Content warning: this piece contains the names of Aboriginal people who are deceased.
Alone in a prison cell, First Nations man Joshua Kerr shouted that he was dying. Prison officers had observed him on CCTV acting erratically, but no one responded to his call.
In Victoria’s Port Phillip Prison for more than a year on remand, Kerr had recently attended his uncle’s funeral and was in isolation on August 10, 2022, due to Covid-19 protocols. That day, he lit a fire in his cell, and upon being taken to hospital for burns treatment, he admitted to ingesting methamphetamine.
Prison staff watching the CCTV that night noticed Kerr was unresponsive. But it took another 17 minutes for anyone to enter the cell to provide help. Twenty minutes later, the 32-year-old Yorta Yorta and Gunaikurnai man was pronounced dead.
Twenty-one First Nations people died in prison in 2022-23, according to the Australian Institute of Criminology, and there have been 558 Aboriginal deaths in custody since the royal commission 33 years ago.
The Coroners Court of Victoria heard these details of Kerr’s last moments this week as an inquest into his death began. The inquiry will investigate the cause, the treatment provided to him at Melbourne’s St Vincent’s Hospital and the monitoring of his health in the prison.
Port Phillip Prison is one of many privately run facilities in Victoria. It is managed by British multinational G4S on a 41-year contract worth $1.8 billion. Three people have died in custody at the prison in the past six months, according to Corrections Victoria.
The inquiry heard Kerr said multiple times he had taken methamphetamine and was observed acting in a “distressing and bizarre” manner on CCTV, but nothing was done to assist him until more than a quarter of an hour after he was unresponsive.
The first week of hearings focused on the delay in prison staff entering his cell, his hospital treatment earlier that day and his health over the hours before his death.
Kerr had been held on remand for a year on charges of aggravated carjacking. He had not faced trial for these charges, let alone been found guilty.
The inquest heard that on the day of his death, the fire Kerr lit in his cell had caused significant burns to his hands and arms. He told tactical operations group (TOG) officers at the prison he had ingested methamphetamine, with a prison supervisor telling the inquest he appeared to be “trying to get help”.
Kerr was taken to St Vincent’s Hospital but was escorted back to the prison by the TOG officers before he was medically discharged, and without having his burns re-dressed. He was placed in a cell in a medical unit and the TOG officers told prison staff not to open it unless they were present, the inquest heard.
This order was a significant focus of the first week of the inquest, with counsel assisting the coroner Rachel Ellyard saying it “profoundly influenced” how he was treated in his final hours. The inquest heard from multiple witnesses that staff members were able to override this order and enter Kerr’s cell in a potentially life-threatening scenario, but this did not happen.
In the cell, Kerr was lying on the floor, flailing his limbs and removing his clothing, the inquest heard. This behaviour was observed by numerous prison staff on CCTV. “It doesn’t appear that any action was taken by those who made those observations – other than to document them,” Ellyard said.
A psychiatric nurse assessed Kerr from outside the cell and raised his risk rating to the highest level, mandating he be transferred to a specialist unit, but this did not happen.
About 6.30pm, Kerr cried out “I’m dying”, but received no response. By 7.40pm Kerr’s condition was observed to have deteriorated and his movement had slowed. Still, no prison officers or medical staff entered the cell. At 8.01pm Kerr was seen to be “completely unresponsive”, leading staff to call a code black for a medical emergency. But no one entered Kerr’s cell for another 17 minutes, when TOG officers arrived.
Paramedics were eventually called to the prison, but Kerr was pronounced dead just after 8.40pm. “He died in full view of custodial and health staff,” Ellyard told the inquest.
Kerr died with a “very, very high level” of methamphetamine in his system and he had multiple bruises and abrasions on his face, elbow, forearms and ankles, Ellyard said.
Roy McPherson was the senior Aboriginal cultural adviser at Port Phillip Prison at the time. He told the inquest he was overworked and often had to physically run between cells to see up to 38 people each day. He saw Kerr following the fire and reacted with “horror” to the burns he had sustained.
Prison staff denied McPherson’s request to go with Kerr to hospital. “My role had absolutely no authority,” he told the inquest. McPherson also said racial slurs directed at him had been written on staff toilet walls on multiple occasions, and that he was once asked during a staff meeting to lower his mask to prove he was Aboriginal.
The Aboriginal cultural adviser was not called by prison staff when Kerr was seen acting in a concerning manner in his cell.
An internal review conducted by the Victorian Department of Justice and Community Safety found the prison staff’s response to the cell fire was appropriate, but the subsequent health assessments of Kerr were inadequate and attempts to complete them were hampered by the order of the TOG officers.
Several nurses and doctors who assessed Kerr at St Vincent’s Hospital appeared before the inquest. Lawyers representing G4S questioned them extensively about the treatment they offered Kerr. G4S has subcontracted the hospital to provide primary healthcare services at Port Phillip Prison.
A St Vincent’s Hospital nurse told the inquest on Wednesday Kerr was not referred for a mental health check because custodial patients are not eligible to receive them. People in prison are meant to receive the same medical standard of care as someone in the general community, according to Corrections Victoria.
A mental health nurse at Port Phillip Prison did conduct a check on Kerr, who told them he wished he had died in the cell fire. Medical staff at the hospital were not told about this. “I was not aware of that,” a doctor who assessed Kerr told the inquest.
“In general, our emergency mental services are not the primary team that does mental health assessments on custodial patients. That is up to the correctional system to do,” the doctor said. He added he was “probably not as concerned as [he] would have been” had Kerr been returning to the general community, and that he expected him to be under visual observation in his cell, which he was not.
Ellyard said Kerr should be remembered as a loving partner, father, brother and friend. “Josh’s story is his own, but it is also a story which reflects the tragic reality for too many Aboriginal men,” she said. “And it needs to be said that this was an Aboriginal death in custody.”
The past year’s toll of Indigenous deaths in prison was the highest recorded in more than 40 years. Of the 21 people who died, 11 had not been sentenced. The number of First Nations people in prison across Australia rose 7 per cent in the past year – an increase of 950 people. There are now just under 14,000 First Nations people in prison, accounting for a third of the overall prison population.
There was also a 7 per cent increase in the number of unsentenced prisoners, as Kerr was, to just under 16,000, or nearly 40 per cent of the total prison population. Victoria’s strict bail laws and their impact on First Nations people has been in the spotlight since a coronial inquest into the death of Aboriginal woman Veronica Nelson, the findings of which were released a year ago.
The coroner labelled the bail regime a “complete and unmitigated disaster”, with the state government introducing some reforms last year, although advocates and Nelson’s family have pushed for these changes to go further.
The coronial inquest into Kerr’s death continues.
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This article was first published in the print edition of The Saturday Paper on February 10, 2024 as "‘He died in full view of custodial and health staff’".
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