Five years after his death in custody, the inquest into how Wayne Fella Morrison died has been slowed by legal argument and a campaign to protect prison officers. By Royce Kurmelovs.
Inquest into death of Wayne Fella Morrison
Content warning: this piece contains the names of Aboriginal people who are deceased.
When the South Australian coroner resumed hearing evidence as part of the inquest into the death in custody of Wayne Fella Morrison last week, it had been five years since his death and two since the court last sat.
Latoya Rule, his sibling, says their family has been living under a microscope since the 29-year-old Wiradjuri, Kokatha and Wirangu man died while being held on remand.
“It’s almost been five years,” Rule says. “The grief you go through, it’s physiological not just psychosocial. You really start to embody the process. It’s all consuming.”
In that time, they say, their family’s mourning has been put on hold. Their public statements have been monitored for anything that may disrupt the process and there have been no real answers – and no real accountability.
Rule, now a PhD student, describes living through the process as an absurd experience. They point to evidence heard last week that nothing had changed within the prison.
Rule, meanwhile, lives each day with a grief stalled by procedure. “It’s weird to know how much my brother’s brain weighs,” they say. “You don’t ever expect to have access to that information.”
Proceedings slowed again this week, with legal argument about whether prison guards would give evidence. Rule says they do not expect things to improve.
“I can almost predict how this is going to play out,” they say. “I think delay is the strategy.”
Wayne Fella Morrison died on September 26, 2016, at the Royal Adelaide Hospital after being aggressively restrained by 14 prison guards outside his cell at Yatala Labour Prison.
The guards forced him to the ground, where he was restrained by his wrists and ankles, placed in a spit hood, and carried to a prison van for transport to G-division, the high-security area of the prison.
No video footage exists for the three-and-a-half minutes in which Morrison was placed face down in the van. He was accompanied inside by seven guards.
When removed, Morrison was found to be non-responsive. It took another two minutes and five seconds for anyone present to begin CPR.
Morrison died at the hospital three days later where he had been admitted under the name “Ben Waters”. His family had made repeated attempts to learn his location.
Morrison had no criminal convictions and was being held on remand while waiting to appear in the Elizabeth Magistrates Court by videolink.
Last week, corrections officer Shirley Bell said the guards at the prison had not received any additional training since his death. “The only thing they’ve brought up is CRD training, which is how to take a prisoner down,” Bell said. “That was a little bit of a kneejerk reaction – or I thought it was. Other than that, nothing.”
Her appearance was followed by Officer Michael Penn, who was questioned about his part in directing another officer to stop uploading incident reports into the system as part of his role on the executive committee of the Correction Officers Legal Fund.
Penn said he had only given those instructions following legal advice from the fund’s lawyers and that he had not told anyone to destroy documents.
He was reluctant to answer any questions about the fund or his movements on the day, saying he “felt bullied” while answering questions about prison management’s handling of the incident.
“I feel bullied into saying something that should have been protected by legal professional privilege,” Penn said.
On Wednesday last week the court heard from Officer Kym Golding, who was responsible for admitting Morrison to prison.
Asked about why he had not correctly identified Morrison as an “at risk” prisoner and issued a notice of concern, Golding explained that Morrison had appeared fine when they spoke and had asked to be placed with his brother.
“He wanted to go be with his brother and his cousins, which a lot of them like to do,” Golding said.
This week, the inquest has spent much of its time in legal argument over whether testimony would be heard from the seven guards who were in the van with Morrison – Trent Hall, Liam Mail, Darren Shillabeer, Martin Crowe, Jean-Guy Townsend, Neale McLeod and Neil Bradford.
They argue they should be able to claim “penalty privilege” – a legal protection that allows witnesses appearing before a coroner to refuse to answer questions on the basis that they may incriminate themselves in an offence.
Until recently, coroners in South Australia did not have powers to compel witnesses to give evidence.
That changed in March with the passing of legislation in direct response to the Morrison inquest. But because the new laws do not apply retroactively, the change will have no bearing on the Morrison inquest.
In the meantime, prison staff have fought hard to claim legal protection and avoid having to give an account of events.
The previous two-year delay happened because lawyers acting for 18 prison officers and a nurse unsuccessfully applied to the South Australian Supreme Court in an attempt to have the coroner, Jayne Basheer, removed from the inquest.
The prison staff alleged Basheer was biased due to previous work with the Correctional Officers Legal Fund, and the move was prompted by efforts from the coroner to probe what – if any – role the fund played in frustrating a police investigation into what happened when Morrison was moved to G-division.
Though the Supreme Court ultimately rejected allegations of bias against Basheer, and clarified how the “penalty privilege” was to be applied, the issue has remained live.
On Tuesday, lawyers for the guards flagged that their clients would again refuse to answer questions about what occurred in the van – a strategy that Rick Sarre, emeritus professor of law at the University of South Australia, says carries considerable risk.
“Coroners’ courts operate the same way royal commissions do,” Sarre said. “While strictly speaking they are courts, they don’t have to follow the rules of evidence. They don’t have the power to punish but their recommendations can be pretty daunting.”
He continues: “A decision of a witness not to say anything at all may backfire when the final report, designed to ensure fatal outcomes are not repeated, comes out. If I were coroner, I would be very disheartened if people chose not to enlighten me in relation to the events that occurred when the CCTV was inoperable.”
Charandev Singh, a former paralegal who has worked on several inquests, said the situation reflects a familiar power differential present in many Indigenous deaths in custody matters. “The lawyers are on a completely different time line and each delay means there will be more deaths in custody,” Singh says. “This is the violence of delay.”
Thanks to the political and economic resources available from legal defence funds and police and corrections unions, a combination of access and tenacity can blunt or reframe official processes.
In one example, Western Australian Attorney-General John Quigley represented more than 100 police officers and prison guards during the 1991 Royal Commission into Aboriginal Deaths in Custody.
His defence of the officers was so aggressive it forced a deadlock that was only resolved after a private meeting with the commissioner.
In an interview given to The Australian in April, Quigley recalled how this meeting prompted the 1991 royal commission to direct its focus away from individual officers.
“It was agreed that I’d back off my injunctions if they gave a list of questions. I’d tell them, within the bounds of legal professional privilege, what I knew and the royal commission would proceed in a less prosecutorial fashion – more inquisitorial as to what’s behind all these deaths.”
In a ruling handed down mid-afternoon on Thursday, the coroner in the Morrison inquest held that each prison guard would have to appear one-by-one to answer questions as scheduled.
Each would then be able to claim penalty privilege to any specific questions they felt may expose them to future disciplinary action.
For families of those who have died in custody, the experience is very different to that of police and others. They do not have immediate access to evidence or legal advice about how to use such material to make their case. Even before they can be represented, they must make an application for funding to Legal Aid, which is tested for merit and subject to constraints.
Thalia Anthony, professor of law at the University of Technology Sydney, said this means families go into the process seeking justice but do not find a level playing field within a large institution.
“Every stage is contingent on funding and the funding is tenuous,” Anthony said. “If the family want to bring in experts or run DNA analysis, they may have to do that at their own expense.
“Meanwhile, it seems like every police officer, every corrections officer, every ambulance officer who wants a lawyer, gets a lawyer.”
Anthony said this raises questions about access to justice, especially in cases such as the Morrison inquest, where the number of lawyers present in a courtroom on any given day outnumbers family members three to one.
“It’s a lawyer’s game, really,” Anthony says. “Having a culturally sensitive legal service that is properly funded – that’s the issue.”
The inquest continues.
This article was first published in the print edition of The Saturday Paper on May 7, 2021 as "A lawyer’s game".
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