16.9 C
Byron Shire
May 13, 2021

Submissions for the prosecution

Latest News

Lismore City Council declares housing emergency, wants more units

A Lismore City Council housing survey had shown more than 60 per cent of residents were living by themselves or with one other person, Cr Ekins said, prompting ‘a real need for smaller housing or units’.

Other News

It’s D-Day for Byron’s Marvell Street DA

Will a controversial hotel development in central Byron that exceeds both height and floor space limits be given conditional approval at this week’s Byron Council meeting?

Echo turns 35 and You are invited!

This year The Echo turns 35, and to celebrate this momentous anniversary they are putting on The Echo Community Awards – and everyone is invited!

Any questions?

‘This is a great chance for foodies to ask me anything they want’, says local chef Darren Robertson, who...

‘Natural’ cruelty

Richard Swinton, Clunes While I agree with Desmond Bellamy’s concerns about animal cruelty, the issue of ‘natural’ cruelty if the...

Doing it right

How do you know you’re doing hummus right? When the international visitors tell you it’s some of the best...

Upside down river

Tim Harrington, Lennox Head Letter contributor Richard White (letters 21/4/21) quite correctly identifies the Richmond River as an ‘upside down river’...

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.


Support The Echo

Keeping the community together and the community voice loud and clear is what The Echo is about. More than ever we need your help to keep this voice alive and thriving in the community.

Like all businesses we are struggling to keep food on the table of all our local and hard working journalists, artists, sales, delivery and drudges who keep the news coming out to you both in the newspaper and online. If you can spare a few dollars a week – or maybe more – we would appreciate all the support you are able to give to keep the voice of independent, local journalism alive.

5 COMMENTS

  1. David, you are a Legend!! with a sharp sense of satire. The inequities in our society make me think we are still in the 1800’s where indigenous people were dispossessed and massacred and the colonialists went off scot-free

  2. Brilliantly written David, something I’ve been wanting to see written for 30 years. The ongoing cruelty and inaction is surely an act of criminal neglect.

LEAVE A REPLY

Please enter your comment!
Please enter your name here

How much do you know about koalas?

How well do you know your koala facts? Test your knowledge at the June 2 Koala Hard Quiz in Mullumbimby.

Tweed residents facing rate rise in 2021/2022 financial year

Tweed residents are invited to provide feedback on their council's budget, revenue policy and fees and charges, as Tweed Council prepares to finalise its delivery program and operational plan for the next financial year.

Exotic and hybrid

Dailan Pugh, Byron Bay I was shocked to see the abundant exotic and hybrid plantings at Byron’s new bus interchange. As Byron Council used to have...

Locals call for automatic revocation of speeding fines on Hinterland Way in first half of April

When local man Nathan Hicks saw posts on Facebook about locals who had received fines they believed were incorrect he decided to look into challenging his own fine.