Submissions for the prosecution

David Heilpern

Your honours, it is my respectful submission that you would find the Commissioner of Corrective Services and the Minister for Corrections guilty of the manslaughter of the victim, a First Nations prisoner who hanged herself in custody. One of three such deaths in custody in a single week.

To understand my submissions, you have to go back in time to 1977 and the judgment of R v Stone and Dobinson.

In a house in Yorkshire (you think you had it tough) lived three people – Stone, aged 67 – a deaf, blind man of low intelligence, his mistress described as ‘ineffectual and inadequate’ and Stone’s son Cyril, who was severely intellectually disabled.

Fanny died of horrendous neglect

They were tasked to look after Stone’s sister, Fanny, who was ‘morbidly and unnecessarily anxious’ about putting on weight.

Fanny died of horrendous neglect with descriptions of maggots and faeces too gross for a family newspaper.

The Court of Appeal, in a judgment that has resonated throughout the common law world, found that if a person assumes the duty of care of another, and that person is grossly negligent in failing to deliver that care, and that the other dies as a result of that negligence, then it is manslaughter by a negligent omission.

There was, according to the court, a reckless disregard of danger to her health and ultimately her life.

Failure to remove hanging points from prisons

In this case, your honours, there has been a failure to remove hanging points from prisons.

This is despite the Royal Commission, way back in 1991, recommending that they be removed.

This is despite the Deputy State Coroner recommending that they be removed in August 2020.

And in between, there have been hundreds of papers and inquiries, all saying the same darn thing.

And why haven’t they been removed, pray tell? The government, in fact, successive governments for 30 years, have not been able to find the money. Sob.

There is no dedicated budget for removing hanging points

Corrective Services Commissioner Peter Severin last week said that, ‘There is no dedicated budget for removing hanging points. It is a risk-based approach to modifying cells; whether it is necessary. And that is being done privately by a minor works program’.

In the NSW budget for 2016, for example, an additional injection of $3.8 billion was poured into prisons.

But no money for hanging point removal evidently.

Perhaps your honours might donate a portion of your judicial pension. Or ask Christian Porter for a skerrick of his sick leave, given he’s well enough to institute proceedings.

Or Mathias Cormann could give up his super, given he’s now got another big paying gig.

And you’d have to be blind not to appreciate the rate of First Nation’s overrepresentation in our prisons.

Nationally, the figures are truly frightening

For my sins, as Magistrate in Lismore and Casino, more than 80 per cent of those I imprisoned were First Nations people. Nationally, the figures are truly frightening – this is the most imprisoned race in the world.

More than one in four First Nations men have been to prison. By 2025, on current trends, half of all prisoners will be First Nations people. Right now there are over 13,000 First Nations people in custody, and the imprisonment rate is almost 2000 per 100,000 people.

Hauntingly, since the Royal Commission there have been more than 440 Aboriginal deaths in custody, many of them hangings.

So, your honours, let’s apply these facts to the law. Is there a duty of care owed by the Commissioner, and the Minister, for prisoners in general, and my client in particular?

That is not a controversial legal proposition. The state owes a duty of care to all its prisoners to take reasonable steps to keep them from harm.

Has there been gross negligence?

To put it politely

Maybe not in year one, as the community allowed a reasonable time to make our cells safe. Maybe not even in year two, if some prisons were old. But by year 30, I reckon it is pretty bleedingly obvious that they don’t give a stuff. To put it politely.

That is exactly the sort of gross negligence the courts regularly speak of when describing those who drink and drive, or those who fail to make safe workplaces or those who operate weapons dangerously.

Putting a First Nations person in a cell with hanging points, after all those reports and findings, is the very epitome of reckless indifference and gross negligence.

And finally, did the gross negligence cause the death of my client?

I hear my learned friend representing the Minister and the Commissioner saying that there was an intervening cause – the wish of my client to end her pain by taking her life.

Well, that didn’t trouble the Court of Appeal in 1977, and it shouldn’t trouble your honours now.

Fanny could have shrugged off her anorexia

Fanny could theoretically have shrugged off her anorexia and just got better! Deaths in custody are not just foreseeable, they are inevitable if the means are there. Removing hanging points is prevention 101.

The truth is that the Minister would rather preach ‘tough on crime’ than ‘soft on criminals’, and lock them up rather than keep them alive. Their inaction is recklessly indifferent. More than that – it is deliberately cruel.

So, your honours, find them guilty and lock them up. Poor old Ted Stone got three years at trial, so that’s a start. And lock yourselves up too. And me.

May it please the court’.

David Heilpern is a recently retired magistrate and the author of several law-related books, journal articles and reported judgments.

David was the youngest magistrate in Australia, when appointed in 1998.