Indigenous Law Bulletin
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Indigenous Law Bulletin |
|
Disgrace: The Death of Mr Ward
Jonathon Hunyor
Mr Ward[1] was an Aboriginal elder from the Ngaanyatjarra lands in Western Australia. He was a central figure in his family and his community with a ‘unique knowledge of culture, land and art’.[2] He was recognised as a leader of his generation and had represented his community at a state, national and international level, working ‘to bring together Aboriginal and non-Aboriginal people and to promote cross-cultural interaction.’[3]
On Australia Day 2008, he was arrested for drink-driving in Laverton, on the edge of the Great Victoria Desert. After a night in a police cell he was remanded to appear in court in Kalgoorlie, four hours’ drive away. Late in the morning he was put in the back of a prisoner transport van. It was a hot summer’s day, with temperatures outside reaching over 40C. Exactly what happened during the journey remains unclear. But before arriving in Kalgoorlie, Mr Ward collapsed from heatstroke in the back of the van and was dead soon after.
The State Coroner, Alastair Hope, found that Mr Ward had ‘suffered a terrible death… which was wholly unnecessary and avoidable.’[4] While his treatment in the hours before his death was found to be ‘disgracefully bad’,[5] the errors, misjudgements and failures that contributed to Mr Ward’s death were widespread. They included the:
• refusal of bail and the poor administration of justice;
• condition of the prisoner transport van;
• decision to transport Mr Ward in the rear ‘pod’ of the van; and
• lack of care for Mr Ward during the journey.
This case note examines the Coroner’s findings and recommendations. Significantly, the findings explicitly recognise the role of coroners in preventing future deaths, particularly of people held in custody. They also, for what may be the first time in an Australian coronial inquest, identify specific breaches of human rights.
Mr Ward was arrested on the evening of 26 January 2008 in Laverton following a random breath test. At the police station he recorded a breath alcohol reading of .231% and was denied bail. He spent the night in the police lockup.
The next morning a local Justice of the Peace (‘JP’), Barrye Thompson, attended the police station. He was briefed by police, in Mr Ward’s absence, about the charges and Mr Ward’s police history. Mr Ward was woken and Mr Thompson purported to conduct a court hearing at the cell door. He did not consider whether Mr Ward should be granted bail, believing he was not required to do so unless the defendant specifically asked for it.[6] He told Mr Ward he would be remanded in custody to reappear in Kalgoorlie Magistrates Court the following day.[7]
The Coroner concluded that it would be ‘an understatement to observe that the deceased was not well served by the Justice system.’[8] Mr Thompson was untrained and had a very poor understanding of his role and responsibilities. The cell-door ‘hearing’ was contrary to the Magistrates Court Regulations 2005 (WA) and without lawful basis.[9] The purported decisions in relation to Mr Ward’s bail by both the police and Mr Thompson did not comply with procedural and substantive requirements of the Bail Act 1982 (WA).[10]
The Coroner found that, given his strong community ties, the deceased could have been bailed to appear either at Laverton or his home town of Warburton and that there was little benefit to be achieved by transporting him to Kalgoorlie.[11] But Mr Thompson knew nothing of Mr Ward’s extensive community ties. He later told the ABC’s 4 Corners: ‘He was an Aboriginal in a very drunken state or very groggy state. That’s all I knew him as.’[12]
In light of this array of failures, the Coroner expressed doubt whether Mr Ward was lawfully in custody at the time of his death, and observed:
If the legislation had been complied with the deceased would not have been transported by GSL staff on 27 January 2008 and other arrangements would have had to have been made; he would not have died when he did.[13]
The officers responsible for transporting Mr Ward to Kalgoorlie were Nina Stokoe and Graham Powell. They arrived in Laverton late in the morning, having driven from Kalgoorlie in a Mazda prisoner transport van.
The van was in a ‘disgraceful condition’. [14] Critical defects were that the air-conditioning in the rear pod did not work; there was no way of monitoring temperature from the front cabin; the CCTV system worked only intermittently and was found not to work adequately to allow for the transport officers to ‘tell whether the prisoner was awake or asleep, conscious or unconscious’.[15] The problem with the air-conditioning had been noted four times in records for the van in the four months prior to Mr Ward’s death, most recently on 2 January 2008.[16]
The problems with the van were common to the fleet and these were well known to both the Department of Corrective Services (‘DCS’, which owned the fleet) and the firm contracted to transport prisoners, GSL Custodial Services Pty Ltd (‘GSL’, now G4S Custodial Services Pty Ltd).
The WA Inspector of GSL had reported in 2001 on serious safety concerns in respect of the transportation fleet and commented that ‘safety, comfort and duty of care issues were taking second place to security’.[17] A prison administrator was quoted in the report as saying: ‘The vehicles are not fit for humans to be transported in. We are just waiting for a death to happen’.[18]
The problem with the air-conditioning of the fleet was first raised by the Inspector in 2001. A review following the Inspector’s report concluded that the Mazda vans and their air-conditioning systems were never designed to operate in remote areas with extreme climatic conditions and it was recommended that the vans should only be operated in and around the metropolitan area.[19] That advice was not acted upon.
A further review by the Inspector in 2007 concluded that the fleet was ‘below acceptable operating standards with frequent breakdowns’ causing ‘safety and duty of care issues when they occur in regional areas during the heat of summer’.[20] The report also identified ‘a range of serious risks to life, well-being or security’ from issues including vehicle breakdown and air-conditioning failure.[21] A new fleet was ‘urgently required’.[22]
GSL staff had also expressed serious concerns at internal meetings about the prisoner transport vans. The supervisor for Kalgoorlie had told one meeting that, if the vans were not replaced, ‘there is going to be an incident and it won’t be a good one’, by which she had meant that ‘someone will eventually die’.[23]
The Coroner concluded that
The actions of the Department in providing an unsafe vehicle and its failure to put in place procedures to reduce the hazards associated with use of that vehicle clearly contributed to the death.[24]
The Coroner also found that GSL’s failure to take action to manage the hazards associated with the significant problems with the fleet was a factor which contributed to the death.[25] The Coroner was critical of GSL’s failure to have written policies to deal with the obvious difficulties associated with monitoring prisoner welfare, such as a requirement that staff carry out regular physical checks or ensure that prisoners have adequate water.[26]
Stokoe and Powell placed Mr Ward in the rear pod of the van. The Coroner found that the rear pods of the Mazda vans are cramped and uncomfortable and have little natural light, no view to the outside and no natural ventilation. The only available method of communication with the drivers is by hitting the walls of the pod or shouting out.[27] There are no toilet facilities and prisoners needing to go to the toilet were usually handed an empty drink bottle or a jerry can.[28]
Transporting prisoners for long distances in such circumstances was, in the Coroners’ view, inhumane.[29]
[A]ny reasonably compassionate person who viewed the prisoner pod in which the deceased was transported would be shocked by its appearance… In my view it is a disgrace that a prisoner in the 21st century, particularly a prisoner who had not been convicted of any crime, was transported for a long distance in high temperatures in this pod.[30]
Mr Ward could have been transported in the front pod which had a forward-facing padded seat and windows that could be opened for ventilation. He was, however, placed in the rear because of GSL’s policy requiring all male remand prisoners taken from police lockups to be regarded as ‘high risk’ and placed in the more ‘secure’ rear pod.[31] The GSL officers had, in fact, been told that Mr Ward would be ‘no trouble’ and the Coroner found there was no good reason for Mr Ward to have been placed in the rear pod.[32]
The Coroner found that the ‘quality of the deceased’s treatment, supervision and care in the rear pod of the vehicle could hardly have been worse.’[33]
Although outside temperatures that day were over 40C, neither Stokoe nor Powell checked whether the air-conditioning in the rear pod was working. The Coroner found that ‘on a hot day prior to transporting a prisoner in a pod without windows it was of fundamental importance to check that the air-conditioning was working’. This was ‘a matter of common sense’.[34]
As Mr Ward got into the rear pod of the van, Ms Stokoe told him ‘the quicker you get in, the quicker the air-conditioner kicks in’, from which the Coroner concluded that the pod ‘must have felt uncomfortably warm or hot’ at that time.[35] Mr Ward was not told what to do if he needed attention during the trip. He had with him a meat pie and a 600ml bottle of water for the 360km journey.
Mr Powell drove the van and did not stop until they had almost reached Kalgoorlie. Ms Stokoe listened to her iPod and claimed that she was ‘watching the CCTV monitor intermittently’.[36] As noted above, the CCTV was not working properly and provided at best an unclear picture.
Precisely what happened over the course of the journey is unclear. The Coroner found that the evidence of Ms Stokoe and Mr Powell ‘was untruthful on occasions and certainly mistaken on other occasions’[37] and that ‘a decision was made by the two officers to provide a concocted story in relation to events with a view to minimising their involvement.’[38] It appears that as the van approached Kalgoorlie, Ms Stokoe and Mr Powell heard a thump and Ms Stokoe told Mr Powell that Mr Ward had collapsed onto the floor of the van. Mr Powell stopped the van and they discovered that Mr Ward was unconscious.
Calls were made to the GSL supervisor and Mr Powell claimed to have thrown water on Mr Ward in an attempt to rouse him.[39] They then drove to the Kalgoorlie Regional Hospital, arriving almost 10 minutes later with Mr Ward still in the rear pod of the van.
The doctor who assisted in removing Mr Ward from the van said that, as he opened the doors to the pod, ‘it was like a blast from a furnace’. In a re-enactment conducted for the purposes of the inquest, the air temperature in the pod reached 50C during the drive between Laverton and Kalgoorlie. The surface temperature of the pod’s steel surfaces reached 56C.[40] The day of the re-enactment was, in fact, cooler by a couple of degrees than the day that Mr Ward died.
Despite efforts to resuscitate Mr Ward, he died shortly afterwards. The cause of death was heatstroke. Mr Ward was discovered to have a laceration on his forehead and a large burn on his abdomen that had been caused by contact with the pod’s metal surface. His core temperature was recorded at over 41C. The evidence was the Mr Ward must have experienced extreme heat for over three hours to have reached such a temperature.[41]
The Coroner concluded:
As well as demonstrating a lack of compassion for the deceased, [Stokoe and Powell’s] failure to check that the air-conditioning for the deceased was working at any stage and the failure to make any welfare checks in the context of the known hazards contributed to the death.[42]
Coroner Hope decided to report to the Director of Public Prosecutions his belief that an indictable offence had been committed in connection with the death.[43] He did not, however, provide a detailed review of the evidence in respect of a possible criminal charge or specify by whom the indictable offence may have been committed.[44] But the Coroner did make14 recommendations on systemic issues. He recommended that the powers of the Inspector of Custodial Services be enhanced to allow the Inspector to
• issue the Department of Corrective Services with a ‘show cause’ notice relating to issues of human rights and safety of persons in custody,[45] and
• review the detention of all persons in custody to ensure that they are treated with humanity and respect for human dignity and are not subject to cruel and inhumane or degrading treatment.[46]
The Coroner also made recommendations concerning:
• police training about bail[47]
• the administration of justice and the use of Justices of the Peace[48]
• the replacement of the prisoner transport vehicle fleet and a replacement strategy to ensure regular vehicle replacement[49]
• review by DCS of all G4S policies and procedures relating to the welfare of detainees and duty of care[50] and ongoing monitoring of fleet maintenance and staff compliance with company policies and procedures,[51] and
• training of G4S staff in respect of duty of care obligations and monitoring of staff compliance with company policies by managers.[52]
On 29 September the WA Government issued a formal response to the Coroner’s recommendations.[53] The recommendations were all supported or were supported in principle.
Coroner Hope’s findings demonstrate the potential role of the modern coroner in reviewing systemic causes of death and seeking to prevent future death. As discussed above, in addition to scrutinising the care of Mr Ward and the history of problems with remote prisoner transport, the Coroner also examined important aspects of the administration of justice in remote Western Australia, including issues around bail, court procedure, police training and the use of JPs.
Section 25(2) Coroners Act 1996 (WA) gives the coroner a power to comment on matters ‘connected with the death’. Section 25(3) also states that that, where a death ‘is of a person held in care, a coroner must comment on the quality of the supervision, treatment and care of the person while in that care’. The Coroner rejected a submission made by Western Australia that his comments should be ‘of limited ambit’. Citing the Victorian case of Harmsworth v State Coroner,[54] the State argued that
The power to comment is not free ranging. It must comment on a matter connected with the death. The powers to comment are inextricably connected with, but not independent of the power to enquire into death for the purposes of making findings. They are not separate or distinct sources of powers.
The Coroner noted that there have been ‘considerable developments in coronial law’ since the decision in Harmsworth.[55] The Coroner also distinguished the legislative position in WA from that in Victoria: while in Victoria a coroner ‘may comment on a matter connected with the death including public health or safety or the administration of justice’,[56] in WA a coroner must comment on the quality of supervision, treatment and care where the death is of a person held in care.
The Coroner held[57] that the correct approach in WA is as described by Watterson, Brown and McKenzie, namely that coronial investigations
should lead to mandatory public hearings productive of findings and recommendations that seek to prevent future deaths in similar circumstances. The Royal Commission [into Aboriginal deaths in Custody] recommended an expansion of coronial inquiry from the traditional narrow and limited medico-legal determination of the cause of death to a more comprehensive, modern inquest; one that seeks to identify underlying factors, structures and practices contributing to avoidable deaths and to formulate constructive recommendations to reduce the incidence of further avoidable deaths. The Royal Commission provides a timeless reminder that every avoidable Indigenous death calls upon us to identify its underlying causes, consider Indigenous disadvantage, uncover the truth about the death and resolve upon practical steps to prevent others.[58]
This reflects a growing acceptance in Australian jurisdictions of a proactive role for coroners in preventing death.[59] Other recent examples in the context of custodial deaths include:
• The Inquest into the death of Mulrunji.[60] The Queensland Deputy State Coroner made 40 detailed recommendations covering areas of arrest and policing, diversionary centres and community patrols, assessment and monitoring of health and the investigation of deaths in custody.[61]
• The Inquest into the death of Robert Plasto-Lehner and David Gurralpa aka Moscow.[62] The Northern Territory Coroner made recommendations concerning police policies and training in areas including the use of force, dealing with people with mental illness, and the conduct of investigations into serious incidents.[63]
The Australian Human Rights Commission (then the Human Rights and Equal Opportunity Commission) was granted leave to appear as an interested party in the Ward inquest. The Commission made submissions on the relevant human rights and on a range of practical systemic issues that were relevant to preventing future breaches of human rights, including breaches of the right to life.[64]
The Coroner found that Mr Ward was subjected to degrading treatment and was not treated with humanity or with respect for the inherent dignity of the human person, in breach of arts 7 and 10(1) of the International Covenant on Civil and Political Rights.[65]
The Coroner accepted that states have a positive obligation to people who are vulnerable because they are deprived of their liberty and that duty under international law is not delegable. He observed that ‘privatisation of prisoner transport services cannot remove from a state the duty of ensuring that human rights standards are met by contractors.’[66]
The Coroner’s findings recognise the utility of human rights as a standard against which issues like ‘the quality of the supervision, treatment and care’ can be assessed. As noted above, the Coroner also adopted human rights as a standard for monitoring and assessing care in his recommendations to expand the powers of the Inspector of Custodial Services.
Implicit in this approach is an acceptance that ‘humanity and respect for the inherent dignity of the human person’ and the prohibition on ‘cruel, inhumane or degrading treatment’ are appropriate points of reference in exercising a coroner’s functions and in the administration of justice more generally. As is clear from the Coroner’s findings, had Mr Ward been treated with humanity and dignity, he would not have died.[67]
Jonathon Hunyor is the Director of the Legal Section at the Australian Human Rights Commission. These are his personal views and not those of the Commission.
[1] Mr Ward’s first name is not used in accordance with the wishes of his family.
[2] Inquest into the death of Ian Ward, State Coroner of Western Australia, 12 June 2009 (‘Ward’), 10. The Findings are available on the ABC’s 4 Corners website: <http://www.abc.net.au/4corners/special_eds/20090615/ward/ward_finding.pdf> at 10 August 2009.
[3] Ward13.
[4] Ward 5.
[5] Ward 130.
[6] Ward 46.
[7] Ward 43-5.
[8] Ward 135.
[9] Ward 48-9.
[10] Ward 42, 46-7.
[11] Ward 141.
[12] ABC 4 Corners, ‘Who Killed Mr Ward?’, 15 June 2009.
[13] Ward 50.
[14] Ward 24.
[15] Ward 68.
[16] Ward 28.
[17] Inspector of Custodial Services, quoted in Ward 83.
[18] Ward 86.
[19] Ward 87.
[20] Ward 88.
[21] Ward 89.
[22] Ward 88.
[23] Ward 25.
[24] Ward 107-108.
[25] Ward 112.
[26] Ward 120-1.
[27] Ward 14-5.
[28] Ward 17.
[29] Ward 17.
[30] Ward 14.
[31] Ward 18.
[32] Ward 18-9.
[33] Ward 118.
[34] Ward 63.
[35] Ward 66.
[36] Ward 67.
[37] Ward 69.
[38] Ward 83.
[39] Ward 77.
[40] Ward 35.
[41] Ward 35-6.
[42] Ward 84.
[43] Ward 124-8.
[44] Ward 124-5.
[45] Recommendation 1, Ward 133.
[46] Recommendation 2, Ward 134.
[47] Recommendation 3, Ward 136.
[48] Recommendation 4, Ward 137; Recommendation 5, Ward 139; Recommendation 6, Ward 140; Recommendation 7, Ward 141; Recommendation 8, Ward 142.
[49] Recommendation 9, Ward 143; Recommendation 10, Ward 143.
[50] Recommendation 11, Ward 144.
[51] Recommendation 12, Ward 145.
[52] Recommendation 13, Ward 146; Recommendation 14, Ward 146.
[53] Available at <http://www.mediastatements.wa.gov.au/Lists/Statements/Attachments/132542/Government%20Response%20(Final).pdf> at 13 October 2009.
[54] [1989] VicRp 87; [1989] VR 989, 996.
[55] Ward 115, Citing WRB Transport and Ors v Chivell [1998] SASC S7002.
[56] Section 19(2) Coroners Act 1985 (Vic), emphasis added.
[57] Ward 116.
[58] Ray Watterson, Penny Brown and John McKenzie, ‘Coronial Recommendations and the Prevention of Indigenous Death’ (2008) 12 Australian Indigenous Law Review 6; see also Boronia Halstead, Coroners’ Recommendations and the Prevention of Deaths in Custody: A Victorian Case Study, (1995) available at <www.aic.gov.au/documents/4/D/F/%7B4DFAD9F6-CD7B-4A56-8512-828A37EDBD1F%7Ddic10.pdf> at 10 August 2009.
[59] See Raymond Brazil, ‘Respecting the Dead, Protecting the Living’ (2008) 12 Australian Indigenous Law Review 45, 46-7; Jonathon Hunyor, ‘Human Rights in Coronial Inquests’ (2008) 12 Australian Indigenous Law Review, 64, 64-5.
[60] Ibid, Hunyor, 70-1.
[61] Note that the specific finding of the Coroner as to how Mulrunji died has been set aside and the inquest reopened: Hurley v Clements & Ors [2009] QCA 167. However, the recommendations of the Coroner were not challenged and are not tied to the findings on the immediate cause of death.
[63] [2009] NTMC 014, [192-9]. See also Julie O’Brien, ‘Protecting Human Rights through the Coronial Process’, (2009) 47(4) Law Society Journal 32.
[64] See <http://www.humanrights.gov.au/legal/submissions_court/intervention/2009/Ward_final20090528.html> at 10 August 2009.
[65] Opened for signature 16 December 1966, 999 UNTS 171 (generally entered into force 23 March 1976, article 4 entered into force 28 March 1978).
[66] Ward 129-30.
[67] Ward 130.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/IndigLawB/2009/42.html