective remedy
    for breaches of human rights. A coronial inquest should therefore, as far as
    possible, seek to provide a thorough investigation with a broad scope so that
    any breaches of human rights revealed in the course of the inquiry may be
    identified and addressed.

PART C: POWER AND DUTY OF THE CORONER
TO MAKE COMMENTS

  1. Pursuant to s 25(2) of the Coroners Act 1996 (WA) (‘Coroners
    Act’), the Coroner is permitted to comment on any matter connected with Mr
    Ward’s death including ‘public health or safety or the
    administration of justice’. In addition, given that Mr Ward was a
    ‘person in care’[39] at
    the time of his death, pursuant to s 25(3) the Coroner ‘must comment on
    the quality of the supervision, treatment and care of Mr Ward while in that
    care.’
  2. However, pursuant to s 25(5) of the Coroners Act, the Coroner ‘must
    not frame a finding or comment in such a way as to appear to determine any
    question of civil liability or to suggest that any person is guilty of any
    offence’. It is nevertheless within the power of the Coroner to make
    findings as to the factual circumstances surrounding such matters as the denial
    of bail to Mr Ward, the standard of care shown to Mr Ward and the level of
    relevant knowledge of the Department of Corrective Services (‘the
    Department’) and GSL (Australia) Pty Ltd (‘GSL’). The fact
    that legal conclusions as to the legality of such matters may be drawn by others
    from such findings of fact does not alter this: ‘the coroner is to find
    the facts from which others may, if necessary, draw legal
    conclusions’.[40]
  3. As noted above, relevant human rights principles highlight the need for a
    comprehensive approach to the making of findings and comments so that future
    deaths might be avoided in similar circumstances. Similar observations have also
    been made in Australia of the role of Coronial
    inquests.[41] The need for a broad
    approach is particularly important in respect of systemic failures affecting a
    broad class of persons.

PART D: THE DENIAL OF BAIL

Powers and duties under the Bail Act

  1. Under s 6A(3) of the Bail Act 1982 (WA) (‘Bail Act’), an
    authorised officer[42] who is
    considering an accused person’s case for bail for an initial appearance in
    a summary court on a charge of a simple offence must order that the
    person be served with a court appearance notice and released unless not
    releasing the person is justified on reasonable grounds. Those grounds are set
    out in s 6A(4), including that the accused may commit an offence, continue or
    repeat the offence with which they have been charged, endanger a person’s
    safety or property, interfere with witnesses or the course of justice, or
    because their safety would be endangered.
  2. If the person is not released on a court appearance notice or
    summons,[43] the officer must then
    consider bail irrespective of whether an application is made by or on behalf of
    the accused.[44] Section 8(1) also
    imposes certain procedural requirements that the accused is
    given:

    (a) such information in writing as to the effect of this Act
    as is prescribed for the purposes of this paragraph;

    (b) an approved form for completion, designed to disclose to the judicial
    officer or authorised officer all information relevant to the
    decision.[45]

  3. The ‘information in writing’ referred to in (a) above is
    prescribed under the Bail Regulations 1998 (WA) and comprises several
    pages setting out various matters relevant to the rights of an accused in
    respect of bail.
  4. Schedule 1 to the Bail Act then sets out various questions that the
    authorised officer must consider in deciding whether to grant
    bail,[46] including whether there is
    any bail condition that could reasonably be imposed to ameliorate the relevant
    concerns over releasing the person from
    custody.[47]

Relevant
principles for the exercise of police discretion regarding bail

  1. One of the clear messages of the RCIADIC was that a reduction in the
    unacceptable rate at which Aboriginal people were dying in custody required a
    reduction in the rates of arrest, detention and imprisonment of Aboriginal
    people. Commissioner Johnston observed that the unacceptably high rates of
    Aboriginal deaths in custody

    occurs not because Aboriginal people
    in custody are more likely to die than others in custody but because the
    Aboriginal population is grossly over-represented in custody. Too many
    Aboriginal people are in custody too
    often.[48]

  2. The RCIADIC report accordingly found that:

    The highest possible
    priority needs to be placed by governments and corrections authorities on
    measures to significantly reduce the number of Aboriginal people in
    custody.[49]

  3. Similarly, in the separate regional reports of the RCIADIC relating to
    Western Australia, a number of pertinent criticisms were also made of the
    attitude of many police officers towards the granting of bail to Aboriginal
    persons. For example, Commissioner O’Dea observed:

    I am left
    with the clear impression that numerous police officers in the State regarded
    bail as a privilege to be conferred upon Aboriginal arrestees if and when they
    felt disposed to summon the effort to do
    so.[50]

  4. Commissioner O’Dea also found that a ‘troubling number of those
    who died in custody would not have been in custody if a more intelligent
    approach had been taken [to
    bail].’[51]
  5. The Final Report of the RCIADIC recommended that police adopt the principle
    of arrest being treated as an option of last
    resort,[52] and that accused persons
    should as a general rule enjoy an entitlement to
    bail.[53] This also reflects the
    position under international law that arrest and detention must not only be
    lawful, but necessary.[54] This
    requires a consideration of whether there were available ‘less invasive
    means of securing the same
    ends’[55] and that bail shall
    not be ordinarily refused except where serious risks exist to make the refusal
    of bail necessary.[56]
  6. Likewise, Australia courts have long cautioned against arbitrary
    infringements on a person’s liberty under police powers of arrest and
    detention. As Deane J stated in Donaldson v Broomby:

    A police
    power of arbitrary arrest is a negation of any true right to personal liberty. A
    police practice of arbitrary arrest is a hallmark of tyranny. It is plainly of
    critical importance to the existence and protection of personal liberty under
    the law that the circumstances in which a police officer may, without judicial
    warrant, arrest or detain an individual should be strictly confined, plainly
    stated and readily
    ascertainable.[57]

Police refusal of bail was inappropriate

  1. The Commission acknowledges that the Bail Act confers very broad
    discretions and the Commission does not make submissions on the lawfulness of
    the police refusal of bail to Mr Ward. However, for the following reasons the
    Commission submits that the Coroner should find that the refusal of bail to Mr
    Ward was an inappropriate exercise of police discretion in the circumstances.
  2. First, the Commission submits that the evidence of Officer Timmers failed to
    demonstrate that he approached the consideration of Mr Ward’s bail on the
    basis of a presumption in favour of Mr Ward being released on a court attendance
    notice and/or that refusal of bail be treated as an option of last
    resort.[58]
  3. Second, the Aboriginal Legal Service (‘ALS’) was not contacted
    in respect of Mr Ward’s eligibility for bail, contrary to the
    recommendations of the RCIADIC.[59] Indeed, no effort was made to contact any person who may have been able to
    assist in assessing Mr Ward’s eligibility for bail. The Commission
    acknowledges that the evidence indicates that Mr Ward did not request that ALS
    or anyone else be contacted on his
    behalf,[60] but that he simply
    wanted to go to sleep.[61] However,
    in circumstances where a person is intoxicated and therefore less likely to be
    able adequately to represent their own best interests in making a case for bail,
    the need for notifying the ALS is arguably stronger. In any event, there is no
    evidence that this issue was revisited by the officers the following morning
    when Mr Ward was no longer intoxicated.
  4. Third, the Commission acknowledges that Mr Ward’s history of
    antecedents was an important consideration in respect of whether to grant bail
    and that Officer Timmers gave evidence that he took into account ‘many
    factors’ when assessing
    bail.[62] Nevertheless, the
    Commission submits that insufficient, if any, weight appears to have been given
    to the following relevant matters in support of Mr Ward’s case for
    bail:

    • (a) Mr Ward was employed on a full time basis and had work and family
      commitments in Warburton, including caring for four children.
    • (b) Mr Ward was a person of considerably high standing in his
      community,[63] was well known to the
      police in Warburton and posed no serious flight risk. He was also described by
      GSL and police officers with whom he came into contact prior to his death as
      compliant and co-operative.[64]
    • (c) The charges against Mr Ward were relatively minor. The severity of his
      offence was arguably mitigated further by the fact that, at the time of his
      arrest, Mr Ward was driving on either a bush track or otherwise crossing over a
      very short stretch of bitumen road to traverse from one bush track to another.
    • (d) Whilst Mr Ward had six previous breaches of bail recorded on his
      criminal history, these convictions spanned a period of 18 years, with the most
      recent being approximately six years
      earlier.[65]
    • (e) By the Sunday morning Mr Ward no longer posed a safety risk in
      driving.
    • (f) The next Magistrates sitting in Warburton was only approximately one
      week away.[66]
  5. In addition, the Commission submits that the Bail Act is sufficiently broad
    for Officer Timmers to have taken into account cultural factors weighing in
    favour of granting bail to Mr
    Ward.[67] For example, various law
    reform bodies and commentators have argued that refusal of bail can impose
    additional spiritual hardship on Aboriginal persons by keeping them off country,
    particularly where it also results in the person being transported far away from
    their country as was the case with Mr
    Ward.[68]
  6. Fourth, Officer Timmers took into account Mr Ward’s non-appearance in
    response to bail in a matter in June 2007 in which Officer Timmers was a
    prosecution witness, notwithstanding that that non-attendance had not resulted
    in any sanction by the court.[69] The Commission submits that this was an irrelevant consideration in assessing Mr
    Ward’s bail.
  7. Fifth, the evidence discloses no serious consideration being given by
    Officer Timmers to possible bail conditions. The main reason for refusing bail
    on the Saturday evening appears to have been because Officer Timmers considered
    that Mr Ward was likely to try and drive home to
    Warburton.[70] However, this could
    have been addressed by imposing bail conditions prohibiting Mr Ward from driving
    and by the police impounding his car until the morning. Alternatively, Mr Ward
    could have been detained overnight and then released the following morning on
    bail with conditions to return immediately to Warburton and report to the police
    station in Warburton at a designated time. However, Officer Timmers appears to
    have disregarded the use of bail conditions altogether based on a generalised
    belief that bail conditions were often not complied
    with.[71] This is clearly contrary
    to Parliament’s intent in imposing a requirement that possible conditions
    must be considered by the officer when assessing
    bail.[72]
  8. To the extent that Officer Timmers also expressed a concern that Mr Ward
    might commit further offences, such as taking alcohol to
    Warburton,[73] the Commission
    submits that this should be rejected. There was no cogent evidence to support
    this suspicion and Mr Ward was not carrying a supply of alcohol at the time of
    his arrest.
  9. Sixth, the relevant procedural requirements imposed under ss 8(1)(a) and (b)
    of the Bail Act were not complied with. Mr Ward was not provided with the
    prescribed information outlining his rights in respect of bail and no approved
    form was completed to ensure that all relevant information relevant to Mr
    Ward’s case for bail was properly
    disclosed.[74] The Commission
    submits that these procedural obligations are not simply inconsequential
    formalities; they are designed to ensure a fair and proper bail hearing for the
    accused.
  10. Seventh, available records indicate that the time given to considering Mr
    Ward’s eligibility for bail was cursory at best. The ‘Evidential
    Breath Analysis’[75] recording
    Mr Ward’s alcohol breath test shows that the results of Mr Ward’s
    breath test became available at between 10.01 - 10.03pm. And yet, the
    ‘Inventory of Property Taken from
    Person’[76] in respect of Mr
    Ward records that the Form 5 refusal of bail
    form[77] had been typed and recorded
    on his inventory of property by 10.03pm.
  11. The Commission submits that the combined effect of the above factors renders
    the exercise of police discretion to refuse bail inappropriate - and
    particularly so by the morning of 27 January 2008. The Commission further
    submits that the inadequacies associated with the refusal of bail to Mr Ward
    were indicative of broader systemic problems. Officers Denness and Chammings,
    for example, both believed that Mr Ward was ineligible for bail due to having
    breached a suspended sentence;[78] a
    plainly incorrect reading of the Bail
    Act.[79] Similarly, none of the
    officers who gave evidence was familiar with the relevant procedural obligations
    under the Bail Act[80] or the
    relevant recommendations of the RCIADIC regarding
    bail.[81]

Court
session conducted by Mr Thompson

  1. The Commission submits that the court session convened by Justice of the
    Peace (‘JP’) Barrye Thompson also raises a number of serious
    concerns.
  2. First, pursuant to reg 8 of the Magistrates Court Regulations 2005 (WA), a JP can only be asked to convene a country court by a
    Registrar or by a Deputy Registrar directed to do so by a Magistrate or
    Registrar. In this case, Mr Thompson appears to have been asked to convene the
    court session by Officer
    Chammings,[82] who was neither a
    Registrar nor Deputy Registrar. To the extent that Officer Denness gave evidence
    that, in his absence, the acting Officer in Charge had delegated authority to
    act in his place as a Deputy
    Registrar,[83] this evidence should
    be treated with caution. There was no evidence of a formal instrument of
    delegation to this effect. Furthermore, the terms of reg 8 indicate that
    requests to a JP to convene a country court session can only be made by a Deputy
    Registrar at the direction of a Magistrate or Registrar, which was not the case
    here.[84] Officer Chammings was also
    not the acting Officer in Charge at the time he contacted Mr
    Thompson.[85]
  3. Second, the hearing by Mr Thompson was conducted on a Sunday, in direct
    breach of the prohibition against Sunday court sessions under the relevant
    Instrument of Delegation of Magistrate
    Sharratt.[86] None of the officers
    at Laverton appear to have been aware of this
    prohibition.[87]
  4. Third, the ALS (or anyone else) was again not contacted on Mr Ward’s
    behalf, contrary to the recommendations of the RCIADIC discussed above. Mr
    Thompson in fact gave evidence that he considered it to be in Mr Ward’s
    best interests to be transferred to Kalgoorlie to enable him to access legal
    services.[88] The Commission regards
    it as alarming that a JP would regard imprisonment far away from Mr Ward’s
    country, community, family and employment as in his best interests in
    circumstances where no attempt was made to contact the ALS or ascertain from Mr
    Ward what his preferences were.[89]
  5. Mr Thompson’s assumption that legal services were not available in
    Laverton was in any event incorrect. The ALS provided regional services to
    Laverton and Warburton,[90] as well
    as via a free telephone number. Indeed, the regional ALS court officer was in
    Laverton on 27 January 2008 and has stated that he would have attended the
    police station to represent Mr Ward if he had been contacted on his mobile phone
    (the number of which was known to Laverton
    police).[91]
  6. Fourth, the procedural requirements under the Bail Act to provide Mr Ward
    with prescribed information and complete an approved bail form were again not
    complied with.[92] The requirement
    under s 26(2) of the Bail Act that the judicial officer prepare ‘a record
    of the decision and of the reasons therefor’ was also not complied with,
    nor were any notes of the hearing
    made.[93] In addition, the hearing
    was conducted in the police cell, despite the adjoining courtroom being
    available which would have provided a more suitable environment for conducting
    the hearing.
  7. Fifth, Officer Chammings does not appear to have outlined the case for bail
    on Mr Ward’s behalf. Mr Thompson was not aware of any of Mr Ward’s
    personal circumstances relevant to
    bail[94] or even that he was
    required to consider bail at all unless requested to do so by Mr
    Ward.[95] Rather, he regarded his
    role as being limited to checking that the charges were not of a frivolous
    nature.[96] The evidence also
    indicates that the hearing lacked procedural fairness, given that relevant parts
    of the hearing were conducted between Officer Chammings and Mr Thompson whilst
    Mr Ward was either not present or still
    asleep.[97]
  8. Sixth, the pre-arrangement of the GSL transport van the previous evening was
    likely to,[98] and appears to have
    in fact,[99] exerted additional
    pressure on Mr Thompson to remand Mr Ward to Kalgoorlie. In the
    Commission’s submission, the convenience of a nearby transport van should
    not have been treated as a relevant factor for denying bail.
  9. Seventh, when it was discovered that Monday 28 January 2008 was a public
    holiday, the remand warrant was simply extended by Officer Chammings with
    approval from Mr Thompson over the
    telephone.[100] Mr Thompson did
    not return to the station or provide Mr Ward with any opportunity to make
    submissions, even though this extension effectively doubled the period of Mr
    Ward’s remand.[101]
  10. In light of the above factors, the Commission submits that the hearing
    conducted by Mr Thompson did not meet acceptable standards, was procedurally
    defective and failed to consider adequately or at all Mr Ward’s case for
    bail.

Broader systemic concerns regarding JP court
hearings

  1. Aside from the above concerns with the manner in which Mr Ward’s
    hearing was conducted by Mr Thompson on 27 January 2008, the Commission agrees
    with the observations of Counsel Assisting that Mr Thompson’s evidence
    reveals a number of broader systemic concerns in relation to court hearings by
    JPS, particularly in respect of the standard of training of JPs.
  2. Mr Thompson acknowledged that he commenced in the position of JP without
    having undergone any training at
    all.[102] He was also allowed to
    continue in the role despite failing to complete the relevant TAFE course or
    associated assessments.[103] The
    Commission submits that Mr Thompson lacked any familiarity with his obligations
    or role under the Bail Act, as highlighted by the fact that Mr Thompson did not
    even appreciate that he was required to consider bail at the time he remanded Mr
    Ward into custody.[104]
  3. The Commission also notes with concern that Officer Chammings gave evidence
    that officers at Laverton had not received any training in how they were
    supposed to prosecute bail hearings before Justices of the
    Peace.[105] Likewise, Officer
    Denness gave evidence that he never received any training in respect of his role
    as deputy registrar[106] and had
    never seen the relevant letter of appointment or statement of
    duties.[107]
  4. The Commission submits that these are legitimate matters for comment by the
    Coroner in this inquest, as they relate to the administration of justice. The
    deficiency of Mr Thompson’s training contributed to his failure to
    properly convene the court session with Mr Ward. Irrespective of whether Mr
    Ward’s transfer of custody to GSL was ultimately still lawful without a
    signed remand warrant, the adequacy of the hearing conducted by Mr Thompson
    remains relevant. The evidence makes clear that, as a matter of practical
    reality, the Laverton police and GSL Kalgoorlie staff all operated on the mutual
    understanding that Mr Ward would not have been transferred into the Mazda van
    without a signed remand
    warrant.[108]

Absence of video-conferencing facilities

  1. The Commission agrees with Counsel Assisting that the circumstances
    surrounding Mr Ward’s transportation to Kalgoorlie have also highlighted
    the need to improve access to video conferencing facilities at police lock-ups
    for bail hearings and the like to minimise the need for prisoner transports.
    This has previously been recommended by the
    OICS,[109] Western Australian
    Chief Justice,[110] Hooker
    Inquiry,[111] Law Reform
    Commission of Western
    Australia,[112] Officer
    Denness[113] and by similar
    reviews of prisoner transport conducted in the United
    Kingdom,[114] New
    Zealand[115] and
    Victoria.[116]
  2. Regrettably, however, progress towards the expansion of video-conferencing
    facilities in Western Australia appears to have stalled. Certainly,
    video-conferencing facilities remain unavailable at
    Laverton[117] and no evidence was
    led to indicate substantive progress at other locations. Pending the
    availability of video-conferencing facilities at relevant locations, the
    Commission further submits that greater use should be made by police of
    telephone conferencing to minimise the need for long prisoner transports, at
    least in respect of bail hearings and minor appearances.

PART
E: QUALITY OF SUPERVISION, TREATMENT AND CARE DURING POLICE CUSTODY

  1. The Commission submits that the Coroner is required to comment on several
    additional matters relevant to the quality of Mr Ward’s supervision,
    treatment and care whilst in police custody.

Supervision

  1. The Commission acknowledges that regular checks were performed on Mr Ward
    throughout his time in police custody. Of concern, however, is that for
    approximately the first two hours after being placed in the police cell, all
    checks of Mr Ward were performed remotely via CCTV. At no stage during this
    period did any officer physically check on Mr Ward to assess his state of
    health.[118]
  2. The RCIADIC reported on numerous deaths that occurred in police lock-ups in
    circumstances where adequate police supervision might have averted the death.
    The report stated: ‘The importance of frequent and thorough checking of
    prisoners cannot be
    overstated’,[119] particularly in the first two hours of
    custody.[120]
  3. The report went on to recommend that during the first two hours of
    detention, a detainee should be checked at least every 15 minutes and thereafter
    every hour.[121] The
    recommendations also emphasised the importance of such checks being conducting
    physically, rather than merely remotely:

    Notwithstanding the
    provision of electronic surveillance equipment, the monitoring of such persons
    in the periods described above should at all times be made in person. Where a
    detainee is awake, the check should involve conversation with the person. Where
    the person is asleep the officer checking should ensure that the person is
    breathing comfortably and is in a safe position and otherwise appears not to be
    at risk.[122]

Treatment and Care

  1. The Commission notes with concern the police practice regarding warnings
    recorded on Custody Handover Sheets. The relevant Sheet for Mr
    Ward,[123] for example,
    prominently listed warnings that he may carry a weapon, assault police and
    resist arrest. However, the evidence indicates that these warnings were no
    longer relevant, but had simply been automatically generated by the computer
    based on Mr Ward’s
    antecedents.[124]
  2. It is unclear the extent to which, if any, the above warnings on Mr
    Ward’s custody handover sheet impacted on his treatment by Officers Stokoe
    and Powell.[125] Nevertheless, the
    Commission submits that this practice is inappropriate. Given the risk that
    persons with strong warnings might be subjected to additional forms of
    restriction or hardship during their transport, such as denial of toilet stops
    at unsecured locations, it is incumbent on police to ensure that warnings remain
    current.
  3. The Commission also expresses its concern that the only food provided to Mr
    Ward throughout his time in police custody consisted of meat pies. This is not
    of sufficient nutritional value and most likely contributed to Mr Ward’s
    level of dehydration at the time he was escorted. The Commission notes that
    Officer Denness stated that re-heated pies were the only food available at
    Laverton station, which he did not regard as
    adequate.[126] Likewise, Professor
    Harding expressed his concern that pies were not an appropriate standard of
    nutrition.
  4. The Commission also notes with concern the evidence of Officer Denness that
    the exercise yard of the Laverton police lock-up did not comply with the
    relevant recommendations of the RCIADIC, as it had ‘a million and one
    hanging points’.[127]
  5. The Commission submits that the above matters are relevant to the quality of
    supervision, treatment and care of Mr Ward in detention, as well as being
    generally relevant to public health and safety and the administration of
    justice.

PART F: PRISONER TRANSPORT VEHICLES

Human rights standards relevant to prisoner transport vehicles

  1. International human rights law makes clear that persons deprived of their
    liberty are entitled to be treated at all times humanely and with respect for
    the inherent dignity of the human
    person.[128] As noted earlier,
    this requirement reflects the particular vulnerability of persons in custody,
    who are reliant on the State to care for their wellbeing. In the context of
    prisoner transport, this obligation requires that appropriate levels of safety,
    amenity and dignity are maintained at all times. For example, Rule 45(2) of the Standard Minimum Rules for the Treatment of
    Prisoners
    [129] provides:

    The transport of prisoners in conveyances with inadequate
    ventilation or light, or in any way which would subject them to unnecessary
    physical hardship, shall be prohibited.

  2. Similarly, in their 2007 joint review of prisoner transport, the New Zealand
    Chief Ombudsman and Ombudsman of the Department of Corrections observed that
    conditions of discomfort in vehicles could be sufficient to breach the New
    Zealand Bill of Rights Act 1990 and article 10(1) of the ICCPR in respect
    of treating persons in detention with humanity and
    dignity.[130] The report
    concluded:

    This is not a matter of providing prisoners with luxury
    transport. Hard wood or metal benches for journeys of many hours in small cages
    without proper windows does not constitute a humane standard of
    transport.[131]

Condition of the prisoner transport fleet

  1. As set out in the submissions of Counsel
    Assisting,[132] OICS Reports No 3
    and 43 made a number of scathing criticisms in relation to the level of safety,
    amenity and dignity of prisoner transport vehicles in Western Australia.
    Specific concerns with the design and condition of the air-conditioning in
    vehicles were also raised in the OICS reports.
  2. Similar criticisms had emanated from a range of sources in the several years
    leading up to Mr Ward’s death. For example, by letter to Minister Quirk
    dated 30 November 2006, the ALS attached a detailed submission outlining its
    concerns and recommendations in respect of prisoner transport following the
    ‘Sandfire’
    incident.[133] Likewise, evidence
    from GSL officers indicates that problems with the vehicles were widely known
    amongst GSL staff[134] and that
    concerns were repeatedly raised with supervisors and
    management.[135]
  3. Similarly, Officer Denness gave evidence that he voiced his concerns over
    the condition of the vehicle fleet to GSL staff and
    management,[136] as well as to
    Minister Quirk.[137] He also
    understood that similar concerns had been raised by Officers in Charge at other
    locations.[138] The evidence of
    other police officers at Laverton also indicates clearly that the poor condition
    of the vehicles was well known and
    self-evident.[139]
  4. The Department’s contract monitors also appear to have been well aware
    of the widespread deficiencies with the transport
    fleet.[140] The regional reports
    for the six months prior to Mr Ward’s death, for instance, show that
    almost all vehicles required significant repairs or
    replacement.[141]

Problems with the design of the Mazda 2500 vans

  1. Aside from concerns referred to above with the prisoner transport fleet
    generally, specific concerns had also been raised with the design of the Mazda
    2500 vans. As noted by Counsel Assisting, specific design deficiencies with the
    air-conditioning of the Mazda vans had been brought to the attention of AIMS and
    the Department by the report of Car Air Wholesales Pty Ltd dated 13 September
    2001.[142] The Commission agrees
    with the conclusion of Counsel Assisting that the recommendations in that report
    were ignored by AIMS and the
    Department.[143] The Commission
    also agrees with the evidence of Professor Harding that that report should have
    been brought to his attention.
  2. The Commission submits that the rear pods of the Mazda are inhumane and
    unsafe, particularly on long escorts, on account of the following deficiencies:

    • (a) the design deficiencies with the air-conditioning system (referred to
      above)
    • (b) the almost total lack of
      ventilation[144]
    • (c) the lack of any grab rails or
      padding[145]
    • (d) the minimal degree of natural light and external vision
    • (e) the lack of seat belts
    • (f) the failure of the CCTV monitoring system to completely cover the rear
      pod[146] or record footage
    • (g) the wholly inadequate design of the duress alarm (prior to Mr
      Ward’s death),[147] as well
      as the lack of any signage to that alarm
    • (h) the absence of any means of two-way communication with the rear pod
    • (i) the lack of remote temperature monitoring capabilities (prior to Mr
      Ward’s death)
    • (j) the lack of any form of music or entertainment to make the uncomfortable
      conditions more bearable
    • (k) the lack of an external escape
      hatch.[148]
  3. The unsuitability of the Mazda vans for long escorts also appears to have
    been a view shared amongst GSL staff at Kalgoorlie, including Ms
    Jenkins.[149] The Commission
    therefore notes with concern the evidence that the Mazda would sometimes be used
    for long haul escorts with up to eight men in the rear
    pod.[150]

Additional
problems with the particular Mazda van in which Mr Ward died

  1. In addition to the general problems noted above, the Department and GSL were
    on notice of on-going problems with the particular Mazda in which Mr Ward
    died,[151] including with the
    air-conditioning,[152] CCTV
    monitor[153] and the absence of a
    spare tyre (which had been missing for several
    months).[154] Indeed, the
    affidavit of Mr Doyle confirms that servicing or repairs were carried out on the
    Mazda 45 times in the two and a half year period prior to Mr Ward’s death
    - an average of once every three
    weeks.[155] As noted by Counsel
    Assisting,[156] the poor condition
    of the Mazda was also immediately apparent to the investigating officers
    involved in the reconstruction of Mr Ward’s escort.
  2. The Mazda was taken to Sealys Auto Electrical Pty Ltd on 7 January 2008 due
    to reported problems with the air-conditioning. Whilst not clear what checks
    were done by Sealys, the relevant invoice indicates that Sealys reported to GSL
    that no fault could be
    detected.[157] The Commission
    submits that it was incumbent on GSL at this point to ensure that all Kalgoorlie
    staff were aware that faults had been reported with the air-conditioning system
    by GSL drivers which could not be explained by Sealys. Staff should have been
    instructed that particular care was therefore required to ensure that the
    air-conditioning was working before and during all escorts, particularly over
    long distances in hot conditions.

The response of the Department
to deficiencies with the vehicle fleet

  1. The Commission agrees with the submissions of Counsel Assisting that the
    response of the Department to the known deficiencies with the vehicle fleet was
    inadequate and contributed to Mr Ward’s
    death.[158]
  2. The evidence makes clear that the Department’s response was fixated on
    a long term fleet replacement strategy, without giving adequate consideration to
    interim modifications to improve the existing vehicles pending arrival of the
    new fleet, such as installing permanent or temporary padding.
  3. As a minimum interim measure, the Commission submits that the Department
    should have reviewed all relevant operational policies and procedures to ensure
    that, as far as possible, they adequately addressed OICS recommendations. The
    Department should also have ensured that effective mechanisms were in place to
    ensure that the Mazda vans, which according to Mr Doyle were only ever intended
    for short runs, were not being used for long haul
    escorts.[159]
  4. Moreover, the Commission submits that the fleet replacement strategy was
    itself fundamentally flawed due to the Department’s failure to make
    adequate budgetary allocations. The Department decided as early as 2003 that it
    would assume ownership of the vehicle fleet, which occurred in 2005. By that
    stage the Department was well aware, or at least should have been, that the
    vehicle fleet urgently required replacement. However, at no stage prior to the
    current 2009/10 budget was any budgetary allocation made for vehicle
    replacement.[160] Accordingly,
    despite outward assurances that the existing fleet would be replaced, the
    Department failed to ensure that the funds were available to make this
    happen.

The response of GSL to deficiencies with the vehicle
fleet

  1. The Commission agrees with the submissions of Counsel Assisting that the
    response of GSL to the known deficiencies with the vehicle fleet was also
    inadequate and contributed to Mr Ward’s
    death.[161]
  2. The Commission notes that Mr Hughes gave evidence that the only action taken
    by GSL in response to the various problems identified with the vehicle fleet was
    to direct staff not to use pods and/or vehicles if they were not mechanically or
    electronically sound. However, this was never put into writing and relevant
    policies were not reviewed at the time GSL took over the Court Security and
    Custodial Services contract (‘CSCS contract’) to ensure that they
    adequately reflected this requirement.
  3. In addition, this direction was not realistic. GSL officers in regional
    locations were under pressure to continue running
    escorts[162] and had only a
    limited pool of vehicles to use, all of which had mechanical problems to one
    degree or another. The evidence also makes clear that, even after a vehicle had
    been repaired, it would typically break down again a short time
    later.[163] Accordingly, a vehicle
    which commenced an escort with no apparent mechanical problems nevertheless
    carried a significant risk of breakdown or malfunction en route. Officers would
    also be understandably reluctant to refuse to use vehicles if this would mean
    missing out on a shift (if only one vehicle was available) or out of a fear of
    having their shifts reduced in
    future.[164]
  4. Furthermore, this alleged directive did not adequately address the duty of
    care issues raised by the OICS and others. For example, no effort was made to
    ensure that GSL employees were briefed on the findings and recommendations of
    the OICS (or other relevant
    reports),[165] such as the
    recommendations made in OICS Report No 43 relating to the need for comfort
    breaks every 2 - 2 ½ hours and an adequate supply of fresh
    water.[166]
  5. The Commission also notes with concern that the Mazda in which Mr Ward died
    was replaced after his death with a virtually identical Mazda which also
    experienced similar on-going
    problems.[167] Whilst officers
    were instructed to limit the use of the Mazda to journeys of two hours or
    less,[168] the Commission regards
    journeys of such lengths to still be highly inappropriate in light of the
    Mazda’s apparent condition and the various design deficiencies referred to
    earlier.

PART G: POLICIES AND PROCEDURES RE PRISONER
TRANSPORT

  1. As outlined by Counsel Assisting, the death of Mr Ward immediately
    highlighted a number of deficiencies with GSL policies relating to prisoner
    transport, particularly in respect of regular welfare checks and pre-departure
    vehicle checks. In addition to these matters, the Commission seeks to make
    submissions relating to specific policy deficiencies in respect of toileting
    arrangements, the preference for the rear pod over the middle pod and the
    provision of food and water.

Toileting arrangements

  1. The Commission notes with concern the policies and practices of GSL in
    respect of toileting during long haul escorts. This was also raised as an issue
    of concern in OICS Reports No
    3[169] and
    43.[170] Many long-haul vehicles,
    such as the Mazda, lack on-board toilets. The evidence reveals that, in the
    absence of a secure location, male prisoners would often be provided a bottle or
    plastic container to urinate in or would simply urinate on the floor, often in
    view of other prisoners.[171] In
    the case of female prisoners, Officer Stokoe gave evidence that if the police
    station at Leonora was not open on an escort from Laverton to Kalgoorlie,
    ‘they had to hold onto it until we got to the prison or the cop shop at
    the other end’[172] (approximately 234km away[173]).
    In the Commission’s submission, these practices are inadequate and fail to
    adequately respect prisoner dignity and humanity.
  2. Mr Hughes gave evidence that GSL officers had discretion to allow prisoners
    out of vehicles to use public toilets if the need arose. However, this is not
    clearly stated in any written policies and does not appear to have been
    communicated to staff in Kalgoorlie given the practices described above. For
    example, Mr Akatsa noted that ‘we never risked opening the back and taking
    them out [to go to the
    toilet]’.[174] He also
    stated that he had been instructed that prisoners could not even be let out of
    the vehicle in the event of a fire or an accident, but should be simply moved to
    the middle pod through the internal escape
    hatch.[175]
  3. The Commission submits that the lack of any clear policy in respect of
    toilet breaks contributed to the failure by Officers Stokoe and Powell to
    conduct a welfare stop between Laverton and Kalgoorlie.

Rear pod
vs middle pod

  1. The middle pod of the Mazda is a plainly safer and more humane option than
    the rear pod, given that it has padded seats, seat belts, forward facing seats
    and better ventilation, light, views outside and capacity to communicate with
    the driver’s cabin.
  2. The evidence makes clear, however, that Mr Ward was placed into the rear pod
    due to the GSL policy that all persons collected from a police lock-up are
    automatically classed as a maximum security
    prisoner.[176] This policy remains
    in force[177] and was known to the
    Department prior to Mr Ward’s
    death.[178]
  3. As noted earlier, the prohibition against arbitrary detention under
    international law encompasses a requirement that prisoners not be subjected to a
    further and serious deprivation of their liberty beyond what is reasonable and
    proportionate in the circumstances. Likewise, the requirement that persons
    deprived of their liberty be treated with humanity and dignity requires that the
    manner of detention be proportionate with the person’s security status and
    that ‘security measures to which prisoners are subject should be the
    minimum necessary to achieve their secure
    custody.’[179] Likewise, the Standard Guidelines for Corrections in Australia state:

    Transportation of prisoners should take place in a safe and
    efficient manner, under conditions appropriate to the level of security for
    those prisoners.[180]

  4. The Commission submits that the GSL policy regarding the security rating of
    persons collected from a police lock-up is inconsistent with these human rights
    principles. The policy is applied without any regard to individual
    characteristics or circumstances such as age, gender, health, seriousness of
    offence or charge, behaviour or positive assurances from
    police.[181] The Commission also
    agrees with the suggestion by Professor Harding in his evidence that this
    security policy was geared to apply a higher degree of security than was
    necessary primarily to minimise the risk of GSL being fined under the contract
    for prisoner escapes.[182]
  5. The Commission acknowledges that there may be situations where an absence of
    information requires a cautious approach to assessing a person’s security
    risk. However, the inflexibility of the policy is liable to lead to unjust and
    unfair outcomes, as Mr Ward’s case plainly
    illustrates.[183]
  6. The Commission submits that the GSL policy in respect of security
    classifications contributed to Mr Ward’s death, by resulting in his
    placement in the rear pod.

Provision of food and water

  1. The Commission submits that GSL policies failed to ensure an adequate supply
    of food and water to
    detainees.[184] The evidence from
    police and GSL officers makes clear that they each regarded this as the
    other’s responsibility.[185] Whilst Mr Hughes gave evidence that bottled water was supplied by GSL to its
    regional locations, this is not consistent with the evidence given by GSL
    officers in Kalgoorlie.[186]
  2. To the extent that GSL appears to have had an informal policy of reimbursing
    drivers if they purchased food or water with their own money, the evidence
    demonstrates that the reimbursement process was lengthy, inconvenient and rarely
    pursued.[187] In any event, the
    Commission considers that it was incumbent on GSL to have had adequate
    arrangements in place to ensure that food and water was provided without relying
    on officers to use their own money.
  3. The Commission submits that the lack of a clear GSL policy in respect of
    provision of water contributed to Mr Ward’s death, by depriving Mr Ward of
    an adequate water supply and/or by failing to ensure that appropriate stops were
    made during the escort to replenish his water supply.

GSL on
notice of additional reports raising concerns with its standards of detainee
transport

  1. The Commission submits that the failure of GSL to ensure that prisoner
    transport procedures were satisfactory is of particular concern given that GSL
    was already on notice of similar policy deficiencies following an incident
    involving the transfer of five immigration detainees from Maribyrnong to Baxter
    on 17 September 2004. This incident prompted the appointment by the Federal
    Government of an independent inquiry conducted by Keith Hamburger of Knowledge
    Consulting. This inquiry identified a range of deficiencies with GSL policies
    that had contributed to the inhumane and undignified treatment of the
    detainees.[188]
  2. Moreover, the President of the Commission subsequently conducted an inquiry
    into the incident and found serious breaches of the detainees’ human
    rights, including that they had been subjected to degrading treatment and a lack
    of respect for their humanity and
    dignity.[189]
  3. In the course of that inquiry, the Commission was advised that, in response
    to the Knowledge Consulting Report, GSL had created a ‘Detention Services
    Escort Log’ that ‘stipulates that the driver takes rest breaks every
    two hours and provides a recording of the breaks and driver changes in the
    log’.[190] This log also
    documents pre-departure briefings with
    detainees,[191] and that
    ‘client’s needs such as access to nourishment, opportunity for the
    toilet and exercise at regular intervals are met during an escort
    trip’.[192]
  4. In addition, the Commission notes that in 2006 the Victorian Ombudsman and
    Office of Police Integrity issued a joint report, entitled Conditions for
    Persons in Custody,
    which included a review of prisoner transportation
    provided by GSL. The Report relevantly
    concluded:

    Inadequacies have also been identified in the way
    prisoners are transported. Insufficient attention is given to the conditions
    under which prisoners are transported, often without basic amenities for long
    trips and lack of consideration of alternatives to transporting prisoners, such
    as expanding the use of video conferencing between prisons and
    courts.[193]

  5. The report also referred to the findings of a 2005 report by the Victorian
    Corrections Inspectorate which had previously outlined deficiencies in prisoner
    transport provided by GSL in the areas of:

    ...incomplete staff
    refresher training, poor record keeping, no regular reviews or updating of
    emergency management procedures, little adherence to servicing and maintenance
    requirements for the vehicle fleet, high breakdown levels of electronic
    surveillance equipment in the vans compounded by poor quality vision, broken
    lights and ‘blind spots’, inoperative communications equipment which
    prevent prisoners from speaking with the driver and an inadequate emergency
    duress monitoring system.[194]

  6. The Commission submits that GSL should have taken steps to ensure that the
    lessons learned from the Maribyrnong – Baxter incident and the above
    Victorian reports were incorporated into a review of GSL policies when it took
    over the CSCS contract, and that operational staff and management were
    adequately briefed on these
    matters.[195]
  7. The Commission acknowledges that the various GSL operations in Australia are
    conducted by separate corporate entities. However, the Commission submits that
    this should not be permitted to mask the reality that the various companies are
    closely related entities under a single GSL brand. For example, Mr Doyle gave
    evidence that the GSL head office in Melbourne provided corporate support to the
    GSL operation in Western Australia and that all GSL policies relating to the
    CSCS contract required sign-off from the GSL head office. GSL also no doubt
    traded on the combined experience of its various related companies in its
    negotiations with the Department to secure approval for the novation of the CSCS
    contract from AIMS to GSL.

PART H: TRAINING AND INSTRUCTION OF
GSL OFFICERS

  1. The Commission agrees with Counsel Assisting that the standard of training
    and instruction of GSL officers was inadequate and contributed to Mr
    Ward’s death.
  2. The evidence shows that the standard six week
    induction[196] lacked any
    practical or seminar-based training in respect of the matters covered in the
    various policy folders (other than in the use of force and
    restraints).[197] Furthermore, the
    Commission submits that a fair reading of the evidence in respect of on-the-job
    training and instruction at Kalgoorlie is that it was ad hoc, unstructured,
    informal and inconsistent. As noted by Counsel
    Assisting,[198] the lack of
    consistent training and instruction is illustrated by the widely different
    accounts given by GSL officers as to relevant transport policies and
    procedures.
  3. It also does not appear to be in dispute that GSL officers did not receive
    any formal refresher training, other than in respect of first aid and the use of
    force and restraints.[199] Indeed,
    even after Mr Powell was reinstated shortly after having been summarily
    dismissed in 2007 for various policy breaches, he still did not receive any
    refresher training other than in first aid and the use of force and
    restraints.[200]
  4. The Commission notes that the lack of refresher training is especially
    concerning given the findings of OICS Report No 43 that many staff had expressed
    frustration at the lack of refresher
    training.[201] The Report had also
    recommended that the Department ensure that a program of refresher training for
    all transport staff be considered a core budgetary component of any contract for
    custodial transport.[202]
  5. The evidence also shows that staff were not briefed on the findings and
    recommendations of OICS Reports 3 and/or 43. There is also little evidence of
    formal meetings between GSL site supervisors and senior management, aside from
    an annual conference. In respect of the November 2007 supervisors’
    conference, Mr Doyle agreed that ‘robust’ concerns were raised by
    supervisors about the state of the vehicles, including a warning by Ms Jenkins
    to the effect that someone would get seriously
    hurt.[203] However, little appears
    to have been done to address these concerns, other than await the roll-out of a
    replacement fleet. Rather than alleviating the supervisors’ concerns, as
    suggested by Mr Doyle,[204] this
    response appears to have reinforced the view of Mr Jenkins, shared by GSL staff
    in Kalgoorlie, that it was pointless to raise concerns with the vehicle fleet as
    nothing would ever get done.[205]

PART I: TRANSPORTATION OF MR WARD

  1. The Commission submits that the transportation of Mr Ward from Laverton to
    Kalgoorlie on 27 January 2007 was cruel, inhuman and degrading, in breach of his
    rights under article 7 of the
    ICCPR.[206] Mr Ward was also not
    treated with humanity or with respect for the inherent dignity of the human
    person, in breach of article 10(1) of the ICCPR. This was a result of the harsh
    conditions of the Mazda van, compounded by inadequate practices and policies of
    GSL and the failure of Officers Stokoe and Powell to exercise adequate care on
    the day.
  2. In particular, the Commission’s notes the following key deficiencies
    in the standard of care shown by Officers Stokoe and Powell:

    • (a) the failure to perform adequate pre-departure checks at Kalgoorlie,
      particularly of the air-conditioning
    • (b) the failure to provide Mr Ward with adequate water
    • (c) the failure to perform adequate pre-departure checks at Laverton
    • (d) the failure to adequately monitor Mr Ward during the journey or conduct
      welfare stops.
  3. The Commission also submits that there were a number of steps that ought to
    have been taken by Officers Stokoe and Powell following Mr Ward’s
    collapse.

Pre-departure checks at Kalgoorlie

  1. It is not in dispute that Officers Powell and Stokoe did not check that the
    air-conditioning unit was functioning as part of their pre-departure vehicle
    check. It also does not appear to be seriously disputed that this should have
    occurred.[207]
  2. Given the poor condition noted with the CCTV monitor and the absence of a
    spare tyre,[208] the vehicle also
    should not have departed without approval from Ms
    Jenkins.[209] This was not only a
    GSL policy requirement,[210] but a
    matter of common sense.
  3. In addition, no attempt was made prior to departure (or at any time
    thereafter) to telephone ahead to Leonora police station to advise of an
    approximate time they would be passing through with Mr Ward to ensure that the
    station would be attended. This was the only secure stop for providing Mr Ward
    with a toilet break and the station was known to be frequently unattended unless
    prior arrangements were made, especially on
    Sundays.[211]

Provision
of water

  1. The only water provided to Mr Ward for his transport to Kalgoorlie was a
    600ml bottle provided by Officer Chammings. The Commission submits that this was
    plainly inadequate, given the length of the journey, the temperature of the day,
    Mr Ward’s dehydrated condition at the time and the warnings given in OICS
    Report No 3 regarding the need to provide fresh drinking water at all
    times.[212]

Pre-departure checks at Laverton

Air-conditioning

  1. The evidence is not clear whether the air-conditioning in the rear pod was
    already switched on prior to when Officers Stokoe and Powell arrived at
    Laverton.[213] Nevertheless, the
    Commission submits they should have ensured that the air-conditioning was
    switched on for a reasonable period prior to their departure from
    Laverton, to pre-cool the rear pod. The statements of other GSL drivers indicate
    that this was relatively standard
    practice.[214]
  2. The Commission further submits that, given the high temperatures of the day
    and the known problems experienced with the Mazda in the past, Officers Stokoe
    and Powell should have checked the air-conditioning prior to departing
    Laverton.[215]

Health checks

  1. Officers Stokoe and Powell both observed Mr Ward to be moving slowly when he
    was loaded into the van in
    Laverton.[216] In the
    Commission’s view, given their duty of care to Mr Ward, this observation
    should have prompted Officers Stokoe and Powell to make preliminary inquiries of
    Mr Ward as to his state of health and fitness to
    travel.[217]
  2. The Commission notes that the issue of preliminary health checks by police
    was discussed by the RCIADIC. The report acknowledged that ‘police
    officers cannot and should not be expected to make a diagnosis of a
    prisoner’s medical
    condition’.[218] However,
    the report recommended that officers should nevertheless be trained and expected
    to ‘make a preliminary assessment of the detainee’s physical and
    mental condition based on information known to them and upon their own
    observations’ and to seek medical assistance if left in any doubt as to
    the person’s state of
    health.[219]

Pre-departure
briefing

  1. The Commission also considers that it was inadequate in the circumstances
    that neither Stokoe nor Powell provided any verbal briefing to Ward prior to
    their departure from Laverton, such as in respect of how to operate the duress
    button, how to get their
    attention,[220] when toilet breaks
    would be taken and any relevant emergency procedures.

Monitoring
of Mr Ward during journey

  1. The Commission agrees with Counsel Assisting that there are various
    inconsistencies in the evidence of Officers Stokoe and Powell regarding the
    conduct of the escort such that the Coroner cannot be satisfied that events
    unfolded as they described.[221] Nevertheless, even on the evidence given by Officers Stokoe and Powell, the
    Commission submits that the quality of supervision of Mr Ward during the journey
    was inadequate in several respects.

Physical welfare
checks

  1. The Commission submits that Officers Stokoe and Powell should have conducted
    physical welfare checks of Mr Ward at Leonora and Menzies. As noted earlier, the
    RCIADIC emphasised the need for physical welfare checks of detainees, rather
    than relying on electronic technology for remote checks alone. Officer
    Stokoe’s purported reliance on Mr Ward to bang on the sides of the van if
    he wanted their assistance is also at odds with the fact that she was wearing
    headphones listening to music virtually the entire journey to
    Kalgoorlie.[222]
  2. To the extent that Ms Stokoe indicated that they did not stop at Leonora
    because Mr Ward was asleep, this justification should be rejected. This is
    contrary to the evidence of Mr Powell that, as they were approaching Leonora, Ms
    Stokoe advised that Mr Ward was sitting up and looking
    around.[223] Given the quality of
    the CCTV monitor, it is also impossible that Ms Stokoe could have been
    positively satisfied that Mr Ward had his eyes
    closed,[224] let alone that he was
    in fact asleep rather than simply lying down and resting. The failure by
    Officers Stokoe and Powell to telephone ahead to the police station at Leonora
    to make arrangements to use the toilet facilities also suggests that they never
    planned to make a stop at
    Leonora.[225] In any event, the
    temperature of the day, Mr Ward’s minimal water supply and the conditions
    of the rear pod made a physical welfare check essential regardless of whether Mr
    Ward appeared to be asleep. Moreover, the Commission submits that Officers
    Stokoe and Powell should have stopped at Laverton to rest and change drivers for
    reasons of safety.

Removal of shirt

  1. In his interview with police, Officer Powell stated that Officer Stokoe
    observed Mr Ward to remove his shirt during the escort. Whilst disputed by
    Officer Stokoe in her evidence, the Commission submits that Officer
    Powell’s evidence to police on this matter should be preferred given the
    recentness of that evidence to the relevant events. The Commission further
    submits that this observation should have prompted Officers Stokoe and Powell to
    stop and check whether the air-conditioning was functioning in the rear
    pod.

Treatment of Mr Ward following his collapse

  1. In times of medical emergency, tensions quickly rise and an optimal response
    can of course be difficult. However, the Commission considers that there were a
    number of steps that ought to have been taken by Officers Stokoe and Powell
    following Mr Ward’s collapse, including:

    • (a) opening the inner
      door[226] to allow some of the
      heat to escape and to afford better access to Mr Ward
    • (b) climbing into the rear pod to assess Mr Ward’s condition and
      perform first aid[227]
    • (c) driving immediately to the hospital, rather than waiting on the roadside
      for approximately two minutes after securing the rear doors with Mr Ward
      inside[228]
    • (d) having one of the officers riding in the rear pod en route to the
      hospital to monitor Mr Ward and perform first aid
    • (e) calling ahead to put the hospital emergency department on notice of
      their imminent arrival and Mr Ward’s condition.
  2. The Commission also notes that the Mazda van was not equipped with a fully
    automatic defibrillator as part of its first aid kit, which might have otherwise
    ensured that Mr Ward was administered appropriate cardiac treatment as soon as
    his heart stopped. Following Mr Ward’s death, the Department’s
    Internal Investigations Unit recommended that consideration be given to
    inclusion of automatic defibrillators in remote area escort
    vehicles,[229] although this
    recommendation does not appear to have resulted in any changes being made.
  3. The Commission acknowledges that the medical evidence indicates that the
    failure to take the above steps probably did not contribute to Mr Ward’s
    death. Nevertheless, the Commission considers that comments on this issue are
    relevant to the quality of treatment and care of Mr Ward whilst in custody, as
    well as to public health and safety and the administration of
    justice.

PART J: POLICE INVESTIGATION INTO THE DEATH OF MR
WARD

  1. As noted earlier, as part of the State’s international obligations to
    protect life and provide an effective remedy it is essential that deaths in
    custody are subjected to comprehensive and rigorous investigation. Likewise, the
    RCIADIC emphasised the importance of ensuring a high standard of police
    investigations of Aboriginal deaths in custody, noting that:

    The
    anguish and anger of the relatives, their fear and suspicion as to what may have
    happened inside a police or prison cell, demands an assurance that the
    circumstances of death will be thoroughly and fairly
    investigated.[230]

  2. The RCIADIC was also highly critical of many of the police investigations it
    reviewed and concluded that: ‘The inadequacies of post-death
    investigations throughout Australia must be addressed as a matter of
    urgency.’[231] The report
    went on to make a series of recommendations to ensure the ‘thorough,
    competent and
    impartial’[232] investigation of all deaths in
    custody[233]
  3. The Commission submits that Det. Sgt. Robinson displayed a lack of awareness
    with these recommendations and with the findings and recommendations of the
    RCADIC generally.[234] In the
    Commission’s view, this is not satisfactory for a senior officer in charge
    of an investigation into an Aboriginal death in custody.
  4. Det. Sgt. Robinson stated that he treated the investigation into the death
    of Mr Ward as if it was a homicide. In line with the recommendations of the
    RCIADIC,[235] the Commission
    agrees that this is the appropriate approach that should have been taken. The
    reality, however, fell far short.
  5. On the night of Mr Ward’s death, Officers Stokoe, Powell and Jenkins
    were all kept together and unsupervised in an unused office for several hours
    before being interviewed.[236] Ms
    Jenkins was also allowed to remain present during the interviews of both Stokoe
    and Powell, notwithstanding that she was a material witness in the
    case.[237] The Commission submits
    that her relevance to the investigation should have been immediately apparent,
    if not at least strongly suspected, given her supervisory
    role[238] and her presence at the
    hospital at the time the police arrived. Her relevance was further confirmed as
    the interviews unfolded, yet at no stage was she removed.
  6. The Commission submits that the investigation was also open to criticism in
    the following respects:

    • (a) Statements from the police officers at Laverton indicate that little
      care was taken to scrutinise properly the evidence of these witnesses. For
      example, many parts of the statements of Officers
      Sliskovic[239] and
      Kopsen[240] (the arresting
      officers) are almost identical. Likewise, Officer Timmers gave evidence that he
      and other officers conferred with one another in preparing their
      statements.[241] In addition,
      little attempt was made to clarify relevant details surrounding the denial of
      bail to Mr Ward by Officer Timmers and Mr Thompson.
    • (b) No follow-up inquiries appear to have been made with any of the
      witnesses after they provided their statements, including Officers Stokoe and
      Powell. As outlined by Counsel Assisting, there were various inconsistencies
      between the accounts of Stokoe and Powell which, in the Commission’s
      submission, should have prompted further inquiries by police.
    • (c) No statement was taken from any of the Aboriginal witnesses to Mr
      Ward’s arrest[242] or his
      time in police custody at Laverton, such as PE or Tyrone
      Ward.[243]
    • (d) No attempt was made to locate the CCTV footage of Mr Ward being loaded
      into the van at Laverton, despite such footage being apparently available at the
      time (but since
      destroyed).[244]
    • (e) The investigation suffered from significant delays. For example,
      hospital staff did not provide statements until almost seven months after Mr
      Ward’s death and statements were not requested from other GSL drivers and
      Mr Thompson until approximately 12 months after Mr Ward’s death. Moreover,
      at the time Dt. Sgt. Robinson submitted his report in 2009, a statement had
      still not been provided by Mr Hughes, Mr Thompson or anyone from within the
      Department.
    • (f) The documents produced through the investigation were also very limited
      in their scope and did not include, for example, highly relevant documents
      relating to the use of the Mazda in the weeks leading up to Mr Ward’s
      death.[245]
    • (g) Det. Sgt. Robinson was not an appropriate choice to lead the
      investigation given his location in the region where Mr Ward
      died.[246]
  7. The Commission submits that the above deficiencies are relevant matters for
    comment as they relate to the administration of justice in connection with Mr
    Ward’s death.

PART K: MAKING WRITTEN SUBMISSIONS PUBLICLY
AVAILABLE

  1. At the conclusion of the evidence, the Coroner indicated that his usual
    practice was that parties would not be permitted to make written submissions
    publicly available, even after his findings were handed down. However, the
    Coroner indicated that the parties could address this issue in their written
    submissions.
  2. The presumption in favour of open and public administration of justice has
    long been recognised as a cornerstone principle of the Australian legal system.
    In Russell v Russell (1976) 134 CLR 495, for example, Gibbs J explained
    the basis of this presumption as follows:

    It is the ordinary rule of
    the Supreme Court, as of the other courts of the nation, that their proceedings
    shall be conducted ‘publicly and in open view’ (Scott v
    Scott
    ). This rule has the virtue that the proceedings of every court are
    fully exposed to public and professional scrutiny and criticism, without which
    abuses may flourish undetected. Further, the public administration of justice
    tends to maintain confidence in the integrity and independence of the courts.
    The fact that courts of law are held openly and not in secret is an essential
    aspect of their character. It distinguishes their activities from those of
    administrative officials, for ‘publicity is the authentic hall-mark of
    judicial as distinct from administrative procedure’ (McPherson v
    McPherson
    ).[247]

  3. Similarly, In John Fairax Publications Pty Ltd & Anor v District
    Court of NSW & Ors
    [2004] 61 NSWLR 344, Spigelman CJ (Handley JA and
    Campbell AJA agreeing) summarised the relevant principles as
    follows:

    It is well established that the principle of open justice
    is one of the most fundamental aspects of the system of justice in Australia.
    The conduct of proceedings in public ... is an essential quality of an
    Australian court of justice. There is no inherent power of the Court to exclude
    the public. ...

    It is also well established that the exceptions to the principle of open
    justice are few and strictly defined. It is now accepted that the courts will
    not add to the list of exceptions but, of course, Parliament can do so, subject
    to any Constitutional constraints.

    The entitlement of the media to report on court proceedings is a corollary of
    the right of access to the court by members of the public. Nothing should be
    done to discourage fair and accurate reporting of proceedings.

    From time to time the courts do make orders that some aspect or aspects of
    court proceedings not be the subject of publication. Any such order must, in the
    light of the principle of open justice, be regarded as
    exceptional.[248]

  4. As noted earlier, the right to life and the right to an effective remedy
    under the ICCPR also impose positive obligations on the State to ensure that
    inquiries into deaths in State custody are public and accountable.
  5. The Commission submits that parties should be permitted to make their
    written submissions public. This is an important component of open justice,
    particularly in this inquest given the numerous systemic issues of public
    interest and importance. The Commission also notes that, due to time
    constraints, the parties were unable to make oral submissions in the inquest.
    Accordingly, it is only through the parties being permitted to now make their
    submissions available that the content of those submissions can be publicly
    known.

PART L: COMMENTS OF THE CORONER IN THIS INQUEST

  1. As indicated earlier, the Commission adopts the findings and recommendations
    proposed in the submissions of Counsel Assisting. The Commission also adopts the
    submissions made to this inquest by the OICS.
  2. The Commission submits that the Coroner should also consider making the
    following additional comments in this inquest:

Denial of bail

  • (a) The refusal of bail to Mr Ward was an inappropriate exercise of police
    discretion in the circumstances.
  • (b) The evidence of police officers at Laverton discloses a general lack of
    awareness of relevant obligations under the Bail Act, Magistrates Court
    Regulations 2005
    (WA) and recommendations of the RCIADIC regarding bail. The
    Police Commissioner should consider whether this reflects upon police training
    generally or a need for further training of officers stationed at Laverton.
  • (c) The Police Commissioner should ensure that police operating manuals
    emphasise that bail should ordinarily be granted and that powers of arrest and
    refusal of bail should only be treated as measures of last resort.
  • (d) The Police Commissioner should consider introducing a requirement that
    when officers achieve the rank of
    sergeant[249] they are required to
    undergo refresher training on their obligations under the Bail Act.
  • (e) The hearing conducted by Mr Thompson did not meet acceptable standards,
    was procedurally defective and failed to consider adequately or at all Mr
    Ward’s case for bail.
  • (f) The Department of Attorney-General should take steps to ensure that
    current Justices of the Peace who have not completed their required training and
    assessment are required to do so as a matter of urgency.
  • (g) The Department of Attorney-General should phase out within three years
    the current arrangements of having Justices of the Peace consider bail
    applications, to be replaced with having all bail applications considered by a
    judge or magistrate, either in person or via audio or video link-up.
  • (h) The Department of Attorney-General should take steps to ensure that
    video conferencing facilities are available and operational in all remote police
    stations within three years.

Quality of supervision, treatment
and care in police custody

  • (i) The evidence of police officers at Laverton discloses a lack of
    awareness of, and a failure to take into account, the recommendations of the
    RCIADIC relating to physical cell checks. The Police Commissioner should
    consider whether this reflects upon police training generally or a need for
    further training of officers stationed at Laverton.
  • (j) Particular attention should be given by the Police Commissioner to the
    training of officers working in Aboriginal communities. Such training should be
    provided prior to any service in Aboriginal communities and should deal
    particularly with relevant recommendations of the RCIADIC.
  • (k) The Police Commissioner should review current arrangements for the
    supply of food and beverages to persons in police custody to ensure that
    standards of nourishment, hygiene and variety are satisfactory, especially in
    remote locations. The Police Commissioner should also consider modifications to
    the police station exercise yard at Laverton to remove potential hanging
    points.
  • (l) The Police Commissioner should review current practices with respect to
    automatically generated historical warnings on Custody Handover Sheets, to
    ensure that warnings are not listed unless they remain
    current.

Prisoner transport fleet

  • (m) Pending the roll-out of a replacement vehicle fleet, the Department and
    G4S Custodial Service Pty Ltd (‘G4S’) (formerly named GSL) should
    take urgent steps to consider appropriate interim measures and modifications to
    address the level of safety, amenity and dignity of the current fleet, including
    permanent or removable padding in all vehicles used for long-haul escorts.
  • (n) In replacing the current vehicle fleet, the Department and G4S should
    also consider the greater use of coaches and air transport for prisoner
    transport, as well as vehicles specifically designed for minimum security
    prisoners.

Policies and procedures

  • (o) G4S should review its current policies in respect of toileting
    arrangements to ensure humane and dignified access to toilet facilities. G4S
    should also ensure that appropriate policies and protocols are in place to
    facilitate the use of police lock-ups for toilet stops during prisoner
    transports where appropriate.
  • (p) G4S should take urgent steps to review relevant policies of all related
    GSL / G4S companies in Australia that provide prisoner / detainee transport
    services in light of the lessons learned from this
    inquest.

Training and instruction

  • (q) In enhancing training for G4S staff, as recommended by Counsel
    Assisting, the Department and G4S should also consider developing a case study
    based on Mr Ward’s death, to ensure that the lessons learned from this
    inquest are passed on to all current and future staff.
  • (r) G4S should review current arrangements for the exchange of information
    between management and site supervisors. These arrangements should ensure that
    supervisors are provided with appropriate briefing materials in respect of key
    reports and other matters relating to prisoner welfare and that concerns from
    supervisors are facilitated, encouraged and actioned.

Treatment
of Mr Ward on 27 January 2008

  • (s) Mr Ward’s treatment during his transportation from Laverton to
    Kalgoorlie on 27 January 2008 was cruel, inhuman and degrading. Mr Ward was also
    not treated with humanity or with respect for the inherent dignity of the human
    person.
  • (t) In carrying out their duties on 27 January 2008, Officers Stokoe and
    Powell should have but failed to:

    • check that the air-conditioner was functioning prior to departure from both
      Kalgoorlie and Laverton
    • notify Ms Jenkins prior to departure from Kalgoorlie to advise her of
      problems with the CCTV and that the vehicle was missing a spare tyre
    • notify the police station at Leonora to advise of their arrival time, to
      facilitate access to toilet facilities for Mr Ward
    • conduct a preliminary health check of Mr Ward at Laverton and provide him
      with a short briefing about the escort
    • provide an adequate supply of water to Mr Ward
    • perform physical welfare checks on Mr Ward and a change of driver during the
      escort.
  • (u) G4S should review its policy relating to the allocation of a maximum
    security rating to all persons collected from police lock-ups, to allow a more
    individualised assessment in appropriate circumstances.
  • (v) G4S should review its policies relating to medical emergency procedures
    during escorts. This review should ensure that local hospital emergency
    department contact numbers are prominently displayed inside transport vans
    and/or on transport documentation. G4S and the Department should also consider
    the inclusion of fully automatic defibrillators on board all long-haul
    vehicles.

Police investigation into Mr Ward’s death

  • (w) The failure to adequately separate Officers Stokoe, Powell and Jenkins
    prior to and during their interviews with police was inappropriate and
    undermined the integrity of the investigation. The investigation overall was
    also not sufficiently comprehensive, rigorous or prompt. The Police Commissioner
    should consider whether this reflects upon police training generally or a need
    for further training of officers who investigated Mr Ward’s death.
  • (x) The Police Commissioner should review current procedures to ensure that
    in all deaths in custody:

    • (i) the appointment of the officer in charge is made by the Chief
      Commissioner, a Deputy Commissioner or Assistant Commissioner of Police
    • (ii) officers investigating the death are chosen from a region other than
      that in which the death occurred.
  • (y) The Police Commissioner should consider introducing a requirement that
    officers likely or wishing to be considered for appointment in charge of an
    investigation into an Aboriginal death in custody are first required to become
    familiar with the recommendations of the RCIADIC, particularly recommendations 6
    – 40 regarding post-death investigations.

28 May 2009

.....................................................................
Brook
Hely
Senior Solicitor
Human Rights and Equal Opportunity Commission


[1] As to the significance of the
RCIADIC in informing coronial inquests, see eg Ian Freckelton and David
Ranson, Death Investigation and the Coroner’s Inquest (2006), p
667: ‘In addition, a number of inquests have sought to reinforce the
findings of the [RCIADIC].’
[2]Kartinyeri v Commonwealth (1998) 195 CLR 337, 384 (Gummow and Hayne JJ).; Jumbunna Coal Mine N/L v
Victorian Coalminers’ Association
(1908) 6 CLR 309, 363
(O’Connor J). This principle applies to all statutes, not just those
statutes that seek to implement Australia’s treaty obligations: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273,
287 (Mason CJ and Deane J); Chu Kheng Lim v Minister for Immigration, Local
Government and Ethnic Affairs
(1992) 176 CLR 1, 38 Brennan, Deane and Dawson
JJ; Pearce and Geddes, Statutory Interpretation in Australia (5th ed, 2001), [5.14]. ‘Ambiguity’ in this context is to
be construed broadly: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J). See further Wendy Lacey, Implementing Human Rights Norms: Judicial Discretion & Use of
Unincorporated Conventions
(2008), esp Chapters 4 and
5.
[3]Queensland v Mabo (No
2)
(1991) 175 CLR 1, 42 (Brennan
J).
[4] For example, Clause 5.3.1
of Schedule 2 to the Contract for the Provision of Court Security and
Custodial Services
(January 2000) provides: ‘Persons in custody shall
be treated with humanity, dignity, care, and sensitivity. No person in custody
shall be exposed to torture or to cruel, inhumane or degrading treatment of
punishment.’ This requirement is further reflected in Policy 6.104 (Duty
of Care) of the AIMS Operational Procedures Manual at [6-104.5]. As discussed
below, this terminology incorporates the relevant standards applicable under
international law.
[5]Standard
Guidelines for Corrections in Australia
(Revised 2004), Preface.
[6] See also OICS Report No 43, pp
26-7 and Exhibit 103 (OICS Media Release), p
2.
[7]Royal Women’s
Hospital v Medical Practitioners Board of Victoria
(2006) 15 VR 22, [77]
(Maxwell P).
[8] Opened for
signature 16 December 1966, 999 UNTS 171 (generally entered into force 23 March
1976, article 4 entered into force 28 March
1978).
[9] For example, the UNHRC
has stated that: ‘the right to life has been too often narrowly
interpreted. The expression ‘inherent right to life’ cannot properly
be understood in a restrictive manner, and the protection of this right requires
that States adopt positive measures’: General Comment 6, Article 6: The
Right to Life
(1982), U.N. Doc. HRI/GEN/1/Rev.1 at 6 (1994), [5]. See
further Joseph, Schultz and Castan, The International Covenant on Civil and
Political Rights: Cases, Commentary and Materials
(2nd ed, 2004),
Chapter 8, especially [8.01], [8.39]-[8.64]. The same interpretation has been
applied to the equivalent right to life under the European Convention on Human
Rights, see eg LCB v UK (1998) 4 BHRC 477, 456 [36]; Osman v UK (1998) 5 BHRC 293, 321 [11]; Keenan v UK (2001) 10 BHRC 319, 348-9
[88]-[90].
[10] Camille Giffard,
‘International Human Rights Law Applicable to Prisoners’ in David
Brown and Meredith Wilkie (eds), Prisoners as Citizens: Human Rights in
Australian Prisons
(2002) Chapt
11.
[11] The UNHRC was
established under Part IV of the ICCPR and is the authoritative body for
interpreting the ICCPR.
[12] Communication No 763/1999, UN Doc CCPR/C/74/D/763/1997 (2002), [9.2]. See also Fabrikant v Canada, UNHRC Communication No 970/2001, UN Doc
CCPR/C/79/D/970/2001 (2003); Dermit Barbato v Uruguay, UNHRC
Communication No 84/1981, UN Doc CCPR/C/17/D/84/1981
(1982).
[13]Salman v Turkey (2002) 34 EHRR 425, 482 [99] (footnotes omitted). See also R (Amin) v
Secretary of State
[2003] 4 All ER 1264, 1283 [41] (Ld Slynn).
[14] See Joseph, Schultz and
Castan, The International Covenant on Civil and Political Rights: Cases,
Commentary and Materials
(2nd ed, 2004), [8.39] 181. There is
also an overarching obligation on States under the ICCPR that
‘administrative and judicial authorities should be aware of the
obligations which the State party has assumed under the Covenant ... and steps
should be taken to familiarize the authorities concerned with its contents as
part of their training.’ General Comment 3, Article 2: Implementation
at the national level
(1981), U.N. Doc. HRI/GEN/1/Rev.1 at 4 (1994), [2].
[15] In respect of the
equivalent right to life under the European Convention on Human Rights, see eg McCann v UK (1996) 21 EHHR 97, 163 [161]; Yasa v Turkey (1998) 28
EHHR 408, 447-8 [98]; R (Amin) v Secretary of State [2003] 4 All ER
1264.
[16]R (Amin) v
Secretary of State
[2003] 4 All ER 1264, 1281 [31] (Ld Bingham).
[17]R (Middleton) v West
Comerset Coroner
[2004] 2 All ER 465. See also R (Amin) v Secretary of
State
[2003] 4 All ER 1264, 1272 [18] (Ld Bingham, Lds Slynn, Steyn, Hope
and Hutton agreeing)
[18] UNHRC, General Comment No. 20: Replaces general comment 7 concerning prohibition of
torture and cruel treatment or punishment (Art 7)
, U.N. Doc. HRI/GEN/1/Rev.1
at 30 (1994), [2] and [5].
[19] Opened for signature 21 December 1984, 1465 United Nations, Treaty Series 85 (entered into force 26 June
1987).
[20] See, eg, Joseph,
Schultz and Castan, The International Covenant on Civil and Political Rights:
Cases, Commentary and Materials
(2nd ed, 2004), p 275
[9.132].
[21] UNHRC, General
Comment 21: Replaces general comment 9 concerning humane treatment of persons
deprived of liberty (Art 10)
, (Forty-fourth session, 1992) U.N. Doc.
HRI/GEN/1/Rev.6 at 153 (2003)
[3]-[4].
[22] See, eg, Cabal
and Bertran v Australia,
Communication No 1020/2001, 19 September 2003, UN
Doc. CCPR/C/78/D/1020/2001, [7.2]: ‘The Committee considers that the
contracting out to the private sector of core State activities which involve the
use of force and the detention of persons does not absolve a State party of its
obligations under the Covenant, notably under articles 7 and 10.’ See also B.d.B. v Netherlands Communication No. 273/1989 (30 March 1989), U.N.
Doc. Supp. No. 40 (A/44/40) at 286 (1989), [6.6]; Manfred Nowak, UN Covenant
on Civil and Political Rights: CCPR Commentary
(2nd ed, 2005), pp
183-4 [42].
[23] See, eg, New
South Wales v Bujdoso
(2005) 227 CLR 1, esp at 13-4 [44] (Gleeson CJ,
Gummow, Kirby, Hayne, Callinan and Heydon
JJ).
[24] See, eg, UNHRC, Concluding Observations (United Kingdom), UN Doc CCPR/C/79/Add.55 (1995):
‘The Committee is concerned that the practice of the State party in
contracting out to the private commercial sector core State activities which
involve the use of force and the detention of persons weakens the protection of
rights under the Covenant. ... The State party should ensure that all those who
are involved in the detention of prisoners be made fully aware of the
international obligations on the State party concerning the treatment of
detainees.’ See further Dr Bronwyn Naylor, ‘Prisons, privatisation
and human rights’ Paper delivered at the ‘Human Rights and Global
Challenges Conference’, 10 – 11 December 2001, Melbourne. See also
UNHRC, Concluding Observations (United Kingdom), UN Doc CCPR A/33/40
(1978), [423], [431]; Concluding Observations (New Zealand) (2002) UN
Doc. CCPR/CO/75/NZL, [13]; Joseph, Schultz and Castan, The International
Covenant on Civil and Political Rights: Cases, Commentary and Materials
(2nd ed, 2004), pp 275-7. In respect of privatisation of prisoner
transport in Western Australia, see Cliff Holdom, ‘Extreme Transport:
Custodial Transport in Western Australia & Beyond’ (2008) Proceedings of the 2nd Australian & New Zealand Critical
Criminology Conference
107, 108: ‘History suggests that contract
management in itself cannot be relied upon to safeguard human dignity and
safety’
[25]Mukong v
Cameroon,
Communication No 458/1991 (21 July 1994), UN Doc GAOR A/49/40 (vol
II), [9.8]; Van Alphen v The Netherlands, Communication No 305/1988, UN
Doc CCPR/C/39/D/305/1988, [5.8]; A v Australia Communication No 560/1993,
UN Doc CCPR/C/59/D/560/1993, [9.2]. See also Alex Conte and Richard Burchill, Defining Civil and Political Rights: The Jurisprudence of the United Nations
Human Rights Committee
(2nd ed), (2009), pp
113-4.
[26]Van Alphen v The
Netherlands,
Communication No 305/1988, UN Doc CCPR/C/39/D/305/1988, [5.8]; A v Australia Communication No 560/1993, UN Doc CCPR/C/59/D/560/1993,
[9.2].
[27] See, generally,
HREOC, Inquiry into Complaints by immigration detainees against the
Commonwealth of Australia (Department of Immigration and Citizenship, formerly
the Department of Immigration and Multicultural and Indigenous Affairs) and GSL
(Australia) Pty Ltd,
[2009] HREOC Report No 40, [90]-[92] (and the
authorities referred to
therein).
[28] See further Hill and Hill v Spain, Communication No. 526/1993, U.N. Doc.
CCPR/C/59/D/526/1993 (2 April 1997), [12.3]. In the European context, see eg Tomasi v France (1992) 15 EHHR 1, [84]; Clooth v Belgium (1991) 14
EHRR 717, [44].
[29] Opened for
signature 21 December 1965, 660 United Nations, Treaty Series 195
(entered into force 4 January 1969 except Article 14 which came into force 4
December 1982).
[30] See, eg,
CERD, General recommendation XXXI on the prevention of racial
discrimination

in the administration and functioning of the criminal
justice system,
CERD doc A/60/18 (2005), esp at
[5(i)].
[31] General Comment 18, Non-discrimination (Thirty-seventh session, 1989), U.N. Doc.
HRI/GEN/1/Rev.1 at 26 (1994),
[10].
[32] The UN Committee for
the Elimination of Racial Discrimination, for example, has stated: ‘The
fulfilment of these obligations [under ICERD] very much depends upon national
law enforcement officials who exercise police powers, especially the powers of
detention or arrest, and upon whether they are properly informed about the
obligations their State has entered into under the Convention. Law enforcement
officials should receive intensive training to ensure that in the performance of
their duties they respect as well as protect human dignity and maintain and
uphold the human rights of all persons without distinction as to race, colour or
national or ethnic origin.’ CERD, General Recommendation XIII (Training
of law enforcement officials in the protection of human rights),
(Forty-eight session, 1996), [2].
[33] See also Exhibit 103 (Media
Release of OICS).
[34] See also
Exhibit 103 (Media Release of
OICS).
[35] See also Exhibit 103
(Media Release of OICS).
[36] See, eg, Althammer v Austria, Communication No. 998/2001, UN Doc
CCPR/C/78/D/998/2001: ‘a violation of article 16 [non-discrimination] can
also result from the discriminatory effect of a rule or measure that is neutral
at face value or without intent to discriminate ... if the detrimental effects
of a rule or measure exclusively or disproportionately affect persons having a
particular race...’ The same is true with respect to indirect
discrimination under Australian law, such as pursuant to s 9(2) of the Racial
Discrimination Act 1975
(Cth). See, generally, Australian Human Rights
Commission, Federal Discrimination Law Online, available at: http://www.humanrights.gov.au/legal/FDL/index.html
[37] Article 2(3) of the ICCPR
provides that: ‘Each State Party to the present Covenant undertakes: (a)
To ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation has
been committed by persons acting in an official
capacity.’
[38]Herrera
Rubio v Colombia
, UNHRC Communication No 161/1983, UN Doc CCPR/C/OP/2 at 192
(1990), [10.5]; Dermit Barbato v Uruguay, UNHRC Communication No 84/1981,
UN Doc CCPR/C/17/D/84/1981 (1982); Aktas v Turkey, ECHR 24351/94, 23
April 2003, [331]-[333]. See also UNHRC, General Comment No. 20: Replaces
general comment 7 concerning prohibition of torture and cruel treatment or
punishment (Art 7)
: 10/03/92,
[14].
[39] Coroners Act, s
3.
[40]Keown v Khan [1998] VISC 83, 10 (Callaway
J).
[41] See, eg, Raymond Brazil,
‘Respecting the Dead, Protecting the Living’ (2008) 12(SE2) Australian Indigenous Law Review 45, Rebecca Scott Bray, ‘Why This
Law?: Vagaries of Jurisdiction in Coronial Reform and Indigenous Death
Prevention’ (2008) 12(SE2) Australian Indigenous Law Review 27;
Boronia Halstead, ‘Coroners’ Recommendations and the Prevention of
Deaths in Custody’ (1995) 10 Australian Institute of Criminology:
Australian Deaths in Custody;
Ian Freckelton and David Ranson, Death
Investigation and the Coroner’s Inquest
(2006), pp 543, 654. See also Perre v Chivell [2000], SASC 279,
[4].
[42] Pursuant to s 3 of the
Bail Act, an ‘authorised officer’ is defined to include a police
officer who holds the rank of sergeant or higher or is for the time bring in
charge of a police station or
lock-up.
[43] Pursuant to s
6A(1), an authorised officer considering an accused’s case for bail for an
initial appearance in a summary court on a charge of an indictable offence that
is not a serious offence may order that the person be served with a summons and
released.
[44] Bail Act, s
6(3).
[45] Bail Act, ss 8(1)(a)
and (b).
[46] Bail Act, Schedule
1, Part C, s 1.
[47] Bail Act,
Schedule 1, Part C, s 1(e).
[48] RCIADIC, National Report, v 1, p 6
[1.3.3].
[49] RCIADIC, National Report, v 3, p
3.
[50] RCIADIC, Regional
Report of Inquiry into Individual Deaths in Custody in Western Australia
(1991), v 1, p 314.
[51] RCIADIC, Regional Report of Inquiry into Individual Deaths in Custody in
Western Australia
(1991), v 1, p 309. See also Aboriginal and Torres Strait
Islander Social Justice Commissioner, Indigenous Deaths in Custody: 1989 to
1996
(1996), p 87.
[52] RCIADIC, National Report, v 5, Rec
87.
[53] RCIADIC National
Report
, v 5, Rec 89.
[54] ICCPR, Article 9(1).
[55]C v
Australia,
Communication No 900/1999, UN Doc CCPR/C/76/D/900/1999,
[8.2].
[56]Hill and Hill v
Spain,
Communication No. 526/1993, U.N. Doc. CCPR/C/59/D/526/1993 (2 April
1997), [12.3]; WBE v The Netherlands, Communication No. 432/1990, U.N.
Doc. CCPR/C/46/D/432/1990 (1992), [6.3]-[6.4]; Van Alphen v The Netherlands, Communication No 305/1988, UN Doc CCPR/C/39/D/305/1988, [5.8]. See further
The Law Commission (UK), Bail and the Human Rights Act 1998, (2001), esp
at pp 19-21, 27-30. See also Alex Conte and Richard Burchill, Defining Civil
and Political Rights: The Jurisprudence of the United Nations Human Rights
Committee
(2nd ed), (2009), p 122; Joseph, Schultz and Castan, The International Covenant on Civil and Political Rights: Cases, Commentary
and Materials
(2nd ed, 2004), pp
328-9.
[57] (1982) 60 FLR 124,
126.
[58] The Commission also
notes that the evidence suggests that all persons with a blood alcohol reading
were arrested as a matter of course in Laverton, rather than being released on a
court attendance notice or summons: Transcript p 30.1
(Kopsen).
[59] RCIADIC, Final
Report,
v 5, Rec 90. The Commission also notes that a similar requirement is
imposed under the Standards for Police Cells (pp 9-10), developed by the
Victorian Office of Police Integrity to ensure compliance by police with their
obligations under the Charter of Human Rights and Responsibilities Act 2006 (Vic).
[60] Exhibit 56
(Underlying record of lock-up assessment): ‘Do you wish to contact the
ALS? No. // Do you wish the ALS to represent you?
Yes.’
[61] See, eg, Exhibit
54 (Statement of Const. Kopsen), [24]; Exhibit 2 (Statement of Snr Const.
Sliskovic), [19].
[62] Transcript
p 97.7 (Timmers).
[63] See,
generally, the statements from members of Mr Ward’s community (Exhibits
46, 46, 48, 51 and 52).
[64] See,
eg, Transcript pp 10.3, 14.1, 22.4 (Kopsen); 67.5 (Timmers), 118.5, 124.8, 153.1
(Chammings), 826.9 – 827.1
(Powell).
[65] Transcript p 56.9
(Timmers).
[66] Transcript p 1122
(Denness).
[67] See, eg, Law
Reform Commission of Western Australia, Aboriginal Customary Laws: The
interaction of Western Australian law with Aboriginal law and culture –
Final Report,
Project No 94 (September 2006), p 165: ‘Although the
Bail Act is silent on Aboriginal customary law and other cultural issues, there
is no reason why these matters could not be taken into account if relevant to
the question of bail.’
[68] See, eg, RCIADIC, Final Report, v 3 [25.3.1] – [ 25.3.2]; Law
Reform Commission of Western Australia, Aboriginal Customary Laws: The
interaction of Western Australian law with Aboriginal law and culture –
Final Report,
Project No 94 (September 2006), pp 165-6; Cliff Holdom,
‘Extreme Transport: Custodial Transport in Western Australia &
Beyond’ (2008) Proceedings of the 2nd Australian & New
Zealand Critical Criminology Conference
107, 116; OICS Report No 43, p
26.
[69] Transcript pp 55.5, 69.8
– 70, 97.6 (Timmers).
[70] Transcript p 57-8 (Timmers).
[71] Transcript p 96.8 (Timmers).
[72] Bail Act, Schedule 1, Part C, s
1(e).
[73] Transcript p 58.1
(Timmers).
[74] Transcript pp 44
– 45 (Kopsen), 93
(Timmers).
[75] Exhibit 1 (Report
of Det. Sgt. Robinson), Annexure
4
[76] Exhibit
9.
[77] Exhibit 1 (Report of Det.
Sgt. Robinson), Annexure 5.
[78] Transcript pp 146.5 (Chammings), 1115.9, 1121.3, 1123
(Denness).
[79] With the
exception of murder, in respect of which only a Supreme Court judge can grant
bail (s 15), the Bail Act does not treat any charge as automatically rendering
an accused ineligible for bail.
[80] See, eg, Transcript pp 44
– 45 (Kopsen), 93 (Timmers), 153
(Chammings).
[81] See, eg,
Transcript pp 43 – 44 (Kopsen), 94
(Timmers).
[82] Transcript p
128.2 (Chammings).
[83] Transcript p 1128 - 1129
(Denness).
[84] The evidence of
Officer Dennes indicates that this requirement was rarely, if ever, complied
with: Transcript p 1129
(Denness).
[85] See, generally,
Transcript pp 1138 – 1139
(Denness).
[86] Exhibit 40
(Instrument of Delegation re court sittings on
Sundays).
[87] See, eg,
Transcript pp 71.3 (Timmers), 114.1 (Chammings), 1112
(Denness).
[88] Transcript pp
1072.5, 1077.5, 1100
(Thompson).
[89] Transcript p
1072.7 (Thompson).
[90] See, eg,
Exhibit 64 (Statement of Mr Wyatt),
[4]-[5].
[91] Exhibit 64
(Statement of Mr Wyatt), [6]-[10]. Officers Timmers and Denness agreed that they
knew Mr Wyatt and had access to his mobile telephone number: Transcript pp 73.3
(Timmers), 1149.5 (Denness). Officer Chammings also agreed that Mr Wyatt was
likely to have attended if contacted (p 135.9), although was not aware that his
mobile number was known to police at Laverton (p
137.5).
[92] Bail Act, s
8(2).
[93] Transcript pp 1068.4,
1078 (Thompson). The failure to provide written reasons is also inconsistent
with human rights jurisprudence regarding refusal of bail. See, eg, The Law
Commission (UK), Bail and the Human Rights Act 1998 (June 2001), pp 23,
83-91, 115.
[94] Transcript pp
1072.9 – 1073, 1085
(Thompson).
[95] Transcript p
1090.4: ‘Your understanding is that you weren’t attending for
conducting a bail hearing at all? --- No.’ See also p 1068
(Thompson).
[96] Transcript pp
1073.8, 1085 (Thompson).
[97] See, eg, Transcript p 147.2 (Chammings): ‘Part of the discussion with the
justice took place outside the cell.’ See also p 1070.3 (Thompson):
‘Where did this conversation occur (re the circumstances of the arrest and
charge)? --- That was in the police station itself prior to going to the cells.
// Was this information something that you took into account when making your
decision? --- Yes it was.’ See also p
1075.1.
[98] The Commission notes
that concerns have long been raised over Justices of the Peace bowing to police
preferences in refusing bail. See, eg, the speech of the Hon Wayne Martin, Chief
Justice of Western Australia, to the Custodial Transport Forum, 7 August 2008,
extracted at Annexure MC 8 to Exhibit 76 (Statement of Mr Corbett):
‘Experience tells us that in cases in which the police are opposed to the
grant of bail, it is very unlikely that the local Justice of the Peace will
grant bail over police opposition.’ (p 13).
[99] Mr Thompson stated that he
treated the proximity of the GSL van as a relevant consideration in signing the
remand warrant: Exhibit 7 (Statement of Mr Thompson), [17]. See also Transcript
p 1084 (Thompson).
[100] Transcript pp 132.5 (Chammings), 1076
(Thompson).
[101] Officer
Denness agreed that Mr Thompson should have been asked to return to the station
to reconsider the matter afresh: Transcript p 1125
(Denness).
[102] Transcript p
1067.4 (Thompson): ‘So at the time of your appointment as a JP what
training had you had in total? --- Nil.’ See also pp 1065 – 1067,
1083.
[103] Transcript pp 1101
- 1102 (Thompson).
[104] Transcript pp 1067 – 1069, 1072 – 1075, 1093 – 1094
(Thompson).
[105] Transcript p
132.7 (Chammings).
[106] Transcript p 115.2
(Denness).
[107] Transcript p
1109 (Denness).
[108] See, eg,
Transcript p 1141.9 (Denness): ‘So what was the purpose of the justice of
the peace coming and conducting a court session? --- Well, you still have to get
them remanded into custody so the GSL can do the escort.’ See also
Transcript pp 1115 - 1116 (Denness), 18 (Kopsen), 58.5
(Timmers),
[109] OICS Report No
43, Recommendation 6.
[110] See, eg, OICS Report No 43, p
13.
[111] R Hooker, Inquiry
into the Escape of Persons Held in Custody at the Supreme Court of Western
Australia on 10 June 2004
(2004), p
89.
[112] Law Reform Commission
of Western Australia, Aboriginal Customary Laws: The interaction of Western
Australian law with Aboriginal law and culture – Final Report,
Project
No 94 (September 2006), pp
163-5.
[113] Transcript p
1126.
[114] OICS Report No 43,
p 28. See further Her Majesty’s Inspectorate of Prisons, Thematic
Review: The joint inspection of prisoner escort and court custody in England and
Wales
(June 2005), pp
26-7.
[115] Chief Ombudsman and
Ombudsman of the Department of Corrections (New Zealand), Investigation by
John Belgrave, Chief Ombudsman and Mel Smith, Ombudsman of the Department of
Corrections in Relation to the Transport of Prisoners
(2007), p
25.
[116] Ombudsman Victoria
and Office of Police Integrity (Victoria), Conditions for Persons in Custody (July 2006), p 26.
[117] See, eg, Transcript pp 37.9 (Kopsen), 152.4
(Chammings).
[118] Transcript p
44.5 (Kopsen).
[119] RCIADIC, National Report, v 3, [24.3.56]. See also [24.7.4]-[24.7.5]; v 1,
[3.3.40].
[120] RCIADIC, National Report, v 3,
[24.3.63]
[121] RCIADIC, v 5,
Rec 137(b).
[122] RCIADIC, v 5,
Rec 137(c). See also Recommendations 138 and
139.
[123] Exhibit
9.
[124] See, eg, Transcript pp
22.4 (Kopsen), 152.9
(Chammings).
[125] The
Commission notes, however, that Nurse Stewart gave evidence that she was told by
Ms Stokoe that Mr Ward was ‘dangerous’ (Transcript pp 188.7, 194.5),
which she also recorded in the hospital notes: Exhibit 1 (Report of Det. Sgt.
Robinson), Annexure 20, p
2.
[126] Transcript p 1116.2
(Denness).
[127] Transcript p
1127.1 (Denness).
[128] ICCPR,
Art 10(1).
[129] Adopted by the
First United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, held in Geneva in 1955, and approved by the Economic and Social
Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May
1977. The purpose of the Standard Minimum Rules is to elaborate on the
obligations under art 10(1) of the ICCPR, to provide guidance to administrators
and personnel responsible for the care of detained persons to ensure that they
are treated with dignity and humanity.
[130] Chief Ombudsman and
Ombudsman of the Department of Corrections (New Zealand), Investigation by
John Belgrave, Chief Ombudsman and Mel Smith, Ombudsman of the Department of
Corrections in Relation to the Transport of Prisoners
(2007), p
18.
[131] Chief Ombudsman and
Ombudsman of the Department of Corrections (New Zealand), Investigation by
John Belgrave, Chief Ombudsman and Mel Smith, Ombudsman of the Department of
Corrections in Relation to the Transport of Prisoners
(2007), p
91.
[132] Submissions of
Counsel Assisting, pp
22-8.
[133] Exhibit 105
(Additional materials from ALS), Tab
8.
[134] See, eg, Transcript pp
298.5 (Akatsa), 427.8 (Jenkins); 462.6, 478.7 (Stokoe). See also Exhibit 68
(Statement of Ms Corcoran-Sugars), [20], [29]; Exhibit 36 (Statement of Mr
Prempeh), [13]; Exhibit 66 (Statement of Mr Akatsa), [8]-[17], [23]; Exhibit 69
(Statement of Ms Collins),
[16]-[17].
[135] See, eg,
Transcript pp 299 – 300 (Akatsa) 392.7 (Collins), 428, 431-3 (Jenkins),
808 – 809 (Powell). John Hughes also agreed in his evidence that there was
‘robust discussion’ at the 2007 supervisors conference arising from
the general dissatisfaction with the vehicles raised by
supervisors.
[136] Transcript
pp 1117 – 1118, 1136 – 1137
(Denness).
[137] Transcript pp
1160 (Denness).
[138] Transcript pp 1136.2
(Denness).
[139] See, eg,
Transcript pp 18.7 (Kopsen), 63
(Timmers).
[140] See, eg,
Transcript p 809
(Powell).
[141] Exhibit 76
(Statement of Mark Corbett), Annexure
MC6.
[142] Exhibit 77
(Statement of Mr Doyle), Annexure 9, p
2.
[143] Submissions of Counsel
Assisting, p 25.
[144] The
danger arising from the lack of ventilation and back-up cooling systems in
pod-style vehicles was also highlighted in OICS Report No 43, p 90.
[145] In relation to the need
for padded seats to ensure humane transport over long distances, see eg Chief
Ombudsman and Ombudsman of the Department of Corrections (New Zealand), Investigation by John Belgrave, Chief Ombudsman and Mel Smith, Ombudsman of
the Department of Corrections in Relation to the Transport of Prisoners
(2007), pp 40-1, 91.
[146] See, eg, Transcript pp 467.9 – 468.2 (Stokoe), 838
(Powell).
[147] See, eg,
Transcript pp 224.5 (Norman), 305 (Akatsa), 469.7 (Stokoe), 813, 874.4
(Powell).
[148] This was raised
as an issue of concern in OICS Report No 3, p 17
[2.35].
[149] See, eg,
Transcript pp 298.5, 311.2 (Akatsa), 438 – 439 (Jenkins), 812.5
(Powell).
[150] Transcript pp
285.9 – 286.5
(Akatsa).
[151] Transcript pp
285.1 (Akatsa): ‘I must have done heaps of trips in the Mazda and in most
cases there was always a problem.’ See also pp 299 (Akatsa), 432-9
(Jenkins).
[152] Transcript pp
436.8 - 437 (Jenkins): ‘There’s always been problems with the
airconditioning.’ See also p 478 (Stokoe): ‘...that vehicle (the
Mazda) has been in and out of Sealys getting fixed for air-conditioning problems
since I’ve ever remembered being there.’ See also pp 321.1 (Akatsa),
388 (Collins).
[153] Transcript
pp 295.8 (Akatsa), 435.8 (Jenkins), 464.9 – 465
(Stokoe).
[154] Transcript pp
296 (Akatsa), 394.2 (Collins), 433.9 (Jenkins), 464.8
(Stokoe).
[155] Exhibit 77,
(Statement of Mr Doyle)
[43].
[156] Submissions of
Counsel Assisting, p 18.
[157] Exhibit 26 (Bundle of service records and invoices). The invoice stated:
‘Unable to fault system. Advise
Customer.’
[158] Submissions of Counsel Assisting, pp
22-31.
[159] The Department was
clearly on notice that Mazdas were regularly being used for long hauls in hot
regions. For example, contract monitor regional reports for Geraldton and
Carnarvon in the months prior to Mr Ward’s death show that only Mazdas
were available at these locations: Exhibit 76 (Statement of Mr Corbett),
Annexure MC6. At Geraldton, for example, the contract monitor raised a concern
with one of the Mazda vans being used for long haul escorts, but only because it
was not fitted with a long range fuel tank. No concern was raised with the other
Mazda at the site continuing to be used for long haul
escorts.
[160] Exhibit 77
(Statement of Mr Doyle), [63] –
[65].
[161] Submissions of
Counsel Assisting, pp 20-22,
30.
[162] See, eg, Transcript p
394 (Collins): ‘I mean, if there’s only one vehicle, I mean, people
used to complain if you wouldn’t go and do it. I mean, we had police on
our back, everything you know.’ And further: ‘So you were under some
pressure to go anyway? --- Yes, very much so. Very
much.’
[163] See, eg,
Transcript pp 432.7 (Jenkins): ‘they were just continuously breaking down.
... [T]he vehicles can go in to be fixed and they are given the all okay; we can
use them the next day and they will break down.’ See also p 794.7
(Powell): ‘If there was a problem with it, you’d fix one problem,
and then on the next trip out, something else would go wrong. It was never
ending.’
[164] See, eg,
Transcript p 464.3 (Stokoe): ‘If we didn’t take the vehicle out the
supervisor would have got two other people to take that vehicle out.’
[165] Transcript pp 239.5
(Norman), 411.9 (Collins), 905.6
(Powell).
[166] OICS Report No
43, Recommendations 1 and
28.
[167] Transcript pp 236.6
(Norman), 403.7 (Collins), 611.2 (Jenkins), 810
(Powell).
[168] Transcript p
732.9 (Jenkins).
[169] OICS
Report No 3, pp 20-1
[170] OICS
Report No 43, p 59.
[171] Transcript pp 289.5, 298.2 (Akatsa), 377.3 (Corcoran-Sugars), 459.4 (Stokoe),
644.5 (Jenkins), 919.8
(Powell).
[172] Transcript pp
462.1 (Stokoe).
[173] Exhibit 1
(Report of Det Sgt. Robinson), Annexure
18.
[174] Transcript p 289.4
(Akatsa).
[175] Transcript p
289.7 (Akatsa).
[176] It was
also GSL policy that all medium and maximum security prisoners were transported
in the rear pod due to it being more secure: See, eg, Transcript pp 286.9, 309
(Akatsa), 357.1 (Corcoran-Sugars). The evidence of Mr Akatsa suggests that even
minimum security prisoners would be placed in the rear pod except with
permission of the supervisor (p
286.9).
[177] Transcript p 732
(Jenkins).
[178] See, eg,
Exhibit 67 (Statement of Mr Corbett), Annexure MC7, p
4.
[179] International Centre
for Prison Studies, A Human Rights Approach to Prison Management: Handbook
for Prison Staff
(2002), p
62.
[180]Standard
Guidelines for Corrections in Australia
(Revised, 2004),
[1.81].
[181] See, eg,
Transcript pp 212 – 213 (Norman), 309 (Akatsa), 834.1, 868.1
(Powell).
[182] This view is
consistent with the evidence of Ms Stokoe regarding the relevant GSL policy:
‘We’ve been told that they don’t want an escape and it’s
more of an escapable area in the middle pod’ (p
477.6).
[183] The evidence
makes clear that Mr Ward was co-operative and compliance at all times and was
not regarded by police or Officers Stokoe and Powell as presenting a security
risk. See, eg, Transcript pp 10.3, 14.1, 22.4 (Kopsen); 67.5 (Timmers), 118.5,
124.8, 153.1 (Chammings), 826.9 – 827.1
(Powell).
[184] See, eg,
Transcript p 447.4
(Jenkins).
[185] See, eg,
Transcript pp 116.6 (Chammings), 222.8 (Norman), 294.8, 322.9 (Akatsa), 481
– 482 (Stokoe), 803 (Powell), 1158.2
(Denness).
[186] See, eg,
Transcript p 833 (Powell): ‘The company never supplied water of anything
like that for the van.’ See also p 448.2
(Jenkins).
[187] See, eg,
Transcript pp 322.3 (Akatsa), 376.8 (Corcoran-Sugars), 447.3
(Jenkins).
[188] Exhibit 109
(Knowledge Consulting Report). See esp Findings 1, 8, 12, 22 and
24.
[189] Exhibit 109 (HREOC
Report No 39). See esp pp 7-8 [10] for an overview of the circumstances that
contributed to this
finding.
[190] Exhibit 109
(HREOC Report No 39), Annexure D, p
87.
[191] Exhibit 109 (HREOC
Report No 39), Annexure D, p
85.
[192] Exhibit 109 (HREOC
Report No 39), Annexure D, p
86.
[193] Ombudsman Victoria
and Office of Police Integrity (Victoria), Conditions for Persons in Custody (July 2006), p 108.
[194] Ombudsman Victoria and Office of Police Integrity (Victoria), Conditions for
Persons in Custody
(July 2006), p 105, referring to the report by the
Corrections Inspectorate, Review of Victorian Prisoner Transport Services (Dept of Justice,
2005).
[195] None of the GSL
officers who gave evidence were familiar with these reports. See, eg, Transcript
pp 241 (Norman), 384.1 (Corcoran-Sugars), 412
(Collins).
[196] Mr Hughes
agreed in his evidence that training did not change in any material way after
GSL took over the CSCS contract. Likewise, GSL officers who gave evidence
indicated that very little changed after GSL took over the contract. See eg
Transcript pp 203.6 (Norman),
[197] See, eg, Transcript p
281.4 (Akatsa): ‘And the only practical training you received was in
relation to the use of force and restraints? --- That’s correct.’
See also pp 456 – 457 (Stokoe), 864 – 866
(Powell).
[198] Submissions of
Counsel Assisting, pp
5-6.
[199] See, eg, Transcript
pp 203.9 – 204 (Norman), 789.8
(Powell).
[200] Exhibit 108 (2
volumes of additional GSL documents ), Tab
8B.
[201] OICS Report No 43, p
103.
[202] OICS Report No 43,
Recommendation 32.
[203] See,
eg, Transcript p 431.1
(Jenkins).
[204] Exhibit 111
(Supplementary statement of Mr Doyle),
[27].
[205] See, eg, Transcript
p 311.9 – 312.3 (Akatsa), 619.5
(Jenkins).
[206] ICCPR, Art 7.
See further the Convention Against
Torture.
[207] To the extent
that Officer Stokoe justified the failure to check the air-conditioning on the
basis that she lacked specialist mechanical training and because checking the
air-conditioning was not included on the Motor Vehicle Sign Out Report, this
justification should be rejected. Checking the air-conditioning on such a hot
day was a matter of common sense. It also would not have involved any
substantial delay, inconvenience or expertise and was routinely done by other
GSL officers: see, eg, Transcript p 821 – 822
(Powell).
[208] Exhibit 1
(Report of Det. Sgt. Robinson), Annexure
22.
[209] This section of the
Motor Vehicle Sign Out Report was left blank: Exhibit 1 (Report of Det. Sgt.
Robinson), Annexure 22.
[210] GSL Policy Document 2.114 (Vehicle Management and Security): ‘Any issues
affecting the reliability of mechanical, electrical and communications systems
must be flagged with your Supervisor prior to the vehicle departing.’ See
Exhibit 112 (Internal Investigation Unit Report), Attachment
7.
[211] See, eg, Transcript pp
459.4 (Stokoe), 644.9 (Jenkins), 988
(Powell).
[212]OICS Report No
3, p 22 [2.55]-[2.56].
[213] Officers Stokoe and Powell both appear to have told GSL’s internal
investigators that the air-conditioning was switched off on the drive up to
Laverton, to minimise strain on the engine (Exhibit 108, Tab 2). However,
Officer Stokoe gave evidence that they never touched the air-conditioning
controls as staff had been instructed never to do so (Transcript pp 471, 516).
By contrast, Officer Powell told police and the inquest that he turned the
air-conditioning from around midway to full as they departed Laverton
(Transcript p 910). The evidence that Ms Stokoe said to Mr Ward words to the
effect that ‘the sooner you get in, the sooner the air-conditioning will
kick in’ suggests that the rear of the van was not cool at the time Mr
Ward was placed inside.
[214] See, eg, Exhibit 69 (Statement of Ms Collins), [11]; Exhibit 66 (Statement of Mr
Akatsa), [22]; Exhibit 36 (Statement of Mr Prempeh), [23]; Exhibit 68 (Statement
of Ms Corcoran-Sugars), [26]. See also transcript pp 303.1
(Akatsa).
[215] Officer Powell
agreed that this should have occurred: Transcript pp 909 – 910
(Powell).
[216] See, eg,
Exhibit 80 (Statement of Mr Powell), [55]; Exhibit 73 (Statement of Ms Jenkins),
[26].
[217] The Commission
acknowledges that the custody handover documentation included a health
assessment questionnaire completed by Officer Kopsen the previous evening which
disclosed no health concerns. In the circumstances, however, the Commission
queries how reliable that assessment was, given Mr Ward’s level of
intoxication at the time. For example, the hospital file for Mr Ward indicates
that he was known to have diabetes yet this was not disclosed on his health
assessment. In any event, Officers Stokoe and Powell owed their own duty of care
to Mr Ward and could not solely rely on a medical assessment conducted by others
the previous day given their own observations at the
time.
[218] RCIADIC, National Report, v 3,
[24.3.4].
[219] RCIADIC, National Report, v 3,
[24.7.3].
[220] The Commission
notes that Officers Stokoe and Powell appear to have regarded it as simply a
matter of common sense that a prisoner would bang on the sides of the van if
they wished to attract their attention. However, this neglects the widely
reported reluctance of many Aboriginal persons to challenge persons in authority
and the understandable fear of facing some form of reprisal for disrupting the
escort. See generally Chris Cunneen, Conflict Politics and Crime: Aboriginal
Communities and the Police
(2001), esp Chapter 5; Law Reform Commission of
Western Australia, Aboriginal Customary Laws: The interaction of Western
Australian law with Aboriginal law and culture – Final Report,
Project
No 94 (September 2006), p 192; Law Reform Commission of Western Australia, Aboriginal Customary Laws: Discussion Paper, Project No 94 (December
2005), pp 235-6; Phillip Vincent, ‘Aboriginal people, criminal law and
sentencing’ Background Paper 15, Law Reform Commission of Western
Australia, Aboriginal Customary Laws – Background Papers (2005)
549, 567-9.
[221] Submissions
of Counsel Assisting, pp
12-13.
[222] Whilst Ms Stokoe
disputed that she wore both ear plugs, Officer Powell was firm in his evidence
that she did: Transcript p 905.3 (Powell) cf pp 508.8 – 509.2 (Stokoe).
[223] Transcript p 840.5
(Powell).
[224] Transcript
466.5 (Stokoe), 839.9, 923
(Powell).
[225] See, eg,
Transcript pp 988 - 989
(Powell).
[226] To the extent
that Mr Powell in his evidence stated that, contrary to his earlier accounts,
they in fact did open the inner door, this evidence should be treated
with caution. This evidence is contrary to his interview with police (Exhibit
81, pp 9 – 10), statement to police (Exhibit 80) and notes prepared
following the incident (Exhibit 82) as well as all the evidence of Officer
Stokoe.
[227] The Commission
notes that, despite the incorrect understanding of Officers Stokoe and Powell,
opening the inner door was permitted under GSL policies if the situation was
‘life threatening’: Exhibit 76 (Statement of Mr Corbett), Annexure
MC3, p 2.
[228] See, eg,
Transcript pp 948 - 953
(Powell).
[229] Exhibit 112
(Internal Investigations Unit Report), p 14
[10.4].
[230] RCIADIC, National Report, v 1, Forward to Chapter 4, p
109.
[231] RCIADIC, National
Report
, v 1, [4.7.1]. Substandard police investigations also attracted
criticisms in the follow-up review of Aboriginal deaths in custody conducted by
the Aboriginal and Torres Strait Islander Social Justice Commissioner: Indigenous Deaths in Custody: 1989 to 1996 (1996), pp
242-4.
[232] RCIADIC, National Report, v 1, Forward to Chapter 4, p
109.
[233] RCIADIC, v 5, Recs 6
– 40, esp Recs 32, 33, 35 and
36.
[234] Exhibit 114 (ALS
notes from inquest at Warburton), p
11.
[235] RCIADIC, National
Report,
v 5, Rec
35(a).
[236] See, eg,
Transcript pp 605, 643 – 644 (Jenkins), 856.8 (Powell). It is also unclear
whether Officers Stokoe, Powell and Jenkins were even directed not to discuss
the incident: Compare Transcript pp 605.5, 643 - 644 (Jenkins), 857.1 (Powell)
and Exhibit 71 (Det. Sgt. Robinson running sheets), p
1.
[237] The evidence of
Officer Stokoe also indicates that Ms Jenkins requested to be present for the
interview, rather than Ms Stokoe asking that she be present as her support
person: Transcript pp 507, 544
(Stokoe).
[238] The
interviewing officers were clearly aware that Ms Jenkins was the supervisor to
Officers Stokoe and Powell. See, eg, Exhibit 73 (Transcript of Stokoe interview
with police), p 2.
[239] Exhibit 2.
[240] Exhibit
54.
[241] Transcript p 77.1
(Timmers).
[242] Officer Kopsen
agreed that there were other persons in the car with Mr Ward at the time of his
arrest: Transcript pp 9.3, 26.4
(Kopsen).
[243] The
investigation running sheets do not reveal that any real attempt was made to
speak with these witnesses: Exhibits 38 (Internal Affairs Unit running sheet)
and 71 (Det. Sgt. Robinson running
sheets).
[244] Exhibit 88 (Memo
from Det. Sgt. Robinson re CCTV
footage).
[245] Whilst a number
of Motor Vehicle Sign Out Reports for the Mazda were ultimately produced during
the inquest, the relevant reports for 2, 7, 9, 13, 14, 15, 16, 22, 24 and 26
January 2008 were never provided, despite occurrence log records for January
2008 showing that the Mazda was used on these dates: see Exhibit 70 (Bundle of
Persons in Custody occurrence
logs).
[246] RCIADIC, v 5, Rec
33.
[247] (1976) 134 CLR 495,
520 (citations omitted).
[248] [2004] 61 NSWLR 344, [18] – [21] (citations omitted). See also John
Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales
(1986) 5
NSWLR 465, 476-7 (McHugh JA): ‘The principle of open justice also requires
that nothing should be done to discourage the making of fair and accurate
reports of what occurs in the courtroom. Accordingly, an order of a court
prohibiting the publication of evidence is only valid if it is really necessary
to secure the proper administration of justice in proceedings before it.
Moreover, an order prohibiting publication of evidence must be clear in its
terms and do no more than is necessary to achieve the due administration of
justice. The making of the order must also be reasonably necessary; and there
must be some material before the court upon which it can reasonably reach the
conclusion that it is necessary to make an order prohibiting publication. Mere
belief that the order is necessary is
insufficient.’
[249] Pursuant to s 3 of the Bail Act, an authorised police officer for the purposes
of granting bail is an officer who holds the rank of sergeant or higher.