Deceased
Shannon Robert Camden
Demographics
21y, male
Date of death
1996-04-15
Finding date
1997
Cause of death
Suffocation from hanging
AI-generated summary
Shannon Robert Camden, a 21-year-old with longstanding mental health difficulties and previous suicide attempts, died by hanging in cell A1 of the Belconnen Remand Centre on 15 April 1996 while on remand awaiting trial for armed robbery charges. The coroner found that custodial officers failed to conduct proper 30-minute observations, with Mr Kelly appearing not to conduct any observations during the critical period when Camden died (likely around 4:30 AM). The coroner found that the quality of care, treatment and supervision by Mr Black (supervisor), Mr Kelly, Mr Gordon, and Mr Curbishley all contributed to the cause of death. Significant system failures included: lack of coordination between mental health services; inadequate facility design; failure of management to implement proper supervision; and a corrupted institutional culture where officers falsified observation records and gave perjured evidence. The coroner recommended prosecutions, facility improvements, establishment of a Corrections Health Board, and systemic reforms.
AI-generated summary — refer to original finding for legal purposes. Report an inaccuracy.
Specialties
Error types
IN THE CORONER’S COURT AT CANBERRA IN THE AUSTRALIAN CAPITAL TERRITORY CD 75/1996 INQUEST INTO THE CIRCUMSTANCES SURROUNDING THE DEATH OF SHANNON ROBERT CAMDEN Shannon Robert Camden (the deceased) was arrested by the police on the 19th of February 1996 in relation to a complaint that he had robbed a taxi driver while armed with a knife and had stolen some money and a fire extinguisher. The deceased was interviewed on video tape and the video is now marked as Exhibit 12. The deceased was charged with armed robbery, robbery, theft and assault and appeared before the Chief Magistrate on the same day and was refused bail. The deceased was again interviewed by the police on the 21st of February 1996 in relation to an allegation that prior to the incident he had struck another taxi driver with a rock with the intention of robbing that person. He was subsequently charged on the 26th of February 1996 with that offence.
During both records of interview the deceased made full admissions concerning the offences. The sequence of events in relation to these matters would seem to be that the deceased had been in Civic during the evening of the 18th and 19th of February 1996 and that he had entered a taxi cab and requested that he be driven to a nominated destination. The deceased admitted in the interview that upon arriving at the destination he struck the driver a number of times on the head, and following some discussion with the driver he left the taxi and ultimately arrived in Belconnen.
Subsequently in the early morning of the 19th of February 1996 the deceased hailed another taxi in the vicinity of the Shell Garage in Lathlain Street, Belconnen and produced a knife with which he threatened the taxi driver who fled from the taxi, taking the keys with him. In both interviews the deceased indicates that he had intended to go to Calvary Hospital, and further, that he had no money.
As mentioned above, the deceased appeared before the Chief Magistrate in relation to the charge of armed robbery and represented himself. The Transcript (Exhibit 3) indicates that the deceased made a number of comments to the Chief Magistrate and that as a result of these comments the Chief Magistrate ordered an assessment from the Mental Health Tribunal concerning mental dysfunction and fitness to plead. The deceased indicated that he had been treated by Dr. Lubbe, but added that he would prefer to undergo a psychological examination from someone other than Dr. Lubbe. The Chief Magistrate then ordered a report from Mr. Jones, who was a clinical psychologist in the employ of the A.C.T. Government, and an assessment from the Mental Health Tribunal on mental dysfunction and also fitness to plead. The Chief Magistrate further directed that the defendant have access to legal advice.
Bail was refused having been opposed by the prosecution and the deceased was remanded in custody.
Following the arrest of the deceased on the 19th of February 1996 he was taken before the Watch House Sergeant to be formally charged. Sgt. Alan Francis Barbour was the Sergeant-In-Charge of the Watch House on the morning of the 19th of February 1996 and he charged the deceased with the various offences subsequently brought before the Court. The deceased was charged at about 9:15 a.m. During the course of the charging procedure Sgt. Barbour asked the deceased a number of questions which were provided in a proforma available to the Sergeant. As a result of answers given by the deceased Sgt. Barbour formed the view that it was appropriate for the deceased’s papers to be marked that the deceased was a prisoner-at-risk and suicidal. These comments were endorsed upon a document entitled "Australian Federal Police Prisoner Information Cover Sheet" which was included in a file marked Exhibit 15. This file, as I understand the evidence, is one which must be transferred with a person taken into custody by the police and if that person is remanded in custody at the BRC then it travels with the detainee to the BRC and becomes part of the material available at the BRC upon which the future care of a detainee will be based.
The deceased was discovered at approximately 6:30 a.m. on the 15th of April 1996 hanging in cell A1 of the Belconnen Remand Centre, dead. The death of the deceased became the subject of an Inquest under the provisions of the Coroner’s Act 1956 (the C.A.). The Inquest into the manner and cause of the death of the deceased commenced on the 10th of July 1996 and continued from time to time until the taking of evidence concluded on Wednesday, the 28th of May 1997. In all, there were some 40 hearing days involving taking evidence from some 30 witnesses. The Inquest was re-opened briefly on the 21st of August 1997 for the taking of further evidence concerning a failure to comply with the provisions of the Remand Centres Act (the R.C.A.).
The Role of the Coroner The Coroner’s Act 1956 (the C.A.) provides in section 12 as follows: "A Coroner shall, subject to this Act, hold an inquest into the manner and cause of the death of a person who - . . . .
(k) dies in custody." Section 24 of the C.A. states: "The Coroner holding an inquest into a death in custody shall include in a record of the proceedings of the inquest findings as to the quality of care, treatment and supervision of the deceased person which, in the opinion of the Coroner, contributed to the cause of death".
Section 25 of the C.A. provides, inter alia, for the Coroner after the completion of the inquest to provide a report to various nominated persons or organisations.
Section 56 states: "(1) A Coroner holding an inquest shall find, if possible -
(a) the identify of the deceased;
(b) how, when and where the death occurred;
(c) the cause of death;
(d) the identify of any person who contributed to the death; and
(e) in the case of the suspected death of a person - that the person has died.
. . . .
(4) A Coroner may comment on any matter connected with the death or fire, including public health or safety or the administration of justice.
Section 58 states: "(1) A Coroner may report to the Attorney-General on an inquest or inquiry which the Coroner has held.
(2) A Coroner may make recommendations to the Attorney-General on any matter connected with an inquest or inquiry, including matters relating to public health or safety or the administration of justice." Section 59 provides a procedure whereby a Coroner may deal with a person who in the view of the Coroner has committed an indictable offence.
It is clear from the provisions of section 24 of the C.A. that the Coroner holding an inquest into a death in custody is required to consider all of the events which took place between the time the deceased was taken into custody and the time of his death. It is necessary, in my view, for these matters to be canvassed in some detail so as to ascertain whether anything relating to the care, treatment and supervision of the deceased while in custody contributed to the cause of death or whether any person contributed to the death.
It is important to state that the Inquest into the death of the deceased is limited by reason of the provisions of the C.A. The inquiry conducted by me was not an inquiry into all of the circumstances of the running and administration of the BRC. While it is clearly necessary to extend the inquiry outside the events of the evening of the 14th and 15th of April 1996 it is not the role of the Coroner in this Inquest to canvass the entire running of the BRC.
While it was unavoidable in the conduct of the Inquest to hear evidence relating to the more general operation of the BRC the Inquest was principally limited to the shift of the evening and early morning of the 14th and 15th of April 1996.
The Background of The Deceased The deceased was born on the [redacted] of July 1974 and adopted by Robert Joseph Camden and Lorraine Camden. The deceased resided in the Australian Capital Territory, or it’s immediate regions, for the whole of his life. He attended school in the Territory.
His father indicates that from about the age of 14 they began to receive notes from his school indicating that he was disruptive. As a result of discussions with teachers, it appeared that the deceased was capable of achieving straight A’s at school, but apparently put in minimal effort and received lesser grades. In 1992 when the deceased was 17 he attempted to take his life. Mr. Camden, Snr. found the deceased lying in a family motor vehicle apparently unconscious. The engine of the car was running. An ambulance was called and the deceased was taken to Calvary Hospital.
The hospital records indicate that the deceased was admitted on the 16th of April 1992 suffering from carbon monoxide poisoning and depression. The records indicate that this was a suicide attempt.
The deceased was discharged from the hospital on the 5th of May 1992.
Between his first admission in 1992 and his death he had at least six admissions to the Calvary Hospital and other admissions to the then Woden Valley Hospital.
The deceased was admitted to Calvary Hospital on the 27th of October 1992 and was an inpatient at the hospital until his discharge on the 8th of February 1993. The hospital records indicate that on that occasion the principal diagnosis was "borderline personality". The notes also indicate that the deceased was suffering from major depression. On this admission the deceased came into contact with Dr. Katherine Lubbe.
Dr. Katherine Lubbe Dr. Lubbe is a psychiatrist in private medical practice who is a visiting medical officer at Calvary Hospital. She continued to have contact with the deceased up until January 1996. There was a substantial break in the contact between about November 1994 and January 1996.
Dr. Lubbe indicated in her evidence that during her long contact with the deceased she was not able to arrive at a definitive diagnosis to describe his condition. She had from time to time formed tentative views that he may suffer from, amongst other things, a bipolar disorder or from a form of depressive illness. Various forms of treatment, including medication and electro convulsive therapy, were tried, but with little, if any, long term response from the deceased.
Dr. Lubbe commented as follows: (T, 18.11.96, page 28) "What I would like to say is that he showed anti-social and border line personality traits and he had intermittent depression complicated and he gave a history of drug abuse, because I think he is too young to just say too definitively that he had a personality disorder." Ultimately Dr. Lubbe indicated that upon hearing of the deceased being remanded in custody she was: "glad that he was in the Remand Centre because I thought at some time or other I’d get an opportunity to see him without drugs, and I thought that I was really quite looking forward to seeing him knowing that he’d be free of whatever he used to get on the street." (T, 18.11.96, page 40) The deceased gave a history which varied from time to time particularly in relation to drug or alcohol abuse. It seems on the evidence of Dr. Lubbe that his presentation caused grievous problems to Dr. Lubbe and indeed to other medical professionals to categorise in a definable form the nature of the condition from which the deceased was clearly suffering. Ultimately Dr.
Lubbe was leaning towards a condition described by her as a personality disorder. The doctor described a personality disorder as follows: (T, 18.11.96 page 76) "A personality disorder is a pervasive way of being in the world of various types that patients characteristically use - manifest and it can produce either subjective distress for the patient and often that manifests itself in self harm, killing themselves, drinking, multiple jobs, multiple relationships, an unsatisfactory life and they may present with this distress that their personality disorder is causing them or they may end up just having an unsatisfactory life again in terms of relationships and study and work and clashes with the law and abuse of alcohol." Dr. Lubbe was of the opinion that the only way for this condition to be dealt with was on a long term basis and it was not a condition that could be treated with drugs or with electric shock.
Dr. Lubbe last saw the deceased on the 19th of January 1996 when she had a discussion with him concerning his possible entry into "de-tox". The deceased declined to enter into this program.
Subsequently on the 23rd of February Dr. Lubbe had a discussion with Mr. Alan Jones and provided to Mr. Jones some of her knowledge of the deceased based upon her long contact with him. Dr. Lubbe did not recall discussing with Mr. Jones any possible suicide risk that the deceased represented, but in her statement says: "I would have described Shannon as being at some risk because he had previously attempted suicide. However I would not have described him as a high risk because some time had elapsed since his last suicide attempt (in 1993) and Shannon’s mental health had seemed to improve since that time." An Assessment Order was made by the Mental Health Tribunal and Dr. Lubbe had arranged to attend at the BRC on the 15th of April 1996 to examine the deceased for the purpose of the Mental Health Tribunal hearing. As a result of the deceased’s death on the morning of that day Dr. Lubbe did not see the deceased. It is clear from all of the medical evidence contained in the hospital records and also from Dr. Lubbe’s evidence that the deceased had a long history of mental problems, including a number of serious attempts at suicide. There is also evidence that the deceased discussed on numerous occasions the possibility of either self harm or suicide.
It is clear from Dr. Lubbe’s evidence that she, as the treating psychiatrist of the deceased, had great difficulty in coming to a concluded clinical opinion as to the reasons for the problems which continued to beset the deceased. This difficulty resulted in the parents of the deceased becoming frustrated and anxious in relation to the future of the deceased. It is clear from all of the evidence that the parents of the deceased were extremely active in their attempts to have their son treated for the problems from which he clearly suffered. On numerous occasions one or other of the parents took the deceased to hospital and there is also clear evidence of substantial family support, particularly during the period in which the deceased was on remand at the BRC. The inability of Dr. Lubbe and others with whom the deceased came into contact to provide any apparent solution for the problems besetting the deceased were the cause of substantial frustration and anxiety not only for the deceased, but also for his parents.
It was against this background that the parents of the deceased were content to see the deceased remanded in custody as it was hoped that some progress might be made during his period in detention to attempt to investigate once again the problems that he suffered from and hopefully to achieve some form of regime to assist the deceased in coping with those problems.
It is clear from the evidence that in the weeks prior to the deceased being taken into custody that he was attending at either Calvary Hospital or Woden Valley Hospital on a very regular, and indeed at times on a daily basis, seeking assistance. It is also clear from the evidence that he received little, if any, assistance as a result of these numerous visits.
The deceased appeared in the Supreme Court in December 1993 in relation to a criminal offence and was released upon a recognisance which included a condition that he be subject to supervision by the A.C.T. Community Corrections for a period of two years. Ms. Helen Rowling, a Community Corrections Officer, was appointed as his supervisor for the purposes of the recognisance. Ms. Rowling gave evidence that she had had regular contact with the deceased between the date of his recognisance and February 1996.
Ms. Helen Rowling During the course of her supervision of the deceased she arranged for the deceased to be examined by Mr. David Keyes, a Social Worker employed with Forensic Services, Department of Health and Community Care, but it is unclear from the evidence what, if anything, resulted from this examination.
In late 1995 the terms of the supervision order imposed by the Supreme Court expired. Notwithstanding this expiry Ms. Rowling continued to have an interest in and contact with the deceased.
On the 23rd of January 1996 Ms. Rowling saw the deceased in Civic and was so concerned about a conversation she had with him that she contacted the deceased’s mother and subsequently made the application for a treatment order under the provisions of the Mental Health (Treatment and Care) Act 1994 (MHT&CA). Ms. Rowling indicated that this was the first such application she had ever made.
Ms. Rowling last saw the deceased on the 29th of February 1996 at the BRC. On the occasion of that visit she was still concerned about the lack of treatment being received by the deceased, but was content that he was "a lot safer in custody". (T, 18,11.96, page 8) She discussed her concerns about the deceased with Helen Child, the Welfare Officer at the BRC, and also with custodial officers at the BRC.
She was assured, and accepted, that at that time the deceased was on observations and being adequately observed.
The effect of Ms. Rowling’s evidence is that she had close contact with the deceased for over two years and observed his variable moods and attitudes. She maintained a concern which increased from time to time about his mental well being over the whole of this period and attempted to obtain assistance by way of treatment for his condition. She was aware of his contact with Dr. Lubbe and spoke with the deceased on occasions concerning his attitude to Dr. Lubbe and to treatment generally. It is clear that her contact with him in January of 1996 was so dramatic that she was prompted to initiate her first application to the Mental Health Tribunal.
Evidence was also given by a Mr. Peter James Walker who had known the deceased since February 1979 and was a friend of the family. His evidence supports the general picture of the deceased as being a person of substantially fluctuating moods particularly during the periods 1992 to 1996.
The evidence indicates that when the deceased was taken into custody at the BRC he had a long history of mood swings and attempts at suicide. Notwithstanding the best efforts of his family and himself he had been unable to receive any particular form of diagnosis or treatment which would have allowed his condition to be controlled. It is unclear from the evidence as to whether this was as a result of a failure on the part of his treating doctors or whether it is one of those unfortunate cases in which his condition, even if clearly diagnosed, is incapable of any short term solution, particularly by way of medication or similar treatment. It appears on balance, insofar as Dr. Lubbe is concerned, that he was suffering from a form of personality disorder which would require very lengthy, if not permanent, treatment by way of counselling. His condition, however defined, was clearly in a critical phase when he was taken into custody in February 1996.
The Mental Health Tribunal An application was made for a treatment order by Helen Rowling of the A.C.T. Corrective Services in relation to the deceased on the 30th of January 1996. This application was made under the provisions of Section 14 of the M.H.T.&C.A. Ms. Rowling completed a document entitled "Application For A Treatment Order". That application contained in it the following statement:
OR That the respondent is unable because of mental dysfunction to anything necessary for his/her own health or safety and, as a result, his/her own health or safety is, or is likely to be, substantially at risk; OR That the respondent is or is likely to be, because of mental dysfunction a danger to the community." The application completed by Ms. Rowling has a circle around items 2 and 3 in item 1. referred to above. While it is not absolutely clear on the face of the document, I accept that the application lodged by Ms. Rowling relied upon the second and third alternatives in paragraph 1. as the basis upon which the application was made. That is to say, that Ms. Rowling relied upon the following grounds:
I have reproduced above the terms of the application as they appear from Exhibit 17 without any adjustment for gender or grammatical purposes.
Ms. Rowling set out in her application a brief history of her contact with the deceased who had been under her supervision in her capacity as an A.C.T. Corrective Services Officer. Also attached to the application, or at least contained in the file produced to the Inquest by the Mental Health Tribunal, is a statement by Ms. Rowling in relation to a conversation she had with the deceased in Civic on the 23rd of January 1996.
According to a chronology of events in relation to Shannon Camden contained in the Mental Health Tribunal file (Eh. 17) this application was received on the 2nd of February 1996 and was scheduled for a conference on the 15th of February 1996. This conference was adjourned until the 28th of February 1996 due to the unavoidability of Ms. Rowling. The conference did not ultimately go ahead as the deceased was arrested and in custody from the 19th of February 1996.
The deceased appeared in the Canberra Magistrates Court before Chief Magistrate Cahill on the 19th of February 1996 in relation to a charge of robbery. The Chief Magistrate remanded the deceased in custody until the 26th of February 1996 and endorsed the bench sheet in the following terms: "Bail refused remanded in custody." Assessment MHT re "mental dysfunction and fitness to plead"." The Chief Magistrate further endorsed the bench sheet with the name of Dr. Catherine Luby, report from Alan Jones, direct access to legal advice.
These endorsements generally reflect the orders made by the Chief Magistrate as recorded in the Transcript of the Proceedings before the Chief Magistrate on the 19th of February 1996. The Transcript records that the Chief Magistrate stated: "I will order an assessment from the Mental Health Tribunal concerning mental dysfunction and fitness to plead" and subsequently: "Well, we will order a report from Mr Jones and we will have an assessment from the Mental Health Tribunal on mental dysfunction and also fitness to plead and I will direct access to legal advice." The Transcript does not record any formal order being made by the Chief Magistrate concerning the seeking of a report from Dr. Lubbe, but it is clear from the Transcript that Mr. Camden indicated that he had been previously under the care of Dr. Lubbe, but did not wish to become involved with her again.
The Transcript reports the deceased as saying: "Actually, I would rather someone else because Dr. Looby (sic) thinks she understands but I do not think she does." He then went on to say: "I would like a fresh opinion myself." Endorsements made by the Chief Magistrate had the effect of seeking from the Mental Health Tribunal assessments which would need to be considered by the Magistrates Court in relation to section 428W of the Crimes Act 1900, together with the question of fitness to plead.
The chronology of events referred to above then indicates that an Assessment Order was made by R.
J. Cahill on the 27th of February 1996 requesting Alan Jones to do an assessment.
A copy of the Assessment Order of the 27th of February 1996 is contained in Exhibit 17 and is in the following terms: "Pursuant to Section 16 of the Mental Health (Treatment and Care) Act 1994 the Mental Health Tribunal on the 27th day of February 1996 ordered that Shannon Robert Camden be assessed for the purposes of ascertaining: I. the nature of any psychiatric illness or mental dysfunction; ii. the need for treatment and/or care relating to that illness and/or mental dysfunction; iii. the nature of any treatment, training, rehabilitation or therapeutic program, counselling, care or support and any conditions or prohibitions which may be appropriate or necessary; and The said Shannon Robert Camden is to be assessed by Mr Alan Jones at Belconnen Remand Centre A written assessment is to be provided to the Tribunal as soon as possible after the assessment has been conducted." This Assessment Order was issued under the hand of the Deputy Registrar." The Mental Health Tribunal file (Exh. 17) contains a copy of a report prepared by Mr. Jones dated the 23rd of February 1996. This report of some 7 pages is addressed to The Presiding Magistrate, Magistrates’ Court of the Australian Capital Territory. The report opens in the following terms: "Reason for referral Mr. Camden is on remand to 26 February 1996 on charges of armed robbery. Magistrate Cahill has asked for an assessment of any mental dysfunction and fitness to plead".
The report then relates the history of two interviews between Mr. Jones and the deceased and sets out Mr. Jones’ views as to the fitness to plead of the deceased and concludes with a summary and findings which are in the following terms: "Time limitations have limited this assessment though it is doubtful that anything more extensive in understanding could be accomplished in the immediate future.
Mr. Camden claims a wide range of psychiatric symptoms and disturbances but his complaints do not fit any particular principal disorder with conviction.
He does not display evidence of acute psychosis, talks rationally and seems to be well oriented and comprehending.
The most prominent flavour for me is a form of depression, he seems angry and despairing about himself and his prospects (ie sees imprisonment ahead). He does not appear to be an acute suicide risk but could well emotionally act out at times.
Dr. Lubbe denies he has shown clear symptoms of bipolar disorder.
We wonder about the role of drugs in his present condition and state.
Depending on unpredictable fluctuations in his emotional or mood state, at this time he seemed reasonably oriented and cognisant of the issues in fitness to plead.
He appears to be resisting overtures to help at present and I think any therapy would be of long-term and uncertain participation."
In addition to the 7 page report Mr. Jones attached a 2 page summary of background history as given by the deceased. It is clear from the date of the report and the date of the interviews between Mr.
Jones and the deceased that this report was not prepared as a result of the Assessment Order of the 27th of February 1996, but must have been prepared as a result of the request made by the Chief Magistrate in Court on the 19th of February 1996. It is clear, however, that the report of Mr. Jones of the 23rd of February 1996 does consider the matters raised by the Chief Magistrate in the Magistrates Court on the 19th of February. The Assessment Order of the 27th of February from the Mental Health Tribunal seeking an assessment by Mr. Jones to be conducted upon the deceased at the Belconnen Remand Centre was made according to the chronology by Mr. Cahill acting as President of the Mental Health Tribunal and not as the Chief Magistrate of the Magistrates Court.
It would therefore appear at this point in time that no assessment in a formal sense was made in response to the Assessment Order made by the Mental Health Tribunal on the 27th of February 1996.
The chronology of events referred to above next indicate that Mr. Jones indicated that a report should be sought from Dr. Rosenman. A further Assessment Order was made by the Tribunal on the 28th of February 1996 seeking an assessment by Dr. Rosenman, such assessment being in the same terms as that quoted above concerning the assessment sought from Mr. Jones. The Assessment Order, under the hand of the Deputy Registrar, of the 28th of February 1996, addressed to Dr. Rosenman, indicates as follows: "The said Shannon Camden is to be assessed by Dr Rosneman (sic) at Belconnen Renmand (sic) Centre at a time to be arranged by Dr Rosenman, and in any event, before Wednesday 6 March, 1996." The chronology of events indicates that a report was forwarded by Dr. Rosenman to the Tribunal on the 11th of March 1996.
A hearing was held by the Tribunal on the 19th of March 1996. The Tribunal constituted under the M.H.T.&C.A. was comprised of Mr. R. J. Cahill, as President, Dr. W. Mickleburgh and Mr. S. Persi, as members. It is, of course, clear that Mr. R. J. Cahill, the President of the Mental Health Tribunal sitting on the 19th of March 1996 concerning the application regarding Shannon Robert Camden, is the same person as Mr. R. J. Cahill, the Chief Magistrate, who had presided over the proceedings involving the deceased on the 19th of February 1996 when the assessment of the Mental Health Tribunal was sought.
I have perused the Transcript of Proceedings of the Mental Health Tribunal of the 19th of March 1996 and it seems clear from the Transcript that the application that was then being considered was the order made by Mr. Cahill on the 19th of February 1996 and did not in any way relate to the application that had been lodged by Ms. Helen Rowling in January of 1996. At page 2 of the Transcript the President says as follows: "Well, I think in this particular case there are probably two issues. One is one of a question of fitness to plead under section 68 of the M.H.T.&C.A. and the other one, of course, is the question of a mental dysfunction and any other mental health problems that Shannon has." Mr. Jones, who was present at the hearing, agreed that these were the issues to be addressed.
I note that the Notice of Hearing issued on the 15th of March 1996 indicates that the hearing related to the following: "In the matter of an Application pursuant to Section 14(1) of the Mental Health (Treatment and Care) Act 1994 and a Referral by the ACT Magistrates Court pursuant to Section 428W of the Crimes Amendment Act 1994".
A copy of the Notice of Hearing was addressed to Ms. Rowling and the Mental Health Tribunal file (Exh. 17) indicates that a copy of the Notice of Hearing was served on Ms. Rowling by leaving a copy of it with someone at her place of business. The Notice of Service indicates that the Notice of Hearing was served on the 15th of March 1996 at 12:50 p.m.
Ms. Rowling’s in her statement (Exh. 32) indicates that she did not receive the Notice of the Tribunal hearing until Tuesday, the 19th of March 1996 and that she was unable to attend because of the short notice. There is no evidence before me as to why it took four days for the Notice to reach her after it was served.
I note further that in her statement Ms. Rowling indicates that she was aware of the earlier conference on the 28th of February 1996 and that she, indeed, attended that day only to discover that the conference had been rescheduled and she had not been informed. Her statement indicates that later on the 29th of February 1996 she was telephoned by Mr. Tandy from the Mental Health Tribunal who apologised to her in relation to the change of plan and indicated that the deceased had been referred to the Tribunal by the Court.
I have been unable to ascertain from the contents of the Mental Health Tribunal file (Exh. 17) what became of the application lodged by Ms. Rowling. I assume it ceased to exist, at least at the date of the death of the deceased. It is no doubt unfortunate that Ms. Rowling’s application was not put before the Tribunal at the same time at least as the referral by the Chief Magistrate to the Tribunal. This would have enabled Ms. Rowling to have provided information to the Tribunal which may have given the Tribunal some assistance in deciding the issue of mental dysfunction and or treatment of the deceased. It is also of concern that the material available from Calvary Hospital and other hospitals was not available to the Tribunal nor to Mr. Jones to assist the Tribunal in carrying out it’s function.
It is also possible, however, that the circumstance of the same Magistrate being involved in both the criminal proceedings and the mental health proceedings may have caused a situation in which the Chief Magistrate/President was perhaps too familiar with the proceedings. That is to say, he would have been aware, having made the order referring the deceased to the Mental Health Tribunal, of that referral but not aware of Ms. Rowling’s application. It does not appear from a perusal of the Transcript that anyone drew to the President’s attention in the Mental Health Tribunal that there was another application in addition to the referral made by the Chief Magistrate then before the Tribunal. If this had been drawn to the attention of the Tribunal then it may have enabled the Tribunal to have sought the assistance of Ms. Rowling.
The President then proceeded to indicate, as I understand the Transcript, that the Tribunal intended to proceed with the report prepared by Mr. Jones referred to above for the purpose of considering the issues raised by the President. Some discussion took place thereafter concerning the question of fitness to plead and it was ultimately suggested by Mr. Bradfield, who was appearing as the Solicitor for the deceased, that there was indeed no issue as to fitness to plead. The question of fitness to plead then, it seems, came to an end.
I have perused the provisions of section 68 of the M.H.T.&C.A. and I am unable to find therein any reason why a question of fitness to plead was raised in the Mental Health Tribunal by the President. As I understand the provisions of section 68 of the M.H.T.&C.A. this allows for the Supreme Court to refer matters of fitness to plead to the Mental Health Tribunal if such issues arise during the course of proceedings in the Supreme Court. I have been unable to find any jurisdiction for the Chief Magistrate directing the question of fitness to plead at the time he did so to the Tribunal for consideration.
Following discussions among the parties present at the Tribunal hearing, including the deceased, it was decided that a report would be returned to the Magistrates Court indicating as follows: "The President: Well, our report back to the court indicates that there is no clear signs of psychiatric illness or personality disorder at this stage. There certainly is the suspicion of a drug affected involvement that needs to be followed up and also some possible organic bases need to be followed up, but only after Dr Lubbe - on a medical basis.
And that is only after Dr Lubbe has been consulted to see what her - she seems to have had more to do with Shannon’s situation than anyone else. And, if he was to be released, we believe he would benefit by a supervised and structured environment,
which is fairly obvious, I think. That would be our answer to the court and I do not know whether you want us to follow that up. I think we should." Mr. Bradfield then indicated that he was content for the follow up and further discussion took place concerning the adjournment of the Mental Health Tribunal proceedings.
The Mental Health Tribunal file contains a copy of a document indicating the determinations of the Tribunal following it’s hearing on the 19th of March 1996 and some recommendations. The document is in the following terms: "A referral by the Magistrates Court of the Australian Capital Territory for Shannon Camden to submit to the jurisdiction of the Mental Health Tribunal for the purposes of determining wether (sic) the defendant suffers from mentally (sic) dysfunction was brought before the Mental Health Tribunal on 19 March 1996.
That Shannon Camden would benefit from a supervised and structured environment.
There is evidence of drug affected involvement and a DODO assessment would be beneficial.
The matter is adjourned until 16 April 1996 at 2:30 pm before the Mental Health (sic)." The chronology of events referred to above then indicates that Dr. Lubbe was to make an assessment of the deceased on the 15th of April 1996 at 6:30 p.m. There is a copy of the relevant Assessment Order dated the 10th of April 1996 on the Mental Health Tribunal file and this seeks an assessment in the same terms as that referred to in Mr. Jones’ Assessment Order.
The assessment by Dr. Lubbe was, of course, not carried out due to the death of the deceased.
A perusal of the Mental Health Tribunal file, including the Transcript of the Proceedings of the Tribunal on the 19th of March 1996, raises a number of matters which I feel I must, in the exercise of my powers as the Coroner, comment upon.
There seems to be an element of confusion as to the basis upon which the referral was made by the Chief Magistrate in the Magistrates Court to the Mental Health Tribunal, particularly in relation to the issue of fitness to plead. It is my understanding of the Crimes Act that the only power available to the Magistrates Court in such circumstances is under section 428W which allows only for an assessment as to whether an individual is suffering from a mental dysfunction as defined under the M.H.T.&C.A..
There is also a confusion as to the role being fulfilled by Mr. Jones when he interviewed Mr. Camden on the 22nd and 23rd of February 1996. It is clear that the interviews were conducted prior to the Assessment Orders being made by the Tribunal, but yet it is also clear that the report was clearly accepted by the Tribunal as being in response to it’s Assessment Order and, therefore, available to the Tribunal. The reality seems to be that Mr. Jones was acting in response to what he understood to be a request from the Chief Magistrate for him to prepare a report for the Magistrates Court concerning the mental dysfunction, if any, and fitness to plead of the deceased rather than that he was preparing some form of assessment for the use of the Mental Health Tribunal. It is my view that such confusion can
lead to problems in the minds of those involved as to what precisely is occurring in relation to professional examinations.
It is also clear from the Transcript that Mr. Camden, who was remanded in custody on the 19th of February 1996 had not received any treatment, according to Mr. Camden, (transcript page 3) between the date of his being remanded in custody and the date of the Tribunal hearing on the 19th of March 1996.
An Assessment Order was made directed to Dr. Rosenman and a report referred to in the Tribunal hearing was apparently provided by Dr. Rosenman. I will come to Dr. Rosenman’s situation in due course, but would merely indicate at this point in time that Dr. Rosenman’s evidence is that he did provide a report to be used by the Mental Health Tribunal. The report apparently used by the Mental Health Tribunal was, on Dr. Rosenman’s evidence, prepared on the basis of the examination conducted by Dr. Rosenman in a private capacity as the treating specialist at the request of Dr.
Rosendahl and not based upon any separate examination. This situation again raises concerns as to elements of confusion which may well arise in the operation of the Mental Health Tribunal when assessments are ordered by Court.
It is also of concern that during the Mental Health Tribunal there were a number of discussions involving the President and Mr. Bradfield as to possible ramifications from the Mental Health Tribunal Hearing on the question of bail which would in due course be considered in the Magistrates Court. These two matters, while not necessarily particularly significant in this case, indicate to me that there is a need to ensure that the Magistrate who is involved in the criminal proceedings in the Magistrates Court should not at any time have any role as a President in the Mental Health Tribunal when the defendant in the criminal proceedings is the respondent in the Mental Health Tribunal.
It would seem to me that such a situation leads, inevitably, to at least an impression of a conflict of interest and may cause a situation to arise in which the issue before the Mental Health Tribunal, namely, whether the person has a mental dysfunction is clouded by considerations more relevant in bail proceedings.
This potential conflict of interest, I think, was brought home starkly at page 8 of the Transcript Dr.
Mickleburgh who, following some general discussion concerning the above type matters, says as follows: "And it seems to me that if we are going to make some sort of order of that kind, we have to be sure that he has a mental dysfunction within the meaning of the Act, would we not? And it seems to me that the reports we have had put quite a lot of question on that. There does not seem to be any real belief that there is a mental dysfunction of that kind. Perhaps I am wrong." Dr. Mickleburgh, I think, clearly indicated by this comment that the real issue before the Mental Health Tribunal was one of the mental dysfunction of the deceased and not any discussion concerning questions of bail or questions of fitness to plead. The introduction of these other extraneous matters seems to me to create an environment in which a person in the position of Mr. Camden may well be confused as to what it is that is going on in the various places where he is appearing.
A further concern in relation to the proceedings before the Mental Health Tribunal is the length of time that it took for the matter to proceed to the Tribunal. It is not apparent from the Mental Health Tribunal file as to why it took a month for these various things to occur, but if there is a resource problem then it is necessary for consideration to be given to supplying adequate resources, not only to the Mental Health Tribunal but also to mental health services to enable assessments to be carried out as a matter of urgency. It is not in my view appropriate for persons to be kept in custody at the Belconnen Remand Centre merely because Mental Health Tribunal matters are still proceeding. It is clear from the facts in this case that even at the date of the death of the deceased the Mental Health Tribunal was still awaiting a report from Dr. Lubbe without which no final conclusion could be reached as to the condition of the deceased. It is unclear why the Determination dated the 19th March 1996 was issued at this time.
It is also clear from the perusal of the Mental Health Tribunal file that there is a need for greater clarity in relation to the use of reports provided by various medical specialists. Mr. Jones’ report, it seems on the face of it, was prepared for the Magistrates Court prior to receipt of the Assessment Order under the M.H.T.&C.A. 1994. Whether Mr. Jones would have prepared a report in any different way if the Assessment Order had come first, I am not able to say, but it does seem to open the door to confusion and possible conflict of interests if a medical professional prepares one report not knowing that it may be used in more than one way. Dr. Rosenman, as I have indicated above, makes this point with some force in his evidence.
In my opinion it is necessary when a defendant appears before the Magistrates Court charged with a criminal offence in circumstances where the presiding Magistrate is of the view that it would be useful to the Magistrate to obtain a psychiatric or psychological assessment of a defendant in particular as to whether he has a mental condition which might prevent him from understanding the proceedings, or in relation to questions of bail, then it ought to be clear that the request is for that purpose and that purpose alone. Where, on the other hand, the presiding Magistrate is of the view that the defendant ought to be ordered to submit to the jurisdiction of the Mental Health Tribunal for an assessment as to a mental dysfunction, then that ought to be clearly stated and the matter then proceed on the basis of a report being received back by the Court from the Mental Health Tribunal as quickly as possible concerning the mental dysfunction.
The Magistrates Court The deceased appeared in the Canberra Magistrates Court on the 19th of February 1996 before the Chief Magistrate, Mr. Cahill. He was remanded until the 26th of February 1996 and bail was refused. Various orders were made by Mr. Cahill in relation to the Mental Health Tribunal and other matters. The deceased was later charged on the 26th of February 1996 when the first set of charges was before the Court again with a further charge of attempted armed robbery. The charges were then adjourned until the 6th of March 1996 and subsequently to the 20th of March 1996 and the 3rd of April 1996. These adjournments, as I understand the evidence, were largely as a result of the proceedings in the Mental Health Tribunal. These proceedings were not heard until the 19th of March 1996. All of the charges were withdrawn on the 17th of April 1996 following the death of the deceased.
The Belconnen Remand Centre
Hornigold is an employee of the New South Wales Corrective Services and at the time he gave evidence in March 1997 was the Deputy Superintendent of the Operations Branch. He was attached at that time to the Capital Works Branch and had recently had a particular responsibility in relation to the provision of safe cells in New South Wales. At my request Mr. Hornigold visited the BRC on the 2nd of July 1996 and provided a substantial report (Exh. 64). I do not intend to go through the report in detail
as it is an exhibit and available for inspection if required. Mr. Hornigold conducted his inspection and provided comments concerning the following areas of the BRC:
Mr. Hornigold found fault as listed in his report in relation to these particular areas and it will be necessary for consideration to be given to these by the management of the BRC. A Discussion Paper prepared by the A.C.T. Attorney-General’s Department entitled "The Possible Establishment of a Correctional Facility in the Australian Capital Territory" (Exh. 69) also made comments concerning the facility as did a report of the A.C.T. Ombudsman (Exh. 111). It is perhaps adequate comment concerning the facilities to quote from the discussion paper at page ii (Exh. 69): "1. Previous reports have concluded that the Belconnen Remand Centre (B.R.C.) is poorly designed and should be replaced. It is generally agreed that the design also requires excessive staffing levels to ensure the secure and humane custody of inmates and staff safety.
The "fabric" of the B.R.C. is also deteriorating. As a result annual maintenance costs are high. A recent newspaper report highlighted problems with the plumbing, heating and electrical systems (Corby, 1996d).
The above, and the fact that the B.R.C. has exceeded normal operational capacity on many occasions, means that the facility will need replacing whether or not a correctional facility for sentenced inmates is built in the A.C.T.
Current staffing levels, combined with the lack of an economy of scale present in other jurisdictions, means that the B.R.C. is one of the most expensive custodial institutions in Australia. . . .
With recently completed refurbishments, the B.R.C. can now accommodate up to 41 detainees. When capacity is exceeded, detainees are housed in the City Watch House, which is gazetted as a temporary remand facility." These comments and the other evidence contained in the exhibits and the oral evidence given, particularly by custodial officers, makes it clear that facility is totally inadequate and needs urgent government action to provide the Territory with a proper modern remand facility.
Evidence was given by a number of corrections officers all of whom were critical of the facility.
The general attitude of those officers who gave evidence is reflected in a comment made by Mr. MacKenzie, a Custodial Officer Grade 3. Mr. MacKenzie stated: (T, 14.5.97, page 75) as follows:
"Can I explain it this way that the Belconnen remand centre is an extremely outmoded claustrophobic rabbit warren of a place. You have female detainees, you have illegal immigrants, you have detainees on protection, you have mentally ill detainees and you have some detainees on protection from other protection detainees, so, consequently you’ve got a whole different variety of detainees and it is like playing a game of chess. You have to juggle them around and keep them separated and keep them in the right spot so they don’t bash each other and harm themselves, so, it is a continual juggling and moving there is no set rules, no set procedures, each day is different."
In the case of the deceased two files were tendered in evidence as exhibits 58 and 59. These are described as Part 1 and Part 2 of the same dossier number 4710.
The dossier consists of a printed cover which contains provision for personal details, physical details and other information concerning next of kin, marital status, medical condition and drug history. This material is printed on the inside cover of the dossier and was completed by the induction officer at the time the deceased was brought into the remand centre. The evidence indicates that the dossier is then kept in the control room of the BRC and all material relating to the detainee is kept in that dossier.
In the dossier of the deceased the principal material found therein are the observation sheets required to be kept in relation to the deceased. The evidence in the Inquest clearly indicated that there was no particular science about the way in which the dossiers were maintained and a perusal of the deceased’s individual dossier would clearly indicate that documents are placed haphazardly in no particular order and in a completely uncontrolled way.
One of the most significant decisions to be made by the induction officer at the point of first arrival of a detainee at the BRC is the placement of the detainee in one of the units at the BRC.
The evidence indicates that the BRC is divided into a number of separate yards variously entitled A, B, C, D and E and also a separate yard described until recent times as a "Special Care Unit". I shall comment further about the "Special Care Unit" in due course. The decision made by the inducting officer at the point of first contact was to place the deceased in Unit
As mentioned above, the deceased had arrived at the BRC with documentation created by Sgt. Barbour and reinforced by the Chief Magistrate at the hearing of the 19th of February to indicate that the deceased was to be regarded as a prisoner at risk (PAR). The significance of this is, as I understand the evidence, that the procedures at the BRC are such that if a person arrives at the BRC as a prisoner at risk then the detainee maintains that status during the whole of the remand period. The evidence clearly indicates that at the point of induction the decision as to where a detainee is most appropriately housed is one which can cause the induction officer substantial concern. There are a number of reasons for this which come out of the evidence and they would seem to be, at least, as follows:
Prisoners at risk vary in the actual risk that they represent to themselves or others from time to time and particularly at initial induction. That is to say that while a number of persons may be described as prisoners at risk it does not necessarily mean that there is a genuine, actual risk of self harm or harm to others at the time of induction.
There was no organised protocol in operation which allowed an induction officer to make a properly informed decision as to which was the most suitable unit for an indicted detainee to be assigned to.
The facilities available as at February of 1996 were such that an induction officer had very little scope as to where a detainee marked prisoner at risk would be placed. The evidence indicates that the unit described as A1 to which the deceased was assigned was regarded by at least some custodial officers as one of, if not the safest, units in the Centre. I will comment later in due course concerning this fact, but for the moment will say only that the reason that Unit A1 was regarded as safer than other units, excepting the so-called "Special Care Unit", was the presence in Unit A1 of a camera which allowed a degree of monitoring of the person within the Unit.
The evidence indicates that the decision by the induction officer in relation to the allotment of units to individual detainees is based almost entirely upon the experience and views of the individual induction officer. There is no support for the induction officer in the making of this decision from any other outside advisers particularly medical practitioners.
The evidence indicates that each new detainee is examined by a general practitioner usually within 24 hours after arriving at the Centre and that the general practitioner may, if appropriate, make recommendations concerning the housing of detainees.
The system of induction as indicated above clearly places an unacceptable onus upon an individual induction officer to make a decision based upon almost no material and in circumstances where there is limited scope for alternative decision making. That is to say that as there are so few units available which might be described as safe cells, there is an inevitability that a detainee, upon induction, will be placed in a unit which is for practical purposes dangerous to that individual detainee.
An example of this type of situation was found in the case of Mr. L. who arrived at the BRC with material indicating that he was a prisoner-at-risk and that he had already attempted suicide while in the custody of the police. Notwithstanding this material it was the decision of the inducting officer to place detainee L. in the normal yard, A yard, with no supervision other than what is normally available to other inmates at risk.
At the time of the induction of the deceased the area of the BRC described as the "Special Care Unit" was not functioning other than as a normal part of the BRC and although it is clear from the evidence that the units in the ‘Special Care Unit" were in many ways superior to those in the older areas of the BRC, the deceased was not placed in the so-called "Special Care Unit" for reasons which are not in evidence before this Inquest.
As a result of the induction procedure a document entitled "Remand Centre Incident Report Schedule 4.4.3" was created by Duty Chief Custody Officer Rose Oliver. That document, which is contained in the dossier (Exh. 58) is in the following terms: "Incident Type: PAR Name/s of Detainee/s involved 1. Camden S.P. (sic) Summary of the Incident Detainee Camden came into custody on 19.2.96. His police File states suicidal Action Taken
Detainee placed on 15 min obs.
Detainee housed in A1
Dr informed
Supt informed
DPP informed by fax." This document is then signed by the Duty Chief Custody Officer and dated 19.2.96. Under that signature another box is provided under the heading of Superintendents Comments. There are no comments recorded on this Incident Report but the box is signed, one assumes by the Superintendent, and dated the 20th of February 1996. This, it seems on the evidence, is the end of the induction period save for formalities concerning searching of the detainee and securing his property, etc. until the next stage is reached which is the medical examination.
Mr. Hornigold in his report (Exh. 64) was critical of the cell described as A1, the "Special Care Unit" and the inmate warrant file all of which are referred to above.
The significance of the placement of the deceased in Unit A1 was that it was regarded by many of the custodial officers, including those who gave evidence, as being the safest unit in the BRC. It had this reputation as a result of having a camera in the unit which provided pictures to a monitor situated in the control room.
Mr. Hornigold made a number of general observations concerning the use of so-called dry, or safe cells. The first of these is that it is impossible to create a completely safe cells and secondly that the attempt to create a safe cell can impose unjustifiable stress upon the detainee or prisoner whose safety is being considered. The removal from a safe cell of all potential areas of risk create an environment in which it might be suggested that the detainee or prisoner is more at risk of at least psychological harm than the detainee or prisoner may be in a non-safe cell.
For this reason in New South Wales the Corrective Services authorities are reluctant to keep a person in a safe cell for more than 48 hours and if there is need to continue this sort of regime then the most desirable situation is to transfer a person to the hospital for more intensive observation and if necessary treatment.
Mr. Hornigold conducted an inspection of the recently constructed cells at the Canberra City Police Station and was of the view that they were very good. It would seem from the evidence of Mr. Hornigold that the BRC is inadequate as to facilities it can provide to detainees, particularly those who might be regarded at risk and that cells more of the type available at the Canberra City Police Station would be more appropriate.
It is clear from the evidence that there is no procedure or protocol formally available to a custodial officer conducting the induction procedure to indicate an agreed order of priorities of units as far as safe cells are concerned. The evidence clearly indicates that each individual officer had his own order of priority of safeness, and that this individual view coloured any decision made by the inducting officer as to where an individual detainee would be most appropriately placed upon reception at the BRC.
It seems to me that this is an unsatisfactory arrangement and there is a need for a protocol to be developed to indicate clearly the order of priority and how the competing interests of individual detainees might best be served by the facilities currently available at the BRC. It is clear that on many occasions there is more than one detainee whose papers are marked PAR and that each one must be individually considered both at induction and thereafter as to appropriate housing. As Mr. MacKenzie so eloquently put it is "like playing a game of chess. You have to juggle them around and keep them separated and keep them in the right spot so they don’t bash each other and harm themselves, so, it is a continual juggling and moving, there is no set rules, no set procedures, each day is different." I accept that the BRC, with it’s inappropriate facilities, creates for the moment an almost insuperable problem for custodial officers to adequately deal with the sorts of the detainees who present at the BRC. This, no doubt, will continue to be a problem until a proper and adequate facility is available in the Territory.
In the meantime it is essential, in my view, that a proper protocol be developed to guide custodial officers in the execution of their responsibilities to detainees at the BRC. It would, no doubt, be desirable that there be medical and psychiatric or psychological involvement at the time of induction so as to best provide the care and management required by the detainees.
Dr. Rosendahl in his statement (Exh. 48) indicates that he has provided medical services to the detainees at the BRC since July 1992, but has no formal contract with the BRC and has no regular hours. He stated: "I respond to specific requests for treatment, assessment or interview, from inmates, I review inmates at the request of staff and I make a formal assessment of each inmate within 24 hours of induction for the purpose of establishing if there is a medical condition which requires treatment. I provide continuity of care for specific inmates when ongoing care is considered to be necessary." Dr. Rosendahl goes on to make further comments specifically about the deceased and other detainees with a need for specialist psychiatric or psychological care, but I do not at this point in time intend to comment upon that aspect of the medical situation. At this time I am limiting myself specifically to the induction procedure.
Dr. Rosendahl made notes of his consultation with the deceased and these notes, together with certain other material are contained in a medical file held at the BRC. This medical file is now exhibit 44.
Of particular significance in relation to the operation of the BRC was the fact that the medical file was kept by the doctor in the medical room at the BRC and did not become part of the dossier of the deceased held in the control room. It appears clear from the evidence that this situation is most unfortunate and can lead to the sorts of communication breakdown that clearly occurred in the case of the deceased.
The procedure, as I understand it, is that Dr. Rosendahl, quite correctly, regards from a medical point of view the detainees seen by him at the BRC to be medical patients of his and that all of the usual requirements for privacy and confidentiality apply to those patients. One cannot criticise Dr. Rosendahl for holding this position as it is clearly medically and ethically correct.
The real problem, however, is that it is essential in my opinion for the proper management of a detainee in the BRC for all information concerning an individual detainee to be available to persons who need to make decisions both initially at induction and subsequently during the course of the remand of a detainee at the BRC. It is clear that the first breakdown in this communication link occurs at the time of the involvement of the general practitioner. I note that Mr. Hornigold in his evidence indicated that Governors of prisons in New South Wales have access to prisoner, and, no doubt, detainee medical files. It would seem a minimum requirement for the proper operation of the BRC to allow the Superintendent complete access to any medical file created by a visiting medical practitioner.
It is in my view essential that some arrangement be made on a permanent basis to ensure that whatever information is received by the general practitioner, and indeed by any other outside agencies, i.e. community corrections officers, psychologists, specialist medical practitioners, or hospitals, to be made available in some way to the management of the BRC.
I note that there is evidence that since the death of the deceased a committee system has been set up at the BRC which involves Dr. Rosendahl and staff from the BRC together with community corrections officers who review each of the detainees on a regular basis. This committee system did not exists in anything other than the most informal and rudimentary fashion at the time of the induction and indeed the death of the deceased. It is clear on the evidence that this committee system has been set up as a result of the death of the deceased and is clearly a step in the right direction.
Additionally Mr. Ryan, the Director of A.C.T. Corrections, when he gave evidence made a proposal concerning a Health Board about which I will comment in due course, but at this point in time would indicate that it is clear that there is an urgent need for such a coordinating authority to ensure that all information concerning an individual detainee is obtained as a matter of urgency upon the induction of a detainee into the BRC.
The obvious problem arising from the lack of proper communication between various organisations in the A.C.T. is graphically demonstrated by the medical file (Exh. 44). This file contains, as mentioned above, some handwritten notes from Dr. Rosendahl, some handwritten notes from Dr. Rosenman and some copies of Internal Reports concerning observations made by custodial officers at various times during the presence in the BRC of the deceased. There is nothing obvious from the medical report to indicate the extensive history that the deceased had with various hospitals in the A.C.T. It would seem to place an examining medical practitioner in an impossible situation not to have the full medical history of a detainee available to the medical examiner at the time of induction. There is an urgent need for procedures to be introduced, if necessary by law, to make available to the BRC all medical histories of a detainee so that this information is available not only to the custodial officers but also to medical and other professionals who have to make decisions about the proper care of a detainee.
Welfare Assessment In addition to the medical assessment performed by Dr. Rosendahl a further assessment was performed by Ms. Helen Child, an acting senior community corrections officer. Ms. Child described her duties at the BRC as follows: (T, 19.11.96, page 6) "As welfare officer when a detainee came into custody I would try and see that detainee within 24 hours of them coming into the Remand Centre. I would do what I call a welfare assessment form on each detainee which would gain information about that detainee that could be used in the management of them whilst they were in the Remand Centre. The welfare assessment form was then used for my case management for that detainee. My other duties included referrals; counselling; organising assessments for rehabilitation centres; organising access to legal aid; is there any special needs of a detainee, they would be identified as well and acted on. I have close liaison with drug and alcohol agencies, rehabilitation centres, family services and most solicitors." Ms. Child provided two statements to the Inquest, being Exhibits 39 and 40 and also gave oral evidence at the Inquest. In addition the Welfare Assessment form completed by Ms. Child at the BRC was tendered at exhibit 42. One immediate comment concerning the form is that there is nothing on the form to indicate who conducted the assessment. It would seem to be desirable for such a piece of information to be provided for future assistance of anyone who might need to consider that form. The Welfare Assessment form (Exh. 42) contains an indication that the deceased advised Ms. Child on the 21st of February 1996 that he had last night attempted to commit suicide by putting his head through a T.V. and electrocuting himself. Nothing seems to have occurred insofar as any change in the arrangements concerning the deceased as a result of that information becoming available.
Staffing Arrangements at the BRC The Remand Centres Act 1976 provides for the following offices:
There was no medical officer appointed. The BRC operated at the time of the death of the deceased three shifts. These are described as follows:
The "A" shift from 11:00 p.m. to 7:00 a.m.;
The B shift from 7:00 a.m. to 3:00 p.m., and
The day shifts, B and C were under the control of a Custodial Officer grade 3 while the "A" shift, being the night shift, was under the control of a Custodial Officer grade 2. The evidence indicates that the number of subordinate officers on any one shift was to some extent dependent upon the number of detainees present in the Centre art that time. On the evening of the death of the deceased the "A" shift consisted of a Custodial Officer grade 2 and three Custodial Officers grade 1. This was the maximum compliment ever available on a night shift.
There is evidence before the Inquest which indicates that notwithstanding the theory of the number of officers who ought be on duty for a particular shift, that there were frequently situations in which, for various reasons, the shift numbers were reduced. It is clear from the evidence that where there was a reduction in the numbers of staff employed on any one shift, particularly during B and C shifts, that this shortage impacted directly upon the detainees. It is clear that where there were staff shortages on B and C shifts then detainees were locked into their units earlier than usual and also there were restrictions placed upon visits and telephone calls. These restrictions had, in the case of the deceased, substantial impact upon his parents and also upon Mr. Walker. All three complained of their inability to visit with the deceased or, indeed, to telephone him.
The evidence before the Inquest suggests that the arrangements at the BRC for visits and telephone calls are more liberal than those in other States. This, no doubt, is a commendable situation and it is regrettable that the liberality of these arrangements, which must be for the benefit of a detainee, are so easily effected by changes in shift arrangements. Mr. Camden, Sr. gave evidence of the distress which he and his wife suffered while their son was in the BRC as a result of not being able to contact him by telephone or to have personal visits. The failure to provide these facilities was explained to them by members of the staff as being caused by staff shortages. There was also a suggestion that in certain circumstances when telephone or other messages left by the parents with staff members, particularly in circumstances where visits had been refused, were not necessarily passed on to their son.
There is no suggestion that there was any staff shortage on the "A" shift for the evenings of the 14th and 15th of April 1996.
It is clear from the evidence of Mr. and Mrs. Camden, and also Mr. Walker, that the effect of staff shortages in relation to contact between a detainee and the detainee’s family may be much more dramatic than ought be allowed. It is necessary, in my opinion, that the staff of the BRC give perhaps greater consideration to the circumstances of the detainee and the detainee’s family than would seem to have been the case in relation to the deceased and his family. I accept that there are no doubt circumstances in which the security of the establishment must take precedence over the interests of a detainee and the detainee’s family, but it must be always borne in mind that the principal responsibility of the BRC staff is to ensure the care and safety of a detainee and it is clear that the care of a detainee includes contact with the detainee’s family.
By way of detail Mr. Van Hinthum indicates in his statement (Exh. 187) that as at the date of the death of the deceased the BRC had 31 units capable of housing 1 detainee in each unit and one unit with four beds, making a total of 35 beds in total. It was possible to exceed that capacity by utilising 7 cells, with 13 beds, at the Belconnen Police Station, increasing the capacity to 48 detainees.
On the evenings of the 14th and 15th of April 1996 there were 41 detainees in the BRC. They were housed as follows:
Mr. Van Hinthum indicated in his statement (Exh. 187) that the unit A1 was described as "the dry cell".
Mr. Van Hinthum defined a dry cell in the following terms: (T, 8.5.97, page 108) "Dry cell basically is a sterile unit where there’s no T.V. or any implements. It’s basically a barren cell. That’s basically a dry cell. There is nothing in there at all that they can use." It is of interest to note in passing that unit A1 does not meet the description by Mr. Van Hinthum of a dry cell. One needs only to look at the comments of Mr. Hornigold as to the problems present in unit A1 and also the continual presence of a T.V. and an extension cord for powering the T.V.
Mr. Van Hinthum indicated that two other detainees categorised as prisoners-at-risk on the evenings of the 14th and 15th of April 1996 housed in the "special care unit". They were housed there because they were on protection from other detainees as well as being prisoners-at risk.
The staffing arrangements on the evenings of the 14th and 15th of April 1996 required that those detainees deemed to be at risk were to be observed each 15 or 30 minutes and that all other detainees were to be observed every 30 minutes. These observations required an individual custodial officer grade 1 to walk around all of the nominated yards and physically inspect each detainee. At the completion of these observations an observation sheet had to be completed relating to each detainee who was on special observations. At the date of the death of the deceased he was on 30 minute observations. This required one of the custodial officers on duty on the "A" shift to physically attend at unit A1 each 30 minutes and inspect the unit and subsequently enter upon the observation sheet a comment indicating the time at which the observation had occurred and what it was the detainee was doing at the time of that observation. These same observations were required in relation to all detainees at risk.
Contact at BRC As I have already briefly mentioned the deceased, upon his induction, was examined by Dr. Rosendahl and also interviewed by Ms. Helen Child. Additionally during his period in remand he was examined by Mr. Alan Jones at the request of the Magistrates Court and by Dr. Rosenman at the request of Mr.
Jones. I now intend to look in more detail at the circumstances of these contacts and the evidence given by each of the individuals.
Helen Louise Child Ms. Child was a Senior Community Corrections Officer employed specifically at the BRC between June 1995 and the 31st of May 1996. She described herself as being "a registered nurse". (T, 19.11.96, page 35) "I am a registered general nurse, I have worked at the Aids Unit at St Vincent’s Hospital where people were neurologically affected by the HIV virus - - -" She held this position for 6 months.
"I was the sister-in-charge of the psychiatric day care unit at Calvary Hospital for 12 months. I’ve worked at Goulburn Gaol for two years as a drug and alcohol
coordinator. I have worked with Corrective Services in community based corrections for a period of five and a half years and my most frequent clientele, as far as community based corrections is concerned, is with psychiatrically affected people in the community." Ms. Child conducted a welfare assessment on the deceased shortly after his arrival and the document created during the course of that assessment is now Exhibit 42.
During the course of this assessment and also arising out of her daily contact with the deceased Ms.
Child developed a serious concern about the mental condition of the deceased. These concerns led Ms. Child to discuss the deceased’s situation with the staff at the BRC, with Mr. Jones and her memory was that she also contacted Dr. Rosenman direct. She subsequently contacted Dr. Rosendahl and, indeed, arranged for Dr. Rosendahl to attend at the BRC, and during that attendance he prescribed medication for the deceased. In addition to these contacts Ms. Child indicates (T, 19.11.96, page 13) that she contacted Mary Hamilton at the Drug of Dependence Assessment Panel and was advised "he was not alcohol or drug dependent" and that they were concerned that something was not right and had referred the deceased back to the Tribunal. I note that no other evidence has been given by any of the witnesses concerning the recommendation made by the Mental Health Tribunal that the deceased be assessed for drug or alcohol problems. If Ms. Child’s recollection is correct then it would seem that, indeed, such an assessment did take place with a negative result.
Amongst the organisations, or persons contacted by Ms. Child during the deceased’s stay at the BRC, were officials of the Mental Health Tribunal. Ms. Child’s evidence was that she had hoped at this time, that is to say, prior to the 1st of April 1996, that the deceased "would be assessed, he would obtain a diagnosis and he would get appropriate treatment for his condition". (T, 19.11.96, page 14) Ms. Child expressed considerable frustration about the her hopes not being realised.
Ms. Child indicated that it was difficult to have detainees assessed, particularly by a psychiatrist, as a matter of urgency. She explained her understanding of the procedures involved in attempting to have a detainee at the BRC psychiatrically examined in the following terms: (T, 19.11.96, page 21) "The Belconnen Remand Centre has a - or had a psychologist attached to the Forensic Services Unit, Mr. Jones. Mr. Jones will come in and do psychological assessments, however, if it was felt that a psychiatrist was required to assess the detainee and to medicate the detainee, it was very difficult to get a psychiatrist to come in. The reason I was given by the psychiatrist’s secretary is that he was extremely busy. The actual procedure of obtaining psychiatrists’ opinions appears to be very fuzzy, there’s no lines as to who should come in to the Remand Centre, who should be assessing the detainees, who has the authority, if you like, to do that. The general practitioner at the Remand Centre certainly has prescribed psychiatric medication for detainees before, however, it was felt in this case that Mr. Camden needed to be seen by a psychiatrist. I do not know why it is so difficult to get a psychiatrist to come to the Remand Centre." Ms. Child indicated that between the 4th of March 1996 and the 29th of March 1996 her concerns about the deceased increased and ultimately led her to contact Dr. Rosendahl who attended on the 29th of March 1996 and prescribed medication. Ms. Child was of the view that from about the Thursday prior to the death of the deceased she observed that he had become more aware of himself and the world than he had previously been at any time during his period of detention. Ms. Child, however, does note (T, 19.11.96, page 25) that towards the middle of March 1996 the deceased appeared more settled, but his behaviour was still of concern.
Ms. Child was aware of the various steps that were being taken by the Magistrates Court, the Mental Health Tribunal, Mr. Jones, Dr. Rosenman, Dr. Rosendahl and the officers at the BRC and was asked by Mr. Buddin the following question: (T, 19.11.96, page 27)
"What more do you think could have been done?---I think a coordinated approach to attempting to procure Shannon Camden consistent treatment with everybody working together would have made a difference in that he may still have committed suicide, however, he would have had treatment.
Can I ask you what you mean by "a coordinated approach"?---A coordinated approach where you have a treating doctor, you have a treating doctor who is either appointed by the Mental Health Tribunal or is the detainees’ choice who can prescribe medication, who can see him on a regular basis, who can talk to other people who had contact with him on a daily basis as to what we should be doing with this young man in the sense that as a welfare officer I could see him on a daily basis and talk to him how he was feeling, however as far as in-depth counselling is concerned it wasn’t possible with Mr. Camden.
. . .
Why is that" ---He was not very open at times. He was highly - I considered him to be highly intelligent and he would direct the conversation the way he wanted the conversation to go. By coordinated response or coordinated approach, if there was a, if you like, a layering of a treating psychiatrist who liaised with the psychologist who liaised with the GP and the nurse at the centre who then liaised with myself and the custodial officers we could have all had a coordinated approach as to how we would deal with Mr. Camden, how we would deal with his behaviours." Ms. Child continued as follows: "Coordinated approach is where everybody is kept informed of what each other party is doing. Case management plan is where you have a plan of action. You have an assessed need that needs to be addressed and that need can be addressed through the case management." In my opinion all of the evidence given concerning the problems exhibited by Mr. Camden at the BRC and the various responses of those involved in attempting to deal with the problem clearly called out for the sort of coordinated response referred to by Ms. Child. In my view her opinion is to be given great weight. She is an experienced nurse and Corrections Officer who has had a unique exposure to persons with similar problems to those exhibited by Mr. Camden. If this Inquest achieves nothing else other than to have the sort of coordinated approach referred to by Ms. Child implemented, then it will have achieved it’s purpose.
It was from a background of Ms. Child’s experience and direct contact with the deceased that notwithstanding the knowledge that she had of the results of the examinations by Mr. Jones and Dr.
Rosenman, and, indeed, it seems the views of Dr. Lubbe that she was surprised with the result of the Mental Health Tribunal Hearing. One cannot, of course, challenge the expertise of those that were relied upon by the Mental Health Tribunal, but it is regrettable that people with the experience and immediate contact with the deceased, such as Ms. Child, played no part in the proceedings before the Mental Health Tribunal. One would assume that her input may have been of assistance in a general way to the Tribunal. There is also nothing in the evidence to suggest that the particular experience and knowledge of Ms. Child was ever sought by either Mr. Jones in any real way or Dr. Rosenman. This, of course, is also unfortunate. No doubt the presence of some form of coordinated approach as suggested by Ms. Child in her evidence will alleviate this sort of gap in knowledge in the future.
Jennifer Eileen Dexter Ms. Dexter is a registered nurse who was employed at the BRC since September 1992. She was employed on a permanent part time basis and worked generally between 10 a.m. and 1 p.m. on weekdays and for one hour on Saturday and Sundays. She described her role as follows: (T,18.11.96, page 79) "my role there is working approximately 3 hours per day, I see any detainees who has a request to see the doctor and refer them on to see the doctor if necessary. I dispense medication that has been prescribed by the doctor and I organise the methadone programme and there is other bits and pieces but that is basically my role." Ms. Dexter indicated that since April of 1996 she had an additional responsibility, namely, to attend a weekly meeting involving herself, the superintendent, the psychologist, the medical officer and the welfare officer at the BRC to discuss each detainee. This was a procedure which had been developed subsequent to the death of the deceased. At the time of the death of the deceased and prior to the death of the deceased there had been no formal procedure in which all of the interested parties met to discuss each individual detainee. Any contact among the various interested parties seems, as has been said by other witnesses, to be on an ad hoc and casual basis and frequently relied upon informal meetings among the various interested parties.
Ms. Dexter indicates that her first contact with the deceased was on the 30th of March 1996 after Dr.
Rosendahl had prescribed Prothiaden for the deceased and Ms. Dexter was required to follow up the medication regime. She recalls a discussion with the deceased on the 30th of March 1996 concerning his wish to continue with the medication and it is her memory that the deceased indicated that he did.
Ms. Dexter continued to dispense the medication to the deceased each day. Ms. Dexter recalls that on the weekend prior to the death of the deceased she was of the opinion that he had begun to improve, possibly, as a result of the medication.
I note that in Exhibit 58 there is a form headed "Detainee Request Form", and dated 25 February 1996, from the deceased indicating that he wished to see the doctor about a possible case of tonsillitis. A pencilled entry on that form under the words CC03 - Superintendent’s Comments states "will have to see the nurse". It appears, for whatever reason, the deceased did not see either the nurse or Dr.
Rosendahl at that time. It may be that the decision, whoever made it, represents a breach of s. 13 of the R.C.A., saved only by the failure to appoint a medical officer under the provisions of the R.C.A.
Ms. Dexter was asked a number of questions concerning the "special care unit" and indicated that she had no real role in relation to that unit, but did indicate that in her personal situation she had experienced difficulty from time to time in obtaining access to psychiatrists. In this context she was asked the following question by Mr. Erskine: (T, 18.11.96, page 108) "So that when you are saying that you don’t always get access to some of these facilities, like psychiatrists and psychologists, and so forth, but you really only from you (sic) own perspective, it is not necessarily making criticism of psychiatrists for not dropping everything and coming out to you every time?" Her answer being: "No, that’s right." Ms. Dexter during her contact with the decease does not recall him ever indicating to her any thoughts of committing suicide. Ms. Dexter indicated, however, that she understood that the deceased was observed on a monitor and was also regularly checked by a custodial officer.
Alan Maurice Robert Jones Mr. Jones was at all relevant times employed by the Mental Health Section of A.C.T. Health as a clinical psychologist. One of the duties performed by Mr. Jones in his employment was to attend at the request of the Magistrates Court to examine various adults going through the adult criminal system. Some of these were at the BRC but others were in the community. Mr. Jones indicates that at the request of the Chief Magistrate, Mr. Cahill, he interviewed the deceased at the BRC on the 22nd and 23rd of February
Subsequent to the consultations he prepared a report addressed to The Presiding Magistrate, Magistrates Court of the Australian Capital Territory. This report is dated the 23rd of February 1996. Mr.
Jones in his evidence indicates that this report was specifically prepared in response to a request from the Chief Magistrate made, as Mr. Jones understood it, by the Chief Magistrate during the court proceedings on the 19th of February 1996. The report of the 23rd of February 1996 is part of Exhibit 17.
In his evidence (T, 19.11.96, page 87) Mr. Jones was asked the following question in relation to the report of the 23rd of February 1996: "Can I ask you, in relation to that document, for what purpose was that prepared? --- Part of my job when I was employed by Mental Health Services was to, on the request of the Magistrates Court examine various adults going through the adult criminal system. Some of them were at the Belconnen Remand Centre, some of them in the community and I endeavoured to provide a report on behalf of Mental Health Services on the kinds of matters that the court was interested in seeking information on.
In this particular case Magistrate Cahill had asked for an appraisal of Mr. Camden’s mental status, if you like, at that time and in his words whether there was any mental dysfunction and what his fitness to plead was in relation to a court hearing which was to be held on 26 February." Mr. Jones further stated in response to the following question: (T, 19.11.96, page 87) "It wasn’t being commissioned by the Mental Health Tribunal, is that right? --- No, the Mental Health Tribunal, as I recall, later sought an opinion from Dr Rosenman." Mr. Jones’ evidence indicates that once he had completed the report based upon his two consultations with the deceased he had no further contact with him.
The Mental Health Tribunal issued an Assessment Order on the 27th of February 1996 seeking that Mr.
Jones assess the deceased for the purposes of the Mental Health Tribunal. Exhibit 17 has a copy of this Assessment Order which indicates that it was served at the BRC on or about the 29th of February 1996.
The Assessment Order was left, apparently, with the officer-in-charge. Mr. Jones in his evidence indicated that he had not participated, on the basis of his memory, in the Mental Health Tribunal proceedings and had no entry in his diary to indicate that he attended at the Mental Health Tribunal hearing which was conducted on the 19th of March 1996. He certainly was of the view that his report, dated the 23rd of February 1996, was not prepared in response to the Assessment Order of the 27th of February 1996. He was asked by Mr. Bradfield the following question: (T, 20.11.96, page 6) "So you were aware that your report would have been relied upon by the Magistrates Court and you were aware that it had been sent to the Mental Health Tribunal?---I was not aware that it had been sent. I presume it would have, but I wasn’t formally aware of it." There is no evidence before me to indicate what mechanism, if any, allowed the report prepared in response to the Chief Magistrate’s request in the Magistrates Court to become part of the material used by the President in a Mental Health Tribunal hearing. It is also clear from the Transcript of the
Proceedings of the 19th of March 1996 in the Mental Health Tribunal that Mr. Jones was, indeed, present at that hearing and participated in that hearing. It would seem that Mr. Jones’ memory concerning his involvement at the Mental Health Tribunal is faulty. Exhibit 17 also contains a copy of a Notice of Hearing relating to the Mental Health Tribunal hearing of the 19th of March 1996 addressed to Mr. Jones which indicates that that document was served upon the receptionist at City Mental Health on the 15th or 16th of March 1996 (the date is indecipherable).
Mr. Jones, in addition to interviewing Mr. Camden and preparing the report for the Magistrates Court, also referred the matter of the deceased to Dr. Rosenman. I note that I have made comment concerning Dr. Rosenman’s views as to who referred the deceased to him and I would only add to those comments the fact that during his evidence Mr. Jones was shown a copy of a document (T,19.11.96, page 100) as being a photocopy of "the little informal memorandum that I gave to Dr Rosenman." That informal memorandum specifically referred Dr. Rosenman to material provided by Mr.
Jones and also raised the involvement of Dr. Lubbe. This evidence reinforces the view that Dr.
Rosenman did visit the deceased as a result of the request of Mr. Jones.
Mr. Jones gave evidence that at the time of his interviews with the deceased he relied upon a number of sources of information, including the father of the deceased, telephone discussion with Dr. Lubbe, copies of the bench information sheets, a police statement of facts and possibly a hand written report by one of the custodial officers concerning unusual conduct by the deceased. Ultimately in relation to this latter piece of information Mr. Jones was not able to be certain whether he saw it prior to his interviews with the deceased or at a later time.
A substantial number of questions were directed to Mr. Jones concerning what material he had available to him at the time of the interview and what steps, if any, he took to inquire about, and obtain any other material which may have been available to assist him in the completion of his report.
It is now clear on the evidence that there was available at the time of the interviews with the deceased a substantial body of information held by the Calvary Hospital, Woden Valley Hospital (as it then was) and Corrections officers. In addition, there was information available from observations made by Corrections officers during the period of detention of the deceased. None of this material was obtained by Mr. Jones prior to his interview or prior to the preparation of his report. There was an element of direct and implied criticism of Mr. Jones in relation to his failure to pursue that additional information. Mr. Jones indicated in his evidence that there were a number of reasons why he had not pursued the material beyond that which was available, and mentioned above, which was used by him in addition to his contact with Dr. Lubbe. The first of his explanations is: (T, 19.11.96, page 91) "It’s been a rather longstanding matter that the time-frame sometimes for getting the reports ready for the Magistrates Court are rather short and I’m not going to say that I would necessarily definitely have done it in this case but it would’ve been nice at times to have had the time and opportunity in some cases to check out other information on people. We often have to work almost exclusively off the information we’ve been given by the person we were interviewing in many cases." A further and probably more important comment was made in the following terms: (T, 20.11.96, page 18) ". . . I guess I should make a statement at this point, is having spent three years testing, if you like, the limits as to what I can accomplish in the forensic service, I gradually came to confine myself to largely doing assessments for court and other people with very little direct therapy for a number of reasons, partly the time factors and the resources available. Secondly, I was there, if you like, as I said largely on an occasional visiting basis primarily for purposes of assessment and the like. I have not forgotten that some years before corrective services actually had a full time clinical psychologist on board for their own use and they had chosen, when this person was under pressure be encouraged to leave the service to deploy their money elsewhere and I didn’t feel that I could carry the burden of doing the court assessment work unless it was my primary role and also be a full time treating person, if that is the right word. So that my contacts on that follow up basis were fairly irregular and, you know, now and again. It wasn’t what I would call a major part of my job."
The effect of Mr. Jones’ evidence is that he saw his role as a psychologist who conducted assessments for the benefit of the Court and also, if required, for the benefit of the Mental Health Tribunal. These assessments were conducted usually within a limited time frame and subject to substantial budgetary restraints (see comments transcript 40,45 and 46, 20.11.96). This view by Mr. Jones of his role is consistent with all of the other evidence and clearly indicates that he felt it was not his responsibility to provide any treatment or support to the detainees, but merely to advise the Court concerning matters raised with him by the Court, or alternatively the Mental Health Tribunal, and also to draw to the attention of others, be they custodial officers, or Dr. Rosenman, or Dr. Rosendahl, or the nurses matters, which caused him personal concern.
It is not appropriate, in my opinion, for Mr. Jones to be criticised for his failures to pursue the sorts of material available at the time of his interviews with the deceased as this would not, at least in the opinion of Mr. Jones, have assisted him in formulating his opinion as to the then current state of the deceased. He accepts, and it is no doubt true, that the more information that is available at the time of such consultations the better, but it is clear from the evidence that he did not have a view that it was his role to pursue that sort of material accepting the constraints under which he operated.
It is clear, however, from all of the evidence that it is essential that when dealing with persons with some form of mental problem, such as exhibited by the deceased, that all material must become available to the responsible person conducting such examinations whether it be a psychologist at the initial stage of Mr. Jones, or the psychiatrist at a subsequent stage such as Dr. Rosenman.
A number of questions were asked of Mr. Jones concerning his role in relation to the "special care unit" and it appears that his position was similar to other medical personnel, that he had no role in any decision making process as to who might be placed in the "special care unit".
Notwithstanding the expressed limitations of the role played by Mr. Jones he indicated the following: (T, 20.11.96, page 27) "So what you are saying is that this assessment that you did on 22 and 23 February, the same assessment would have left you professionally in a position to determine fitness to plead, suicide risk and psychiatric illness?---I was aiming to gather as much of an understanding that I could convey to the court on those three aspects as I could in the time and opportunities available." Amongst the matters referred to in his report of the 23rd of February 1996 is suicide in which Mr. Jones’ comment is as follows: "At this time denied it was an issue or risk." In his summary and findings Mr. Jones states further: "The most prominent flavour for me is a form of depression, he seems angry and despairing about himself and his prospects (i.e. sees imprisonment ahead). He does not appear to be an acute suicide risk but could well emotionally act out at times." Mr. Jones indicated during his evidence that this assessment concerning the suicide risk related strictly speaking only to the time at which the interview occurred and he agreed that such a risk could fluctuate from time to time and day to day.
In my opinion Mr. Jones carried out the function assigned to him by the Chief Magistrate properly and adequately and had no role in relation to any ongoing treatment or supervision of the deceased.
Dr. Glenn Bree Rosendahl Dr. Rosendahl, as mentioned above, was the general practitioner who attended at the BRC. He had a number of consultations with the deceased. I have already made some comments concerning Dr.
Rosendahl and his situation at the BRC, but believe that the medical situation, in part, involving Dr.
Rosendahl, is of critical importance in assessing the situation involving the deceased. Accordingly, I intend to make further comments concerning Dr. Rosendahl’s position and his views generally concerning his position and the situation pertaining at the BRC at the time of the death of the deceased and subsequent to his death. Additionally, in his evidence to the Inquest Dr. Rosendahl made a number of suggestions which I believe have merit and which I will take up in due course.
Dr. Rosendahl first saw the deceased on the 19th of February 1996 at approximately 9:40 p.m. Notes were taken and found in Exhibit 44. This file is described by Dr. Rosendahl as the medical file and is kept in the medical room at the BRC. It does not ever come into the possession of any of the custodial officers and remains a private medical file during the course of any period of stay on remand by any detainees.
The deceased was again seen by Dr. Rosendahl and in his evidence (T, 20.11.96, page 67) he indicates that the second consultation occurred on the 21st of February 1996. The control room log book (Exh.
Dr. Rosendahl received a request from the deceased on the 4th of March 1996 to attend at the BRC for a consultation and upon arrival was advised that the deceased had changed his mind.
On the 29th of March 1996 a request was made for the deceased to see Dr. Rosendahl and Dr.
Rosendahl visited the deceased and following discussions prescribed a medication called Prothiadien.
The continued use of this medication by the deceased was the subject of review by Nurse Dexter in consultation with Dr. Rosendahl and it was Dr. Rosendahl’s opinion based upon information supplied by Nurse Dexter that the deceased had calmed down quite substantially as a result of the medication.
Dr. Rosendahl did not consult with the deceased after the 29th of March 1996.
Dr. Rosendahl described in his evidence his understanding of the relationship between him and the BRC in the following terms: (T, 20.11.96, page 56) "I’m asked to call - I’m asked to see every remanded person within 24 hours of their induction, that is to satisfy a legal requirement for the ACT Government. I attend, if I am requested to do so, because of concerns raised by the nurse, by the remand centre staff, by the official visitor, by the welfare officer. If I consider this a problem that I should be following, I will go back and review that problem as I see I need to on an episodic basis." Dr. Rosendahl then described his practice at the BRC as follows: "I take a history, I try and identify particular problems, I do a physical examination, if I have a patient who seems to be reasonably fit and healthy, he’s not going to stay there for any length of time, I’m not particularly comprehensive in an assessment, I don’t see the need to be. If, in fact, it is a patient with in fact obvious additional problems, I’ll take longer and try to be more comprehensive." Dr. Rosendahl continued: "I see myself as being largely involved with formal medical problems. I have thought of psychiatric or psychological problems as being something that the welfare officer, the psychologist who has been coming in on a recurring basis, if necessary a psychiatrist will give me information on; I try and keep a general overview; I don’t see myself as being particularly expert in the more psychological side of things." Dr. Rosendahl has been attending at the BRC in this way since 1992 and there is no complaint in the evidence from anyone to suggest that Dr. Rosendahl has not carried out his function as defined by him properly and appropriately.
Dr. Rosendahl raised a number of issues which in my view it is necessary to consider as part of my overall consideration of the quality of care, treatment and supervision of the deceased. These matters are probably most easily considered at this time in point form.
At the time Dr. Rosendahl took up his position as the visiting general practitioner conducting a practice at the BRC two full time psychiatric nurses were employed at the BRC. It is the clear evidence of Dr. Rosendahl that in his medical opinion these two nurses were of a great benefit to the proper running of the BRC. Specifically Dr. Rosendahl found their presence of significant use to him as an ongoing supervisory role and also in reporting back to him concerning the needs of detainees. These nurses, in due course, left the BRC and were never replaced. Dr. Rosendahl expressed on a number of occasions anxieties concerning the absence of such qualified persons. This situation has now been remedied to some extent.
Dr. Rosendahl raised concerns as to problems which he believed existed in dealing specifically with persons with mental health problems at the BRC. His evidence is perhaps summarised in the following comment made by him : (T, 20.11.96, page 70) "I think I have one conversation, I can’t recall with who, but the gist of what I recall is that they saw their capacity to provide useful intervention in the community was for a group of people who could, in fact, obtain substantial benefit from their presence in the psych ward and it was those particular people they wished to reserve the services of psych ward 2, because they saw their services out there - resources being very limited and they didn’t see that people who were in custody, by and large, were
people who they were likely to be able to achieve anything with in the way that they saw themselves achieving value and advantage in a psychiatric capacity." Dr. Rosendahl continued: (T, 20.11.96, page 71) "One doesn’t continue pursuing things when one gets rebuffed and rebuffed and over the space of four years comes to realise what one can expect and what one can’t expect." Dr. Rosendahl made these comments in light of a situation in which he indicated that he had had numerous experiences over the years in which detainees had been sent to the psychiatric ward of relevant hospitals only to be returned in a very short space of time. This, in Dr. Rosendahl’s opinion, was a particular problem not only to him, but to the BRC in general in dealing with persons who had any form of mental disorder.
Some of the internal reports are indeed contained in Exhibit 44, but it is clear on the evidence that there were other internal reports that were not brought to Dr. Rosendahl’s attention other than in a very cursory way. Dr. Rosendahl raised his concerns about a lack of communication on a number of occasions in his evidence. (see particular T, 21.11.96, pages 17, 18, 19) His views are, in my opinion, best summarised in his comments (T, 21.11.96, page 20) as follows: "Well, I think - I mean this inquest, to a substantial degree, has been exercising around the problem of the information that we can obtain not from within the Remand Centre but from outside it and I think some process of more formally structuring a line of communication between ourselves, the hospital, other mental health services, the other prison systems where detainees may have been because numbers, a substantial proportion of these people are running through the system on and off, on and off, on and off. They’ve been to Mullewa. They’ve been to Long Bay. They’ve been to, in a sense, all over the place. Some process whereby there may be a medical file which can be structured which, in a sense, exists at the last point of detention but can, in fact, be bundled up and sent off to the next point of detention, wherever that’s identified, could well be a valuable structure to create." The evidence of the Inquest makes it very clear that the type of information referred to by Dr.
Rosendahl must be essential for the proper consideration of custodial officers and medical practitioners and all others whose interests lie in the care, treatment and supervision of persons in custody.
Dr. Stephen Joseph Rosenman Dr. Rosenman was at all relevant times the Executive Director of Mental Health Services in the Australian Capital Territory. On the 4th of March 1996 Dr. Rosenman attended at the BRC to conduct an interview with Mr. Camden. Dr. Rosenman’s evidence during the Inquest was to the effect that he had been requested by Dr. Rosendahl, through Mr. Alan Jones, to attend upon Mr. Camden. Dr. Rosenman’s evidence, as I understand it, was based upon his memory of the events of March of 1996 as he had no written records to assist him in recalling the circumstances which led to his visit at the BRC.
Dr. Rosenman attended at the BRC on the 4th of March 1996 and an application to visit Mr. Camden, completed by Dr. Rosenman, is found in the dossier of Mr. Camden (Exh. 58). Notes made by Dr.
Rosenman concerning his consultation with Mr. Camden are found in the medical file (Exh. 44). Dr.
Rosenman was not able to produce any request by way of a referral from Dr. Rosendahl to Dr.
Rosenman nor does it appear that he ever rendered any fee to anybody in relation to the consultation of the 4th of March 1996.
The evidence of other witnesses would indicate that Dr. Rosenman’s memory of the basis of his visit with Mr. Camden is not correct. Mr. Alan Jones, who was at relevant times a psychologist employed by the Mental Health Section of A.C.T. Health, regularly attended at the BRC to consult with detainees. Mr.
Jones, in his statement (Exh. 45) states that he arranged for Mr. Camden to be assessed by Dr.
Rosenman in order to obtain a second opinion about his psychiatric status and treatment needs.
Ms. Jennifer Elaine Dexter, who was employed as a nurse at the BRC at the relevant time, indicates in her statement (Exh. 38) that she was advised by Mr. Jones on the 26th of February 1996 that he, Mr.
Jones, would phone Dr. Rosenman to arrange a psychiatric assessment for Mr. Camden.
It is clear from this evidence, and the lack of supporting evidence to support Dr. Rosenman’s memory of the events, that it was indeed Mr. Jones, in his capacity as the psychologist visiting the BRC, who requested Dr. Rosenman to attend to examine Mr. Camden. Little, if anything, ultimately turns upon this fact other than to once again provide an example of the confusion that existed at the BRC in relation to the provision of services particularly relating to the mental and physical health of detainees.
Dr. Rosenman examined Mr. Camden on the evening of the 4th of March 1996 and as indicated above made notes in the medical file (Exh. 44) kept in the medical office at the BRC. Such notes, of course, are not available to custodial officers at the BRC.
Dr. Rosenman, when leaving the BRC on the evening of the 4th of March 1996, spoke with custodial officer Gordon James Collins and Mr. Collins in his statement indicates that his memory of the conversation with Dr. Rosenman was in the following terms: "Camden would probably do more damage to himself with burns and cutting himself and even attempting to hang himself the closer it gets to his court date." (Exh. 104) Acting upon this advice Mr. Collins prepared an Internal Report (Exh. 109) in which the information provided by Dr. Rosenman concerning Mr. Camden was included for information of all staff at the BRC.
The evidence concerning internal reports will be covered in further detail later in my judgment, but it is sufficient to say at the present moment that the procedure operating at the time at the BRC ought to have brought to the attention of all relevant staff the concerns of Dr. Rosenman as passed on to Mr.
Collins. Dr. Rosenman in his evidence (T, 5.3.91, page 86) indicated that he was of the view that he had no further duty in relation to either Mr. Camden or the BRC other than to communicate in the informal way that he did with Mr. Collins. He further indicated that this type of informal communication had been his practice for "a number of years".
The consultation of the 4th of March 1996 was the only contact Dr. Rosenman had with Mr. Camden.
The involvement of Dr. Rosenman and Mr. Camden, however, did not cease with the consultation of the 4th of March 1996 as Dr. Rosenman was served with an Assessment Order issued pursuant to Section 16 of the M.H.T. & C.A. requiring Mr. Camden to be assessed by Dr. Rosenman at a time to be arranged and, in any event, before Wednesday, 6 March 1996. A copy of this Assessment Order is now Exh. 94.
Exhibit 94 does not bear any date but indicates that the Assessment Order was made on the 28th of February 1996. In addition to the Assessment Order Dr. Rosenman in his capacity as the Executive Director of Mental Health Services received a further communication dated the 29th of February 1996 (Exh. 95) which made a request in the following terms: "The Tribunal has on 28 February 1996 ordered that the abovenamed undergo an assessment.
It would be appreciated if you could advise this Office as soon as possible of the name of the psychiatrist who will be conducting the assessment as well as the venue, date and time." Dr. Rosenman responded to the Assessment Order by forwarding to the Mental Health Tribunal a report based upon his examination of Mr. Camden of the 4th of March 1996. This report is Exhibit 93 and is dated the 11th of March 1996.
Dr. Rosenman took no part in the hearing of the Mental Health Tribunal on the 19th of March 1996 but his report was used by the Tribunal during the course of the hearing.
Dr. Rosenman expressed concern in his evidence of the confusion of roles and a possible conflict of roles in the situation in which he was operating at the BRC. In this particular case his concern was that he had attended at the BRC in a particular capacity and having done so was then confronted by a demand, in Dr. Rosenman’s words, from the Mental Health Tribunal for a report, or in the alternative, an assessment to be made by him in a different capacity for the Mental Health Tribunal. He expressed a degree of irritation with the use of material provided by him, ultimately, to the Mental Health Tribunal being used or, alternatively, having the potential to be used for purposes other than that for which it was supplied. Dr. Rosenman quite correctly indicated that in advising, either a general practitioner or some other medical person, as to how a patient may be properly treated required a different decision making process to advising the Mental Health Tribunal as to whether a patient had a mental dysfunction and what treatment might be appropriate under the terms of the M.H.T. & C.A.
I am of the view that the concerns expressed by Dr. Rosenman have merit and consideration needs to be given to ensuring that where the same medical practitioner is used for different purposes involving the Mental Health Tribunal, the Courts or general practitioners then there needs to be a clear understanding on the part of all involved in the process of the role being played by each of the parties involved in the procedure. That is to say, that if a request of the type made by the Chief Magistrate to Mr. Jones for an assessment for the Mental Health Tribunal is made, then that assessment ought be used only by the Mental Health Tribunal unless it is clearly understood that the report provided is to have a dual or multiple roles and that those various roles are kept in mind by the person preparing the report. If this does not occur then there is a clear area of potential conflict and confusion between the preparer of the report and the detainee.
Dr. Rosenman’s views were expressed as follows: (T, 5.3.97, p. 34)
"I had heard, and I don’t remember how I had heard, that my report had then gone to the Magistrates Court, had been given to a solicitor involved in the Magistrates Court hearing. I do not remember how I heard that but as I said, as you asked me what is the difference between providing a report for the doctor and providing a report for the tribunal, there was a - I regard there’s a difference in intent and a difference in how you would approach it and a difference in the consequences of providing the report. I was actually angered by receiving this particular demand for the report after I’d agreed to go to see the person for the benefit of the doctor because I thought there was two conflicting purposes. Nonetheless I went ahead and provided the report.
Because there is so much work to be done I could insist on separating the two roles but it was simply more straight forward to provide the report and in the notes to recommend that the apparent conflict of interest be dealt with by Shannon Camden, by approaching his own usual doctor and the usual psychiatrist, so that the processes of care would be separated in a different way." The doctor continued as follows: "Because I interpreted that the request to see the person - it had been related to me from Dr Rosendahl, had actually been used as a means to get a report for the tribunal.
It’s a constant problem. I mean the tribunal has got a constant problem getting reports. We have a constant problem providing reports. We put - we prioritise the clinical services above the report giving services, right, which is why I’d agreed to go and see him promptly, right. I interpreted that the tribunal had heard that I was going to see him and had actually mentioned me by name in their demand for a report because they knew I was going to see him. I was angered by that but nonetheless I provided the report and sort of separated the clinical role by providing the advice and leaving it to Dr Rosendahl in recommending contacting his psychiatrist. When I heard that my report had been handed on into the Magistrates Court, gone beyond the tribunal, I was actually so angry that I wrote a letter to the president of the mental health tribunal protesting that my report had been used in this way without any reference to me. I didn’t know who it had been handed on to, defence, prosecution or to the magistrate itself." While it is true that Dr. Rosenman did not, in my view, attend to see Mr. Camden at the request of Dr.
Rosendahl, as he states in his evidence, it is clear that the conflict raised in the abovementioned paragraphs clearly exists in this and other cases. This conflict is clearly not desirable and attention needs to be paid to procedures to attempt to overcome the potential conflict. No doubt a great amount of the problem arises from the lack of resources referred to by Dr. Rosenman in his statements.
These resources restrict clearly the proper role of the Mental Health Tribunal and place substantial pressures on the providers of such reports.
Dr. Rosenman was appointed as the Executive Director of Mental Health Services in the A.C.T. in approximately 1993. Dr. Rosenman indicated that (T, 5.3.97, page 36) the role of the Director was "very difficult to define because I’m not quite sure that in those three years I fully understood what the director - what was implicit in the role. But basically it was to take responsibility for the provision of mental health services into, you know, to the population of the A.C.T." Dr. Rosenman was of the view that: (T, 5.3.97 page 37) "Within the remand centre I had a responsibility to the people, I believe, in terms of them being citizens." He continued:
"Not a particular one that was defined as a role and we tried to discharge that through the forensic service, forensic mental health service which was part of the mental health branch." Some correspondence between Dr. Rosenman and Mr. Peter Chivers (Exh. 97) indicated an attempt in 1991 by the then Director and Dr. Rosenman to reach some concluded agreement concerning the relationship between Dr. Rosenman and the BRC. This, ultimately, did not come to fruition.
Dr. Rosenman described the forensic services in the following terms: (T, 5.3.97, page 37) "There was an initiative set up about 1991 to try to improve services for people who found themselves in the remand centre, one. And two, to expedite the getting of reports for the guidance of the courts generally. In fact it became the largest part of that service’s responsibility was to provide reports to the court at the request of the court about the person’s mental state either for the purposes of fitness to plead or to guide the courts in sentencing, that became the largest part. But we also tried to provide through that service a role into the remand centre there for assessment of, you know, the needs of the persons, the people in the place." Dr. Rosenman indicated that the forensic services was going to have a community corrections officer, a psychologist and a half time psychiatrist. For reasons enunciated by Dr. Rosenman in his evidence it ultimately turned out that he provided the bulk, if not all, of the psychiatric services. Mr. Alan Jones referred to previously provided the psychological service.
Dr. Rosenman’s relationship to the BRC seems to fall into two areas. The first is that he had reached an agreement with Dr. Fitt, who was the predecessor of Dr. Rosendahl, under which Dr. Rosenman would provide services as a specialist psychiatrist at the request of Dr. Fitt, and subsequently Dr. Rosendahl, on a fee-for-service basis. The second relationship was that provided by Dr. Rosenman as the psychiatrist available to the Forensic Services Unit of the Mental Health Branch. It appears on the occasion of his visit with Mr. Camden he was attending in this latter role at the request of Mr. Jones.
Dr. Rosenman had no appointment under the Remand Centres Act. (T, 5.3.97, page 42).
Dr. Rosenman gave evidence about the use of the psychiatric unit at the Canberra Hospital for persons remanded at the BRC. He accepted that there was a constant competition for resources, including those of the psychiatric unit at the Canberra Hospital, by all members of society. He also accepted that each individual group who believed they had a need for the resources, particularly the psychiatric unit, were of the view that their interests were not properly considered by the psychiatric unit. He indicated that while he had not had the particular complaint made to him about the BRC being the least considered of the various priorities he accepted that such a view may well prevail, but it was a view which he rejected. Dr. Rosenman’s position concerning treatment at the psychiatric unit and detainees at the BRC is perhaps best summarised in his comment: (T, 5.3.97, page 47) "Do they have a need for treatment. Can that need for treatment be provided in any other environment than in hospital itself. And that judgment is based on what other environment was there. So a person who is at home with family taking care of them may well be able to be treated outside hospital in a way the person with no family to assist in their care may require to be in hospital. Similarly you could hypothesise that a person who was in the remand centre had some minimum level of care and control that would allow treatment to progress outside hospital. But there have been numerous cases in which people have been admitted to hospital from the remand centre and have remained under guard with people from the remand centre - the
reason for them remaining under guard being that they were prisoners, not because the guards took any part in the person’s care. It was just considered in those cases that the treatment necessary could not be provided outside the hospital itself." This conflict between the reality of Dr. Rosenman’s position and the reality of the needs of detainees as expressed particularly by Mr. Grahame MacKenzie clearly represent a conflict of priorities which cannot be solved other than by the provision of more adequate facilities for psychiatric patients, particularly detainees with psychiatric problems in the Territory.
Dr. Rosenman also commented upon the so-called "special care unit". He indicated (T, 5.3.97, page 65) that he had no role in advising whether individual detainees ought be placed in the "special care unit" which was more adequately described by Dr. Rosenman as a special observation unit. Dr. Rosenman’s view was as follows: (T, 5.3.97 page 66) "I think to call it a special care area is to imply something went on there that didn’t." Dr. Rosenman went on to discuss the problems which arise in attempting to provide a clinical service to persons in custody. He stated: (T, 5.3.97, page 67) "There is always a difficulty of clinical services in relationship to custodial services. They have to be clearly clinical and they have to be allied with clinical services, rather than being an arm of the custodial service where the reasons for which people are imprisoned become a matter of treatment rather than the reason they are in prison.
The values that a forensic service brings to diagnose - they have to be very carefully maintained in the realm of a clinical area, therefore it should be the forensic service that provides services into that environment needs to be clearly identified with a service outside the environment. So the forensic structure as it was set up was potentially okay, however, there was always the conflict here of the forensic services responsibilities to the court, as an arm of the court providing judgments non-clinical, really half-clinical judgments, half court assessing judgments, all right, and the clinical -- . . .
And what is clearly not observed in this place is that separation of roles. There has to be a clear separation of roles.
. . .
Well, we had a standing rule as far as possible with the forensic service that we had - which had two people in it. We tried as far as possible to say if you have been asked by the court for a report, that the clinical needs of this person should be taken care of by the other member of the team. Now, that’s simply not always possible to - oppressive work and you simply do not have the staff to maintain that separation.
. . .
Yes, because what we do on behalf of the individual person needs to be separated from what is done to them on behalf of other people or the court system which is there to adjudicate." The demand by the BRC for resources, particularly concerning psychiatric resources, was the subject of the following comment by Dr. Rosenman. (T, 5.3.97, page 82) Dr. Rosenman was asked the following question by Mr. Erskine:
"Indeed, and would it be fair to say that the Belconnen remand centre could provide care for detainees with mental health issues primarily by going through all the other facilities that are available in the ACT?---For most of the - yes, but there are first of all the people - first of all people going through the remand centre have a higher rate of significant psychiatric illness, that is a high rate that justifies some special attention. The rate that justifies it rather than that their needs are significantly different. Secondly, the environment itself is a stressful environment and makes - and will increase the risk that is attached to the illness, so those are the sorts of things that require special attention." The effect of this evidence is that Dr. Rosenman clearly accepts that the BRC, while it is one of the group of competing interests referred to earlier, is one of a significantly special type which requires greater resources than perhaps have previously been made available to it.
Medical Officer The Remand Centres Act 1976 (R.C.A.) provides in section 6AA that there shall be officers of various types appointed for each remand centre including "an office of medical officer". Section 13 of the R.C.A. sets out the duties and powers of medical officers: "13. (1) A medical officer-
(a) subject to the consent of a detainee, shall do such things as are necessary to safeguard the mental and physical health of the detainee;
(b) for that purpose, may give such directions, as to diet or otherwise, as are necessary; and
(c) shall perform such other medical duties as are prescribed.
(2) Notwithstanding paragraph (1)(a), where the medical officer is satisfied that it is necessary, in order to preserve the life of the detainee, to administer medical treatment to the detainee, the medical officer may administer the medical treatment to the detainee.
(3) For the purpose of performing his or her duties under this section, the medical officer shall, at least once in each week -
(a) visit the remand centre in respect of which he or she is appointed;
(b) as often as is, in his or her opinion, necessary -
(i) examine the detainees; and (ii) examine all food, clothing and bedding at the centre; and
(c) examine each detainee who requests medical treatment.
(4) Where as a result of an inspection carried out under subsection (3), the medical officer is of the opinion that matters in connection with conditions at the remand centre or treatment of the detainees at the remand centre require attention, the medical officer shall, by instrument in writing, report to the Administrator concerning the fact, stating the action that should, in his or her opinion, be taken.
(5) Where a medical officer has given a direction under paragraph (1) (b), the Administrator shall, unless it would be prejudicial to the security of the remand centre, cause the direction to be complied with.
(6) Where a medical officer has made a report under subsection (4), the Administrator shall, unless it would be prejudicial to the security of the remand centre, cause such action to be taken as the report requires."
I note that section 6 of the R.C.A. requires the Chief Executive to create and maintain an office in the government service the duties of which include performing the functions of the Administrator. I assume, for the purposes of the Inquest, that an Administrator has been appointed under the provisions of section 6.
During the course of the preparation of my judgment in relation to the Inquest, it came to my attention that there was no evidence of an appointment of a medical officer under the terms of the R.C.A.
Accordingly I wrote to Mr. James Ryan, the Director of Corrective Services, and he advised me that there was, in fact, no such appointment. As a result of this advise the Inquest was reopened and evidence was given by Mr. Ryan on the 21st of August 1997.
Mr. Ryan indicated that he had sought out records and information concerning any appointments under the R.C.A. and it appeared that there had been no properly appointed medical officer since about 1983. Mr. Ryan conceded that this was a serious omission.
Mr. Ryan’s evidence indicated, however, that notwithstanding the failure of the Corrective Services authorities to comply with the provisions of the R.C.A., he was of the view that the service provided by Dr. Rosendahl together with the inspections carried out on a daily basis by custodial officers and the nurse in effect added up to a compliance with the spirit of the requirements of the R.C.A.
The evidence concerning the attendances of Dr. Rosendahl at the BRC clearly indicate that the doctor does indeed, and has for a long time, attended at the BRC at least once each week. The evidence of Mr. Ryan is that financial records available to him would indicate that Dr. Rosendahl attends at the BRC almost every day. He does not, of course, attend in compliance with the requirements of section 13 of the R.C.A.
Mr. Ryan confirmed that Dr. Rosendahl had now been appointed for a period of three months from the 28th of July 1997 as the medical officer as defined by the Remand Centres Act. Dr. Rosendahl has accepted this appointment.
I am prepared to accept that there is evidence before the Inquest to indicate that Dr. Rosendahl has indeed performed some of the duties required by the R.C.A. It is clear, however, that neither Dr.
Rosendahl nor any other medical practitioner either a government employee or a private practitioner has been appointed in compliance with the requirements of the R.C.A. and certainly there has been no compliance with the legal requirements of section 13 of the R.C.A.
The failure by the Corrections authorities to comply with the R.C.A. over such a long period of time indicates in my view another, but more serious example, of the malaise in the administration of the BRC and of a failure by the relevant officers to take proper action to ensure that the law is complied with.
General Information Re BRC The first evidence given by a current or former custodial officer was given by Michael David Holley on the 4th and 5th of March 1997.
Michael David Holley Mr. Holley commenced employment at the BRC in November 1986 and resigned from his position as a Custodial Officer Grade 3 in June 1996. During the period of his employment at the BRC he acted as both Deputy Superintendent and Superintendent. Mr. Holley provided a statement (Exh. 71) and also gave oral evidence.
Mr. Holley indicated that upon his employment in 1986 he was a Custodial Officer Grade 1 for a number of years and was ultimately promoted to Custodial Officer Grade 3 which is the senior rank of custodial officer at the BRC. During his period of employment of some 10 years he became familiar with
the operations of the BRC and gave a considerable body of evidence concerning that operation. It was part of his Duty Statement to provide training as required to other custodial officers and Mr. Holley gave evidence of a decline in the level of training such as to lead him to give up any role he was required to fulfil as a training officer.
The particular significance of Mr. Holley’s evidence was his description of the various documents which were created on a regular basis at the BRC. I do not intend at this point to canvas at any great length these documents but merely attempt to list them as they were referred to by Mr. Holley:
Procedure Manual. Mr. Holley indicated that he had been employed for a period of time prior to his departure from service at the BRC up-dating a procedure manual. This document was to provide to custodial officers at particular levels a procedure which was to be followed in the operations for the BRC. At the date of his departure from his employment the document was still being finalised.
Superintendent’s Memos, and
Superintendent’s Instructions. These two sets of documents from the Superintendent seem to provide direction from the Superintendent but it is not clear from the evidence as to the precise distinction, if any, between those two documents. When specifically asked (T, 4.3.97, page 10) to indicate the difference Mr. Holley stated: "That’s a difficult one to answer because sometimes they are memos or memorandums and sometimes they appear to be instructions, so I guess for me to define whether they were just down and out memos and the other ones instructions, to me there is a conflict there if you read some of the memos and some of the instructions."
Control Room duty log. This is a large red volume which was kept by the senior custodial officer in the control room and was utilised by that person, and perhaps others, to record various activities which occurred in the BRC. Once again, it appears a little unclear as to precisely what ought go into this book and what ought be left out of that book. This confusion became significant in relation to the events of the evening/morning of the death of the deceased.
Security Block log. This is a blue book which was kept in the security area control room by a custodial officer grade 2. This book was used to keep information thought to be significant by the person writing it up. Again, it is unclear as to precisely what one might expect to be contained in that log.
Handover folder. Mr. Holley described this document as follows: (T, 4.3.97, page 16) "The hand-over folder is, in fact, what it indicates. When a shift comes on shift the prior shift hands over a brief for that next shift. That brief is written down on that hand-over sheet which is in the hand-over folder. The person coming on reads the brief and also briefs his staff before they commence their shift. On that hand-over folder sometimes they are incident reports that may have happened in the last 48 hours to the last week it could be. That is significant that the staff need know because they’ve been on a five day break.
Observation chart. Mr. Holley described an observation chart as follows: (T, 4.3.97, page 17) "An observation chart is when an on-coming shift comes on to their shift it’s an A4 sized piece of paper that has every in-mate that’s in custody that is of a - that is on observations, whether it’s for medical, prisoner at risk, or if the person is a Torres Strait Islander. It’s a list of people that are on observations, what duration they are and what category they are."
Superintendent’s Daily Journal. This document was described by Mr. Holley as follows: (T, 4.3.97, page 39)
"That’s a daily report on the number of people in custody, the number of staff that work on any given day, the amount of overtime that was worked on that day, movements of detainees discharged or appear in court on that day. Also who was appearing in court the next day or if anyone was discharged." The Superintendent’s Daily Journal "would be held in the control room out the front of the Belconnen Remand Centre and it’s upgraded by the night-shift’s CO2 and all stats state on the front of the cover as of midnight that night. So it’s compiled late at night." (T, 4.3.97, page 40) (Mr. Holley also spoke of a Detainee Observation List (Exh. 82) (T, 4.3.97, page 35), but it is likely that this list is the same document as the observation chart referred to above.) This list, while extensive, is indeed on all of the evidence not exclusive and it is clear that there are other documents created, including incident reports and detainee observation sheets which are also of significance. Mr. Holley referred to incident reports principally in relation to their distribution. The evidence generally indicates that an incident report is a document created by a custodial officer referring to conduct or problems which may have occurred in relation to a particular detainee. Exhibit 85 is an example of such an incident report although it is referred to as an internal report. Mr. Holley indicated as follows: (T, 4.3.97, page 43) "A report like that (indicating an internal report) would be distributed - there would be four copies taken. One’s given back to the officer that wrote the report. One goes to the cover of the hand-over sheet. One goes in an incident file and the original to the superintendent and one in the dossier. There should be four copies in total." The combination of all or some of these documents are supposed to come to the attention of individual custodial officers either as a result of them being advised of them at the commencement of their shift from the handover folder or as a result of them reading them in some other place at the BRC.
I do not intend at this time, or indeed at any length at any time, to comment upon the remarkable procedures followed at the BRC concerning the creation of documentation and the capacity for documentation not to be brought to the attention of particular officers. Suffice to say at this point that Mr. Holley indicated quite correctly that it was up to the individual efforts of officers as to how well informed they were concerning individual detainees and it was also clear that critical information did not necessarily come to the attention of officers as the system seemed to think it should.
For example, Exhibit 83, which is a Superintendent’s Memo evidencing the change of observations involving the deceased from 15 minutes to half an hour, never came to the attention of Mr. Holley and the evidence indicates that it was not acted upon for at least 48 hours. This evidence is to be found in Exhibit 87, a Detainee Observation List, which notes as at 15.3.96 the deceased was still on 15 minute observations and this did not change until after that date. It is clear from all of the evidence that the procedures followed as evidenced by Mr. Holley, and there is no dispute from any of the other witnesses that Mr. Holley’s evidence is other than correct, is entirely inappropriate and clearly fails to ensure that individual officers are aware of matters, even as significant, as a change in observation times.
The evidence of Mr. Richardson and Mr. Holley together with other evidence which will be referred to in due course indicates again and again that the documentation created under the various forms required at the BRC cannot be relied upon to ensure the appropriate running of the BRC. A further example of the inaccuracy of documents is to be found in Exhibit 84. As mentioned above by Mr.
Holley the Superintendent’s Daily Journal (Exh. 84) was completed as at midnight of the date referred
to on the Journal. Exhibit 84 is the Superintendent’s Daily Journal as of midnight 15.04.96. That document indicates that the officers allocated to the "A" shift, 11 p.m. to 7 a.m. on that date, were officers Black, Kelly, Curbishley and Gordon. This, of course, was the evening of the day of the death of the deceased. It is clear from the control room log that these officers were not on duty that evening and that officers Peisker, Heidtmann, Curbishley and Jackson were on duty. The Superintendent’s Daily Journal for the 15th of April 1996 as I understand it is signed off by Officer Peisker and also signed by Superintendent Van Hinthum. The failure by either of these two officers to correct the document to accurately reflect the position pertaining in reality shows once again a failure of the procedures at the
BRC. (IT IS ALSO OF INTEREST TO NOTE IN THAT DAILY JOURNAL THAT OFFICERS KELLY, GORDON, BLACK AND CURBISHLEY ARE NOTED AS HAVING WORKED 3.5 HOURS OF OVERTIME EACH ON THAT DAY. IT IS DISTURBING TO THINK THAT THOSE FOUR OFFICERS IN LIGHT OF THE EVIDENCE LED AT THE INQUEST WERE PAID OVERTIME IN THE CIRCUMSTANCES FOLLOWING THE DEATH OF THE DECEASED) As indicated above Mr. Holley gave evidence that one of his duties while employed at the BRC was to act as a training officer. He accepted that the training of officers upon their initial employment was regarded as the best in Australia, but his complaint was that for a long period there had been a failure to pursue further training for individual officers. Mr. Holley indicated that he raised his concerns about this on a number of occasions over a period of time with both Mr. Van Hinthum and with Mr.
Gagalowicz, who had been a former Superintendent and acting Director of Corrections, and it was his understanding that the training could not be afforded. Mr. Holley also gave evidence concerning problems that in his view had been experienced in obtaining psychiatric support at the BRC and accepted that all contact with Dr. Rosenman had to be through Dr. Rosendahl. He gave further evidence concerning the "special care unit" which is consistent with other evidence given by others.
Mr. Holley gave a number of instances when shown particular exhibits which indicated that in his opinion the system, such as it was, had failed to work. Some of these have already been mentioned, but a further example related to annotations on an Internal Report which in the view of Mr. Holley ought to have been found in a place other than that in which the document bearing the annotations was found.
The principal effect of Mr. Holley’s evidence is that the system described by him is clearly cumbersome and unreliable and urgent consideration needs to be given to revamping the whole procedure so as to ensure that documentation is limited to the minimum requirements, and more importantly, that every custodial officer has a avenue open to ensure that all relevant information is communicated to the custodial officer.
Patrick James Richardson Mr. Richardson had been employed at the BRC for approximately 9 years until his departure in about July 1996. He was at the date of the death of the deceased a custodial officer grade 2. On Sunday the 14th of April 1996, the evening before the death of the deceased, Mr. Richardson was the custodial officer in charge of the security block at the BRC and as such was responsible for the final locking up of the facility with use of the master key. During the course of his shift he was subject to supervision by custodial officer grade 3, Grahame MacKenzie. Mr. Richardson does not recall anything unusual about the deceased on the evening of the 14th of April.
Mr. Richardson gave evidence principally about some procedures which he understood to apply at the BRC in relation to the administration of the facility. It is not necessary to canvas all of his evidence as much of it has already been covered by other witnesses.
He did, however, give a detailed description of the procedure to be followed at the time of a shift handover.
He described a shift handover in the following terms: (T, 6.3.97, page 11) "There’s a formal gathering, yes, in the morning, first thing of a morning and information is read out to oncoming staff about of a morning who is going to court, what’s happened, what’s going to happen throughout the day. And the afternoon shift there is virtually the same thing, you know, what’s happened of a morning, what’s happening tomorrow, things like that." The custodial officer grade 3 who was in charge of morning and afternoon shifts was generally responsible for ensuring that all members of his shift were informed of the sorts of matters mentioned by Mr. Richardson. In addition there was a handover between the CO3 on the one shift and the CO3 on the other shift. As I understand the evidence there was a handover at the end of each shift which sometimes meant that there was a handover from a CO3 to a CO2 for the evening shifts. Additionally, Mr. Richardson indicated that each staff member ought receive some form of information from the staff member they were replacing on the relevant shifts.
Mr. Richardson was shown a number of documents based upon his understanding of how the procedures were to operate at the BRC and accepted from a viewing of the documents that there appeared to have been a number of system failures in relation to the passing on of material which related to individual detainees. He was shown, in particular, Exhibits 193 and 194 as they now are, which were shift handovers for the 4th and 5th of March 1996 and accepted that material contained in Exhibit 103 (Internal Report-Frame-4.3.96) ought to have been included in some way in Exhibits 193 and 194, but it was not found. The evidence indicates that Exhibit 103, which was an Internal Report concerning self mutilation involving the deceased, may have been attached to the front of the handover file, but, of course, there is no way of knowing on the basis of the system as understood by Mr. Richardson whether this was in fact so. It is clear that the documentation examined by Mr.
Richardson which ought to have indicated something about this particular incident involving the deceased was not recorded anywhere in those documents. This, again, is another example of the failure of the system as it actually operated in the BRC.
Mr. Richardson also gave evidence concerning meetings held by senior staff members on a weekly basis at which only senior staff members, including the Superintendent, were present and staff meetings at which all staff were to be present which were held on a monthly basis. These meetings were for the purpose of enabling discussions to take place involving the relevant staff and for information to be transmitted concerning detainees.
Additionally, Mr. Richardson gave some evidence concerning the effect of staff shortages which had been an ongoing problem for some time on the availability to detainees of visits and telephone calls.
The problem caused by the necessity to lock up detainees earlier than usual and to restrict their access to visits and telephone calls were referred to in the evidence of both Mr. and Mrs. Camden.
Following the evidence given by Mr. Holley and Mr. Richardson evidence was given by Gordon James Collins.
Gordon James Collins
Mr. Collins is currently employed as a Custodial Officer Grade 2 at the BRC and had been employed at the Centre for some eight and a half years. At all relevant times he held the substantive rank of CO 2, but did on occasions act as a CO3 in charge of a shift. Mr. Collins gave evidence about a number of documents some of which were tendered through him during his evidence. It would seem an appropriate time to look in some further detail at the procedures which operated at the BRC at the date at the death of the deceased. It is necessary to do so at this time to enable any sense to be made of the exhibits tendered through Mr. Collins.
At the time of the death of the deceased the BRC operated on three eight hour shifts. This is not the case now, but the present shift arrangements are not relevant to this Inquest except insofar as the changes to the three eight hour shifts to two twelve hour shifts caused, as I understand it, some element of industrial disturbance which at least in part led to the problems concerning contact complained of by Mr. and Mrs. Camden.
The shift arrangement existing at relevant times is as follows: There was an "A" shift which occupied the times 11:00 p.m. to 7:00 a.m. This shift was supervised by a Custodial Officer Grade 2 and generally had three other custodial officers 1 as it’s staffing component.
This shift handed over to B shift which commenced at 7:00 a.m. and continued until 3:00 p.m. This shift was supervised by a Custodial Officer Grade 3 with up eight other grades of custodial officer. The B shift handed over to the C shift which controlled the period 3:00 p.m. to ll:00 p.m. and at the end of that shift again handed over to the "A" shift.
It is important to understand the sequence of these shifts so as to be able to make any sense of the documentation created by each shift particularly bearing in mind dates.
There are a number of documents which might be looked at to establish the shift and the officers engaged in each shift and these include the shift handover document and also the control room log.
The documentation tendered through Mr. Collins relates to the 3rd, 4th and 5th of March 1996 and is of some significance in relation to the activities of the deceased and also is enlightening as to the procedures followed at the BRC at the time. I intend to review each document individually.
The first document in time so far as one is able to judge from the shift arrangements is Exhibit 108 which is an Internal Report bearing date 4.3.96 compiled by the reporting officer, W. J. Black, CO2. A perusal of the control room duty log (Exh. 74) indicates that Mr. Black came on duty at 11:00 p.m. on the 3rd of March 1996. The entry in Exhibit 74 indicates that Mr. Black took over from CO3 MacKenzie at that time.
A study of Exhibit 74 would suggest, however, that this entry is not factually correct as the entries prior to the taking over by Mr. Black were all made by Mr. Holley who, in his entry, for 1500 hours on the 3rd of March 1996 indicates that he took over from Mr. MacKenzie. It seems once again that the documentation produced at the BRC leaves a lot to be desired insofar as accuracy and reliability might be concerned. Notwithstanding this comment it is clear from Exhibit 74 that Mr. Black was on duty together with CO1Kelly and CO1 Peisker. A study of the shift handover sheet for the "A" shift on the 3rd of March 1996, which is part of Exhibit 76, confirms that Mr. Black was on duty with Mr. Kelly and Mr.
Peisker and that Mr. Gordon came in on overtime. The control room duty log (Exh. 74) states that CO1 Gordon entered the Centre at 23:20 hours. There is no entry in Exhibit 74 concerning any problems with Mr. Camden or any other detainee during the course of the "A" shift.
Exhibit 74 then shows that Mr. Holley took over at 7:00 a.m. from Mr. Black and his shift. Mr. Holley’s shift continued until 3:00 p.m. on the 4th of March 1996 when, according to Exhibit 74, Mr. Holley was relieved by acting CO3 Collins. Acting CO3 Collins and his shift team continued on duty until 11:00 p.m.
on the 4th of March 1996 when they handed over to CO2 Heidtmann and his team. They continued until 7:00 a.m. on the 5th of March 1996 when they handed over to CO3 Holley.
The Exhibits to which I wish to refer commence, therefore, with Exhibit 108 which as stated above bears the date 4.3.96, but was clearly created during the "A" shift which had commenced on the 3rd of March 1996 and which continued until 7:00 a.m. on the 4th of March 1996. This Exhibit makes comment concerning the bizarre conduct of the deceased and indicates that in the opinion of Mr. Black that the deceased required some form of psychiatric or psychological assessment. Mr. Black’s Internal Report continued: "The episodes appear to become more frequent over the past two mornings." An endorsement on Exhibit 108 indicates: "Detainee will be seen by Dr. Rosenman 4.3.96" This endorsement is, as I understand it, signed by Mr. Collins.
Exhibit 101 is dated 3:15 p.m. on the 4th of March 1996 and is a report prepared by acting CO2 Frame concerning injuries he observed on the deceased. The Report goes on to indicate that Mr. Frame informed Mr. Collins and Ms. Child and received further information from Ms. Child at 3:45 indicating that the deceased had additional injuries to those observed by Mr. Frame. That Report continues that the deceased: "stated that his other personality was going to do something bad tonight." Exhibit 103 is the original of Exhibit 101 and bears upon it’s face a notation not present on Exhibit 101 written in red ink as follows: "Noted. Close observation to be kept on this detainee. Should be seen by Dr.
Rosenman tonight." This entry was made and signed by Mr. Collins.
In addition to the Internal Reports of the 4th of March 1996 there is also a detainee request form completed by the deceased bearing that date (Exh. 110). This request indicated that the deceased wished to see the nurse or the doctor. That request form bears an endorsement which is accepted in the evidence to have been completed by Dr. Rosendahl that states: "changed his mind - refused to discuss the matter" (T, 7.3.97, page 4) Exhibit 109 is an Internal Report timed at 18:15 hours (6:15 p.m.) on the 4th of March 1996 prepared by Mr. Collins referring to, amongst other things, the deceased and it refers to a conversation Mr. Collins
had with Dr. Rosenman following Dr. Rosenman’s examination of the deceased. The Report states as follows: "The doctor Det Camden would probably do more damage to himself with burns and cutting himself and even attempting to hang himself the closer it gets to his court date All staff should be aware and keep a very close eye on him." Exhibit 109 is a copy document and bears a copy endorsement: "To be followed up by Child" noted by Mr. Van Hinthum, the Superintendent, dated the 5th of March.
Exhibits 106 and 107 are Internal Reports prepared by two separate officers but referring to the same incident. Exhibit 106 is a report bearing time 22:20 hours (10:20 pm.) on 4.3.96 by Mr. Clarke with Mr.
Simpson as a witness and refers to the observation by those officers of the deceased climbing up the steel pole in his unit. When asked what he was doing he replied "taking up the challenge". This Exhibit is a copy and bears an endorsement on it signed by Mr. Collins: "Noted all officers to keep a close eye on this detainee." Exhibit 107 refers, as I’ve said, to the same incident but is completed by Mr. Simpson with Mr. Clarke as his witness, but this copy bears no endorsement other than the signature of Mr. Collins.
The final exhibit tendered through Mr. Collins was Exhibit 105 which again is an Internal Report with a small metal object affixed to it and bearing the time 16.:50 p.m. (4:50 p.m.) on 5.3.96. This is a report prepared by Custodial Officer Grade 2, G. Collins, witnessed by Custodial Officer Grade 1, O’Callaghan, and refers to the discovery in the deceased’s unit, A1, that a fluorescent light in the roof had been damaged and that the small metal object attached to the Internal Report (Exh. 105) had been found on the floor of the unit. The evidence given by Mr. Collins indicates that notwithstanding a search of the unit and it’s surrounds, the fluorescent tube which had apparently been removed from the light was not found. Exhibit 105 bears on it an endorsement by Custodial Officer Grade 3 Oliver that checks had been made in the maintenance book but it no information was found to explain the damage to the light.
The significance of these exhibits is in particular that no special steps were taken as at the 4th or 5th of March 1996 by either Mr. Collins or anyone else to his knowledge to ensure that all of this information was communicated to all relevant staff members apart from the fact that the documents were supposed to be attached to the front of the handover file. Additionally no steps were taken by Mr.
Collins, or anyone to his knowledge, to upgrade the observations being conducted upon the deceased. At this point in time the observations required by the BRC of the deceased were that he was to be observed every 15 minutes.
The fact that he had sustained injury and also the fact that it seems on the evidence that he had removed, or at least caused the damage to the light fitting, none of which was observed by any of the officers, including Mr. Collins, who had the monitor in the control room under observation, suggests that the observations were not being properly conducted or if they were the deceased was not being closely observed. It is also odd that two Internal Reports were created by two officers concerning the same incident. There was no explanation forthcoming from any witness as to whether this was a requirement or merely something that occurred on this particular occasion.
Additionally, there is nothing in the handover sheets for the shift handover nor in the control room log that refers in any way to any of these incidents. The effect of Mr. Collins’ evidence, and indeed this evidence is in agreement with all other custodial officer evidence, is that the procedure then operating required reports of the nature of those referred to above to be attached to the handover file by a bulldog clip. The oncoming senior custodial officer in charge of a shift was supposed to either read them out to his team or to require individual members of the shift team to familiarise themselves with such reports.
Regrettably the evidence would tend to suggest that this did not always occur and the system did not allow any failsafe procedure to ensure that all relevant persons were aware of the sorts of problems referred to in these reports. One gains the impression from the overall evidence that the principal significance of the completion of the reports was to enable shift staff to have something to do with their time and that it was not really expected of anyone to be aware of all of these reports.
Mr. Collins gave evidence that over a relatively short period of time of a few days the amount of material attached to the front of the handover file became so substantial that the appropriate CO3 would go through this material and remove it from the front of the file according to the discretion of that officer. Any material removed was them apparently placed in a central file which would be available to anyone with sufficient interest to pursue it. Clearly this form of procedure is entirely inadequate.
In addition to the uncertainty concerning the communication of such information to custodial officers there is, according to the evidence of Mr. Collins, and indeed other custodial officers, a lack of clarity pertaining to the running of the BRC. For example, Mr. Collins while indicating that in Exhibit 103 his note suggested that the deceased should be seen by Dr. Rosenman, he was not aware of what procedure ought to be followed by him to ensure that Dr. Rosenman did attend (T, 6.3.97). Mr. Collins, as have other custodial officers, complained about the lack of training received by him and others and the lack of any protocol which clearly laid down his responsibilities and how he would carry them out.
Mr. Collins’ evidence as to Exhibit 103 was that on his understanding of the procedures to be followed the original of the report ought to have borne some endorsement from the Superintendent. The document has no such endorsement and Mr. Collins was of the view that that would be unusual. (T, 6.3.97, page 58) The effect of Mr. Collins’ evidence is to once again reinforce the evidence of other officers that the procedures prevailing at the BRC at the date of the death of the deceased were unclear and immensely complicated. There is a need for a procedure to be adopted which clearly indicates to all officers their individual responsibilities and how they are to carry them out, the way in which outside agencies can be contacted and whose responsibility it is to arrange the contact, and it is a matter of the utmost urgency that the paper war which occurs at the BRC should end. If it is a requirement of the officers at the BRC to create reports of the type referred to above then it is clearly of no use unless all persons become aware of the problems observed by other shifts.
The evidence given by Mr. Collins and others clearly indicates that there is no guarantee that any one other than the most dedicated officer who pursues a matter out of his own personal interest, will ever find out anything that occurred on a shift other than his own. The best that Mr. Collins could offer was his belief that he probably would have passed on orally his concerns about Mr. Camden to those who came on after him, but he is, of course, unable to substantiate the fact that he, in fact, did this.
History of Conduct and Care of the Deceased While In BRC The deceased came into custody at the BRC on the 19th of February 1996. His dossier (Exh. 58) indicates that he was housed in unit A1 and placed on 15 minute observations upon his induction. The dossier indicates that the induction officer was a Custodial Officer Williams and the Chief Custodial Officer was Rose Oliver.
The general evidence in the Inquest indicates that as at the 19th of February 1996 the housing of the deceased in unit A1 would have been regarded by many custodial officers as being entirely appropriate for a person whose papers were marked prisoner-at-risk and suicidal. The reason for this preference seems to be that unit A1 had a camera installed in it which allowed observations to be made on a monitor in the control room. The other available option as a matter of safety for the detainee would seem, on the evidence, to have been the so-called "special care unit". It is clear, however, on all of the evidence that the "special care unit" was not being operated as at the 19th of February 1996 as anything other than a normal yard at the BRC. It would seem on the evidence before me that allowing for the facilities available at the BRC on the 19th of February 1996 that it was an appropriate decision for the deceased to be placed in unit A1.
The deceased was the subject of a number of internal reports during his period of occupancy of unit A1 which continued until the 7th of March 1996. These internal reports include Exhibit 123, Exhibits 101 and 103, Exhibits 109 and 85, Exhibit 106, 107, 108, 105 and 191.
Exhibit 103 is an original Internal Report which carries on it’s face and notation written in red indicating that the Report had been seen by Custodial Officer Collins who indicated that the deceased was to see Dr. Rosenman that night. Exhibit 101 is a photocopy of Exhibit 103, but does not contain the red endorsement.
Exhibits 109 and 85 are copies of the same Internal Report and Exhibit 109 contains a photocopy notation signed by Mr. Van Hinthum indicating that the contents would be followed up by Ms. Child.
The internal reports refer to a number of separate incidents involving the deceased, one of which involved an indication of self harm.
The most significant internal report are Exhibits 109 and 85 which contain a notation made by Custodial Officer Collins concerning a conversation he had had with Dr. Rosenman on the 4th of March 1996. This notation indicated that in Dr. Rosenman’s opinion the deceased "would probably do more damage to himself with burns and cutting himself and even attempting to hang himself the closer it gets to his court date." Custodial Officer Collins indicated in his Internal Report that all staff should be aware of this comment by Dr. Rosenman and keep a very close eye on the deceased. Exhibit 109, a copy of the Internal Report, has, as I have indicated, a notation showing that this Report had come to the attention of Mr. Van Hinthum who had requested that the report be followed up by Ms. Child, the Community Corrections Officer.
Exhibit 191, dated the 8th of March 1996, refers to an incident suggesting damage to the "Special Care Unit" in which the deceased was then situated. The incidents involving the deceased which were
subject of internal reports occurred on the 21st of February 1996, the 4th of March 1996 and the 5th of March 1996 and the 8th of March 1996.
The deceased was moved from unit A1 to the "special care unit" on the 7th of March 1996. This decision seems to have been made by Mr. Van Hinthum. Mr. Van Hinthum, in his evidence, indicated that insofar as he could recall the reason for the deceased being moved from A1 to the "special care unit" it had to do with the conduct of the deceased and his behaviour in the BRC. There was no documentation created by Mr. Van Hinthum to indicate his reasons for making the decision to move the deceased from A1 to the "special care unit".
The deceased was returned from the "special care unit" to A1 on the 14th of March 1996. Once again, there is no documentation to indicate why that was done. On the same day that the deceased was returned to unit A1 his observations were changed from 15 minutes which had been applicable since his entry on the 19th of February 1996 to 30 minutes. This decision was made by Mr. Van Hinthum. Once again, there is no documentation to indicate why Mr. Van Hinthum made this decision. Mr. Van Hinthum indicated that he would have spoken to various people at the BRC, both custodial officers and others, before he made his decision to change the observations from 15 to 30 minutes.
Regrettably, however, there is nothing to indicate what consultations took place nor what were the views of those who may have been consulted. It is clear on the evidence that few, if any, of the custodial officers who gave evidence had any memory of ever discussing with Mr. Van Hinthum the change in observation times.
Mr. Van Hinthum’s memory, insofar as he had any concerning the change in observations, was that there had been an improvement in the behaviour of the deceased such as to make it appropriate to change the observation times. He was not able to directly point to any actual change in the deceased’s behaviour to substantiate his decision to change the observations.
The changing of the observations of the deceased indicate a glaring deficiency in the processes at the BRC. It is clear that wherever steps of this type are taken to either move a detainee or to change his observations, particularly when the detainee is a prisoner-at-risk, then, in my view, it is essential for documentation to be created indicating clearly the reasons for such a change and who bears the responsibility for making the change. It would, no doubt, also be useful for it to be clear from that documentation as to with whom the decision maker had consulted prior to the making of the decision.
I understand, however, that the introduction of the Detainee Committee which meets on a regular basis has had the effect of creating an environment in which decisions such as those made by Mr. Van Hinthum are now clearly taken in consultation with persons involved in the day-to-day care of the detainees and this must make the decision making process much more appropriate.
Upon his admission into the BRC the deceased was seen by Dr. Rosendahl at 9:47 p.m. on the evening of his induction. Exhibit 58 contains a request from the deceased dated the 25th of February 1996 in the following terms "I’d like to see the doctor about a possible case of tonsolitis". This request was for some reason refused and the endorsement written in pencil states "Will have to see the nurse". The deceased made a further request to see Dr. Rosendahl dated the 4th of March 1996, but upon attendance Dr.
Rosendahl was advised that the deceased had changed his mind. An endorsement by Dr. Rosendahl to this effect is found on Exhibit 110. Dr. Rosendahl saw the deceased again on the 29th of March 1996 when he prescribed some medication which was then supervised by Nurse Dexter.
The deceased was seen by Mr. Alan Jones on the 22nd and 23rd of February 1996 for the purpose of preparing a report following a request from the Chief Magistrate, Mr. Cahill, at the charging of the deceased in the Magistrates Court.
The deceased was seen by Dr. Rosenman on the 4th of March 1996 at the request of Mr. Jones. Dr.
Rosenman ultimately provided a report to the Mental Health Tribunal, but apart from an endorsement which he made in the medical file held by Dr. Rosendahl at the BRC and his report to Custodial Officer Collins, no further action was taken by Dr. Rosenman. It is clear, however, that Dr. Rosenman drew to the attention of the BRC the potential for harm which the deceased presented as at the 4th of March 1996.
In addition to the abovementioned consultations Mr. Camden was spoken to and observed on a regular basis by Ms. Child and also had Ms. Dexter available for nursing assistance. However, it is clear on the evidence that the ultimate issue as to the care and safety of the deceased rested with those custodial officers whose job it was to conduct the observations and to ensure insofar as possible that the deceased did not indulge in conduct either of a self mutilation type or of self harm.
Incident Involving Detainee T.
An incident occurred at the BRC in which detainee T. attempted to commit suicide by hanging. A Remand Centre Incident Report (Exh. 168) completed by Mr. Black indicates as follows: "Summary of Incident (1) Det. T. standing on divider in unit with noose around his neck.
Action Taken
Superintendents Comments (written in red) Officers Co1 Jackson, Kelly, Searl (sic) are to be offered counselling from Durham Smith & Ass." While this comment is included in the area of the Incident Report, for Superintendents Comments, it would seem clear that it is signed by a Custodial Officer Grade 3 and not by the Superintendent.
A document headed "Internal Report" signed by Mr. Black was attached to the Incident Report (Exh.
168). This Report briefly indicates that at 0015 hrs. Mr. Black, who was a Custodial Officer Grade 2 and in charge of the shift, noticed that Shannon Camden was flashing his unit lighting and also loud voices, that is raised voices were coming from the A yard. At the same time Mr. Black noticed that all the lights on the intercom panel were alight and that there was no sound from the panel. As a result of his attention being drawn in this way he directed officers Jackson and Searle to attend in A yard to investigate the source of the disturbance. Mr. Black indicates in the Internal Report that he continued to view the area on the monitor in the control room. Officer Searle returned to the control room and
advised Mr. Black that detainee T. was in the process of hanging himself. Mr. Black provided the Master key and also the Hoffman knife and directed Mr. Kelly to stand by to assist if required.
Detainee T. was cut down by Officers Searle and Jackson. Dr. Rosendahl was contacted and attended at the Centre. Superintendent Van Hinthum was also contacted. The Report prepared by Mr. Black concludes as follows: "At 0225 hrs Superintendent was notified that Det. T. had made a serious attempt to hang himself, and that this had been prevented by the quick action of both officers involved with no apparent injury to the Detainee or the staff involved.
All officers involved in this situation to be commended for their prompt, calm and proffessional (sic) manner to ensure the safety of the Detainee." An Internal Report prepared by Mr. Searle and witnessed by Mr. Jackson and Mr. Kelly was also attached to the Report marked Exh. 168 as was a Report prepared by Mr. Jackson, witnessed by Mr.
Searle and Mr. Kelly and a Report prepared by Mr. Kelly, witnessed by Mr. Jackson and Mr. Searle.
In addition to the creation of the Incident Reports and the Internal Reports Mr. Black made an entry in the control room duty log (Exh. 74). This entry, written in red, at 0115 hrs. on the 3rd of April 1996 "A" shift is in much the same terms as the Report contained in Exhibit 168. In addition to these documents a Detainee Observation Sheet in relation to Shannon Camden headed "4.4.96 Shift A" was also tendered as Exhibit 169. This sheet indicates that between 12:30 a.m. and 2:00 a.m. Shannon Camden had been observed each half hour by Officer Kelly to be asleep.
There is nothing in the evidence to suggest, that notwithstanding that Superintendent Van Hinthum was contacted by Mr. Black twice on the evening of the 3rd and 4th of April 1996, that he attended at the BRC in response to those contacts. Mr. Van Hinthum in his evidence indicates that he made no inquiry at all other than to talk to the officers involved concerning the true circumstances of the incident involving detainee T. The simplest inquiry involving a comparison of the contents of Exh. 168 and Exhibit 74 with Exhibit 169 would have alerted Mr. Van Hinthum, or indeed any other inquirer, of the possibility of a problem in relation to either the observations of Shannon Camden or to have raised a concern with an inquiry as to why it was that the attention of Mr. Black was drawn to the problem with detainee T. as a result of the action of Shannon Camden and other detainees.
Evidence was given by detainee L. which paints quite a different picture to that drawn from the official documentation. Detainee L. was in the BRC on the evening of the incident involving detainee T. and also at the time of the death of the deceased. Detainee L. gave evidence that his attention had been drawn to the situation involving detainee T. by another detainee. He, detainee L., pressed his buzzer to attract the attention of the control room. He was asked the following question: (T, 2.5.97, page 15) "For how long were you doing that? Was that a constant activity?---We woke up - the whole yard was awake and I believe everyone in the cells were trying and actually I think it was Camden who - Shannon who - he started waving in the camera in his cell and we thought that was what attracted the guard.
Detainee L. was of the view that it was about 20 minutes before any response was obvious and a guard appeared. He indicated that "we were yelling pretty loud and banging pretty hard" during that 20 minute period.
It is clear from the evidence of detainee L. which is at least in part supported by the Internal Reports that it was only as a result of the intervention of Shannon Camden and others and only after a substantial period of time that any response appeared from any of the custodial officers on duty that evening. As at the 4th of April 1996 the deceased was on 30 minute observations, but detainee L. was on 15 minute observations as was detainee T. The observation sheet relating to detainee T. for the evening of the 4th of April 1996 has never been found notwithstanding substantial searches organised by Mr. Van Hinthum after this matter was exposed at the Inquest.
It is clear from the evidence of detainee L., which I accept, that there was a very substantial delay before any response occurred as a result of the efforts made by all of the detainees in yard A. Any inquiry conducted by Mr. Van Hinthum, or indeed anyone else, could well have revealed this situation as at the 4th of April 1996. It is tragically significant that on the date of the death of the deceased both Mr. Black and Mr. Kelly were on duty. An investigation by Mr. Van Hinthum as at the 4th of April 1996 may well have exposed at that time the failure of Mr. Kelly and Mr. Black to properly carry out their responsibilities. As mentioned above the observations made of the deceased on the 4th of April 1996 for the relevant hours were allegedly made by Mr. Kelly.
In addition to the documentation there is also the evidence of Mr. MacKenzie who indicates that in his experience he was of the view that Mr. Black turned off the control room buzzers so as not to be disturbed during the course of the evening. If this is so then that conduct is in absolute dereliction of the duty of Mr. Black. The buzzers and the intercom to which the buzzers were attached were the only lifeline for detainees during the course of an evening shift. If Mr. Black did conduct himself in this way then his conduct was absolutely reprehensible and totally without any justification. There is, however, no real evidence to support the view of Mr. MacKenzie and I would not in the circumstances be able to find on the evidence that on the evening of the 3rd and 4th of April 1996, or indeed on any other evening, that Mr. Black did behave in this manner.
It is clear from the incident involving detainee T. that there was a substantial and urgent need for Mr.
Van Hinthum, as acting Superintendent, to conduct an inquiry into the circumstances of that incident.
Regrettably Mr. Van Hinthum in failure of his responsibilities conducted no proper inquiry at all. The circumstances of the incident involving detainee T. are tragically almost identical to those involving the deceased except for the result.
"A" Shift for the 14th and 15th of April 1996 The "A" shift officers responsible for the care and supervision of the deceased on the evening of his death were Custodial Officer Grade 2, Walter John Black, Custodial Officer Grade 1, John Michael Kelly, Custodial Officer Grade 1, Bradley John Gordon and Custodial Officer Grade 1, Gavin Curbishley.
Mr. Black was the supervisor of the shift and had under his supervision three custodial officers grade 1 of differing experience.
Walter John Black
Mr. Black was the Custodial Officer Grade 2 who was the shift supervisor for the "A" shift which commenced at 11:00 p.m. on the 14th of April 1996 and ended at 7:00 a.m. on the 15th of April 1996.
He gave evidence on the 11th and 12th of March 1997, the 28th and 29th of April 1997 and the 1st and 13th of May 1997. In addition he provided three statements, being Exhibits 122, 166 and 167.
Mr. Black had been employed at the BRC for approximately 15 years, but had taken a package and ceased his employment around the end of June 1996. In addition to his role as supervisor he had a number of duties and responsibilities which included the completion of the control room log book and other paper work associated with detainees’ court appearances each day and also with viewing the monitor attached to the camera in unit A1. This monitor was situated in an inconvenient location in the control room. It was, however, accepted that it was principally Mr. Black’s responsibility to observe the monitor and to ensure that the observations required of all detainees, but more particularly those on special observations were carried out.
I will come in due course to the role of Mr. Black in relation to the events of the early morning of the 15th of April 1996, but wish at this time to make some general comment concerning Mr. Black’s evidence. Mr. Black, as indicated, was a very experienced officer and had been employed for a long time at the BRC. It was clear from his evidence that he had given up in relation to the proper responsibilities of his work a long time ago. Indeed he indicated that for a considerable period of time he had not even attended at Senior’s Meetings arranged by the Deputy Superintendent. It does not appear that any action was taken in relation to Mr. Black’s failure to attend these meetings.
Mr. Black had a number of criticisms in relation to the management of the BRC and in particular was concerned that there appeared to be no feedback to people in his position in relation to complaints or reports they might wish to make. He indicated that there was a serious gap in relation to coordination of material created at the BRC in relation to detainees. In relation to this aspect he was asked the following question by Mr. Buddin: (T, 12.3.97, page 12) "So there’s no central point of coordination of all the information that was around, is that what you’re saying?---Not as such, no. It was just sort of all . . .
So if you wanted to get a complete picture of what was happening just in relation to one detainee you have to go to a number of different places and piece the story together, is that right?---Yes, you’d have to go to - through all the incident reports and - because they were all never in alphabetical order, normally kept in chronological order so you might have a stack this high and if you’re trying to get to something quickly it was very difficult. You’d have to go through every report, you know." Mr. Black also gave evidence concerning the confusion caused by the failure to update the Standard Operational Procedures and that in his view these failures created an environment in which the responsibilities of various officers were allowed to become slack and dependent upon the enthusiasm of individual officers.
Mr. Black gave evidence concerning arrangements made on the evening of the 14th and 15th of April 1996, or lack thereof, in relation to the carrying out of the work load at the BRC. He indicated that there was no formal arrangement as to how the observations were to be carried out nor, indeed, any formal arrangement as to what activities would be carried out by any individual officer. He indicated that he had no role in organising such arrangements and that it would be up to the individual CO1’s to arrange between themselves what activities each of them performed during the course of the evening shift.
The initial evidence of Mr. Black, as indeed the initial evidence of the four custodial officers of the "A" shift, was consistent with the statements provided by them to the investigating police either on the day of the death of the deceased or very soon thereafter. That is to say, that all of those on duty that evening had performed their respective roles properly and that the death of the deceased was a tragic accident which occurred notwithstanding the best efforts of the various officers. Mr. Black stated he had been on the night shift for some 8 months prior to Shannon Camden’s death.
John Michael Kelly Mr. Kelly was a Custodial Officer Grade 1 and was the longest serving custodial officer of the three grade 1 officers on duty on this evening. Mr. Kelly gave evidence on the 18th and 21st of April 1997 and the 2nd and 5th of May 1997. When he gave evidence on the 18th of April 1997 he conceded that he had not performed some of the observations which he had included on the observation sheet (Exh.
60). He indicated for the first time that he had, in fact, not performed the observations which he had noted for 4:30 a.m., 5:00 a.m. and 5:30 a.m.
Mr. Kelly also provided two statements to the Coroner, being Exhibits 143 and 184. It was Mr. Kelly who was responsible, according to the observation sheet, for all of the observations conducted on the deceased from 4:30 a.m. until 6:30 a.m. on the morning of the 15th of April 1996.
Mr. Kelly had been employed at the BRC as a Custodial Officer Grade 1 for approximately 10 years and until his suspension remained employed at the BRC. Significantly he indicated in his statement (Exh.
Bradley John Gordon Mr. Gordon was a Custodial Officer Grade 1 and had been employed at the BRC for about five or six years. He was senior to Mr. Curbishley in terms of time employed at the BRC, but junior to Mr. Kelly. He was the second of the shift officers called to give evidence and he initially gave evidence on the 11th of March 1997. He subsequently gave further evidence on the 22nd and 23rd of April 1997 and the 14th of May 1997. Mr. Gordon initially indicated that he had completed two observations of the deceased during the course of the "A" shift, the first at 11:00 p.m. and the second at 11:30 p.m. Thereafter he made no further observations of the deceased or, indeed, any other detainee at the BRC. Mr. Gordon provided statements Exhibits 115 and 148. Initially Mr. Gordon adhered to the statement given by him to the police on the 15th of April 1996. In that statement Mr. Gordon indicated that he predominantly worked on the night shift.
Gavin Curbishley Mr. Curbishley was a Custodial Officer Grade 1 and had been employed at the BRC for some four and a half years. He was the most junior of the custodial officers on duty on the morning of the 15th of April
The "A" shift on duty in the early morning of the 15th of April 1996 therefore consisted of a supervisor and three officers of varying lengths of employment at the BRC. The complement of four officers was a full complement of staff for the number of detainees present in the BRC on that day. There is no suggestion that there were any staff shortages on this evening and morning. It is difficult, however, from the evidence to understand what it was expected that all the staff members would do during the whole of an eight hour shift. The evidence of all four officers initially indicated that their time was fully taken up by conducting observations, completing paper work and tidying up around the premises although they did concede even initially that some officers on occasions might watch television or videos or engage in other private activities.
Discovery of the Deceased At about 6:35 a.m. on the 15th of April 1996 Mr. Kelly commenced a round of observations of detainees, including the deceased. At that time Custodial Officer Grade 3, Edward Grahame MacKenzie, had come into the BRC to take over as the supervisor of the B Shift from Mr. Black, the supervisor of the "A" shift. The evidence shows that Mr. Kelly returned from his round and indicated to those present in the control room that he had some concern about the condition of the deceased. Mr.
Kelly in his internal report prepared that morning, which is part of Exhibit 60, describes the events thereafter as follows: "I immediately returned to the control room and informed the officers of the situation.
In the company of the above officers we returned to A1. On entering the unit we found Camden hanging from the support pole on the privacey (sic) screen. CO3 MacKenzie called for the Hoffman knife, CO1’s Curbishley & Gordon supported Camden while CO3 MacKenzie cut him down." Exhibit 60 contains all of the Internal Reports prepared by the "A" shift and also Mr. MacKenzie concerning the events of the discovery of the body of the deceased. There is no issue that the body was first observed by Mr. Kelly and that he reported that fact, or his concern about that fact, to the control room which all of the evidence would now indicate had within it Mr. Black and Mr. MacKenzie.
The evidence also supports the fact that Mr. Kelly, Mr. Gordon, Mr. Curbishley and Mr. MacKenzie all attended at the unit and were involved in the cutting down of the deceased.
The ultimate evidence given by the custodial officers is consistent in relation to the steps taken at the time of the discovery of the deceased and of the cutting down of the deceased. There is, however, evidence from detainee L. which is somewhat different from the version given by all of the other custodial officers. Detainee L. indicates that his memory of the events was that he was awake at the time shortly prior to the discovery of the deceased and recalls seeing one guard coming into A yard and looking into unit A1. He did not recall whether the guard used a torch. After the guard looked into the cell the guard turned and left, walking out of the yard briskly. Detainee L remembers the guard having a concerned look on his face. The guard did not complete his round of A Yard.
About two to four minutes later two other guards came into the yard and looked into cell A1 and then left.
A further two to three minutes later another guard came in who was different than the three who had already visited the cell. This guard also looked into the cell but detainee L is unable to remember whether this guard left or stayed in the yard.
A short time later about three or four guards came into the yard and unlocked the cell door of A1.
Detainee L’s memory is that there appeared to be no urgency in the actions of any of the guards at this time. These last group of guards entered the cell and subsequently left, pulling the door closed without locking it.
About five to ten minutes later a group of four or five guards entered the yard this time including a supervisor whose name the detainee is unable to remember, but whom he describes in his evidence as a supervisor whom he had previously dealt with and whom he regarded as the head boss (T, 2.5.97, page 26). The supervisor was a person who in the memory of detainee L worked on the day shift. He could not recall ever having seen him at night.
Following these series of events photographers and other persons turned up at cell A1.
These series of events are somewhat different from those put by the custodial officers whose version of events as I understand them is that Mr. Kelly went on his rounds at about 6:30 a.m., that he returned to the control room and that he then returned back to unit A1 in company with Mr. MacKenzie, Mr.
Curbishley and Mr. Gordon. The door was unlocked and Officers MacKenzie, Gordon and Curbishley entered and cut the sheet. In between times Mr. MacKenzie had returned to the control room and obtained the Hoffman knife. Subsequent to this Mr. Black attended at the unit in company, apparently according to his Internal Report, with Officer Curbishley.
It is ultimately not necessary for me to make any decision in relation to any factual differences that there may be between the version of events given by the custodial officers and the version of the events given by detainee L. as the evidence indicated the circumstances in which the deceased was discovered, and the differences are perhaps more matters of detail.
It is clear from the evidence that at or about the time of the discovery of the deceased the paper work in existence relating to the activities of the shift that evening included observation sheets relating to the deceased and other detainees on special observations and the control room log book. These two documents ultimately became most significant in the balance of the evidence given at the Inquest. As at the completion of the initial evidence given by Custodial Officers Black, Kelly, Gordon and Curbishley the situation presented itself as described by Mr. Van Hinthum in his statement given to the police on the 17th of April 1996 in the following terms: "Although Shannon Camden committed suicide at the Remand Centre on the 15th of April 1996, I am satisfied that all staff and Centre management fulfilled all obligations as required by the Remand Centre Act and recommendations given to us by medical personnel." This statement at the time it was made on the 17th of April 1996 and, indeed, prior to the disclosures subsequently made to the Inquest represented a position which on the surface appeared to be correct. Regrettably, however, evidence which had begun to emerge already and which continued to emerge during the balance of the Inquest put the lie to this statement.
Uncovering the Coverup
Until the appearance of Mr. Kelly in the witness box on the 18th of April 1997 the situation regarding the events of the evening of the 14th and 15th of April 1996 remained much as outlined in the various reports and statements prepared by the custodial officers on the morning of the death of the deceased or subsequently given to the police. Notwithstanding substantial cross-examination of Mr.
Curbishley and Mr. Gordon, who gave evidence prior to Mr. Kelly, there was no real suggestion of anything untoward.
When Mr. Kelly gave his evidence on the 18th of April 1997 he indicated that the statement given by him to the police (Exh. 143) was not correct. He proceeded to indicate that he had not, in fact, done the observations at 4:30, 5:00 or 5:30. This was the first concession made by any of the custodial officers that the official story created on the morning of the death of the deceased was not true. Mr. Kelly insisted, however, that he had made the observation at about 5:50 or 6:00 o’clock as entered on the observation sheet.
During cross-examination of Mr. Curbishley and Mr. Gordon it had been suggested to them that a practice described as blocking occurred in relation to the preparation of observation sheets. It had additionally been suggested to those officers that much of the time of custodial officers on night shift was engaged in activities other than those for which they were employed. Mr. Kelly indicated during his evidence on the 18th of April 1997, a Friday, that he had been telephoned by Mr. Gordon on the Wednesday and that Mr. Gordon had indicated to him that he (Kelly) could say that "we blocked the obs" and "do not - we did not rewrite the observation sheet". This piece of evidence was followed by a lengthy period of examination of Mr. Kelly that led to Mr. Kelly conceding that the observation sheet, part of Exhibit 60, had been rewritten on the morning of the death of the deceased. Notwithstanding this concession Mr. Kelly continued to maintain for a protracted period of time that he had, in fact, done the observation noted on the observation sheet at 6 o’clock when he had observed the deceased on the toilet.
A further breach in the solidarity of the "A" shift officers occurred on the 16th of April 1997 when Mr.
Curbishley was recalled. He indicated on this date that he had observed Mr. MacKenzie perform mouth-to-mouth resuscitation. This had never been mentioned in any of the material previously put before the Inquest.
Mr. Curbishley attended at Court and gave evidence again on the 21st of April 1997 when he withdrew the statement that he had seen Mr. MacKenzie perform CPR. During his evidence of the 21st of April 1997 which was after Mr. Kelly had given evidence on the 18th of April 1997 concerning the rewriting of the observation sheets, Mr. Curbishley also conceded for the first time that the observation sheet relating to the deceased had been rewritten.
Mr. Curbishley was followed by Mr. Gordon who also conceded that he had participated in the rewriting of the observation sheets and also confirmed that no CPR had taken place.
The status of the evidence as it existed on the 1st of May 1997 was that Mr. Kelly had conceded that he had not performed the observations of the deceased at 4:30, 5:00 and 5:30, that he had participated in a rewrite of the observation sheet but only in relation to the 6:30 entry and continued to swear and to be supported by other custodial officers that he had performed the 6 o’clock observation. Additionally Mr. Curbishley had given false evidence concerning the issue of CPR about which I will say something further in due course.
On the 1st of May 1997 Professor Herdson gave evidence in relation to the time of death of the deceased.
A number of items of material had been prepared and tendered as Exhibit 179. Professor Herdson indicated that based upon that material he was of the view that the deceased would have been dead for a period of two hours or more prior to his discovery at 6:30 or 6:35 a.m. on the 15th of April
on the 2nd of May 1997 and withdrew his evidence that he had performed the 6 o’clock observation.
He conceded that he had not performed any of the observations entered by him on the observation sheet other than the 6:30 a.m. observation.
The full circumstances of the events of the death of the deceased had now come out. It will be necessary for me to consider in further detail the actual rewriting of the detainee observation sheet for the deceased and I will make further comments concerning individual evidence as well.
Rewriting of the observation sheet The evidence concerning the rewriting of the observation sheet ultimately emerged following the concession made by Mr. Kelly on the 18th of April 1997 and the progressive concessions made by Mr.
Curbishley, Mr. Gordon and Mr. Kelly thereafter. It was not until the final concession made by Mr. Kelly on the 2nd of May 1997 concerning his lie in relation to the 6 o’clock observation that something approximating the truth concerning the rewrite of the observation sheet emerged. All custodial officers were subjected to protracted examination concerning the observation sheet and other practices involving observation sheets at the BRC and it suffices to say that Mr. Kelly, Mr. Curbishley and Mr.
Gordon committed perjury in relation to their answers concerning observation sheets. In particular these three officers continued to deny that anything untoward had occurred in relation to the observation sheets.
While the evidence is somewhat difficult to follow largely because of it’s volume I am of the view that the rewrite probably occurred in the following way.
I am satisfied that the instigator of the rewrite was Mr. Kelly. While Mr. Kelly continually indicated to the Inquest that he had been in a state of shock on the morning of the discovery of the deceased I am satisfied that he formed a view almost immediately upon discovering the death of the deceased that steps had to be taken to correct the original observation sheet. It was his top priority. (T, 18.4.97, page
However, there is before the Inquest Exhibit 144 which represents other observation sheets completed during the "A" shift of the 14th and 15th of April 1996. There are five sheets altogether, three relating to detainees on 30 minute observations and two relating to detainees on 15 minute observations. Each of the observation sheets is generally in the same form as the observation sheet relating to the deceased which is part of Exhibit 60. That is to say, that the observations for the period 11:00 to 11:30 p.m. purport to be carried out by Mr. Gordon, the observations from 11:30 p.m. to 4:00 a.m. purport to have been carried out by Mr. Curbishley and the observations from 4:30 a.m. to 6:30 a.m. purport to have been carried out by Mr. Kelly. Significantly in Exhibit 144 all of the entries made by Mr. Kelly are in blue pen whereas the entries made by Mr. Kelly on Exhibit 60 are in black pen.
I do not intend to go through in detail all of the evidence given by the three officers involved in the rewriting of the observation sheet, but merely to deal with this question in a general way. As already mentioned I am satisfied on the evidence that the instigator of the rewrite was Mr. Kelly. It is clear from his evidence that he realised that there was a problem with the existing observation sheet which one assumed had entries for 6 o’clock and 6:30 on the deceased’s observation sheet of "asleep". This would be consistent with the entries on all of the other observation sheets in Exhibit 144. Such an entry, of course, would present a disastrous situation for Mr. Kelly if that observation sheet had remained the official observation sheet. I am prepared to accept the evidence of Mr. Gordon and Mr. Curbishley that their role in the rewriting of the observation sheet was merely for them to, in effect, duplicate the observations that they had already placed on the original observation sheet in the new observation sheet. I am inclined to accept, on balance, that both officers left the security room where the rewrite was occurring prior to the entries being completed by Mr. Kelly. There remains some element of uncertainty in relation to the evidence of Mr. Curbishley as to whether he saw the entries being completed by Mr. Kelly, but I am inclined to the view that there is not sufficient evidence for me to find that Mr. Curbishley was present at the time that Mr. Kelly completed his observations on the observation
sheet. It would be my view that if anyone had been present and observed the entries ultimately made by Mr. Kelly on the observation sheet, then he would not have been allowed to make the entries as they appear.
The only complicating factor in relation to this scenario is the position of Mr. MacKenzie. Mr. MacKenzie has given evidence, as has Mr. Kelly, of making a comment to the effect that he hoped the observation sheets were alright. It is difficult to reach a final concluded view as to when this comment was made. I am content on the evidence to accept that the comment was made by Mr. MacKenzie, but I am not able from the evidence to decide whether it was made before the rewrite occurred or whether it was made after the rewrite occurred. I am, however, satisfied that whatever role Mr.
MacKenzie may have played in triggering a response from Mr. Kelly I am satisfied that Mr. Kelly, himself, immediately became aware of the problem created by the existing observation sheet and introduced to his co-conspirators, Mr. Curbishley and Mr. Gordon, the need to rewrite the observation sheets.
There is a conflict of evidence as to where the observation sheets were immediately prior to the rewrite.
Some of the evidence puts them in the main control room and some of the evidence has them in the security block control room. I am inclined to accept on the evidence that the observation sheets in their original form had been in the main control room and had been completed by Mr. Kelly in block at some time during the course of the evening. There is no clear evidence which one could accept as to how they got from the main control room to the security block control room, but I am inclined to the view that Mr. Kelly took the completed forms from the main control room to the security block control room for the purpose of carrying out the rewrite.
It is clear on the evidence that the principal beneficiary of the rewrite was Mr. Kelly. The other custodial officers, notwithstanding their concession of dereliction of duty on the evening of question, had at least completed the form in a way that could not be proved to be wrong. Mr. Kelly, however, had already completed the form in such a way as to make it patently wrong with the discovery of the deceased at 6:30 in the morning. It may be that the state of mind of Mr. Kelly at the time he completed the new observation sheet was such that his mind was unable to focus upon what he really needed to put on the sheet other than to ensure that he had an entry to indicate that the deceased was on the toilet. It would seem that this was all his mind could focus on as he has made both entries the same. It is clear that whatever the purpose of the rewrite was intended to be, Mr. Kelly’s incompetence was such that he was unable to properly rewrite the sheet so as to correctly indicate what it was that he would have observed at those particular times, particularly the 6:30 time. Perhaps in the circumstances there was no correct entry for 6:30 a.m.
The other significant element of the coverup was the planting in the mind of Mr. Black of the fact that Mr. Kelly had seen the deceased on the toilet at 6 o’clock. This, indeed, was a fact which was communicated to all relevant custodial officers. I am satisfied on the evidence that it was Mr. Kelly who communicated this information to the custodial officers. The evidence of both Mr. Curbishley and Mr.
Gordon indicate that they were told by Mr. Kelly that he had seen the deceased on the toilet at 6 o’clock either as they went to the unit prior to the discovery of the deceased or while they were in the unit after the discovery of the deceased. It seems clear from all of the evidence that it was Mr. Kelly who was aware of the fact that the observation sheet was wrong and who concocted the plan, such as it was, to attempt to protect his position at that time.
On all of the evidence, notwithstanding it’s volume and confusion, I am content to find that Mr. Kelly immediately he became aware of the situation involving the deceased, told the other custodial officers that he had seen the deceased on the toilet at 6 o’clock and initiated the conspiracy that led to the rewriting of the observation sheet and to the denials of that fact on oath. All three custodial officers, namely, Mr. Kelly, Mr. Curbishley and Mr. Gordon were active participants in the rewrite and active participants in the lies told to the Inquest concerning the events of that morning. I am satisfied on all of the evidence that both Mr. Curbishley and Mr. Gordon would have been aware at the time they participated in the rewriting of the observation sheets that Mr. Kelly would not have performed those observations for which he was taking credit.
Allegations of Witness D.
Curiously, in light of the above evidence concerning the rewriting of the observation sheet which was not disclosed in evidence before the Inquest until April and May of 1997, evidence was given by witness D. in November 1996 which raised an allegation suggestive of some form of coverup having occurred in relation to the events of the death of the deceased. A number of suppression orders were made concerning the identification of witness D. and also of the witness M. about whom the allegations were made. I intend to continue those suppression orders. Mr. Fitzgerald also gave evidence in relation to the complaint by witness D. At the conclusion of the evidence of those three witnesses I ruled that there was no evidence to suggest anything untoward had occurred insofar as the activities of witness M.
were concerned.
Witness D. alleged that she had had a meeting with witness M. in July 1996. At this meeting witness D.
alleged that witness M. had said: "Between you and me and my friend the dolphin on the wall I made sure that the observation sheets were done and would be acceptable in a court of law".
Witness D. further stated that witness M. had said in relation to this comment: "If that is ever brought up outside these four walls I will deny it".
Witness M. gave evidence and accepted that he had made comments somewhat similar to those referred to by witness D., but that they had been made in the context of an inquiry that witness M. was conducting and in relation to which he had sought the assistance of witness D. at the meeting in July
At the time the evidence was given in November 1996 I was content to accept that there was no basis for the suggestions that somehow there had been some form of change occurring in relation to the observation sheets at the time of the death of the deceased. Even at this point in time there is no evidence before me to suggest that witness M. had any involvement at all in relation to the events that occurred at the BRC on the morning of the 15th of April 1996, but it is clear that whatever witness M.
was saying to witness D. it is suggestive of some knowledge on the part of witness M. in relation to the events that occurred at the BRC on the morning of the 15th of April 1996. I am not able on the evidence before me to indicate how it was possible if indeed witness M. became aware of the events that he did so become aware. All that can be said about the evidence of November 1996 is that it appears to be remarkably prophetic.
In addition witness D. gave evidence in November 1996 of experiences which indicated, among other things, that observations were not carried out at night as required. This piece of evidence certainly turned out to be exactly correct. The evidence of witness D. as to the failure of custodial officers to conduct observations at night was also supported by the evidence of detainee L.
Detainee L. was released from the BRC about the 20th of April 1996. Upon his release he received a bundle of detainee observation sheets relating to himself. Despite the best efforts of the Inquest and Mr.
Van Hinthum it has never been explained why detainee L. received these documents. It is clear on the evidence that he ought not have received them. Detainee L. indicates that upon perusal of the
detainee observation sheets which covered the period he was in custody from the 20th of March 1996 until the 20th of April 1996 he became aware that he had been on 15 minute observations for the whole of that period. This apparently caused him substantial surprise as he was of the view that certainly in the evenings there was no suggestion that he was observed by anyone every 15 minutes.
His memory of that period was that at the most he may have been disturbed about twice a night.
Detainee L. conceded that on some nights he would not have been awake and that there may, indeed, have been times when he was observed when he was not disturbed. However, the clear tenor of his evidence is that for the month when he was on remand at the BRC he was not observed at night in accordance with the 15 minute observation regime. This evidence, of course, supports the evidence given by witness D. and the evidence given ultimately by Mr. Kelly and others.
It is clear on this evidence that insofar as the night shift for the evening of the 14th and 15th of April 1996 there is no certainty that any observations were carried out and, indeed, the relevant custodial officers conceded that one could not rely in any way upon the truth of the detainee observation sheets. This Inquest was largely restricted to the events of the "A" shift for the evening of the 14th and 15th of April 1996 but the evidence clearly indicates that there is no reason to believe that any night shifts were any different to the one about which evidence has been given. I accept in saying this that I have not heard evidence from any of the officers who performed night shift at around the time of the death of the deceased, but I make the comment based upon the general tenor of the evidence which clearly indicates a complete lack of supervision and a complete lack of interest on the part of supervisors as to whether the officers under their care performed their proper observations or not.
The principal rule seems to be that provided the observation sheets were completed and looked right and that there was no one dead at the end of the night shift, then everything was alright. Regrettably the incident involving detainee T. did not trigger any anxiety on anyone’s behalf as to the real situation which was ultimately exposed as a result of the death of the deceased.
Role of Mr. Black in the Coverup As mentioned above I am satisfied on the evidence that Mr. Kelly told Mr. Black some time after the discovery of the body of the deceased that he, Mr. Kelly, had seen the deceased on the toilet at about 6 a.m. Mr. Black, notwithstanding many hours of cross-examination, refused to withdraw from this particular position. He accepted that it was not doubt untrue that it had happened but he continued to maintain the position that he had been told by Mr. Kelly that the deceased had been on the toilet at 6 o’clock. I accept that Mr. Kelly did tell Mr. Black this fact, but it is clear on the evidence that he was not told this until after the deceased had been found dead. In my opinion Mr. Black played no role in the rewrite of the observation sheet and, indeed, the evidence seems to be quite clear that no one ever thought that they might have a need to include him in the rewrite of the observation sheet.
Mr. Black has given evidence about his very substantial failings as a supervisor and this is most graphically illustrated by his entries in the control room log book (Exh. 74). In the entry for 6:30 a.m. on the 15th of April 1996 Mr. Black has written "rounds carried out all correct". Immediately thereunder at 6:35 a.m. he has an entry in red indicating the report received from Mr. Kelly and the subsequent events thereafter. Notwithstanding extensive examination and cross-examination it took a very very long period before Mr. Black was prepared to concede that perhaps he had jumped the gun when he made the entry for 6:30 a.m. He was not prepared, as I understood his evidence, under any circumstances to accept the more logical explanation for the entry that it had been written in prior to the 6:30 a.m. rounds. Of course the entries for 4:30, 5:00 and 5:30 a.m. all indicate in Mr. Black’s hand "rounds carried out all correct". These are there notwithstanding the clear evidence that such rounds were, indeed, not done. It seems on the evidence of Mr. Black to be more likely than not that Mr. Black merely completed the control room duty log as a matter of routine without any real interest in whether the entries were true or false.
This position, I believe, accurately represents the view Mr. Black had as to his job at the particular time.
He had clearly lost interest in his job and did little, if anything, to ensure that his responsibilities were properly carried out. In doing so he, of course, failed to ensure that his responsibilities in relation to those that he was employed to supervise were carried out either. This total failure on the part of Mr. Black led inevitably to the sort of situation exposed following the death of the deceased.
While as I say there is no evidence before me to suggest that Mr. Black was in any way involved in the coverup as such it is clear that his actions at least in part led to the need for the coverup.
CPR The issue of CPR became a significant factor in the Inquest following the evidence given by Mr.
Curbishley that Mr. MacKenzie had in fact performed CPR at the time of the discovery of the deceased. When he ultimately withdrew this piece of evidence his explanation for having lied was that he had attended a meeting prior to the commencement of the Inquest at which the question of CPR had been raised and that Mr. MacKenzie had indicated that he intended to tell the Court that he had attempted CPR. It was for this reason that Mr. Curbishley decided that it was appropriate for him to say that he had seen Mr. MacKenzie perform CPR.
The question of CPR had clearly been the cause of some anxiety from the very beginning. Mr. Van Hinthum indicated in his evidence that he had raised the question of CPR with Mr. MacKenzie when he first spoke to Mr. MacKenzie upon his arrival at the BRC on the 15th of April 1996 and he had been told by Mr. MacKenzie that no attempt had been made to perform CPR. Mr. Van Hinthum indicated that while he accepted that statement it did not necessarily satisfy him as he would have been a lot happier if he’d heard someone had attempted CPR.
Mr. Fitzgerald, who conducted the inquiries that led to the provision of the information to the Minister, also raised his concern about the question of CPR.
Mr. Curbishley in his evidence indicated that he, indeed, approached Mr. MacKenzie to inquire of him as to whether any mention ought be made in the internal reports which were being compiled at the BRC of the fact that CPR had not been conducted. His evidence was that Mr. MacKenzie at that stage indicated that there was no need to put anything in the internal reports about CPR. Mr. MacKenzie denied that this conversation took place but I am prepared to accept Mr. Curbishley’s evidence that it did.
A perusal of the Internal Reports prepared by officers Curbishley, Kelly, Gordon, Black and MacKenzie indicate, at least in some of them, that vital signs were checked after the discovery of the deceased, but none make any mention of any attempts at CPR. Similarly in the statements provided to the police by those persons no mention is made of any attempt to perform resuscitation or CPR.
It is clear on the evidence that until the meeting, which was called by Mr. Van Hinthum, all of the custodial officers involved in the events of the morning of the 15th of April 1996 were agreed that no attempt had been made to resuscitate or to perform CPR on the deceased. It is clear from their evidence that they had all formed the view that the deceased had been dead for a sufficiently long time to make any effort at resuscitation pointless. The meeting called by Mr. Van Hinthum took place in June or July 1996.
Mr. Van Hinthum’s evidence concerning the meeting is that he called it as a staff relations exercise to ensure that everyone was aware of what was going on in relation to the Inquest. The persons who were present at the meeting all on balance seemed to have little memory of the precise circumstances of the meeting and what was discussed. However, they all generally have a memory that during the course of the meeting the question of CPR was raised by Mr. Van Hinthum. Mr. Van Hinthum’s evidence is that he has no memory of Mr. MacKenzie saying anything at that meeting that was different to the position which he had put to Mr. Van Hinthum on the 15th of April 1996, that is to say, that no attempt had been made to perform CPR.
All of the other participants in the meeting have a memory that Mr. MacKenzie indicated that he would say that he had attempted CPR. Thereafter it seems that Mr. Curbishley at least had it fixed in his mind that Mr. MacKenzie was going to change his story insofar as the absence of CPR was concerned.
Evidence has been given by a number of the custodial officers of discussions which took place after this meeting concerning the question of CPR. Mr. Gordon indicated that he personally spoke to Mr.
MacKenzie and came away from that conversation satisfied that Mr. MacKenzie had indicated to him that he had, in fact, attempted CPR. Mr. Gordon passed this information on to Mr. Curbishley.
The end result of these discussions and the meeting called by Mr. Van Hinthum was that Mr. Curbishley gave false evidence to the Inquest when he stated that CPR had been performed by Mr. MacKenzie.
The only explanation for this false evidence was that Mr. Curbishley had become convinced as a result of the meeting and also the further discussions after that meeting that Mr. MacKenzie had either told the police in the beginning that he had attempted CPR or, indeed, intended to tell the Inquest that he had attempted CPR.
I am satisfied on the evidence that Mr. Curbishley would not have made this false statement unless he believed that it was required of him in the circumstances. I am satisfied that Mr. MacKenzie did state at the meeting words to the effect that he had attempted CPR and that thereafter Mr. Curbishley at least was of the view that there had been a change in relation to the evidence that was needed to be given to the Inquest.
Evidence was given by Custodial Officer Grade 1, Ian Douglas Frame, who was a long time friend of Mr. Curbishley. His evidence indicates that Mr. Curbishley had spoken to him shortly after the meeting at which CPR was discussed and had indicated to him his memory of the events of that meeting. Mr.
Frame had a conversation with Mr. MacKenzie on the 11th of April 1997 and indicated that his memory of that conversation was to the effect that Mr. MacKenzie indeed intended to tell the Inquest that he had not performed CPR on the deceased. It was Mr. Frame’s view that Mr. MacKenzie was maintaining the position he had taken when he made his statement to the police.
Mr. Frame became aware of the evidence given by Mr. Curbishley on the 16th of April 1997 and on that evening spoke with Mr. Curbishley. He indicated to Mr. Curbishley, for the first time, the conversation that he had had with Mr. MacKenzie on the 11th of April 1997. During the course of that
evening Mr. Frame rang Mr. MacKenzie and a discussion took place in which Mr. Frame indicates Mr.
MacKenzie suggested to him a way in which Mr. Curbishley may be able to explain the evidence he had given to the Inquest on the 16th of April 1996.
Mr. Frame further gave evidence that on the next morning a meeting took place in which Mr.
MacKenzie indicated that everyone should stick together.
I am prepared to accept the evidence of Mr. Frame concerning the conversation with Mr. MacKenzie on the telephone on the evening of the 16th of April 1997 and also his evidence concerning the meeting the next morning. Mr. Frame was seriously challenged as to his evidence but in my opinion stood up to strenuous and vigorous cross-examination and is to be accepted as a witness of truth. Mr.
Frame had no part in the events of the morning of the 15th of April 1996.
I accept on the evidence that there was an expressed concern on the morning of the 15th of April 1996 by Mr. Van Hinthum and Mr. Fitzgerald as to the absence of attempts to perform CPR. I accept further that at the meeting called by Mr. Van Hinthum a comment was made by Mr. Van Hinthum concerning the absence of attempts to perform CPR and that in response to this comment Mr. MacKenzie indicated that he had, indeed, attempted CPR and was prepared to say so. I accept that following this statement by Mr. MacKenzie a number of discussions took place between relevant custodial officers the result of which was that their view of the comments made by Mr. MacKenzie at the meeting were reinforced. As a result of this Mr. Curbishley gave false evidence to the Inquest. No other custodial officer was required to give this sort of evidence as the matter had not been raised until Mr. Curbishley raised it in his evidence on the 16th of April 1997.
I accept also that Mr. MacKenzie may well have not intended to change his story at the Inquest, but this is only one of a number of examples in which Mr. MacKenzie seems to have been attempting to position himself in such a way as to be able to give whatever version of events he believed was most appropriate for him in the circumstances. This is shown by his response to Mr. Frame’s telephone call which I accept clearly contained a conversation in which Mr. MacKenzie was suggesting to Mr. Frame how Mr. Curbishley may attempt to explain away his evidence about CPR. Such an attempt on the part of Mr. MacKenzie is, of course, entirely wrong.
I accept that the evidence clearly indicates that no attempts were made to resuscitate or perform CPR on the body of the deceased. I accept that the reason why this did not occur was that all of those present had formed their own views that such an exercise was futile as the deceased had been dead for too long. I also accept that some, particularly Mr. Curbishley, became immediately anxious about the apparent contradiction in the failure to perform CPR when they continued to accept the fact that Mr. Kelly claimed to have observed the deceased at 6 o’clock alive and on the toilet. It seems that this contradiction, namely that the deceased could have been dead for only half an hour at the most was one which caused concern to many at the BRC.
EDWARD GRAHAME MACKENZIE Mr. MacKenzie was a Custodial Officer Grade 3 who gave evidence over a period of seven days commencing on the 14th of May 1997. Mr. MacKenzie was in a unique position in that he was not on duty on the evening of the 14th of April 1996, but was rostered to take over from the "A" shift that ended at 7:00 a.m. on the 15th of April 1996. Mr. MacKenzie indicates that it was his practice when he was in charge of the B shift to come to the BRC around 6 to 6:30 a.m. so as to prepare the necessary directions for his shift members. On the morning of the 15th of April 1996 he had arrived at the BRC shortly before Mr. Kelly returned with his comments concerning Mr. Camden. Thereafter Mr. MacKenzie
played a substantial role in the events of the morning of the 15th of April 1996. It is clear on all of the evidence that Mr. MacKenzie, in effect, took charge in place of Mr. Black who played an insignificant role in the events. Mr. MacKenzie was, of course, senior in the hierarchy to all those engaged in the "A" shift. Mr. MacKenzie gave very extensive evidence concerning his personal views in relation to the management and operation of the BRC. He had particular views in relation to the treatment and care of persons with disabilities and, in particular, persons suffering from any form of mental disability.
While it is true to say that Mr. MacKenzie’s credit as a witness is very marginal I am of the view that the nature of his evidence and the extent of his evidence is such that it is necessary to cover it in some substantial detail.
Mr. MacKenzie was a Custodial Officer Grade 3 as at the date of the death of the deceased and had held that position for some time. He had been employed at the BRC for some 9 years and had commenced as a CO1 and had progressed through the ranks to end as a CO3. He was as such one of the more senior officers at the BRC. He provided a number of statements to the Inquest, including Exhibit 223 in which he identified, formally, the deceased. The second statement (Exh. 224) which was a statement provided by Mr. MacKenzie to the police on the 15th of April 1996.
Mr. MacKenzie made a correction to this statement (T,14.5.97, page 52) and then stated (page 53) that the document was true and correct.
Mr. MacKenzie provided a third statement (Exh. 225) which was a statement provided to the police on the 4th of April 1997. He indicated immediately (T, 14.5.97, page 54) that this statement was not true and correct and he made a change to it (T. pages 54 and 55) following which he stated it was then true and correct.
Mr. MacKenzie made a fourth statement to his solicitor dated the 30th of April 1997 and at page 55 of the transcript swore that this was true and correct. At page 56 of the transcript he stated that following the amendments made to those statements, all three, namely Exhibit 224, 225 and the statement of the 30th of April 1997 (Exh. 226) were then all true and correct.
Mr. MacKenzie during his evidence of the 14th of May 1997 indicated that he had a reputation at the BRC as a custodial officer who was particularly concerned about the welfare of persons suffering from any form of disability, but in particular from any mental dysfunction. This term mental dysfunction does not carry any particular technical significance, but merely reflects Mr. MacKenzie’s view of any person who had a particular problem in relation to their behaviour which caused difficulty for that person and also for the staff at the BRC.
Mr. MacKenzie was of the view that mentally ill people are treated in "an abysmal way" in the A.C.T.
He was asked by Mr. Buddin to comment upon the deficiencies which he believed existed at the BRC and he made the following comments:
"By that, I mean the Mental Health Crisis Team, the Community Advocate. The Mental Health Tribunal has seized detainees on many occasions multi-times and does not make decisions and strings out the proceedings far too long. They aren’t properly looked after in relation to Legal Aid. On many occasions in the nine year period I have rung the Mental Health Crisis Team at Woden Valley to come and help us with detainees and they have not arrived.
. . .
I have rung Dr. Rosenman on numerous times.
. . .
I will go further to say, sir, I have rung Dr. Rosenman at the Mental Health Crisis Team many times to come to the remand centre and he has not." (T, 14.5.97, pages 59-60) Mr. MacKenzie summarised his view as follows: (T, 14.5.97, page 61) "The tragedy is this: you’ve got - I think you’ve got a whole lot of government departments all really mean well, over worked and under paid but the double tragedy is none of them will accept any responsibility for a mentally ill detainee charged with a criminal offence locked up in the Belconnen Remand Centre." He was of the view that the service provided by Dr. Rosendahl was good.
He also referred to "the incredible stressful work environment to see a mentally ill person in front of you starving themselves to death, acting in a bizarre manner and not getting the proper help." (T, 14.5.97, page 64) He indicated following these comments that there had been a change and "a glimmer of hope" since the death of Mr. Camden. The change was reflected in the fact that the Mental Health Crisis Team now attended upon request and that the Community Advocate came and visited each weekend.
Detainees that are mentally ill are now housed in the "special care unit" and the observations are now correctly done. In addition, there are now weekly meetings at which the Superintendent, the psych nurse and different other outside agencies, the doctor and nurse from the BRC discuss each detainee.
This meeting enabled the creation of a system which did not exist at the date of the death of the deceased.
Mr. MacKenzie also indicated that it was his personal procedure as a supervisor to attempt to ensure that at all times observations were done and that the observation sheets were correctly completed. He conceded, however, that he did not personally check the observation sheets prior to the death of the deceased, but does so now.
He was shown the Ombudsman’s Report (Exh. 111) and agreed with the observations of the Ombudsman concerning a lack of communication amongst mental health agencies particularly in relation to provision of services for detainees at the BRC.
Mr. MacKenzie gave some evidence about the concept of safe cells and indicated that none of the cells at the BRC could be described as completely safe. In his opinion the "special care units" were probably the best. He went on to comment upon his understanding of the reason for the closure of the "special care unit" as explained to him by Mr. Gagalowicz when he was the Director, or acting Director of Corrections. It was Mr. MacKenzie’s understanding that the reason for closing the "special care unit" was purely financial. Mr. MacKenzie was of the view that if the "special care unit" had been properly operating at the time of the death of the deceased it was likely that the deceased would not have died. He accepted that in the absence of the properly operating "special care unit" he would have put the deceased in cell A1. He accepted that there was no written guidelines or policy available at the BRC in relation to the use of safe cells.
Mr. MacKenzie described the problems at the BRC in the following terms: (T, 14,5.97, page 75) "Can I explain it this way that the Belconnen remand centre is an extremely outmoded claustrophobic rabbit warren of a place. You have female detainees, you have illegal immigrants, you have detainees on protection, you have mentally ill detainees and you have some detainees on protection from the other protection detainees, so, consequently you’ve got a whole different variety of detainees and it is like playing a game of chess. You have to juggle them around and keep them separated and keep them in the right spot so they don’t bash each other and harm themselves, so, it is a continual juggling and moving there is no set rules, no set procedures, each day is different." Mr. MacKenzie went on to indicate that he had complained about all of the matters which caused him anxiety over his nine years on numerous occasions, but as I understand his evidence, had on only one occasion submitted a written report. This written report was tendered as Exhibit 227 and was about a particular detainee but Mr. MacKenzie was of the view that the circumstances of that particular detainee was merely symptomatic of the circumstances of all detainees who suffered from some form of disability, particularly mental dysfunction, and he stated that he did not receive any response to his statement. The statement is dated September 1996 and is signed by a number of custodial officers and also by Mr. Aldcroft, the official visitor at the BRC.
Mr. MacKenzie indicated that the procedure in relation to accommodation of detainees which operated at the BRC at the time of the death of the deceased was ad hoc, and the decision as to which unit an individual detainee might occupy at any given time was left entirely to the discretion of individual appropriate officers. He was himself able to move a detainee from one place to another if he thought it was appropriate. The same position applied to other senior custodial officers. There was no policy in existence to control this ad hoc movement of detainees. This situation, according to Mr.
MacKenzie, has changed since the death of the deceased and now the Superintendent must approve all movements within the Centre.
Mr. MacKenzie indicated that he finally gave up in his attempts to cause any change at the BRC and was of the view that while he could not put a precise time on it, it was around about the time of the death of the deceased. He was of the view that things had not changed following the replacement of Mr. Gagalowicz by Mr. Van Hinthum. He said in relation to Mr. Van Hinthum: (T, 14.5.97, page 82)
"I found Mr. Van Hinthum very very easy to get along with and open to suggestions, but I think his hands were tied behind his back with the system also, sir." Mr. MacKenzie gave a definition of a dry cell and went on to indicate that in his view none of the units at the BRC complied with his definition of a dry cell. He conceded that the problems which confronted him and other officers at the BRC on a day to day basis led to substantial frustration. He described this in the following terms: (T, 14.5.97, page 83) "But more than that, more frustrating and more demoralising and more stressful was to work with a group of genuinely mentally ill people and see them day after day, week after week, get sicker, skinnier and more withdrawn and it appeared to you that there was absolutely nothing being done about them. I would feed them. We would look after them. They wouldn’t escape and they wouldn’t bash each other, but the system wasn’t looking after them properly and that was more stressful than anything else. And it does get you down, I mean, I don’t care who you are." Views which Mr. MacKenzie felt were not only his feelings but those of three-quarters of the staff.
Mr. MacKenzie gave evidence concerning the change of observations in relation to the deceased from 15 minutes to 30 minutes. He was not aware, clearly, of why this occurred, but indicated that he understood that the deceased had been moved to the "special care unit" from unit A1 because someone else needed unit A1. He subsequently saw him back in unit A1 but was not aware as to why that occurred and his only knowledge that the deceased was back in unit A1 was the fact that Mr.
MacKenzie saw him there. He was not consulted about the changing of the observations and indicated that had he been asked for his advice he would have recommended against a change in the observations bearing in mind his particular knowledge of the deceased.
He indicated that the "special care unit" was mis-named and was not, indeed, and had not been for many years a "special care unit", but merely another area of the BRC.
He described in some detail the inquiries made by him on the morning of the death of the deceased to ascertain the circumstances in which the observations had been changed from 15 minutes to 30 minutes. His comments related to entries on Exhibit 82. He also gave some evidence concerning the responsibility of chiefs in relation to viewing the A1 monitor. This he indicated was a situation in which there were no written instructions but merely a circumstance in which the chiefs would, from time to time, observe the monitor which he conceded was badly placed. This situation has, of course, now changed.
Mr. MacKenzie indicated that he had not been employed on the night shift for some three years and gave some description of what he would accept as a night shift supervisor. He indicated that his personal views concerning the nature of his requirements had not made him popular and (T, 14.5.97, page 104) "the decent staff I get along with all right in that establishment but with the bludgers and the shirkers I’m not overly popular". He indicated that he was aware that videos were played on the night shift and that this had come to his attention when he had observed the TV being dragged out of the control room. He was aware (T, 14.5.97, page 105) "that they would watch videos all night", and his opinion was that unsatisfactory work practices on the night shift were well known at the Centre. (T, 14.5.97, page 105). In relation to this topic he was asked the following question: (T, 14.5.97, page 105) "So, I take it, it scarcely came as a surprise to you to hear that those sort of practices were being followed again in the years after you stopped being a night shift supervisor?---I wasn’t surprised - I was very upset and shattered but I wasn’t surprised."
Mr. MacKenzie gave some evidence concerning his practice of some years previous concerning the completion by his staff on night shift of observation sheets. He indicated that he had always required them to be completed in his presence and if anyone completed them in block at the end of the shift he would take action against them. He again commented that it was not adequate to merely indicate that a detainee was alive in the morning and that it was necessary for officers to do their work properly.
He accepted that the failure of officers to do their work properly was "an entrenched practice among some people". (T, 14.5.97, page 107) He also had a suggestion concerning an addition to the observation sheets so as to enable a small potted history of the activities of the deceased to be provided on that sheet. He was particularly anxious to have a record of any matter which may have caused a disturbance to the detainee, for example, a fight with his girlfriend on the phone. He also was of the view that electronically recorded observations were an excellent idea.
Day Two - 15.05.97 Mr. MacKenzie gave evidence concerning his understanding of the detainee T incident and was shown the observation sheets relating to Mr. Camden for that evening and compared that with the entries in the control room log. He indicated that in his opinion the relevant observation sheet for the deceased was "a fraudulent document, incorrect." (T, 15.5.97, page 3) He also indicated that he believed that the intercom system may have been turned off by Mr. Black on the evening of the detainee T incident. He initially indicated that it was an assumption on his part, but subsequently stated that he was aware that members of staff had abused Mr. Black for turning off the intercom on that evening. He also made comment, during this passage of evidence, on problems that he was aware of concerning the loss of relevant documents. He was of the view that from time to time such documents were deliberately destroyed. It was his opinion that as a result of this sort of problem the Superintendent had been required to change various locks at the BRC because "he does not trust the staff working in the remand centre". (T, 15.5.97, page 5) Mr. MacKenzie, however, did indicate that there were many occasions on which staff had done very good work and that numbers of people had been saved by the efforts of the staff.
Mr. MacKenzie indicated that he had put in many reports over the incompetence of Mr. Black, but nothing had happened. He was also of the opinion that others had put in reports and it was his view that it was clear not only to Mr. Gagalowicz but also to Mr. Van Hinthum that problems existed with Mr.
Black. Mr. MacKenzie was particularly exposed to the problems created by Mr. Black’s incompetence as he frequently took over the shift from Mr. Black and, accordingly, "copped abuse as a result of problems created by Mr. Black".
Mr. MacKenzie at pages 13 and 14 of the Transcript on 15.5.97 agreed with a very substantial list of problems enumerated by Mr. Buddin. The end result of this listing was that Mr. MacKenzie agreed that "Shannon Camden’s death was an accident waiting to happen". He agreed that officers, including Mr.
Black, management generally and Mr. Van Hinthum were all responsible for the death of Shannon Camden. (T, 15.5.97, page 15) Mr. MacKenzie gave evidence concerning Mr. Kelly, that he "believed him to be a nervous wreck, no self confidence, no self esteem, and I deemed him to be on the verge of an nervous breakdown" (T, 15.5.97, page 20). He was of the view that senior management knew Mr. Kelly had a problem and that included both Mr. Gagalowizc and Mr. Van Hinthum. Mr. MacKenzie accepted that Mr. Kelly had problems speaking to detainees, or in any way dealing with them, and that he covered up that fact of not doing observations by pretending that he had on the observation sheets. Mr. MacKenzie accepted that that was knowledge shared by most people at the BRC and that the management response to the problems exhibited by Mr. Black and Mr. Kelly was to put them on the night shift.
He also indicated that the letter of Mr. Gagalowicz (Exh. 197) of August 1994 was not one with which he agreed. He indicated there was confusion concerning the use of towels or blankets on windows at the time of the death of the deceased and also that the Instruction 89/96 concerning observations sheets did not alter the position for some period of time.
He indicated that since about 1995 there had been a substantial increase in the number of persons being detained at the BRC who suffer from some form of mental illness. He was of the view that since about that time it was not uncommon to have between 10 to 12 such people present in the institution at the one time. He accepted that at the time of the death of the deceased there were staff shortages from time to time and that these impacted upon the detainees, particularly as to early lock down, phone calls, letters and visits. He indicated that at the time of the death of the deceased there were 41 detainees at the BRC and this was the maximum number allowed. He described how in times past there had been more than 41 persons and that in those circumstances some of them slept on the floor in visiting room and that ultimately this had led to an intervention by the Ombudsman.
Mr. MacKenzie gave evidence commencing page 35 of the Transcript of 15.5.97 of his recollection of the events of the morning of the 15th of April 1996. He indicated that it was just after 6:35 a.m. when Mr.
Kelly walked back into the control room and said words to the effect "I can’t see that Camden, or, I can’t make him hear me, or, he appears to be in a weird position". (T, 15.5.97, page 35) Upon hearing those words Mr. MacKenzie was of the view that something was wrong. Also the tone of Mr. Kelly’s voice and Mr. MacKenzie’s instincts indicated to him that there was a problem. He was not able to precisely fix the time, but was of the view that it was approximately 6:35 a.m. He indicated that he was sitting on the right hand side of the control room desk with a large cardboard sheet with names on it allotting posts for the oncoming shift. It was a routine that he had done for years and accepts that that is what he did on that morning. He was asked: (T, 15.5.97, page 37) "Can I ask you just in a generalised sense have you got a pretty clear recollection of the events of that morning? And when I say that morning, in the first half to three quarters of an hour after the - after Mr. Kelly brought that - or had that conversation with you?---Yes, I do." He then proceeded to indicate that while he was sitting at the control room desk, Mr. Black was sitting on his left hand side. He was sitting on the right hand side like he did every morning. Mr. Black remained in the control room at all times, but apart from the entry of Mr. Kelly he did not see any other officers, including Curbishley or Gordon. He was aware of members of his shift coming into the BRC but did not see them. In the course of this chronological process Mr. MacKenzie gave some evidence concerning the handover sheets and the shift arrangements. He indicated that the "person whose the ranking officer for the particular shift does the shift handover entries for the next shift". (T, 15.5.97, page 40) For example, in Exhibit 228 the shift handover for shift "C" which indicates that Mr. MacKenzie was on that shift was, in fact, completed by Rose Oliver, the senior officer of the shift before shift "C" on the 14th of April. Similarly the shift "A" handover document which indicates Mr. Black and others was completed by Mr. MacKenzie and so on. He answered a number of questions concerning the entries on the rear of the handover sheets and indicated that it was a usual procedure for some of these entries to be repeated shift after shift for up to 4 to 5 days so as to ensure that persons who had been off work became familiar with the particular entries. There was no direction that he was aware of as to how long this might occur and it appeared to be an ad hoc arrangement dependent upon some officer taking the initiative to stop copying the entries. He acknowledged that there is a different system now which required, particularly in relation to Superintendent’s Instructions that they be signed by each officer after they had been read.
Following this evidence Mr. MacKenzie returned to his evidence concerning his memory of the morning of the 15th of April 1996. He indicated that having become alarmed at the tone of voice of Mr. Kelly he looked at the monitor in the control room for unit A1. He indicated that he could see a white sheet on the bed but he could not see anyone lying on the bed. The rest of the unit was totally black and he could not see anything. He observed Mr. Kelly near the key cupboard and then walked with Mr. Kelly, or ran, into the security block. Upon the arrival of himself and Mr. Kelly in the security block he observed both Mr. Gordon and Mr. Curbishley were already there. He does not recall any conversation between
himself and Mr. Kelly after the initial conversation referred to above. He also accepts that during this time Mr. Black did not appear to engage in any activity, but merely sat where he was. On his first visit to the unit neither he nor Mr. Kelly had a knife. Upon the arrival at the unit Mr. MacKenzie looked into the unit through the Lexon window, but could not see Mr. Camden. During this time the door of the unit was opened. He is not aware of how the door was opened or who opened it. He indicated that it is necessary to have two keys, a master key and a 750 key in order to open the door at this particular time of the day.
He then observed that the door was opened and he entered the unit. He does not recall whether there was any obstruction by way of a towel on the window. He concedes that he was not able to see into the unit because of the darkness. He remained in the unit for a few seconds and observed the deceased had a piece of white cord around his neck. He then ran down the AB corridor into the induction area and called for the Hoffman knife. This was passed to him and he ran back to the unit.
The others were still at the unit where he had left them upon his return. He cannot recall any conversation occurring up until this time. The deceased was cut down and laid on the floor and then the ambulance arrived. He accepts that this was not a very long period of time.
He then indicated that he had left the unit between the time that the deceased’s body was cut down and the arrival of the ambulance officers and that he had run back to the control room and yelled out for someone to make sure that they rang the ambulance, the Superintendent, and to hurry. He also indicated that at that time he asked someone to log all the times. He indicated that the wall area of the control room consists of a one way Lexon glass and that he was shouting through the glass but did not know to whom he was shouting. He assumed it was Mr. Black.
He then returned to the unit and noted that all three officers were still there. The ambulance arrived and Mr. MacKenzie then said as follows: (T, 15.5.97, page 54) "the ambulance driver just walked into the unit, looked at him, and he said, I remember exactly what he said, "He doesn’t - he doesn’t need me he needs a fucking priest".
He again indicates that he does not recall any conversation save for the fact that he remembered saying to Mr. Curbishley that the deceased was dead.
After the deceased was cut down he was placed on the floor and Mr. MacKenzie says he then attempted to check the deceased’s vital signs. This occurred after the return to get the Hoffman knife.
He says as follows: (T, 15.5.97, page 55) "Immediately after, there was Mr. Curbishley on one side of him and Mr. Gordon on the other, holding him up, relieving the pressure from his neck, and I had the Hoffman knife and cut the torn sheet from around him and he was laid down on the floor. I remember vividly leaning over him. I put my ear to his mouth. I felt the veins, the main veins on both sides of his neck and his pulse. I touched him. The room was really hot because the heater was on and he was absolutely cold. He was blue." He indicated that he had not seen either Mr. Curbishley or any other officer check for vital signs, but accepted this may have occurred while he was away from the unit. He went on as follows: (T, 15.5.97, page 55)
"And at the same time feeling how cold he was and I also noted the blue and white colouring of him, and I noticed a very light blue strip around his neck where the blood, appeared to me, to be draining of (sic) where he had strangled himself." He indicated that in his opinion the temperature in the room was in excess of 210 C.
Mr. MacKenzie then stated that in his opinion the deceased had been dead for "at least three to four hours". (T, 15.5.97, page 57) He accepted that he did not perform CPR which he defined as, including amongst other things, heart massage and mouth to mouth resuscitation. He did not do that because he knew the deceased was dead. He was not aware of any regulation or rule operating in the BRC that imposed any duty upon him to perform CPR but was aware that he was duty bound to give someone appropriate first aid. He indicated that he would not be surprised if there had been confusion about the requirement to do CPR.
He then indicated that he had had a conversation with Mr. Kelly as follows: (T, 15.5.97, page 58) "I said to Mr. Kelly, "When did you last check him?" And he said, "I checked him at 6 am"." He went on to say that the conversation perhaps was a little more detailed and that it was in the following terms: (T, 15.5.97, page 58) "Yes, there is. I said to Mr. Kelly, "When did you last check him?" And he said, "I checked him at 6 am. I could see the top of his head above the privacy screen. I thought he was having a shit. I didn’t want to embarrass him and look at him for too long and I kept doing my rounds"." He accepted that this conversation did not appear in any of the statements which he had provided to the Inquest. He was of the view that at the time of this conversation both Mr. Gordon and Mr.
Curbishley were present and it was his memory that the conversation occurred after the ambulance arrived. He indicated that notwithstanding the comment made by the ambulance officers that one of them checked the deceased for vital signs. He further recalls his concern when on his return to the unit he discovered that the torn sheet which had been around the slats in the privacy screen had been removed and laid on the floor. He expressed his concern to those present but was unable to ascertain from any of the officers present who had removed the sheet. He then decided that he would stand guard at the door so as to preserve the integrity of the scene.
During the course of this evidence a diary to which Mr. MacKenzie had referred earlier was produced and some discussion took place between Mr. Buddin and Mr. MacKenzie concerning it’s use. Mr.
MacKenzie was of the view that it was, for practical purposes, his principal point of reference for the carrying out of his function, but conceded that it was not necessarily the same for other officers and that this, again, was a problem in relation to the use of documentation in the BRC.
The evidence then returned to the unit A1 and Mr. MacKenzie was of the view that the conversation concerning the removal of the cloth from the privacy screen had occurred during his second visit to the unit and the conversation with Mr. Kelly had occurred during his third visit to the unit.
In continuing to give his evidence concerning the conversation with Mr. Kelly, he was asked: (T, 15.5.97, page 65)
"Did you know that he purported to have done the previous observation?---Yes, I did.
How did you know that?---I assumed he did because I saw him doing the 6:30. I saw him walking up the A-B corridor doing a round at approximately 6:30." He had from this observation assumed that Mr. Kelly had also done the 6:00 observation. He conceded that he had no reason to know that he did the 6:00 round. He was asked as to why Mr. MacKenzie had asked Mr. Kelly as opposed to anyone else when he had last seen him. He was not able to offer any explanation for that. He also indicated (T, 15.5.97, page 66) that he did not accept the answer given to him by Mr. Kelly that Mr. Kelly had observed the deceased at 6:00 a.m. He did not challenge Mr. Kelly on this point at that time. He was not able to answer why he did not challenge Mr. Kelly. He did recall, however, that at a later point in time during the course of the morning he did say to Mr. Kelly "Are you sure you saw the top of his head above that privacy wall, sitting on the toilet?" And he said, "Yes, I am." (T, 15.5.97, page 67) That was the extent of the challenge. When pressed again about this point as to why there was no challenge, Mr. MacKenzie made the following comment: (T, 15.5.97, page 67) " No, not really, not under the circumstances. I knew that - well the police were there and they were in charge of the investigation and I knew that everyone would be questioned and have to give detailed statements. I didn’t feel it was up to me to question him." He did accept that as the superior officer of Mr. Kelly he could have pressed him in relation to the events of that morning, but accepted that it was a real dilemma for him. He was asked by Mr. Buddin: (T, 15.5.97, page 68) "What was the dilemma?---The dilemma was that he said to me, "I thought he was sitting on the toilet, I saw his head above the privacy wall." I had him saying that and I had the deceased lying there which told me something totally different." Well, how did you choose to resolve the dilemma?---I chose to resolve the dilemma that I knew that the police would be arriving soon and I knew that you cannot argue against the clock and the physical characteristics of somebody that had been dead for a considerable length of time." He accepted that it had entered his head that Mr. Kelly had not been doing the observations on that night, and that it was clear to him that Mr. Kelly was not telling him the truth. He accepted that notwithstanding those factors he chose not to take the matter any further. He went on to say: (T, 15.5.97, page 68) "I’d have to be totally honest, dealing with the sort of fellow you are, if you came the bounce with him, he would burst into tears and clam up and just wouldn’t say a word.
If I grilled him, I would not have got a thing out of him." He did not think of the alternative of telling the police that Mr. Kelly was lying to him and when asked for an explanation indicated that he was not asked by the police in relation to that question. He accepted there was nothing to prevent him from telling the police, but chose not to do so. He accepted that this piece of information, namely his understanding of the time of death of the deceased and that Mr. Kelly was lying to him, was a piece of information that could have been absolutely vital to the police investigations and notwithstanding this he did not tell the police.
When asked to explain this he had no explanation. It was suggested by Mr. Buddin that the explanation was that he was trying to protect Mr. Kelly. Mr. MacKenzie accepted in hindsight that that was probably correct, but again reiterated that he knew in due course that Mr. Kelly would be found out.
Mr. MacKenzie indicated that he wasn’t asked questions by the police concerning these matters and that he did not volunteer the information. He accepts that after his conversation with Mr. Kelly the three other custodial officers, including Mr. Kelly, disappeared for awhile, but he did not know where they had gone.
During the morning he required all three officers to complete internal reports and suggested to them that they should be done independently and in separate areas. He did not instruct them in any way as to what they should put in their report, but merely to keep it brief and factual and not to forget that they had to make a further statement to the police.
He indicated that he had, at a point in time he believed prior to the commencement of the internal reports by the several custodial officers, a brief conversation with Mr. Curbishley about CPR. In due course he indicated that he had said Mr. Curbishley that there was no point doing CPR as the deceased was dead. He was also of the view that "Mr. Curbishley was in a mess. I don’t think he knew what he was doing that morning." He indicated that Mr. Curbishley seemed to be very anxious and perturbed about the failure to give CPR. He also accepted that the conversation with Mr. Curbishley and the conversation with Mr. Kelly did not appear in any of his statements provided to the Coroner.
Mr. MacKenzie was asked a series of questions concerning when he first saw the annexure to Exhibit 60, which was the Detainee Observation Sheet in relation to the deceased for the 15th of April 1996. Mr.
MacKenzie stated that he had seen an ob sheet with the deceased’s name on it in the front control room when he was doing the post. There was a pile of documents on the desk which included a document with Mr. Camden’s name on it. He was of the view that this would have been about 6:20 to 6:25 a.m. He was not able to say whether it was the same document that he was shown by Mr. Buddin that he had seen that morning. He could only remember the name and that it was partly filled out.
When questioned as to what partly filled out meant he indicated that it had writing on it, but was not able to take it much further. He said that the document was incomplete. He did accept, however, that it did appear to be correctly filled out. He was then asked: (T, 15.5.97, page 78) "How did it appear to be correctly filled out if it was incomplete?---You can - I can’t answer that. Look, I’ve got to get - I don’t mean to be repetitive - I’ve got to get back to the same answer. I cannot tell the court whether the document was fully filled - really filled out. There was writing on the lines. I did not take any notice. I didn’t pick it up go through it line by line and I would be able to tell the court I didn’t do that. I just didn’t do it." He had no knowledge that he had seen the document prior to Mr. Kelly raising the alarm. He was then shown, again, the document (Exh. 60) and said "I can’t say that document there at all. I don’t even remember if it was blue or black writing. I’m not going to say that document because I don’t remember." (T, 15.5.97, page 78) He was then asked a number of questions concerning the significance, if any, of the mention of blue or black writing. Ultimately this line of questioning did not lead anywhere.
Mr. MacKenzie was then asked a series of questions about conversations with the ambulance officers and accepted that he did not remember telling the ambulance officers that the deceased had been found at 6 o’clock, nor that resuscitation had been commenced and then ceased. He did indicate that whatever it was that he said he could have left the ambulance officer with the impression that resuscitation had been commenced, but the attempts had ceased, but if he did leave them with that impression it was not correct.
He was then asked questions in relation to whether he had seen Mr. Kelly with an observation sheet for Shannon Camden on the morning of the 15th of April 1996 and he indicated that he did not. He did, however, indicate that he had a conversation with Mr. Kelly concerning the observation sheets. This was to the effect that he hoped to Christ the observation sheets had been filled out correctly and was told by Mr. Kelly that they had. His memory of this conversation was that it had occurred at some time
after the police had taken away the observation sheets and the duty log. He recalled further that Mr.
Kelly had indicated to him that the police had the observation sheets. He further indicated that this conversation did not appear in any of the statements made by him and provided to the Coroner. He indicated that he was now able to recall the conversation because it was of significance as he was concerned at some point in time on the morning of the 15th of April 1996 as to the status of the observation sheets. He did not speak to anyone other than Mr. Kelly concerning the observation sheets.
His explanation for this was that Mr. Kelly was there and he was on duty. He accepted that it was the responsibility of all three CO1’s on duty that morning to ensure that the observations were carried out and the observation sheets were correctly completed, but was not able to answer why he asked only Mr. Kelly.
He indicated that when the evidence concerning the failure to carry out the observations and the rewriting of the observation sheet was exposed during the Inquest he regarded this as "one of the greatest senses of betrayal that I’ve copped in nine years out there." (T, 15.5.97, page 86) He again conceded that he accepted that Mr. Kelly, having lied to him in the unit concerning the last observation of the deceased, and having made his comment concerning the observation sheets, it clearly indicated that Mr. Kelly had also lied in the observation sheets. Notwithstanding this Mr.
MacKenzie accepted that the truth would ultimately come out and that Mr. Kelly would be caught. He further conceded that notwithstanding all of this knowledge, he was not going to do anything which would contribute to the misery that Mr. Kelly was going through and answered yes to the question "Mr.
Kelly was for the high jump and you weren’t going to push him?" (T, 15.5.97, page 88) Mr. MacKenzie was then directed to his statement (Exh. 225) in which he had indicated that the first time he had seen the observation sheet was at approximately 6:35. He accepted that this evidence and his earlier evidence of 6:20 or 6:25 could not stand together. He accepted that this statement in his statement to the police (Exh. 225) was a mistake and explained this mistake by indicating that when he had attended at the police station to be interviewed on this second occasion it was indicated to him that he was part of a mass conspiracy in relation to the re-doing of the ob sheets and the Hoffman knife. This statement caused him substantial concern and in his view probably led to him making the mistake concerning the times when he had first seen the ob sheet.
The evidence which Mr. Kelly had given concerning a conversation at about 6:45 a.m. when it was alleged by Mr. Kelly that Mr. MacKenzie had made comments concerning the observation sheets were denied by Mr. MacKenzie. He was of the view that the cover up was limited to the three officers involved and that they had kept this secret to themselves for the whole of the time since the 15th of April 1996.
He was asked a number of questions concerning the evidence given witness D. He indicated "I’m aware she gave evidence, but I’m not aware of the contents of her evidence." (T, 15.5.97, page 94) He accepted, however, that he understood in general that she had "rubbished the place pretty well and the staff." That he said he had gleaned from general gossip. He denied that he had ever heard any suggestion that there had been a rewrite of the observation sheets as suggested by witness D. His evidence was that in court was the first time that he had ever heard the details of the actual evidence she gave concerning her discussion with witness M. He was asked: (T, 15.5.97, page 96) "Witness M. has never said anything about this to you?---Absolutely not."
Day Three - 16.5.97 Mr. MacKenzie commenced his evidence by discussing again the conversation he had with Mr.
Curbishley concerning CPR. He generally agreed with the evidence that he had given earlier. He denied that he had a conversation with Mr. Curbishley in which Mr. Curbishley raised the question of whether or not there should be any reference in the internal report to the question of CPR.
He also gave evidence of conversations that he had on the day of the death of the deceased with Mr.
Fitzgerald. He indicated that Mr. Gagalowicz, who apparently was present at the time, expressed concern and hoped that there would be no trouble because of the closure of the "special care unit".
He accepted that Mr. Fitzgerald had raised with him the question of there being no record of an attempt to give CPR and he says his answer was as follows: (T, 16.5.97, page 8) "You can mark me done, quote my name. I attempted to give it to him but I realised he was dead and I didn’t properly give him mouth to mouth but put my name down." He indicated that his definition of attempted CPR was that he did the preliminaries, but conceded that he told Mr. Fitzgerald that he had attempted CPR. He accepts that he did not tell Mr. Fitzgerald that he believed Mr. Kelly had lied to him and was not able to explain why he had not done so. He accepted that he had not told Mr. Van Hinthum about the lie and could not answer why he had failed to do so.
He accepted that Mr. Van Hinthum would have been interested in obtaining this information but his failure to do so was not significant as the matter would be investigated by the police and the truth would come out. He could not answer what harm there would have been to have told the Superintendent. He accepted that he did not tell the police about Mr. Kelly and that the first occasion he had told anyone was during a discussion he had had some two months ago which ultimately turned out to be about February, 1997 with Mr. Curbishley and Mr. Gordon. On that occasion he indicated that a discussion took place in which it was indicated to him that if he gave evidence that the deceased had been long dead then everybody would be in trouble. He indicated that he told Mr.
Curbishley and Mr. Gordon that he knew the deceased had been dead for awhile. He accepted that there was no comment concerning this conversation in any of his statements. He accepted that the first time he had told anyone about Mr. Kelly’s lie was in court. He was not able to answer why he had kept that to himself. The only other occasion on which there had been any discussion concerning any of these matters was with Mr. Frame.
These conversations were, of course, in addition to the CPR meeting held prior to the commencement of the Inquest. He accepted that he did not raise the question of Mr. Kelly’s lie at that meeting and accepted that he should have raised it.
The evidence then turned to the question of his knowledge of what witness D. had said in court. He accepted, ultimately, that the evidence he had given earlier was incorrect and that he had indeed had a conversation with witness M. in which he had told him the effect of the evidence given by witness D. He explained that he had recalled this conversation with witness M. after he had left court earlier and during his trip home. He did not think it was appropriate to raise it first thing today when he was asked by Mr. Buddin whether he wished to change any of his evidence. He indicated that it was not in his mind at that time.
A lengthy series of questions were asked concerning the potential for the evidence concerning the time of death of the deceased not to come out in court. Mr. MacKenzie indicated that he was not overly concerned about that as it was his intention to tell the truth to the Coroner whatever happened.
He accepted that it was possible that the evidence may not have come out and he also accepted that during the numerous discussions that had gone on between the date of the death of the
deceased and the court dates, that he had never heard any suggestion that there was any evidence concerning the time of death of the deceased.
He accepted that he had another opportunity to reveal his knowledge during the preparation of his statement of the 30th of April 1997, but had not done so. It was put to him how it continued to be a dilemma when Mr. Kelly had moved away from that position. He was unable to answer that question.
He was asked: (T, 16.5.97, page 22) "Why didn’t you put it in the statement if you were going to then come and tell me about it? Why keep it a secret still?---I can’t answer that. Maybe of some - still some loyalty to Mr. Kelly, I can’t really answer that, sir." During the course of these questions Mr. MacKenzie amended the internal report (Exh. 130). He was also advised of the fact that he had looked at Exhibit 225 on seven occasions to either verify it’s truth or amend it. He indicated (T, 16.5.97, page 34) that the reason he had covered up for Mr. Kelly was that he was concerned that Mr. Kelly might commit suicide.
He indicated that he had had numerous discussions with staff, which turned out to be Mr. Curbishley, Mr. Gordon and Mr. Frame, in which they had attempted to entreat him to mislead the court and to participate in their cover up. he accepted that from about the 15th of April 1996 he knew that there were other people other than Mr. Kelly who were directly involved in the cover up. He accepted that he was asked to join that cover up. He was not prepared to say that that invitation had been issued as early as 7 or 7:30 a.m. on the morning of the 15th of April 1996, but was prepared to accept that it could have been. He accepted that nowhere in any of his statements did he make reference to any of these comments and the discussions between the various officers. He concluded by accepting that he knew there was a cover up going on from the 15th of April 1996 and that he had not told anything of this to either the police, his superiors or anyone other than the Coroner yesterday. He had no explanation for why he had failed to do so other than that he had formed the intention a long time ago to tell the court the truth.
He again gave evidence concerning his interview in April 1997 with the police and again indicated that he was horrified by the police suggestion that he was some how involved in a conspiracy.
Notwithstanding his horror he did not believe it was appropriate to tell the police anything about his actual state of knowledge.
A series of questions were asked in relation to the observation sheet concerning the deceased of the 15th of April 1996. Mr. MacKenzie had indicated in his statement to the police initially that he had first seen this after the death of the deceased. He had subsequently agreed that he had first seen it before the death of the deceased. His final position on the evidence seems to be that he now believes he first saw it before he became aware of the death of the deceased. He was not able to explain why he had been so certain as to one point at one time and now so certain as to the other at another time.
He indicated that he did not have any knowledge of what Mr. Kelly had said to the police. He also conceded that he was not able to be absolutely certain of the order of conversations he had in the morning or indeed the times at which the conversations had occurred.
He accepted that during the conversation he had with Mr. Frame prior to Mr. Curbishley’s revelations that he had indicated to Mr. Frame that he, Mr. Frame, may be able to suggest to Mr. Curbishley that Mr. Curbishley had misunderstood what it was that he had seen. He accepted that he was "trying to provide Mr. Curbishley with a way out of the dilemma." (T, 16.5.97, page 73) He accepted that this was totally inappropriate and he ought not to have made the comment and, indeed, he ought not to have spoken to Mr. Frame at all. His explanation for this was "I will concede at the time that was the wrong thing to say. At the time I was very upset and I was very cranky. That would been a culmination of twelve months of pressure on me and I had just had enough." He accepts his conduct involved him in an attempt to have the course of justice perverted (T, 16.5.97, page 74).
Following the conversation with Mr. Frame a meeting occurred at the BRC in which it was stated by Mr.
MacKenzie that everyone should stick together. He accepted that this was an unfortunate choice of words in the circumstances where he knew Mr. Kelly was intending to lie. He was asked: (T, 16.5.97, page 75) "Well, how could people stick together and tell the truth if Mr. Kelly had told a lie?---I can’t answer that." This answer, I can’t answer that, represents one of 30 times that Mr. MacKenzie has used this expression during the past three days. It was suggested to him that the effect of his statement to stick together and it would be all right may have led to other officers believing that it was appropriate that they should stick together whatever the truth might be. While Mr. MacKenzie was of the view he had not meant the comment in that way he accepted that others may have interpreted it in that way.
The same effect occurs in relation to his comments with respect to CPR. While he accepts he used the words spoken of by others he states that he did not intend them to be taken in that particular way, that is to say, for people to believe that he was going to say things that were untrue. He accepts, on this occasion, as well as the occasion concerning stick together that people may have got that impression, but he did not intend them to do so. He accepts that his comments were extremely careless. In relation to the CPR meeting he again indicated that the CPR was a problem with others but was never a problem with him although he did not make any statement at the meeting, or indeed at any other time, to clearly indicate to custodial officers what his actual position was. It was put to him by Mr.
Buddin that cynical observers may take the view that he way sitting on the fence concerning these matters, but he denied this suggestion.
At the end of examination-in-chief I asked Mr. MacKenzie a number of questions concerning his statements that he intended to tell me the truth. Following these he accepted that he had not told me the truth initially notwithstanding his resolve to do so.
Mr. MacKenzie was cross-examined by Mr. Bradfield who asked a number of questions concerning his role as acting Superintendent and whether he had made specific complaints concerning treatment of psychologically ill people in the BRC at that time to which Mr. MacKenzie answered no. It seems, however, on the evidence that he did not occupy the role of acting Superintendent or acting Deputy Superintendent for other than short periods and some years ago. He also indicated that he was aware at the time that Mr. Kelly was highly unlikely to be doing his observations and that Mr. Black would not be supervising them properly. He also stated that he was aware that on numerous occasions he had attended at the control room to take over from Mr. Black to find the monitor switched off and also the intercoms.
He indicated that he had complained to Mr. Van Hinthum on several occasions about Mr. Black and also Mr. Kelly, but that nothing had happened as a result of these complaints. He indicated that Mr.
Van Hinthum had agreed with him concerning the capacity of Mr. Black.
Day Four - 19.5.97 Mr. MacKenzie gave some further evidence about the operation of the cameras at the BRC and in particular as to the availability of a video tape on one of the cameras. He accepted that he did not tell the police about the availability of the video as he thought the police had the tape. When pressed as to why he did not tell the police, he once again replied "I can’t answer that". He indicated that while he had no real reason to say that he believed the police had the tape, his position was that he could not believe that they did not remove the tape.
Mr. MacKenzie also indicated under cross-examination from Ms. McGregor that one of his concerns with respect to the operation of outside agencies was "there’s no actual charter and any one person responsible for mentally ill people locked up in the Remand Centre." (T, 19.5.97, page 25) While Mr.
MacKenzie had included the Community Advocate in his list of persons or organisations whom he believed had not carried out their responsibilities to mentally ill persons in the BRC, he accepted, under cross-examination from Ms. McGregor, that there had never been a time when the Office of the Community Advocate had failed to respond when requested and that he also accepted that the Community Advocate did perform appropriately at the BRC. He was, however, of the view that prior to the death of the deceased they had not been pro-active in the way that they are now in the sense that the Office of the Community Advocate now sends someone out to the BRC on a regular basis. He also indicated, once again, that one of his principal concerns about the treatment about mentally ill people was the period of time that they were left in the BRC when, in his view, nothing much seemed to be occurring. He also accepted that he was in agreement with a suggestion which had been put by the Office of the Community Advocate to Gazette the so-called "special care unit" under the provisions of the Mental Health Treatment and Care Act so that it had a statutory existence. He also accepted that other than the "special care unit" there seemed to be no proper facilities for any mental health patient to go.
Mr. Erskine cross-examined Mr. MacKenzie at length and Mr. MacKenzie indicated that the detainee B.
was the only person in relation to whom he had ever lodged a formal written complaint. He indicated that he had raised many problems with various people, including Superintendents and acting Superintendents, but that detainee B. was the only person in relation to whom he had made a formal complaint.
He indicated that there was gossip at the BRC that observations were less likely to be carried out in relation to people kept in the "special care unit" area as it was further removed from the other yards.
Mr. MacKenzie described to Mr. Erskine in some detail the procedures involved in an officer of his rank making decisions as to placements of detainees at the BRC. He was also of the view that it was not necessary for him to report in any way to the Superintendent about his decision concerning a placement. He was content that the Superintendent became aware of the results of the placement by perusing various documents that were available and supplied to the Superintendent.
Mr. MacKenzie indicated generally during his cross-examination by Mr. Erskine that he had not reported the approaches made to him by officers Frame, Curbishley and Gordon which, in his view, were suggesting to him that he ought perjure himself in relation to the question of CPR and also in relation to the time of death of the deceased. He did, however, indicate that he did speak to Mr. Van Hinthum after he received the phone call from Mr. Frame. He did this because he was upset and cranky and did not appreciate being rung at home. When pressed as to why he had failed to tell the Superintendent or, indeed, anyone else about these approaches he answered that he had intended at all times to tell the court as he believed that the Magistrate was the only proper person to whom these matters ought be revealed.
He also indicated that at a point which he was not absolutely able to identify, but which he believed was fairly close to the 15th of April 1996 he had a conversation with one of the investigating police who indicated to him that there was no problem in relation to the investigation and no problem in relation to the time of death (T, 19.5.97, page 76).
Mr. MacKenzie was asked a number of questions concerning his earlier expressed attitude of only answering questions put to him by the police and not volunteering any additional information. I asked him (T, 19.5.97, page 79) the following question: "So whatever they asked you that led to those answers, you say you would have required a question, "Well, how long do you think it was dead?" before you would have given that answer?---Yes, sir.
Nothing less specific than that?---Yes, it was in question and answer format and I answered to the best of my belief, the truth.` Well, that is perhaps strictly not correct but you answered to the best of your ability what you had decided to tell them?---Yes." Mr. MacKenzie also indicated that there was little use, ultimately, in complaining to Mr. Van Hinthum about the various matters about which Mr. MacKenzie expressed anxiety as even if Mr. Van Hinthum did investigate which Mr. MacKenzie accepted he would it would be pointless "because the staff wouldn’t dob their work mate in." (T, 19.5.97, page 85) Mr. Erskine then proceeded to ask him the following question: (T, 19.5.97, page 85) "I see, so you thought there was just no point at all in saying anything about this incredible incident?---As funny as it sounds I’m the only one that will put people on paper and try and get them the sack like I’ve done with numerous people in the past.
The culture is you don’t dob your work mate in." The incredible incident referred to by Mr. Erskine related to detainee T.
Mr. MacKenzie indicated that at this point, particularly about the time of the detainee T. and Shannon Camden incidents, that he had given up and did not pursue any of the matters any further.
He made the following declaration at page 86 of the transcription of 19.5.97: "Can I just say I live every day of my working life with people threatening to bash me, people trying to commit suicide. It is as common as you reading through a brief of evidence. I live with people dying nearly very working day of my life. We have saved dozens of people’s lives in that remand centre over the years and got no thanks for it at all. I suppose it’s sort of familiarity breeds contempt. It’s just a fact of life. It’s your
working life. People slashing their wrists, trying to slash their throats, jumping off bar fridges, attaching (sic) each other. It is just a fact of life." Mr. MacKenzie was asked a number of questions concerning whether particular changes had occurred after the death of the deceased and indicated that there had indeed been ongoing problems even after the issue of Superintendent’s Instructions concerning changes to the observation regime. In particular Mr. MacKenzie gave evidence that he had on numerous occasions after the change in the observation regime initialled documents which ought to have been initialled or signed off by other custodial officers of his or lower rank. He accepted that this was not correct, but accepted also that he did not bring it to the attention of Mr. Van Hinthum in a particular way. He says that as a result of conversations that he had with Mr. Van Hinthum that he accepted that Mr. Van Hinthum knew of the problems and was frustrated by the failure of the staff to carry out his instructions. Mr. MacKenzie stated that during one of the conversations he had with Mr. Van Hinthum, Mr. Van Hinthum had said as follows: (T, 19.5.97, page 99) "I cannot believe the blokes we’re working with. We’ve had all this trouble here and they’re still not filling the ob sheets".
He went on to say: "He was aware that they still weren’t filling the ob sheets out. He was aware of that, sir." I asked him the following question: (T, 19.5.97, page 100) "What, were you saying that the fact that the superintendent may have issued a direction that changed the whole operation, at least, of supervisors was something that nobody took any notice of?---Not - well, some people did but Mr. Van Hinthum expressed his anger to me numerous times, what have I got to do to get these people to fill the ob sheets. There’s a matter going to go before the Coroner’s court.
Someone’s dead and I still can’t get the staff here to fill the ob sheets out correctly. He said, "I just can’t believe it". And I said, "Yes, I agree with you, sir". "What has it got to take to get these people to fill the ob sheets out." He was just so frustrated." Mr. MacKenzie accepted that in signing off the forms as he did which he did on a number of occasions amounted to him doing the wrong thing.
At page 103 of the Transcript of 19.5.97 Mr. Erskine commented upon the regular use of the term "I can’t answer that" by Mr. MacKenzie. He was specifically asked "is it because you can’t remember?---No." I note that Mr. MacKenzie used this expression no less than 52 times during his evidence.
Mr. MacKenzie indicated that he had never heard any explanation other than an economic one for the closure of the "special care unit".
Mr. MacKenzie was asked as to his understanding of the role of Dr. Rosenman. He indicated that he understood the position to be "I believed him to be the visiting psychiatrist that we should ring when we had a problem with a mentally ill person to review their medication." (T, 19.5.97, page 110) He went on to indicate that he was of the view that either himself, the nurse or Dr. Rosendahl were able to ring Dr.
Rosenman directly or Dr. Rosenman’s secretary to request Dr. Rosenman to attend to advise the BRC or to treat a detainee concerning that detainee. Mr. MacKenzie accepted that he had never seen any document that set out that policy, but it was his understanding that that was the way it worked based upon his experience.
He was asked a number of questions concerning his view of Mr. Camden and indicated that while Mr.
Camden was clearly unwell he was not one of the worst problems which Mr. MacKenzie had had to confront insofar as a person with mental problems was concerned. His principal concern with respect to Mr. Camden was "He was there for too long. It seemed that nothing was being done about the man and he was getting worse." (T, 19.5.97, page 112) Day Five - 20.5.97
On this day Mr. MacKenzie was cross-examined by Mr. Refshauge, by Mr. Bradfield briefly again and by Mr. O’Callaghan.
Mr. MacKenzie accepted that he was part of the culture of the BRC and conceded that that culture was at least to a certain extent an impediment to reform at the BRC. He conceded that being part of the culture of not dobbing in your mates would inhibit him from assisting the Superintendent to reform the BRC. He conceded on a large number of occasions to Mr. Refshauge that actions taken by him had amounted to a breach of the Standing Orders and he also conceded that he had covered up for Mr. Kelly.
He made a number of comments about Mr. Kelly and also the role of Mr. Van Hinthum. He made the following comment: (T, 20.5.97, page 20) "I am saying full well that Mr. Van Hinthum and the whole system knew that Mr. Kelly was not operating properly and not one of them stood up and did a thing about it.
Not one of them including the director, Mr. Gagalowicz. That’s what I’m saying. The whole system put up their hands. It was too hard. Let’s sweep it under the carpet. Let’s put him on night shift where - do you have lives in danger. Let’s just forget about it.
Don’t send him to the CMO. Don’t psych him out. Don’t worry him too much. Don’t give him a package. Let’s just forget about it and that is the truth." He conceded that he had not advised the Superintendent or anyone of his views concerning Mr.
Kelly’s potential for self harm.
He confirmed that he had on one occasion complained in writing about Mr. Black and that action had been taken by Mr. McLaughlin in relation to that complaint. Thereafter he did not make any further complaints in writing about Mr. Black. He also stated that "Every supervisor, every supervisor in that place, every supervisor knew he was grossly incompetent." referring to Mr. Black. (T, 20.5.97, page 27) It appears that apart from his complaint in writing about detainee B. the complaint about Mr. Black was the only written complaint made by Mr. MacKenzie. He indicated that in about 1993 or thereafter he, in effect, gave up. He stated (T, 20.5.97, page 29) that the only reason he had stayed in the job was "purely a mortgage".
Mr. Refshauge took Mr. MacKenzie through a substantial number of the Minutes of Senior’s Meetings conducted over a period of some years. He pointed out to Mr. MacKenzie that a number of the matters referred to in the Minutes reflected action taken by Mr. Van Hinthum to change and/or improve the system. Mr. MacKenzie accepted this position.
Mr. O’Callaghan asked Mr. MacKenzie a number of questions concerning Mr. Curbishley and the issue of CPR. He stated: (T, 20.5.97, page 73) "I put it to you that he asked you whether the failure to give CPR should be put in the report that was to be prepared internally, and you said no don’t refer to it?---No, I don’t recall that at all." He conceded that none of the Internal Reports or the reports to the police mentioned CPR not having been given.
Mr. O’Callaghan put to Mr. MacKenzie (T, 20.5.97, page 78)"that on no occasion did Gavin Curbishley suggest to you that you should say or that any of them should say that CPR had been given?" Mr.
MacKenzie denied this suggestion. Mr. O’Callaghan put the following question to Mr. MacKenzie: (T, 20.5.97, page 79) "That Mr. Curbishley coming here knowing that and giving evidence the way he did, makes no sense at all?---I couldn’t agree more. I couldn’t believe it either. I couldn’t believe the stupidity of the fellow. I’ve spent 12 months telling him I had not given him mouth-to-mouth and he came to this court and stated that he thought I did. I couldn’t believe it."
Mr. MacKenzie maintained that Mr. Curbishley, although a junior officer, had, in fact, suggested to Mr.
MacKenzie, a senior custodial officer, that he should commit perjury. And further, notwithstanding that he, Mr. MacKenzie, had made it abundantly clear that he would not, that Mr. Curbishley went ahead at the Inquest and gave the evidence that he did. Mr. MacKenzie concluded his evidence on this date in the following way: (T, 20.5.97, page 83) "And you are the only one in the Centre who doesn’t have problems in respect of this matter?--- Well, that’s right." This question was in relation to the general ongoing debate about CPR and the question of perjury.
Day Six - 23.5.97 The bulk of the evidence of today involved the cross-examination of Mr. MacKenzie by Mr. Butcher on behalf of Dr. Rosenman and also Dr. Rosendahl. Mr. MacKenzie accepted that the usual procedure involving physical or mental health problems was for him to contact Dr. Rosendahl or Mr. Jones. He conceded that to go direct to Dr. Rosenman was a departure from this accepted and usual procedure.
There was much questioning of Mr. MacKenzie by Mr. Butcher as to his understanding of the role of Dr.
Rosenman and whether he, in effect, accepted that there may be a conflict between the role of Dr.
Rosenman as a treating doctor and a possible role of Dr. Rosenman as a calmer of detainees for the benefit of the BRC staff. Mr. MacKenzie did not seem to accept, necessarily, that there was a distinction in these roles as he appeared to be of the view that if a detainee was calm as a result of some form of treatment or medication then that assisted not only the BRC staff but also the individual detainee.
Mr. MacKenzie described the reality of the situation at the BRC in his view as follows: (T, 23,5.97, page 8) "I think the reality of the situation is on numerous times I’ve tried to ring Mr. Alan Jones and couldn’t get on to him. On numerous times I have rung Dr. Rosendahl at home and not got onto him. I have rung Dr. Rosenman, then, and he has not attended. I have then rung back Dr. Rosendahl and told him, I’ve always liaised with him and told him what I’ve done. On numerous times, I’ve rung Dr. Rosenman, his Secretary, or someone from the mental health crisis team and got no reply.
Mr. MacKenzie stated (T, 23.5.97, page 36) that he and the other staff at the BRC felt that they had been let down by health professionals who had links with the BRC.
Mr. Butcher ultimately put the following question to Mr. MacKenzie: (T, 23.5.97, page 38) "I suggest to you that on no occasion have you personally requested the attendance of Dr Rosenman and he has firstly simply told you that he would attend and than failed to attend. Now do you agree or deny that?---It is totally incorrect." During the course of the cross-examination of Mr. MacKenzie Mr. Butcher put two particular cases to which Mr. MacKenzie had referred as examples of the problems he had experienced with Dr.
Rosenman. Both of these examples occurred many years ago.
There was a substantial dispute between Mr. MacKenzie and Dr. Rosenman concerning direct contact between Mr. MacKenzie and Dr. Rosenman. It is not appropriate for me to attempt to resolve this conflict. Dr. Rosenman was overseas at the time of the evidence given by Mr. MacKenzie, but provided a number of statements disputing Mr. MacKenzie’s evidence. I am content in the circumstances to leave the question unresolved, but merely rely upon it as a clear indication of the confusion that existed at the BRC as to the role of outside agencies. It is clear from Mr. MacKenzie’s evidence that he was of the view that he could, in special circumstances, contact Dr. Rosenman direct. It is clear from Dr.
Rosenman’s evidence that he was of the view that Mr. MacKenzie had no right to do this and that if Mr.
MacKenzie wished to obtain the services of Dr. Rosenman he had to do so through Dr. Rosendahl or through a nurse at the BRC. It is clear that if Dr. Rosenman’s position is correct then Mr. MacKenzie, during his years of office at the BRC was not aware of the actual role of Dr. Rosenman. There is, of course, an urgent need for Dr. Rosenman’s role, whether it be Dr. Rosenman or some other psychiatrist,
to be the subject of a clear written document to which custodial officers have immediate access and in relation to which there can be no doubt as to the responsibilities of Dr. Rosenman or other government psychiatrists.
The balance of the day’s evidence consisted of Mr. Wilson who appeared on behalf of Mr. MacKenzie questioning him in relation to the evidence he had already given. A number of points come out of this examination. The first is that Mr. MacKenzie indicated (T, 23.5.97, page 43) that no one had ever asked him for a comprehensive statement concerning his knowledge of the circumstances surrounding the death of the deceased. He had never had any doubt that the truth would come out and that there was, therefore, no need for him to assist in it’s emergence (T, 23.5.97, page 52). He also gave evidence concerning his history both in the Army and in the New South Wales police force, and confirmed his view that the BRC was an electronic zoo the same as the discredited Katingal prison in New South Wales. He also gave evidence concerning the culture at the BRC and compared it to the circumstances of the culture as he had experienced it both in the Army and the New South Wales police force. He was of the view that all of the cultures to which he had been exposed were very similar (T, 23.5.97, page 56). He was examined by Mr. Wilson as to the dilemma he faced when confronted by the lie of Mr. Kelly. He outlined a number of steps which he had to consider to arrive at his decision to say nothing about his knowledge of the events of the morning of the 15th of April 1996. At T, 23.5.97, page 59 he indicated that he resolved the dilemma in the following way: "I resolved that dilemma that I knew, on 15 April last year, that the police and magistrate would be doing the job for me. I think Mr. Buddin said to me, "You knew Mr.
Kelly was for the high-jump but you didn’t want to push him" and that’s exactly right." Day Seven - 26.5.97 The bulk of today’s evidence involving Mr. MacKenzie was by way of re-examination by Mr. Buddin.
Mr. MacKenzie indicated that he believed the Senior’s Meetings had continued until the commencement of the Detainee Review Committee meetings in about June of 1996 and that he believed minutes had been taken of those meetings.
He accepted that Mr. Van Hinthum exhibited no real leadership (T, 26.5.97, page 7) and that the management, including Mr. Van Hinthum, was aware of the problems involving Mr. Kelly and Mr. Black.
He accepted that he had a duty to report his views on Mr. Kelly to Mr. Van Hinthum. He indicated further that changes had already been instituted since the death of Mr. Camden and that these changes were for the better. He also indicated that he was of the view that if Mr. McLaughlin or Mr.
Van Hinthum stated that they did not know that there was a problem with Mr. Kelly and Mr. Black that they would be lying (T, 26.5.97, page 13). He also indicated on this day that he had had a discussion with his wife at about the time of the death of the deceased in which he had agreed with her to tell the truth about the matter. He conceded that he had misled the Coroner when he said he had not discussed the matter with anyone. He was asked the following question by Mr. Buddin: (T, 26.5.97, page 18) "Thirty years in the army, the police and correctional services told you one thing, do not dob, correct?--Yes, sir, it did." Mr. Buddin put the following question to him: (T, 26.5.97, page 22) "This is the reason you didn’t tell the whole truth because you made your statement on 30 April and the pathologist didn’t give evidence until the following day, 1 May. Now that is a matter of record and it was only after that that you realised that the game was up. And that is why you came along here and told the whole truth in terms of time of death?---That’s totally incorrect.
Well, how do you explain it otherwise?--- I can’t explain it, sir. I had ---" Mr. Buddin proceeded: (T, 26.5.97, page 23)
Well you didn’t because you were being deliberately ambiguous so you could keep your options open?---No, that is not correct at all. Totally incorrect." Mr. Buddin asked further questions concerning the failure by Mr. MacKenzie to be frank in his evidence and asked Mr. MacKenzie the following questions: (T, 26.5.97, page 25 and 26) "Why did you not tell him when you walked in the witness box, according to your version of events, I have got something that I have been waiting to tell you for 13 months, and then reveal it all. Why did you not do that if that was in fact what your real motivation was?---When the occasion arose to tell the coroner I told him in evidence the time of death and that’s how it came out.
Yes, in response to a question?---Yes.
See that is really what you were waiting for, you were waiting to see if you were going to be asked a specific question which required you to nail your colours to the mast, correct?---Yes, that’s right.
You did not come in here and volunteer the information that you have been waiting 13 months to tell the coroner about, correct?---Sir, when I - - - Correct?---No, that’s not correct at all because - - - Well, please answer my question?---No, that is not correct sir, because my fate was sealed when I said I did not give Mr. Camden mouth to mouth, my fate was sealed when I said that. That is the truth I didn’t give him mouth to mouth. The next question is why didn’t you give him mouth to mouth Mr. MacKenzie, because he’s been dead he was dead. The next question obviously is, well how long has he been dead Mr.
MacKenzie. I said two to three hours. My fate was sealed when I didn’t give him mouth to mouth. I could have easily lied and said yes I gave him mouth to mouth for half an hour or an hour or twenty minutes till the ambulance arrived. And how long was he dead Mr. MacKenzie, a couple of minutes, and I could have lied." Mr. MacKenzie conceded that he was aware of the evidence of the pathologist before he came to give evidence at the Inquest.
Mr. Buddin suggested that Mr. MacKenzie had been involved in inciting Mr. Kelly to change the observation sheets and he denied these allegations (T, 26.5.97, page 29). He again denied that he had seen the observation sheet or a copy of it until he saw it in the court room.
A number of questions were asked concerning his knowledge of the progress of the investigation: (T, 26.5.97, page 36) "It was well known, wasn’t it, in the remand centre within a day or two that no suspicion whatsoever was being directed towards any custodial officer in relation to the death of Shannon Camden?---There was that talk, that gossip.
Everybody knew that that was the view, didn’t they?---Yes.
Including you?---Yes." He also agree that at the meeting called by Mr. Van Hinthum at which the CPR issue was raised that it was clear from that meeting that there was no problem in relation to the police inquiry other than a possible concern about CPR. He conceded that that meeting again confirmed that no officer was under suspicion.
He was asked a number of questions concerning Mr. Frame and Mr. Frame’s telephone contact with him. He was not able, it seemed, to understand the significance of Mr. Frame ringing him in circumstances where he continued to say that he had told Curbishley, amongst others, over a period
of 12 months that he was not prepared to commit perjury on their behalf. He seemed to be of the view that it was an outrage that Mr. Frame had rung him and he was not prepared to concede that his comments were other than to somehow suggest to Mr. Frame to pass on to Mr. Curbishley that he, Mr.
Curbishley, ought to tell the truth. This position continued in relation to the meeting the next day. He conceded that notwithstanding he was telling his co-workers to stick together and tell the truth that he, himself, at that point in time did not intend to stick together with his co-workers (T, 26.5.97, page 54).
Mr. MacKenzie gave the following summary of his belief as to what his evidence had said: (T, 26.5.97, page 57) "I believe, to the best of my ability, allowing for the mistakes that I have made, the evidence I have given in relation to things that may have been wrong, my mind playing tricks on me, that subtracted out of it, I have told the coroner the whole truth.
There is nothing more that I can add. And the last thing in the world I want to do is leave here giving the impression that I have told lies or there is something else. There is nothing else to tell, sir. I have told him, I want that noted, I have told everything." Subsequent to that statement of intent further questions were asked concerning problems with his statements and he was asked the following question: (T, 26.5.97, page 58) "If there are any mistakes in your statement it is solely attributable to a failure of memory, correct?---Yes, sir." A further short series of questions were asked and then the following question was put to him in relation to his earlier answer: (T, 26.5.97, page 58) "Well, the answer you just gave to the coroner was patently absurd, wasn’t it?---Yes, it was." Further questions were put concerning the timing of Mr. MacKenzie’s evidence and the following questions were subsequently put: (T, 26.5.97, page 60) "You know what? The truth was already out by then, was it not? The Inquest had uncovered it before you came into the witness box, correct?---Could have done, yes.
And therefore all you did was embrace what the prevailing view was, the comfort of knowing that you could saying (sic) anything you liked about when you had made up your mind to come and tell the truth?---That’s totally and utterly incorrect.
Thirty years in institutions, the police the army and corrective services was really too much to expect you to be a whistle blower, was it not?---No, that’s not correct.
Why did you not blow the whistle?---I did.
After the event?---I blew the whistle here, I told the truth.
After the event?---That’s not correct.
Well it is after the event, is it not?---Well yes.
That is your problem, is it not, and there is nothing to suggest anywhere that you were prepared to do anything at all to uncover this cover up until it had been uncovered?-- -No, I don’t agree with that at all.
Mr. MacKenzie ultimately conceded that he was not able to point to anything other than the fact that he was telling us the truth, now, to indicate that he had, in fact, had a long term intention to tell the truth.
Arnoldus Marinus Joseph Van Hinthum Mr. Van Hinthum was the acting Superintendent at the time of the death of the deceased and gave evidence initially over four days on the 7th, 8th, 9th and 12th of May 1997. He was recalled on the 26th of May 1997 and gave further evidence. Mr. Van Hinthum was responsible in his position as acting Superintendent for the running of the BRC and therefore bears ultimate responsibility for the actions of his staff members.
Mr. Van Hinthum gave evidence about a large number of matters and I believe it is appropriate in relation to him that there be a review of his evidence. I have included in my review of his evidence some comments concerning his evidence at different times.
Mr. Van Hinthum was the Acting Superintendent at the time of the death of the deceased. He had held that position since 1994. He provided a number of statements to the Inquest which are now Exhibits 186, 187 and 189. Mr. Van Hinthum in his statement and in his evidence indicates that he had spent a considerable number of years employed as custodial officer or as a member of the staff at the Quamby Youth Center. He accepted in his statement that he was "responsible for enforcing the Remand Centres Act, legislation and standing orders in relation to the treatment of detainees". Mr. Van Hinthum also outlined the physical structure of the BRC and made general comments about it’s operation. In his statement (Exh. 186) he concluded as follows: "Although Shannon Camden committed suicide at the Remand Centre on the 15th of April 1996, I am satisfied that all Staff and Centre Management fulfilled all obligations as required by the Remand Centre Act and recommendations given to us by medical personal (sic)." At the commencement of his evidence before the Inquest on the 7th of May 1997, he indicated that he was no longer able to endorse that comment as a result of the evidence which had come out in the Inquest prior to Mr. Van Hinthum’s appearance.
Mr. Buddin in his examination of Mr. Van Hinthum, in relation to the inability of Mr. Van Hinthum to any longer endorse his comment concerning his satisfaction with the staff and Centre management on the 15th of April 1996, asked a number of questions in an attempt to ascertain from Mr. Van Hinthum what it was that Mr. Van Hinthum had done in order to satisfy himself as stated in Exhibit 186. The evidence indicates that at it’s highest Mr. Van Hinthum interviewed some staff who assured him that all observations were carried out as per instruction and that everything had been done appropriately. It seems further that he may have looked at the control room log book. Apart from these inquiries there is no evidence to suggest that Mr. Van Hinthum made any other attempt to ascertain anything further concerning the circumstances in which the deceased was found dead.
Mr. Van Hinthum seemed to be of the view that it was someone else’s responsibility, and in particular the police, to make such further investigations as were thought appropriate and that his responsibilities as the Acting Superintendent were satisfied by the inquiries made by him on the morning. He accepted that the statement in Exhibit 186 was intended to have the effect at that time to "assure the community at large, your political superiors, the police and anyone else interested including the parents of Mr.
Camden that everything that could have been done to ensure that the statutory obligation under s. 9 (The Remand Centres Act) had been fulfilled". This was a question put to Mr. Van Hinthum by Mr. Buddin (T, 7.5.97, page 6) to which Mr. Van Hinthum agreed. It is clear from the evidence of Mr. Van Hinthum that he did not inspect any of the observation sheets relating to detainees for the 15th of April 1996, that he did not compare the observation sheets with any entries in the control room log book and that
he made no inquiries about any other matter. It is now particularly significant that he made no attempt to retrieve the video tape which was recording the events of that evening. It is clear from this evidence that Mr. Van Hinthum failed totally in what one would regard as his proper supervisory role in relation to attempts to ascertain the truth of what had occurred that morning.
Mr. Van Hinthum accepts that his responsibilities under the Remand Centres Act were for him to ensure the safety, welfare and security of detainees. It is clear that he failed in this obligation.
Mr. Van Hinthum attended at the BRC on the morning of the event having been contacted by Mr.
MacKenzie. At page 11 of the transcript of 7.5.97 he indicates that it was his recollection that any information he had came from Mr. MacKenzie. Subsequently he seems to be of the view that he obtained his information from Mr. Kelly and Mr. Gordon (see transcript page 21, 7.5.97). He had, however, suggested at T. 11 that some other staff were present in the control room when Mr.
MacKenzie spoke to him.
As mentioned above Mr. Van Hinthum indicated that upon his attendance at the BRC on the morning of the death of the deceased he did not view any of the observation sheets, including the observation sheet referring to the deceased. His evidence indicates that until early 1997 he had never inspected observation sheets created at the BRC. He began to look at some observation sheets some five months before May 1997. This, he says, occurred as a result of concerns expressed by Mr. McLaughlin - who at that time was not, in fact, an officer at the BRC to a Mr. Giucci, who I understand was an officer at the BRC at that time, that there was some problem about the preparation of observation sheets and that at the time Mr. McLaughlin brought the matter to the attention of Mr. Giucci Mr. Van Hinthum happened to be there. Thereafter Mr. Van Hinthum began a random check on observation sheets, but subsequently began to believe that it may be more appropriate if he looked at all observation sheets.
This practice he apparently then commenced.
He was of the view that prior to the information coming to his notice of the observations of Mr.
McLaughlin that there was no reason to believe that the system was working other than in accordance with procedures laid down. There was certainly no effort made by Mr. Van Hinthum to ever conduct spot checks or to attend at the BRC out of hours or to take any steps to attempt to inform himself as to whether the very basic element of security and safety at the BRC was functioning appropriately. He seemed to accept that because there had been some complaints from detainees about staff shining torches in their faces and waking them up during the night that this indicated that checks were being carried out either every 15 minutes or every 30 minutes as required.
Mr. Van Hinthum indicated that following his initial briefing by either Mr. MacKenzie or by Mr. Kelly and Mr. Gordon. He indicated to all of those present, namely, Mr. MacKenzie, Mr. Black, Mr. Kelly, Mr.
Gordon and Mr. Curbishley that "have you done all the right things" and "if you haven’t please say". He says that he continued to repeat that urging on numerous occasions to those five officers. He felt a need to repeat it because "I just felt that I, you know, my duty to say it, you know, I mean you never ever know. I mean I’ve been alive long enough to know that not everything is always perfect".
Notwithstanding this element of concern it is clear on the evidence that Mr. Van Hinthum took no steps at any time to attempt to ascertain what the truth was or whether those who were telling him about the events of the evening were telling him the truth.
This attitude is particularly significant in relation to the issue of CPR. Mr. Van Hinthum in his evidence indicated that from his first attendance at the BRC on the morning of the death of the deceased he
accepted that the deceased had been seen alive about half an hour before he was discovered dead. He was asked by Mr. Buddin: (T, 7.5.97, page 24) "Did you ask any questions that morning as to what if any attempts had been made to resuscitate Mr. Camden?---Yes Whom did you ask?---I’m not sure. I think that again may have been a question or it may have been information that was given to me, I’m not sure, but certainly that question was raised, and the person responding to that was Grahame MacKenzie." He was asked: (T, 7.5.97, page 25) "What did Mr MacKenzie say?---I think the explanation that given was that the state that they found him in that there was no point in and they were not able to do a resuscitation. He was cold, he was blue, the tongue was protruding, they were unable to do a resuscitation." He accepted that Mr. MacKenzie was clearly indicating to him that no attempt had been made at resuscitation. Mr. Buddin asked: (T, 7.5.97, page 25): "Did that satisfy your concerns about that issue?---I accepted it. No, it would not necessarily satisfy me. I would have been a lot happier if I’d heard somebody had attempted to resuscitate, but I’m not an expert in the field so I mean." Mr. Van Hinthum accepts that notwithstanding what would seem to be a continued concern about the question of CPR that he took no further steps to inquire into the circumstances of the death of the deceased. He accepted, after some length of time, that his statement concerning his satisfaction in Exhibit 186 was incorrect even at the time it was made when he had his expressed concerns about
Mr. Van Hinthum was next asked a series of questions concerning the operation of cell A1 and in particular the monitor which was part of the equipment in cell A1. He was asked as to whether he had made any inquiry on the morning of the death of the deceased as to whether anyone had observed anything on the monitor from the camera situated in A1. Mr. Van Hinthum indicates (T, 7.5.97, page 30) that he did ask a question about that and that the answer was "they had not observed him on the monitor". Mr. Buddin then asked: (T, 7.5.97, page 30) "Did you ask why not?---I think the explanation given to me was that they were busy doing paperwork so - I mean the monitor was there as an aid. There was no requirement to use that. The physical checks is what’s paramount".
Mr. Van Hinthum in his evidence did not accept that the presence of the camera with it’s monitor in the cell A1 was of any particular significance and that there was no requirement for any night shift to look at the monitor. Mr. Buddin put the following question to him: (T, 7.5.97, page 31) "You didn’t have to look at it at all?---He could have been in any other unit for that matter so there were no specific instructions in relation to that monitor.
Right and no practice that you knew of that was to be followed in relation to the use of the monitor for cell A1?---If they were then specific instructions were given on a case by case basis." He accepted that there was no specific instructions given in relation to the deceased. Mr. Buddin then asked the following question: (T, 7.5.97, page 32)
"So as far as Shannon Camden was concerned the monitor for A1 was a supernumerary?---Was an extra but yes, certainly not taking the place of anything else, that’s correct.
No, no, no, but it added nothing?---That’s right.
It added nothing?---That’s right." Mr. Van Hinthum gave evidence that in his opinion the safest cell in the BRC was in the "special care unit" and that thereafter most other cells were basically on par. When asked what was the next safest cell he stated "probably A1 given that there was a monitor there", but he also conceded that there was "no particular procedure that was to be followed in relation to the use of the monitor.
Mr. Van Hinthum also conceded, upon being shown the control room log, that the entries made there by Mr. Black were clearly wrong particularly the 6:30 a.m. entry on the 15th of April 1996 and that notwithstanding that he had inspected this log on the morning of the death of the deceased he did not note that clear inaccuracy.
Mr. Van Hinthum gave evidence concerning the meeting held at the BRC shortly before the Inquest commenced. He accepted that at the time of that meeting he still had concerns about CPR not having been attempted. His evidence in relation to this meeting was the subject of some comment by Mr. Buddin during the course of it to the effect "Look, you’re fencing around this issue, aren’t you?" (T, 7.5.97, page 44). Mr. Van Hinthum denied that allegation, but one must say that his evidence concerning this particular meeting, and indeed his evidence concerning a number of aspects of his conduct both as a supervisor and also on the morning of the death of the deceased makes one have severe reservations about him attempting to tell the truth concerning his knowledge of the events of the evening and his role as Acting Superintendent generally.
In particular he had some difficulty in answering questions as to whether he had spoken to Mr.
MacKenzie concerning what evidence Mr. MacKenzie may give to the Inquest prior to Mr. MacKenzie giving that evidence. He ultimately, after some struggle on the part of Mr. Buddin, conceded that Mr.
MacKenzie had spoken to him after evidence had been given by Mr. Curbishley and Mr. Gordon and Mr. Kelly and indicated that he was very upset at the fabrications being alleged by those witnesses concerning things which those witnesses said had been said by Mr. MacKenzie. It is of interest to note in passing that one of the few matters that Mr. Van Hinthum can remember about the meeting held prior to the beginning of the Inquest was a question which he believed came from the floor of the meeting as to "are there any concerns or was I aware of any concerns or something to that effect", this question being in relation to the conduct of the officers on the night shift. Mr. Van Hinthum has no evidence to offer to suggest that Mr. MacKenzie made any comment at this meeting that was different to the comments made by Mr. MacKenzie to Mr. Van Hinthum on the morning of the death of the deceased.
He agreed with a suggestion put to him by Mr. Buddin that his decision, or, alternatively, his involvement in the decision to suspend Messrs. Kelly, Curbishley and Gordon had nothing to do with the fact that he was in dispute with them in his recollection of what had occurred at the meeting referred to above, but he did indicate that he disagreed with what they said about that meeting.
A decision was made following the evidence of Mr. Kelly, Curbishley and Gordon to suspend those three officers. At a time after Mr. Kelly had given evidence but before he was suspended Mr. Van Hinthum concedes that he rang Mr. Kelly and indicated to him that the Director and himself, Mr. Van Hinthum, were in effect thinking about Mr. Kelly and hoped that he was coping. He denied (T, 7.5.97, page 134) that his phone call was intended to put pressure on Mr. Kelly to ensure that he did not make comments which were not in the interests of Mr. Van Hinthum or Corrective Services. His position was that while the call have been inappropriate or naive it was made only with the well being of Mr. Kelly in mind.
One of the significant elements of Mr. Van Hinthum’s evidence was in relation to the accommodation of the deceased at the BRC. Mr. Van Hinthum indicated that decisions concerning the initial placement of a detainee, including the deceased, were made by an induction officer when the detainee first entered the BRC. Thereafter the housing of the individual detainees could be changed depending on a variety of circumstances. The deceased upon his arrival was placed in cell A1 which on Mr. Van Hinthum’s evidence was possibly the second safest place for a detainee marked prisonerat-risk to be housed. Subsequently on the 7th of March 1996 the deceased was moved from A1 to the "special care unit". He was returned from the "special care unit" to cell A1 on the 14th of March 1996.
On the 14th of March 1996 Mr. Van Hinthum issued a direction changing the 15 minute observations applicable to the deceased from the time he entered the BRC to 30 minute observations. These changes of observations were the subject of a considerable amount of evidence given by Mr. Van Hinthum. I do not intend to go into precise detail concerning the evidence given, but merely to indicate it’s effect as I understand it.
Mr. Van Hinthum was asked a substantial number of questions about the process involved in the decisions made, firstly to as to why the deceased had been transferred to the "special care unit" and secondly as to why he was transferred out of the "special care unit" and thirdly why his observations had been changed from 15 minutes to 30 minutes.
The facts concerning the processes involved in all of these decisions seem largely to be agreed between all of the witnesses, including Mr. Van Hinthum. His evidence indicates that there is a complete lack of any coordinated approach in the decisions of the Superintendent referred to above.
Mr. Van Hinthum stated: (T, 7.5.97, page 67) "There is still no coordinated approach and that is still something we are working on that everybody accepts responsibility for detainees when they are in the remand centre. That is still a problem with which we are working on tirelessly and have for as long as I’ve been there." Mr. Van Hinthum indicated that some of the problems related to obtaining information from Forensic Services, from people or organisations who have dealt with a detainee in the past and, indeed, from gaining advice from any source as to what might be the appropriate way of dealing with a particular detainee. Mr. Van Hinthum accepted that there was no management plan in place specifically in relation to dealing with persons who were a prisoner-at-risk. The end result of the evidence of Mr. Van Hinthum is that the decisions made by him concerning the deceased were based upon what he described as general discussions with other interested parties, including custodial officers, welfare officer and medical personnel and that based upon this general discussion he then made the particular determinations in relation to the deceased. Apart from the direction specifically changing the time of observations, no documents were produced and it seems none exist which relate to any of the discussions or any of the advice relied upon by Mr. Van Hinthum in the making of these decisions.
Mr. Van Hinthum was asked in relation to the change of observation times as to why that had occurred. He indicated that there had been signs of stability in the behaviour of the deceased. He was asked the following questions: T, 7.5.97, page 70)
"Now, I think the situation is that, in fact, you did change Shannon Camden’s observations from 15 minutes to 30 minutes?--That’s correct.
And you did it because his behaviour had stabilised over the first month of his detention?---That’s correct.
Did you have reports as to his stabilised behaviour in writing?---No, I think it was a case of verbal dialogue between the forensic services staff, doctor and myself in relation to updated information as to how he was performing, how he was - had changed from being a night person to more a day person, interacting and socialising more with detainees in the yard and behaving in a more normal fashion. He also had been placed on medication for sleeping purposes at night-time which had a positive effect on his behaviour. Based on that we changed his observation regime from 15 to 30 minutes." Mr. Van Hinthum in the next question conceded that the deceased had not been placed on medication prior to the decision being made to change his observations and he accepted that this had not occurred until approximately fourteen days prior to the deceased’s death on the 15th of April 1996.
Mr. Buddin questioned Mr. Van Hinthum at length concerning the decision to change the observations and notwithstanding these questions Mr. Van Hinthum continued to indicate that in his opinion the decision made by him at the time was correct. It seems, based upon the evidence, to be very unclear as to the basis upon which Mr. Van Hinthum actually made the decision concerning the change of observations from 15 to 30 minutes. Of the reasons given by him, there must be doubt as to the change in behaviour, when the deceased was removed from the "special care unit", on the same date as the decision as a result of his behaviour deteriorating in the unit. (T, 7.5.97, page 82) One would have to assume from that that his behaviour, whatever it may have been, was worse than it was when he had been moved into the unit and he had been moved there as a result of his bad behaviour.
There had been a series of reports and indications on observations sheets of unusual behaviour either relating to self harm or, as Mr. Van Hinthum would have it, to damage to property, up to and including the 12th of March 1996. It is clear that Dr. Rosenman, who saw the deceased on the 4th of March 1996 reported to custodial officers that the deceased was at risk of self harm, particularly prior to his court appearance. In the absence of any written material it is impossible to accept that there were any grounds available to Mr. Van Hinthum on the 14th of March 1996 which would reasonably have allowed him to change the circumstances of observations as they related to the deceased.
Notwithstanding Mr. Van Hinthum’s refusal to concede that this decision was wrong it is clear on the evidence that it was at best an inappropriate decision not documented in any way and made for reasons that are entirely either unclear or wrong.
Ultimately, however, it is correct, as Mr. Van Hinthum says, that the real issue was not how frequently the observations ought to have been made, but the fact that they were required to be made. In those circumstances it is perhaps not particularly significant of itself that the observation times were changed from 15 to 30 minutes save for whatever signal it may have sent to the deceased concerning the lack of interest in him being expressed by the change in the observations. It is, of course, possible that the deceased, like detainee L, was never, in fact, aware as to whether he was being observed each 15 or 30 minutes or, indeed, at all.
A number of other matters were raised with Mr. Van Hinthum concerning his role as the Acting Superintendent and his capacity to exercise a managerial role at the BRC. I’ve already commented on some of these, in particular, his failure to make proper investigations into the death of the deceased, his
failure to inspect the observation sheets, his failure to ensure that those responsible for the correct completion of observations and observation sheets did so and, additionally, his failure to ensure that a proper administrative system operated within the BRC. A number of questions were asked of Mr. Van Hinthum in relation to filing system, and in particular to the detainee dossier. He accepted, ultimately, that the system was less than satisfactory and that attempts were being made to rectify it as a result of the death of Mr. Camden. Nothing had been done during the two years in which Mr. Van Hinthum was the Acting Superintendent to change any of the clearly inappropriate procedures operating at the
Additionally, Mr. Van Hinthum was asked questions concerning an incident involving detainee T. About two weeks prior to the death of the deceased, detainee T. was found hanging in the BRC and was cut down by officers on duty that evening. Coincidently both Mr. Black and Mr. Kelly were on duty on the night of the incident involving detainee T. It is not necessary at this time to go into the precise details of the events of the evening of the incident involving detainee T. other than to say that during the course of the evidence of Mr. Van Hinthum he was requested by Mr. Buddin to extract from the file/dossier of detainee T. the observation sheet relevant to the time of his attempted suicide. Notwithstanding a protracted period of time during which Mr. Van Hinthum went through the file he was not able to find the document. Indeed, the document has never been found during the course of this Inquest.
Following the discovery of detainee T. Mr. Van Hinthum accepts that he made no further inquiries concerning the events of the evening other than to ask the relevant custodial officers as to whether they had conducted themselves properly. His response to the incident involving detainee T. is for practical purposes identical to his response in relation to the death of the deceased.
On neither occasion did Mr. Van Hinthum take the view that there was any necessity for him to conduct any inquiries or to attempt to ascertain how it was that a person was only cut down and saved from hanging as a result of the intervention of detainees in attracting the attention of custodial staff. This incident, once again, graphically illustrates the complete lack of capacity on the part of Mr.
Van Hinthum to be the Superintendent of the BRC. The evidence clearly indicates that nothing changed in relation to the operation of the BRC after the detainee T. incident and for a considerable period after the death of the deceased once again nothing changed. In particular Mr. Van Hinthum was content to accept (T, 7.5.97, page 141) that nothing in relation to either of those incidents caused him to think there may be any problems with the carrying out of observations or the completion of any of the required documentary evidence either in the observation sheets or in the control room log. One would have thought that this absence of anxiety on the part of Mr. Van Hinthum is astounding.
Day Two - 8.5.97 Mr. Van Hinthum gave evidence during his second day in the witness box largely in reconsideration of matters discussed with him on day one. He indicated in particular that he was not aware that his officers slept on duty nor that they watched TV. He accepted that there may have been situations in which people watched TV, but he was not actually aware that such a situation existed.
There was a lengthy series of questions concerning observation sheets and other procedural matters.
Generally he accepted that the procedures as they were raised with him were deficient. He accepted that it was his responsibility to ensure that the procedures worked correctly. He was asked by Mr.
Buddin: (T, 8.5.97, page 21) "So you didn’t know about totally improper and irregular practices conducted by the night shift in relation to their activities?---No.
Nothing concerning the widespread abuse of the system in relation to detainee observation sheets?---No.
And observations?---That’s correct.
Do you think that the absence of detail and the deficiencies of detail and the protocol 4.5, might have contributed to the way in which those practices were not denoted?--- It may well have.
That is your responsibility?---It certainly is, yes.
That is a failure of management on your part?---In hindsight it probably was, yes." Further questions were asked in relation to the Standing Orders in existence at the date of the death of the deceased and the various steps which had taken place in relation to revising those Standing Orders ultimately leading to the final version which is now Exhibit 139.
Mr. Van Hinthum also gave evidence concerning his understanding of the history of the "special care unit". This, once again, indicates that as at the date of Mr. Van Hinthum’s appointment to the position of Acting Superintendent that the "special care unit" was not being used as it had been originally designed and was merely being used as part of the general available accommodation at the BRC. Mr.
Van Hinthum described his understanding of the operation of the "special care unit" in the following terms: (T, 8.5.97, page 32) "No, what I’m saying is that if it was considered the risk was such that - those units were the safest units that we had in the place. So if the risk was considered to be extremely high we would place them in there, that’s correct, and then subsequent to that depending on the condition of the detainee, nursing staff would be brought in for a period of time that was considered to be appropriate and the medical officer was basically the person deciding that and that was very infrequent when that occurred but it did occur but it was never ever reopened in its original intention where people were admitted and programs were being run specifically for that category of detainees. That never occurred since July ‘94 and it still hasn’t." Notwithstanding this changed status of the unit referred to as the "special care unit" it continued to maintain that name which clearly led to confusion in the operation of the BRC.
Mr. Van Hinthum gave evidence again concerning the camera in A1 and accepted that there was no policy document ever created in relation to the concept of safe cells at the BRC. It was left to the experience of individual officers to make decisions concerning the housing of individual detainees. Mr.
Van Hinthum indicated that the procedure operated in the following way: (T, 8.5.97, page 37) "By the instructions, as I said the verbal instructions and the way that the place had been operating to date, I mean, people were in my view aware that the special care unit was there to be used for people that were extremely high risk and they were placed in there, under supervision of staff and psych nurse if that was deemed to be appropriate." Mr. Van Hinthum was asked questions concerning a management plan for prisoners-at-risk and accepted that the only plan was Exhibit 187 and he accepted that this was deficient.
Mr. Van Hinthum became aware of the report of Mr. Hornigold soon after it was created and indicated that while he was familiar with it no steps had been taken in any real way to put into effect any of the recommendations made by Mr. Hornigold, insofar as there was any attention being given to any of the recommendations of Mr. Hornigold they were only under consideration. This applied specifically in relation to the provision of the electronic observation techniques referred to by Mr. Hornigold.
Mr. Van Hinthum was asked a number of questions concerning superintendent’s instructions or superintendent’s memos and their method of circulation and maintenance. Once again the procedures seemed to be fraught with communication difficulties. Mr. Van Hinthum was asked a series of questions concerning the video units at the BRC and accepted that a 24 hour constant recording facility was available in relation to the yards at the BRC and that he was aware of this fact on the morning of the death of the deceased. He accepts (T, 8.5.97, page 72) that he could not recall whether he had asked for the video on the morning. He was asked by Mr. Buddin (T, 8.5.97, page 72) "So, is it likely that you looked for the video or you didn’t look?---Well, my understanding is there is no video. So if I did ask for it, as I said, I’ve never been informed that there was a video. There was no video given so my understanding is, there is no video of it and it wasn’t recorded." From where did your understanding come?---Because I’ve never received the video and they would have given it to me if it had been there. That’s normal practice." Once again Mr. Van Hinthum accepted that he was relying upon his trust in the staff to advise him concerning the operation of the BRC. It would seem to be somewhat remarkable that in the circumstances existing on the morning of the 15th of April 1996 that Mr. Van Hinthum made no inquiry concerning the video of the activity or non-activity in the yards at the BRC. This, once again, indicates his particular style of management.
Mr. Van Hinthum indicated that he did not ever see the handover sheets prepared by the various shift supervisors and when shown some of them towards the end of his evidence on that day had no explanation for the constant repetition of information. He accepted that it was not appropriate.
Mr. Van Hinthum indicated that during the period of time from his appointment until the 15th of April 1996 he had been acting as Superintendent and that Mr. Gagalowicz had also been acting as the Director of Corrective Services. There was no permanent appointment to either of these positions until after April 1996. Mr. Van Hinthum indicated that between his appointment in 1994 and May 1997 there had been four Directors to whom he was responsible. Only one of these, as I understand it, was a permanent appointment to the position. Mr. Van Hinthum, however, indicated that he did not believe that the failure to appoint an officer permanently to either of these positions caused any particular problem in the operation of the BRC.
Mr. Van Hinthum gave further evidence concerning problems which he believed exist in relation to the ability of the BRC to adequately cope with people presenting with mental dysfunction. He indicated the delay occasioned in relation to obtaining professional assistance and also the delay in relation to obtaining responses from the Mental Health Tribunal. He summed up the situation as follows: (T, 8.5.97, page 88) "Yes, the lack of - the lack of follow-up or feedback or particular recommendation which - then we still had no idea what was actually going on. We know that the person had been somewhere, come back and we still did not really have an indication as to whether there was anything wrong or whether we should be doing anything different or there was no indication that what we were doing was wrong or - - -" This concern extended to all of the mental health arrangements existing at the BRC. There is now, since January 1997, a full time psychiatric nurse employed at the BRC who has a particular responsibility in this area. Mr. Van Hinthum also indicated that apart from a preliminary information session provided by Mr.
Alan Jones there was no real training given to any level of custodial officer concerning the appropriate handling of people who are mentally dysfunctional.
Mr. Van Hinthum gave further evidence concerning the pre-Inquest meeting and again confirmed that he had no recollection of Mr. MacKenzie ever indicating that he, Mr. MacKenzie, had performed CPR.
He again gave some evidence concerning the discussion that he had with Mr. MacKenzie after the revelations at the Inquest. He indicated that had a professional relationship with Mr. MacKenzie, but that "I wouldn’t say I got on particularly well with him" (T, 8.5.97, page 95).
He indicated that he had become aware of the allegations made by witness D., but took no action to make any inquiries concerning them as he did not accept them and had no reason to believe at the time the allegations were made that there was anything improper in relation to the completion of observation sheets.
Finally, Mr. Van Hinthum was asked questions about the culture at the BRC and indicated as follows: (T, 8.5.97, page 105) "I think the culture, that’s the problems that we - that I had and we attempted to address basically from the day that I came there, was more a culture that the remand centre and its operations is unique and not necessarily guided by normal rules like every other public servant. And we certainly had great difficulty with that and took various people to task on it, suspended people,, have them disciplined because of action taken which we felt was inappropriate and they felt was part of their culture." Ultimately Mr. Van Hinthum indicated that best way to describe the culture was that it was "a boys club and that it was difficult to get into that club". (T, 8.5.97, page 106) Mr. Van Hinthum was then asked the following questions: (T, 8.5.97, page 107) "Would you accept that supervision wasn’t everything that it could have been? It was poor supervision?---Certainly, certainly. Yes, that certainly appears that way on the evidence available, yes.
And, frankly, defective management by you as well?---Well, there’s certain things that, had I known-well, may be yes, should and could have been put in place that may have detected it earlier, that’s correct, yes.
All right. But the management was defective in that you didn’t find out about those things?---That’s correct.
What was your reaction when you found out that the observation sheets had been rewritten and that there was a cover-up in relation to that?---I still haven’t quite come to grips with that.
Are you pleased it’s out?---I’m not pleased it’s out. It should never have existed. I was totally unaware it existed. I still cannot believe that decent men, that I thought were decent men, resorted to that sort of action. I find it incomprehensible." Day Three - 9.5.97 This day was principally taken up with cross-examination by a number of Counsel. Little fresh evidence arose during the course of the examination on this day. Mr. Van Hinthum indicated to Mr. Buddin that
he issued reinforcement instructions after an incident involving detainee R. but none after the incident involving detainee T. The effect of these instructions were an attempt to upgrade the day shift, but not the night shift.
Some time was taken in relation to a letter of August 1994 (Exh. 197) which had been written by Mr.
Gagalowicz. Mr. Van Hinthum ultimately conceded that he would not have sent the letter out in the form exhibited as it tended to incorrectly state the position of the "special care unit" as at the date of the letter. Mr. Van Hinthum gave evidence (T, 9.5.97, pages 20 and 21) concerning the keeping of files by various persons at the BRC. In particular Helen Child kept her own file as did the medical practitioners. I asked Mr. Van Hinthum a series of questions as follows: (T, 9.5.97, page 20) "Did I just hear you say, Mr. Van Hinthum, that if that particular detainee or indeed any other detainee had seen Helen Child, that any report she had would stay on a file that she had that she kept?---That’s correct and if she felt it appropriate to make any formal reports to me she would do that separately from her file notes, that’s correct." The same situation applied to doctors and anyone else who kept files. They all kept separate files and no one interrelated one with the other. I then asked the following question: (T, 9.5.97, page 20) "Does that strike you as a desirable situation there be all of that division of material in various different places relating to the same person?---No, it’s not desirable, your Worship, and what we are trying to work through - there is a lot of ethical dilemmas in relation to who should have access to what information, and that is something we’re still trying to work on to get a - so that we eventually end up with one file where all people dealing with a particular detainee, whether it be the doctor, the psychologist, welfare officer, psych nurse or anybody else, can place information that is relevant to that detainee. So one file gives you access to all but we haven’t achieved it yet because as I explained before, there is still some ethical dilemmas as to who can have access to what information." Mr. Van Hinthum was unable to offer any explanation as to why detainee L. was given copies of his observation sheets.
He discussed the industrial problems at the BRC which had been going on for some time. He further gave a description of the various activities of the Superintendent in answer to a series of questions by Mr. Erskine so as to indicate that there were more jobs to be done by him than merely those problems represented in this Inquest. He accepted that while he might complain about the problems in accessing outside agencies he accepted that he had to take his place in the queue for services. He accepted that there was a fluctuating demand for specialist outside agency services. There was further discussion concerning the video recording capacity in the control room and he conceded that there was a failure of the duty of custodial officers grades 2 and 3 not to allocate duties as had occurred on the evening of the death of the deceased. Mr. O’Callaghan, who appeared on behalf of Mr.
Curbishley, put to Mr. Van Hinthum the following question concerning comments by Mr. MacKenzie at the meeting at which CPR was discussed:(T, 9.5.97, page 82) "I put it to you that he said words to the effect "I was the senior officer. It was my responsibility. I undertook resuscitation but failed because the airway was blocked and there was no point proceeding?"---That’s not my recollection, no.
Is it possible he could have used words conveying that impression?---That certainly is possible. It wasn’t the conclusion I drew but - - -
So it is possible he could have used words conveying the impression that he had given CPR?---That’s possible, yes, I don’t know. As I said it certainly did not leave me with that impression, but he may well have, yes.
So he may have said words like "Well, if the issue of CPR comes up I’ll say I took care of it"?---Yes, something - as I said something to that effect. I can’t recall the exact details, but it was something like "I’ll take care of it", yes, as I have already stated before, words to that effect, yes." Additionally Mr. Van Hinthum accepted that notwithstanding his earlier denial he may have called Mr.
Curbishley during the time when he was giving evidence before the Inquest. He was not able to clearly remember but accepted that it was possible that he had done so, but he was only able to recall speaking to Mr. Kelly.
Day Four - 12.5.97 Much of this day was spent by Mr. Refshauge, who appeared on behalf of Mr. Van Hinthum, leading evidence concerning steps which had been taken by Mr. Van Hinthum both before April 1996 and subsequently to change the procedures operating at the BRC. Mr. Van Hinthum indicated that at the time of his arrival at the BRC in July 1994 that the only form of documentation to regulate the operations of the Centre were the Standing Orders and the Superintendent’s Instructions. Mr. Van Hinthum formed the view that these documents were inadequate and instructed Mr. Holley to commence to prepare substantive operating procedures. This Mr. Holley continued to do until late
It is not necessary to go through all of the matters canvassed by Mr. Refshauge other than to comment that changes have been attempted, and indeed made in certain areas, including detainee review meetings, additional proposed training, follow up of observation sheets and other areas since the death of the deceased. None of these, it seemed, had been considered necessary prior to the death of the deceased.
Mr. Van Hinthum gave evidence concerning the culture which existed at the BRC at the time of his arrival and the attempts he had made to change that culture. He accepted under examination from Mr. Buddin that at least insofar as the cover-up of the 15th of April 1996 he had failed in his attempts to change the prevailing culture. Mr. Van Hinthum also indicated, in answer to Mr. Buddin, that some of the steps taken by him, and in particular his action in relation to changes concerning observations and completion of observation sheets, were not working. Exhibit 209 is a Superintendent’s Instruction numbered 89/96 relating to reporting of observations and was issued on the 26th of November 1996.
Exhibits indicate that in December 1996 and as late as April 1997 there were instances in which that specific instruction was not being observed by all staff members.
Mr. Van Hinthum was not able to recall the reason for the issue of the particular instruction concerning observations, but did concede that there would be no written record available to ascertain why they were issued.
The evidence of Mr. Van Hinthum on this day, particularly the evidence led by Mr. Refshauge, indicates once again that while Mr. Van Hinthum says he was concerned about matters as they existed at the BRC it is not always easy to find evidence to substantiate this concern. It is clear, however, that there have been changes implemented since the death of the deceased and no doubt these changes will be for the better. One other matter of concern raised in the evidence of this date was the status of A1.
This unit, in which the deceased was housed for the bulk of his time at the BRC, has been described from time to time as a dry cell. Mr. Van Hinthum defined earlier a dry cell and again defined it in the evidence on this date. The problem concerning his definition is that it is clear that Mr. Camden had in his cell from a very early stage a television which required the presence of an electric lead coming from outside the unit. The presence of the television and the electric lead are, of course, contrary to the concept of a dry cell. It is difficult to understand from the evidence given by Mr. Van Hinthum as to whether A1 was ever regarded as a dry cell or whether it’s status changed from time to time depending upon the requirements of the occupier even if that occupier be the same person. There is, of course, no protocol setting out clearly the operations of A1.
Day Five - 26.5.97 Mr. Van Hinthum was recalled on this day and gave evidence concerning seniors meetings which he had initiated or continued upon his arrival at the BRC in July 1994. These meetings were held on a fairly regular basis, sometimes weekly but generally less than a month apart. Minutes were kept of these meetings. Mr. Van Hinthum indicated that from about February 1996 the meetings ceased and no Minutes could be found for any meetings until they were resumed in the form of the detainee review meetings in about July 1996. Notwithstanding some vigorous examination by Mr. Buddin, Mr. Van Hinthum was not prepared to accept anything other than the meetings were not held and that it was not a situation in which meetings had been held and minutes for those meetings had somehow disappeared. Mr. Van Hinthum indicated that the meetings ceased during that time as a result of pressure of other activities, particularly involving discussions between senior staff and management in relation to industrial matters. The last of the old style meetings for which minutes were taken occurred on the 12th of February 1996. Thereafter until June 1996 the only contact between the Superintendent and other support staff was on an informal basis with no written records. Mr. Buddin asked the following questions: (T, 26.5.97, page 71) "There has been evidence before this Inquest suggesting that sometimes embarrassing documents are simply thrown overboard. What do you say about that?---Well, certainly not on my behalf I can assure you, ever. That is not the style of my operation to make things disappear, no.
And that wouldn’t be the case in relation to the minutes between February and June?- --Absolutely, absolutely one hundred percent.
Just a complete coincidence that during that period of time?---Yes.
No minutes?---I understand the coincidence, yes. But I can assure you that there is absolutely no way that if anything would be available at that time that I would not deliver it to the Court for scrutiny." Mr. Van Hinthum indicated that as at the 26th of May 1997 extensive investigations had been unable to find the missing observation sheet relating to detainee T. for the night of his attempted suicide.
Additionally questions were asked of Mr. Van Hinthum concerning his understanding of the capacity of Mr. Black and Mr. Kelly. While he was prepared to concede that there may have been some oral
complaints raised with him he was not aware of any complaints ever being put in writing. His view was that if an oral complaint had been made he would have requested that it be put in writing and he would have taken it up in the usual ways through public service regulations. He was not aware of any such complaints being made. He also gave some evidence as to the circumstances in which Mr. Kelly had been put on night shift and how it was that he continued to remain on night shift for such a long period of time.
James Walter Ryan Mr. Ryan is the Director of A.C.T. Corrective Services and was appointed to his position in January, 1997.
He was not the Director at the time of the incidents which led to the death of the deceased and, as such, cannot be responsible for the events that occurred at the BRC at that time. He will, of course, be responsible for implementing necessary reforms so as to ensure that problems of the type that emerged at the time of the death of the deceased do not reappear.
Mr. Ryan prepared a statement (Exh. 252) which was tendered in the proceedings and also gave evidence. He gave a history of his past working career, including a substantial period of time spent in the Army, and also his involvement with Corrections both in public and private correctional facilities in various parts of Australia.
His evidence really amplified the matters raised in his statement (Exh. 252). These would be noted as the following:
These matters, as I have mentioned above, were amplified in his evidence.
Accepting the matters outlined by Mr. Ryan he indicated in both his statement and his evidence the steps that had been taken prior to his giving evidence and the tasks remaining. He outlined his intentions in relation to the remaining tasks and how positive results might be achieved.
It is not necessary for me to go through his evidence in detail, but it would be useful to highlight a number of the problems raised by the Inquest and commented upon by Mr. Ryan.
Mr. Ryan indicated that the custodial officers employed at the BRC were amongst the highest paid in Australia. He accepted this position but was of the view that there was an expectation that there should be a pay back for those high rewards in the form of an efficient organisation. This, in his view, had not occurred. He was particularly concerned about a position which had developed in which custodial officers bypassed the Superintendent and approached him directly, or in the alternative, approached the union to become involved in matters which, in the opinion of Mr. Ryan, ought to have been dealt with by the Superintendent directly. This, of course, is an undesirable situation and Mr. Ryan is attempting to overcome the problem.
He indicated that the facility at the BRC was designed in such a way as to make the physical act of observations difficult. There is, of course, no solution to this problem other than for the facility to cease operation and be replaced by a more modern facility. This difficulty of observation contributes, no doubt, to the problems which were revealed during the Inquest.
Mr. Ryan indicated that as a result of clear confusion concerning the use of the term "special care unit" he had directed the Superintendent to cease use of the term forthwith.
One of the particular matters raised by Mr. Ryan in his evidence was his proposal which he had documented and which is Exhibit 253 to set up a Corrections Health Board. Exhibit 253 indicates that that Board would "provide policy advice and direction on medical and health service provisions for offenders in the A.C.T. (including juveniles)." This Corrections Health Board as envisaged by Mr. Ryan would require cooperation between various departments, including the Attorney-General’s Department and the health providers, including mental health providers, in the Territory. The evidence clearly indicates an urgent need for provision of a board of this type so as to ensure that consideration is given at the proper levels to overcoming the catastrophic failure of communication between the various organisations and individuals involved in providing services to detainees at the BRC. I would strongly recommend that the board as envisaged by Mr. Ryan be appointed as a matter of urgency and given adequate resources to create a situation overseen by the board or in the hands of an individual or organisation responsible to the Board to ensure that all material relating to individual detainees can be assembled in the one place and be available for immediate use by the corrections officers at the BRC. It is clear on all of the evidence that the failure to have a coordinated approach causes endless confusion and frustration in those responsible for the care and supervision of detainees at the BRC, particularly detainees who may have a mental or physical disability.
Mr. Ryan also indicated that in his view there ought be a separate corrections department established in the Australian Capital Territory and that Corrections ought not continue to exist as it does at the present moment as a division of the Attorney-General’s Department. I have not made any finding in relation to this suggestion as it was not really a matter within the scope of this inquiry, but it is something that will need to be considered when the ongoing investigations concerning the establishment of alternative corrections facilities in the Territory is considered.
Mr. Ryan conceded that there was no management plan in existence for the care of prisoners-at-risk or detainees with mental illness. It is clear that there is an urgent need for the creation of such a plan and it’s incorporation into the relevant protocols at the BRC so as to ensure that all employees of the BRC and all agencies introduced from outside to assist in the care of detainees at the BRC are aware of the regime in operation in relation to individual detainees in this category of person.
Mr. Ryan also made reference to an intention on his part to introduce an audit procedure within Corrective Services, but more importantly, within the BRC. It would be my view that such an audit is essential to ensure that whatever reforms occur as a result of the death of the deceased continue to be overseen so as to ensure that they continue and where necessary are amended to reflect any change in circumstances.
Evidence was given by Mr. Hornigold concerning the availability of electronic devices which are used in other prison systems to ensure that observation procedures are correctly carried out by correctional officers. Mr. Ryan has indicated that he supports the installation of such electronic devices and it would be my firm recommendation that these be installed as a matter of urgency. As suggested by Mr.
Hornigold they provide protection not only for the detainees, but also for the correction staff.
Mr. Ryan described the culture at the BRC exposed during this Inquest to be the worst that he has ever seen. This is from a background, as I say, of many years in the Army and in corrective services in other jurisdictions. He outlined, in some detail, steps that he has taken and intends to take to change this culture from the entirely undesirable situation that existed at the date of the death of the deceased to something more in the interests of the community at large, and in particular in the interests of detainees. He accepts that this will take some time, but it is clearly a matter of urgency that steps be taken to change it as rapidly as possible and that thereafter there be a regime in place which ensures that insofar as humanly such a culture does not re-emerge within the BRC.
One of the particular points mentioned in the statement of Mr. Ryan was the leadership vacuum and the lack of supervision. Both these elements reflect upon the role of Mr. Van Hinthum. It is, however, fair to say that in defence of Mr. Van Hinthum Mr. Ryan indicated (T, 27.5.97, page 63) "Yes, in fairness to him, they’ve failed to confirm him in his job. They should have either done that or removed him from the job. They failed to give him a firm framework on which to operate. And by that I mean guidance in the way of policies and procedures, and the guidance, in a manner in which he managed his facility, he has to have that." In addition to the fact that Mr. Van Hinthum had been acting in the position of Superintendent during the whole of his period at the BRC up until the date of the death of the deceased he did not have a deputy to assist him in relation to the running of the BRC. While it is no doubt true to say that Mr. Van Hinthum has failed in his responsibilities at the BRC it does seem that some of this failure has been caused by the failure of those to whom Mr. Van Hinthum was responsible to ensure that he was given adequate support in various forms to conduct his job properly.
Mr. Ryan made comments concerning the facilities at the BRC and in particular the fact that it suffered from overcrowding. He indicated that at the present moment the facility had a capacity of 41 detainees. This number had been exceeded on a number of occasions and, indeed in the view of Mr.
Ryan, once the number of detainees reached 35 the facility, for practical purposes, was overcrowded in that it lost whatever flexibility it may have had to deal with individual detainees. It is clear that for whatever reason there has been a substantial increase in the number of persons detained at the BRC over the last 12 months to two years. It is clear on the evidence of Mr. Ryan and others that the facility has been outgrown by the demands for placement in the Remand Centre. This is particularly so in relation to persons who may have a mental dysfunction. Mr. Ryan was of the view that there was an urgent need for an outside medical facility, preferably attached to the Canberra Hospital, to provide a custodial environment in which detainees with a mental dysfunction could be held. He accepts that there are economic and political decisions to be made, but it is clear on the evidence that there is an urgent need within this community for such a facility.
summary The evidence which was led at the Inquest revealed a tragic situation in which a highly intelligent young man took his own life. He had for a number of years been subject to a disability for which he and his parents had constantly sought assistance. For whatever reason he was not able to obtain any satisfactory result either by way of a firm diagnosis or, more importantly, some form of treatment or counselling to alleviate his problems. It is clear from the evidence that his circumstances and symptoms changed from time to time and may well have been aggravated, or at least confused, by his possible drug and alcohol consumption. The evidence is not entirely clear as to whether he did, indeed, have any problem in relation to drugs or alcohol, but he did, from time to time, indicate to people involved with him that he did consume drugs and alcohol.
I am of the view that the picture painted by the evidence concerning the situation of the deceased prior to his going into custody clearly indicates a need for consideration to be given by the relevant mental health authorities in the Territory to attempting to provide a more adequate service than clearly was available to the deceased, especially in the last months of his life. Such consideration would seem to be necessarily one which involved discussions with parents of young people in a similar situation to that which confronted the deceased and his parents. Mrs. Camden, in particular, gave evidence of the need by her and an organisation to which she belonged to be able to provide to relevant authorities information concerning the real problems that they, as parents, had experienced in their dealings with mental health authorities. She felt that had not occurred in the past.
Dr. Lubbe Dr. Lubbe had a long association with the deceased as a treating psychiatrist and she gave evidence indicating the substantial difficulty in formally diagnosing and therefore introducing a treatment regime for people with the disorder from which the deceased clearly suffered. The only additional comment I would make in relation to Dr. Lubbe’s situation is that it would seem to be desirable for the mental health authorities to have some form of coordinated approach which would allow any treating psychiatrist, or other medical specialist, to become aware with little difficulty of the fact that a person with whom they have been dealing is perhaps being treated or examined by some other practitioner or at some other hospital. In this situation it is clear from the evidence that the deceased, during at least January of 1996, was visiting more than one hospital without the other hospital being aware of that contact and, therefore, perhaps being unaware of the significance of the activities of the deceased. In any review of mental health procedures which might follow this Inquest, I would recommend that consideration be given to some form of coordination of this type of information.
Ms. Rowling Ms. Rowling must be commended for her efforts on behalf of the deceased. It appears that she had developed a rapport with the deceased and that he was prepared to maintain contact with her in circumstances where he appears not to have maintained contact with others. Her response to her concerns in filing the application to the Mental Health Tribunal were clearly appropriate and it is regrettable that for the reasons mentioned in my judgment that she was unable to fully participate in a hearing before the Mental Health Tribunal.
Mental Health Tribunal It is clear from the evidence concerning the Mental Health Tribunal that urgent consideration must be given to changing the procedures of the Tribunal, particularly in relation to the composition of the Tribunal itself. It would be my recommendation that the Tribunal, in relation to it’s presidential member, ensure insofar as is possible that the magisterial presidential member have no other dealings with a
respondent in any other magisterial capacity. The circumstances of the Mental Health Tribunal hearing of the 19th of March 1996 clearly indicate the potential for conflict and for inappropriate considerations to be raised by a presidential member who has familiarity with the circumstances of the respondent before the Tribunal. There is also a potential for matters not relevant to the Tribunal, but clearly relevant to the Magistrates Court, being inappropriately raised. Additionally, it would be appropriate for more careful consideration to be given by the Registry to the preparation of the applications before the Tribunal so as to ensure that the Tribunal clearly appreciates the nature of the application or applications which might then be before the Tribunal. This is particularly important if, for some reason, the magisterial presidential member has some previous familiarity with the respondent.
I should indicate that no persons connected with the Mental Health Tribunal were called to give evidence at the Inquest and the comments made by me in relation to the Mental Health Tribunal proceedings are based upon material produced by the Mental Health Tribunal to the Inquest. This material is now contained in Exhibit 17. It is not within the scope of this Inquest to conduct any inquiry into the operations of the Mental Health Tribunal or it’s Registry and such comments as I make are made in accordance with the provisions of section 56 of the C.A.
It is of concern that there appears to be a difficulty for the Mental Health Tribunal to obtain speedy provision of assessments and reports to ensure that proceedings before the Tribunal are conducted expeditiously. The evidence before the Inquest indicates that there can be substantial delay in assessments being provided to the Tribunal and it is clear that without assessments the Tribunal can make no progress at all in relation to applications before the Tribunal. This delay in obtaining assessments can clearly cause a detainee to be held at the BRC for excessive periods. This was one of the particular concerns expressed by Mr. MacKenzie.
The evidence, as I understand it from Dr. Rosenman and others, clearly indicates that the delay is not the fault of the Mental Health Tribunal but reflects the difficulty which the Tribunal has in accessing as a matter of urgency appropriate professionals who are able to provide the assessments required by the Tribunal.
There is also the concern apparent from the Tribunal documents and from other evidence of the absence of appropriate facilities to which persons the subject of Mental Health difficulties might be referred.
The difficulties exampled by the deceased’s situation would seem on various pieces of evidence before the Inquest to be other than unique. As I have mentioned above I have not had any evidence from the Tribunal to indicate whether this assessment is, in fact, correct, but my impression is that it is so.
If the deceased’s situation represents a pattern of delay in the Tribunal which results in persons being kept in custody for unnecessarily long periods then urgent consideration must be given by the mental health services of the Territory to providing more substantial resources to this area of support for the community so as to ensure that applications to the Mental Health Tribunal which lead to assessment orders being made by the Tribunal are dealt with with the utmost urgency. It is clearly entirely inappropriate for persons to be detained at the BRC, or indeed anywhere else, as a result of a suspected or actual mental dysfunction merely because of the delay caused in assessing their situation and having it dealt with appropriately.
I would recommend that urgent consideration be given to inquiring into the proper resourcing of mental health facilities in the Territory so as to enable speedy assessments to be made of persons the subject of referral from the Court to the Mental Health Tribunal or persons who come into contact with the Mental Health Tribunal in the way the deceased came into initial contact through the application by Ms. Rowling. There is no evidence before me to suggest what the actual needs are in this area, but the evidence shows that there are greater needs than the resources are currently coping with.
The Belconnen Remand Centre
the facility ought cease to operate forthwith and be replaced. I accept that this is not possible in reality, but I would recommend that urgent consideration be given to the construction of a new remand facility in the Territory to more adequately cope with the wide range of persons who are detained at the facility.
This Inquest has not reviewed the whole of the operations of the BRC and, therefore, it is not appropriate for me to comment in a general way upon the operations of the BRC other than to say that the evidence adduced before the Inquest clearly suggests the need for a complete review of all of the operations of the BRC. Evidence was given which clearly indicates that the administrative procedures, particularly involving paper work, are so confused and inappropriate that to recommend other than a complete restructure of the administration would be inappropriate. However, I accept that the scope of the Inquest has not allowed evidence to be led to suggest what form of administration might be appropriate other than the comments raised briefly by Mr. Hornigold. It will be necessary for this problem to be left to Mr. Ryan to continue to investigate in an attempt to overcome the problems that have clearly been exposed in relation to the administration.
One matter of particular concern which would need to be considered in any further investigation would be the effect that staffing shortages have upon the detainees. It is clear from the evidence that staffing shortages impact immediately upon detainees insofar as they are subject to early lock ups and other restrictions on their activities, particularly in relation to contact with persons outside the BRC. It would be desirable if more careful thought was given to the impact upon the detainee and also the impact upon those outside the BRC who might wish to visit or communicate with a detainee. It is clearly undesirable to have a situation such as occurred to Mr. and Mrs. Camden where they attended at the BRC to visit with their son to be told they could not see him as he had been locked away because of staff shortages. Such a situation clearly presents an undesirable burden upon persons already suffering from the detention of a family member.
The suggested administrative review would, of course, need to consider the re-design of the file described as the dossier. Some consideration has already been given to this but there would need to be a continuation of that consideration so as to end up with an appropriate document more suitable to it’s requirements than that used at the time of the death of the deceased. Such a document would need to be created in such a way so as to ensure that all of the information contained therein was easily and readily accessible to all staff.
There is nothing in the evidence to suggest that the decision made concerning the placement of the deceased in unit A1 was other than correct at the time it was made.
Special Care Unit: Specific mention needs to be made at this point in time concerning the "special care unit". It was suggested during the Inquest that the deceased ought to have been placed in the "special care unit" upon induction as this was by definition a special unit specifically set up to enable proper care and supervision of individual detainees who suffered from particular problems that required either special observation or special treatment and care. It is clear, however, on the evidence that as at the date of the induction and the death of the deceased that the "special care unit" did not operate in the way in which it had originally been created. The indisputable evidence is that shortly after the unit was set up the special psychiatric staff who had been employed on a 24 hour basis left and were never replaced.
There have been two possible explanations advanced for the decommissioning of the "special care unit". The first is that the requirement which existed at the time of it’s commissioning had ceased and that the number of persons who required the sort of care provided by the original "special care unit" were no longer present in sufficient numbers in the BRC to warrant the continuation of the unit. The second, and perhaps more accurate explanation, was that the cost of running the unit in it’s original
form was so substantial as to make it economically inappropriate to continue operating it in that way.
There is no real evidence before the Inquest other than the views of individual custodial officers as to which of these reasons was paramount, but it seems likely on the evidence that both reasons had an impact on the decision to decommission the "special care unit" although on balance it would appear that the economic considerations were paramount.
Mr. Van Hinthum in his evidence suggested that there was a continuing potential for the "special care unit" to be reactivated if there was a proper need for that to occur. This situation seems to be somewhat unlikely when one looks at the numbers of detainees at the time of the detention of the deceased who were either prisoners-at-risk or who had some form of mental or behavioural difficulty.
While these numbers fluctuated it was clear that over a prolonged period of time the numbers in these categories were more than adequate to fill the six units which exist in the "special care unit". It is clear on the evidence that as at the date of the induction of the deceased into the BRC and as at the date of his death that the "special care unit" was utilised at the BRC as an ordinary part of the facilities available and was not regarded in any way as different from other parts of the BRC. There was no continual observation as had been originally envisaged and there was no full time permanent psychiatric nurse. This situation has somewhat changed and, indeed, the evidence indicates that it changed shortly after the death of the deceased. The name "special care unit" continued to be used in relation to this area of the BRC although it was clear that for many years it did not deserve that title.
Mr. Ryan’s evidence is that he directed the cessation of the use of that title. It is clear on all of the evidence that there is, if not on a continual basis, then on a very regular basis, a clear need for a unit of the type originally created and called the "special care unit" It would no doubt be true if the deceased had been housed in the "special care unit" in it’s original style and composition then it is unlikely that he would have been able to have taken his life.
Rosendahl, or indeed any other treating medical practitioner, might be critical to the care of a detainee within the BRC but not necessarily critical in relation to Dr. Rosendahl’s treatment of a detainee. I note the evidence of Mr. Hornigold that in New South Wales Governors of prisons do, indeed, have access to such medical files. This situation would be highly desirable.
Of even greater concern is the unavailability of past histories of detainees when they first arrive at the BRC. There is an urgent need for consideration to be given to the development to procedures whereby the treating medical officers at the BRC are able, as a matter of urgency, to access any available information particularly within the Territory. I cannot help but think that it would have been most useful to Dr. Rosendahl to have been aware of the long history of the deceased when he first examined the deceased upon his entry into the BRC.
The consideration of the above concerns ought be a priority for the Corrections Health Board suggested by Mr. Ryan.
The evidence indicates that the BRC has the highest staffing ratio of custodial officers to detainees of any institution in Australia and according to Mr. Ryan the custodial officers are the highest paid in Australia. There were complaints of staff shortages from time to time but there was no staff shortage on the evening of the death of the deceased. It is also clear that staff shortages impact in a dramatic way upon detainees and their families and as mentioned above care would need to be exercised by custodial officers so that appropriate consideration is given to detainees and their families.
Contact at the BRC Evidence was given in relation to this heading by a number of persons and it is clear from all of their evidence that there was at the date of the death of the deceased a serious lack of coordination between all those involved, both at the BRC and outside, with providing care for the detainees. It is clear that there is an urgent need for the development of protocols between the BRC and it’s staff and all external agencies who provide support to the BRC so that all those involved clearly understand their particular role in the provision of support and care at the BRC. Mr. Ryan in his evidence recommended the appointment of a Corrections Health Board which would at least be a starting point for the creation of appropriate protocols. I would recommend as a matter of urgency that a Board of this type be set up and that the Board be immediately charged with a review of the arrangements, both internally and externally, for the provision of care and support and, if necessary, treatment for detainees at the BRC. It is clear from all of the evidence that in the past there has been at best an ad hoc arrangement which depended largely upon the good will of persons, particularly outside the BRC, to provide necessary support. I accept that the circumstances of the BRC in it’s being a small institution may well mitigate against it having it’s own internal professional medical staff. This means, ultimately, that there must continue to be recourse by the BRC to outside agencies for assistance. It must, however, be understood by the outside agencies that persons detained in the BRC are frequently in a critical situation and that there will inevitably be an urgency about the need to provide support to the BRC.
There is, in my opinion, no grounds for criticism of Ms. Child, Ms. Dexter, Mr. Jones, Dr. Rosendahl and Dr.
Rosenman. All these individuals appear on the evidence to have properly performed the functions that they understood they were performing. The real area of concern in relation to the evidence of all these individuals is the complete lack of coordination of their activities and the confusion that frequently arose in relation to the significance of their individual activities and the purpose for which their activities were being performed.
The problem was best enunciated by Ms. Child who indicated "I think a coordinated approach to attempting to procure Shannon Camden consistent treatment with everybody working together would have made a difference in that he may have still committed suicide, however, he would have had treatment." She was asked (T, 19.11.96, page 27) what she meant by a coordinated approach and gave the following answer: "A coordinated approach where you have a treating doctor, you have a treating doctor who is either appointed by the Mental Health Tribunal or is the detainees’ choice who can prescribe medication, who can see him on a regular basis, who can talk to other people who had contact with him on a daily basis as to what we should be doing with this young man in the sense that as a welfare officer I could see him on a daily basis and talk to him how he was feeling, however as far as in-depth counselling is concerned it wasn’t possible with Mr. Camden." This view is reflected in all of the evidence concerning the activities which occur at the BRC.
The Corrections Health Board as proposed by Mr. Ryan would, I believe, be an instrument which properly created would allow for the provision of a proper coordinating mechanism which would ensure that all of the activities that occur in relation to an individual detainee be directed for the one purpose, namely the proper care and treatment of a detainee while he is in custody at the BRC.
Significantly the R.C.A. did provide for the creation of a medical officer, an office which unfortunately had not been filled in accordance with the statutory requirements at the time of the death of the deceased. It is possible that a medical officer appointed pursuant to the R.C.A. may be able to provide the very great percentage of the coordination necessary at the BRC particularly in relation to medical and ancillary services. Such a role, however, would tend to suggest the need for a person appointed on a full time basis and not necessarily someone appointed as Dr. Rosendahl is on an at needs basis. The need for coordination seems to be a reasonably substantial role and it would, no doubt, be another matter which might be considered by the proposed Corrections Health Board.
General Information re BRC The evidence of Mr. Holley, Mr. Richardson and Mr. Collins confirmed other evidence concerning the paper war which occurs at the BRC. It is clear from the evidence of these officers that substantial amounts of documentation are created for purposes which are not clearly understood by either those who create them or those for whose benefit they may be created. More significantly it is clear that the information contained in the various documents does not always come to the attention of those who ought to be aware of the contents of the documents.
There is a need for a procedure to be adopted which clearly indicates to all officers their individual responsibilities and how they are to carry them out. The way in which outside agencies can be contacted and whose responsibility it is to arrange the contact, and it is a matter of the utmost urgency that the paper war which occurs at the BRC should end. It is also a matter of urgency that procedures be implemented which ensure that information necessary for the proper care and supervision of detainees comes to the attention of all relevant custodial officers as quickly as possible and that there is proof that such information has come to the attention of all relevant custodial officers. The ad hoc system which clearly operated as at the date of the death of the deceased must end.
Concerns were also raised by this group of witnesses in relation to the absence of ongoing training for custodial officers. I understand from evidence from Mr. Van Hinthum and Mr. Ryan that programs are being put into place to overcome this lack of training. This must be pursued.
A further matter concerning the documentation was the complaint raised by Mr. Black who indicated that it was very rare, if ever, that any information was received by an officer in response to any form of communication created by that officer particularly by way of internal or incident reports. It would seem to be desirable that an officer who makes a report concerning an individual detainee ought be advised of what, if any, action was taken in relation to that report. It is clear from the evidence that this failure to advise officers may well lead to a situation where officers no longer bother to make reports as they are not aware of what action, if any, is taken in response to their efforts.
History of Conduct and Care of the Deceased While in BRC This section describes the various internal reports prepared in relation to the deceased and also the decisions made by Mr. Van Hinthum effecting the transfer of the deceased from unit A1 to the "special care unit" and his subsequent return. The principal significance of this evidence is the absence of any documentary evidence to show how Mr. Van Hinthum arrived at those two decisions and whom he had consulted prior to arriving at those decisions. It is clear that there needs to be clear documentation of such consultations and decisions. No doubt the introduction of the detainee meetings which involve the acting Superintendent and others will assist in overcoming the absence of documentary evidence concerning decisions of this type.
Incident Involving Detainee T.
This incident which occurred in the early hours of the morning of the 4th of April 1996 raises a number of matters of interest and significance. Firstly, it is of interest to note from Mr. Black’s report that Mr. Kelly took no part in the action involving the cutting down of detainee T. This was done by two other officers.
Mr. Black’s statement indicates that he directed Mr. Kelly to stand by to assist if required. This
circumstance perhaps indicates that Mr. Black was aware of the problems that Mr. Kelly had in coping with contact with detainees.
The incident further clearly indicates the problem with the preparation of documentation at the BRC. In relation to this incident reports were prepared by each of the officers and witnessed by the others. One has some doubt as to the merit of report making in this form.
The major and most significant concern about the incident of detainee T. is the complete absence of any investigation into the incident on the part of Mr. Van Hinthum. The evidence before the Inquest clearly indicated the need for an investigation and the simplest of investigations would have raised queries concerning the apparent contradiction between the observation sheet completed allegedly by Mr. Kelly in relation to the deceased and the entries in the control room log made by Mr. Black.
Additionally the fact that the attention of the custodial officers on duty had to be drawn to the situation by the detainees in circumstances where at least two of the detainees present in A yard on that morning were on 15 minute observations ought, of itself, raised an alarm in the mind of the acting Superintendent.
The absence, at least at the time of the Inquest and one would therefore assume from a much earlier date, of an observation sheet relating to the 15 minute observations which were supposed to be conducted in relation to detainee T. ought also to have drawn some response from the acting Superintendent. There is no evidence before me to suggest that there was no observation sheet available to Mr. Van Hinthum on the morning of the 4th of April 1996 in relation to detainee T. but if there was then one assumes it would have indicated that Mr. Kelly had observed the detainee during the relevant period every 15 minutes. The circumstances of the actions of the detainees in face of such an observation sheet ought in the circumstances to have caused alarm with Mr. Van Hinthum. If there was no observation sheet produced in relation to detainee T., which appears on later evidence to be the most likely scenario, then that of itself ought to have caused concern to Mr. Van Hinthum, of course, Mr. Van Hinthum’s evidence is that he never looked at observation sheets.
The whole of the circumstances surrounding the incident involving detainee T. on the 4th of April 1996 are a clear indication of the inability of Mr. Van Hinthum to properly carry out his responsibilities as the acting Superintendent at the BRC. Any inquiry at all by Mr. Van Hinthum into the circumstances of the incident involving detainee T. may well have resulted in changes which could have prevented the death of the deceased.
"A"Shift for the 14th and 15th of April 1996 This shift consisted of Mr. Black, as the senior officer, together with Mr. Kelly, Mr. Gordon and Mr.
Curbishley. Mr. Black’s evidence indicates that he regarded himself as having no responsibility in relation to the organisation of the activities of the three other officers and it would seem on all of the evidence that this position was not correct. Mr. MacKenzie, for example in his evidence, indicates that he drew up a clear routine and made specific decisions about the role of the officers who worked on his shifts. The other three officers, it appears, merely organised themselves informally to suit their own convenience. It is clear on the evidence that all four officers failed completely in their responsibility to care for detainees in custody at the BRC on this evening. Each of the three CO1’s had a joint and several responsibility to ensure that all of the observations were carried out as required and further to perform any other functions as might be appropriate in the course of their employment. Mr. Black clearly had a responsibility to ensure, as the supervisor, that all of those requirements were fulfilled by each of the custodial officers. The evidence is clear that Mr. Gordon, having completed his short series of observations, retired for the evening ultimately followed by Mr. Curbishley. It is unclear from the
evidence as to what Mr. Kelly did at all during the course of the evening other than that he did not do observations.
It is clear on all of the evidence that all four officers failed in their responsibility not only to the deceased, but also to all other detainees present in the Centre on that evening.
It is an inevitable conclusion from the evidence that Mr. Black knew of the failings of all those officers under his control on that evening and chose to take no action. It is also clear on the evidence that he, himself, wrote out entries in advance as evidenced by the 6:30 a.m. entry in the control room log book.
It is also clear that the entries in the original observation sheet were written out in block and more likely than not in advance. It is beyond doubt that the entries made by Mr. Kelly on the original sheet were written out in block and in advance.
The only other point to mention in relation to these four officers is the evidence of Mr. Black which, once again, indicates an absence of any feedback from management in relation to concerns raised by staff. This failure to communicate seems to have been at least in part an influence on Mr. Black’s withdrawal from all responsibility at his place of work. Additionally, his complaint about the lack of coordination in relation to knowledge of detainees is valid and has been referred to in other places.
Discovery of the Deceased The evidence indicates that the deceased was observed at about 6:35 a.m. on the 15th of April 1996 by Mr. Kelly who was at that time engaged in a round of observations of the detainees. As a result of Mr. Kelly’s discovery other officers attended at unit A1 and the deceased was ultimately cut down.
There is some factual dispute between the version given by the various custodial officers and detainee L., but in the circumstances it appears to me not to be significant and does not require a final determination of the precise series of events that occurred that morning involving the discovery of cutting down of the deceased. It is clear from all of the evidence that at the time of the discovery of the deceased he was dead.
The only other significant matter in relation to the description of the activities of the various custodial officers was that once again Mr. Kelly played no part in cutting down of the deceased and appears on all of the evidence to have remained generally withdrawn from the activities following his discovery of the deceased’s body. This role would seem to be consistent with the role played by him on the evening of the incident involving detainee T.
Uncovering the coverup The evidence which led to the discovery of the rewrite and the extent of the coverup which had occurred at the BRC following the death of the deceased commenced with evidence given by Mr.
Curbishley on the 16th of April 1997 when he indicated that mouth-to-mouth resuscitation, or CPR, had been performed by Mr. MacKenzie and that Mr. Curbishley had observed this to take place. Secondly, Mr. Kelly, on the 18th of April 1997, indicated that he had not performed the observations for 4:30, 5:00 and 5:30 and, more significantly, indicated that he had been contacted a few days prior to him giving this evidence by Mr. Gordon who had indicated to him that he, Mr. Kelly, could concede in his evidence that observation sheets had been written out in block, but he was not to concede the rewriting of the observation sheet. The third piece of evidence was that of Mr. Curbishley on the 21st of
April 1997 when he withdrew the evidence he had given concerning having observed Mr. MacKenzie performing CPR and admitted he had lied in relation to this evidence given by him on the 16th of April
Rewriting of the Observation Sheets The evidence concerning the rewriting of the observation sheet is very voluminous and it is very difficult to extract from it findings of fact with any great certainty. I am content, however, on all of the evidence that it was Mr. Kelly who instigated the rewrite of the observation sheet. He was the only logical beneficiary from the rewrite.
I am satisfied on the evidence that Mr. Kelly began to lay the groundwork for the ultimate conspiracy as soon as he discovered the body of the deceased. It is clear on all of the evidence that he told his fellow officers that he had seen the deceased on the toilet at 6:00 and the events that followed flowed logically from this comment. It is possible that this comment drew the attention of other custodial officers to the existence of the inappropriately completed observation sheet, but the confusion of the evidence is such that I am not able to form any concluded view concerning this point.
The whole of the evidence concerning the events which occurred at the BRC after the discovery of the body of the deceased up to and including the completion of the rewrite of the observation sheet and the disposal of the original observation sheet are unclear and, indeed, I am not satisfied even at this point that the truth has been told concerning those events by the various participants.
It is appropriate to note at this point in time that Mr. Kelly did not, in fact, complete giving his evidence and was not subject to cross-examination by any counsel representing any of the interested parties.
Allegations of Witness D.
Witness D. gave evidence in November 1996 which suggested that there had been a failure on the part of custodial officers at the BRC to properly carry out their duties and also of a suggestion of a possible coverup. There was no evidence before me at that time to indicate that the allegations by witness D. could, in fact, be correct. Her allegations at least in relation to the observations and the actual coverup have turned out to be true. Her allegation, however, specifically related about comments made by witness M. and there remains no evidence before me to indicate that witness M.
played any part in any activities that occurred at the BRC on the 15th of April 1996.
The evidence, however, of witness D., detainee L. and the general evidence of other custodial officers raises a substantial reservation as to whether the activities of the A shift for the 14th and 15th of April 1996 were unique or merely evidence of the general culture at the BRC. There is certainly substantial evidence to suggest that the lack of activity of those involved in the A shift on that evening was not unique. This concern also flows through to an anxiety in relation to the existing culture being transferred
to any other institution. There is evidence before me concerning consideration being given by the A.C.T. Government to the building of a new facility either for detainees or for detainees and prisoners in the A.C.T. The evidence led even in the limited way in which it has been in this Inquest would cause me very grave concern to think that the culture, of which the activities of the A shift of the 14th and 15th of April 1996 was clearly a part, that existed at the BRC at the time would be transferred in any way to any new facility.
Role of Mr. Black in the Coverup I am satisfied on the evidence that Mr. Kelly told Mr. Black some time after the discovery of the body of the deceased that he, Mr. Kelly, had seen the deceased on the toilet at 6:00 o’clock. This statement was part of the coverup organised by Mr. Kelly.
The real significance of the evidence of Mr. Black and his role in the events of the 14th and 15th of April 1996 is that it clearly illustrates his complete failure as a supervisor and as a custodial officer at the BRC.
It is clear on the evidence that he made entries prior to events occurring and that he made them without any thought of the significance of those entries. He had clearly lost interest in his work and this lack of interest seems to have been, at least in part, caused by what he described as a feeling of powerlessness which he had experienced for a long period of time. Amongst his complaints already mentioned was the failure to receive any feedback from management in relation to anything that he did. It is difficult to believe that the incapacity of Mr. Black was not known to the management at the
Mr. Black at all times continued to adhere to the view that he had been told by Mr. Kelly that the deceased had been on the toilet at 6:00 a.m. It was only with very great difficulty that he was persuaded that he could not have been told this at 6:00 a.m. It is unclear on the evidence of the significance of his position other than that Mr. Kelly’s comment was firmly fixed in his mind. I do not believe on the evidence that it is open to me to find that Mr. Black was actually involved in the coverup.
Mr. Black’s incompetence and lack of interest clearly was a contributing factor to the cause of the death of the deceased.
CPR The evidence concerning the issue of mouth-to-mouth resuscitation, or CPR, was one of the significant factors in the overall evidence. It was the evidence given by Mr. Curbishley concerning CPR which was the first item to be ultimately critical to the uncovering of the coverup of the 15th of April 1996. It is clear on the evidence that there was a concern on the part of a number of persons at the BRC on the morning of the 15th of April 1996 in relation to the question of CPR. That concern clearly continued, especially in the mind of Mr. Curbishley, who seized upon what could at best be described as a hint from Mr. MacKenzie as an indication that it was necessary for him to give false evidence to the Inquest.
This evidence presents once again a picture of the culture existing at the BRC in which at least some custodial officers believed it was necessary and appropriate to lie to protect each other.
Edward Grahame MacKenzie
Although Mr. MacKenzie’s evidence is in many places exaggerated and untrue it bears close consideration by those responsible for the administration of the BRC because it clearly raises many of the problems experienced on a daily basis by officers employed at the BRC. It highlights many of the issues relating to care and treatment of all detainees, but particularly mentally dysfunctional detainees which will need to be considered by the administration and also by the Corrections Health Board upon it’s appointment.
Mr. MacKenzie was aware from the beginning of the events of the 15th of April 1996 that the deceased had been dead for a considerable period of time and that Mr. Kelly was lying about his observations.
Notwithstanding this knowledge he failed to provide this information to the police, to Mr. Van Hinthum, or to Mr. Fitzgerald and preferred to keep his knowledge to himself until it became unavoidable for him to provide the evidence to the Inquest. Mr. MacKenzie participated at critical times during the morning of the 15th of April 1996 with comments to both Mr. Kelly and Mr. Curbishley. He also participated in a significant and critical way at the meeting called by the Superintendent at which the issue of CPR was discussed. Mr. MacKenzie has conceded that his conduct both before the death of the deceased and since the death of the deceased has been in breach of Standing Orders and in particular in breach of the Superintendent’s Instructions issued after the death of the deceased concerning completion of observation sheets.
Mr. MacKenzie has admitted that he participated in a substantial number of conversations between the date of the death of the deceased and the Inquest at which he was constantly the subject of attempts to persuade him to give perjured evidence to the Inquest. He failed to bring these attempts to the attention of the police or the management at the BRC. Additionally, he participated in a conversation with Mr. Frame in which he clearly suggested to Mr. Frame a way in which Mr. Curbishley might mislead the Court. Mr. MacKenzie, himself, concedes that his conduct on this occasion amounted to an attempt to pervert the course of justice.
It is clear from Mr. MacKenzie’s evidence that from his first involvement in the events of the morning of the 15th of April 1996 he participated in a coverup initially of his own in relation to his knowledge of the time of death of the deceased and that Mr. Kelly was lying, but subsequently he became aware of, and at least indirectly involved in, the more general coverup involving Mr. Kelly, Mr. Curbishley and Mr.
Gordon. It is clear from his evidence that he has been involved in an attempt, not only on his own, but in full knowledge of the actions of others to pervert the course of justice.
Mr. MacKenzie gave graphic evidence of his knowledge of the incompetence of Mr. Kelly and Mr.
Black and of his many complaints about these particular officers. It appears, however, that apart from one instance involving a complaint concerning Mr. Black, he took no steps to reduce to writing, as was clearly required of him, the basis of his complaints so as to enable appropriate action to be taken in relation to his concerns by the responsible administration. He was content to indicate that he had been responsible for others getting the sack from the BRC but for some reason chose not to participate in any activity that might lead to the sacking of Mr. Kelly or Mr. Black.
Mr. MacKenzie’s evidence indicates that he was in a position from the morning of the 15th of April 1996 to provide information that would indicate the extent of the problems existing in the BRC on that date and also in relation to the illegal activities that had taken place subsequent to the discovery of the body of the deceased. For reasons which can only be put down to his misunderstanding of the concept of mateship he decided not to pass on any of this information. Notwithstanding his constant protestations that he had come to the Court to tell the truth, it is clear that he failed to do so on many occasions and, indeed, I am left with grave reservations about whether he has now told the truth concerning his knowledge of the events of the 15th of April 1996 and their aftermath.
He indicated on a number of occasions that his failure to tell the truth had resulted from the incompetence of the police inquiry and, indeed, from the failure by counsel at the Inquest to ask correct, precise questions. I do not accept that this is in any way an explanation for the failure by Mr.
MacKenzie to tell the truth in relation to his knowledge of the events of the morning of the 15th of April
This attitude is again demonstrated by his evidence of his understanding of the practices of Mr. Black in turning off the intercoms and also the monitor to A1. Mr. MacKenzie concedes that he did not bring his knowledge of this appalling dereliction of duty by Mr. Black to anyone’s attention.
Even more critical than the above failings was the failure by Mr. MacKenzie, who clearly was the responsible officer on the morning of the 15th of April 1996, to bring to the attention of the investigating police officers the existence of the video recording tape. The evidence is clear that at the time the police arrived to begin their investigation that the tape could have been stopped and would have revealed all of the activity, or inactivity, which had occurred within a period of 24 hours prior to it’s being stopped. Mr. MacKenzie on his evidence was well aware of this fact, but declined to indicate to the police the existence of such dramatic evidence. This, alone, is sufficient to condemn Mr.
MacKenzie.
Notwithstanding all of the above, as I have indicated, Mr. MacKenzie gave a substantial body of evidence which ought to be the subject of careful scrutiny by those responsible for the administration of the BRC. His comments concerning the lack of any one person responsible for mentally ill people locked up in the BRC clearly indicates, in short compass, the problems revealed by this Inquest in relation not only to mentally ill people, but other detainees at the BRC. These comments, in addition to his comments concerning his understanding of his capacity to contact medical practitioners, are significant and reinforce the view that there is an urgent need for the appointment of a Corrections Health Board.
It is unlikely that Mr. MacKenzie participated in any real sense in the coverup instigated by Mr. Kelly, but there must be reservations concerning his perhaps precipitating, or reinforcing the activity of Mr. Kelly by his comment concerning the correctness of the observation sheet and also by his comment to Mr.
Curbishley concerning CPR. It is clear on the evidence that it was as a direct result of comments made by Mr. MacKenzie to Mr. Curbishley that Mr. Curbishley perjured himself in relation to the question of
It is also clear from the evidence that he mislead the inquest when he gave his evidence concerning his knowledge of the evidence of witness D. His subsequent admission concerning this fact clearly indicates that there had, indeed, been some form of communication between Mr. MacKenzie and witness M.
Arnoldus Marinus Joseph Van Hinthum The evidence indicates that Mr. Van Hinthum inherited a facility which was inadequate and a management arrangement of that facility which had become corrupted over time. Mr. Van Hinthum is not responsible for the system as it existed but must be responsible for his failure to take more vigorous
action than he clearly did to attempt to overcome the problems he had inherited. It may well be that others senior to Mr. Van Hinthum also must bear some of the responsibility for failing to give proper priority to the needs which clearly existed at the BRC not only in relation to the inadequate facilities but also in relation to resources, particularly those available from outside agencies and also in relation to ongoing training of officers and of general up-dating of officers in relation to their functions and responsibilities.
Mr. Van Hinthum was responsible for the application of the provisions of the R.C.A. to the Remand Centre and he has failed in his responsibilities in this area. Not only was there a failure to ensure the appointment of a medical officer under the provisions of the Act, but also a failure to ensure that proper steps were taken to protect detainees while they were in the facility.
He has failed to implement as a matter of urgency proper standing orders and rules and procedures so as to ensure that all staff members were full aware of their responsibilities and in particular how staff members were to properly access outside agency assistance.
He has failed to ensure proper administrative arrangements concerning file management and communication of material within the BRC.
He failed to take appropriate action by way of checks and inspection of written documentation to ensure that officers under his supervision were carrying out their proper responsibilities. In relation to his supervision he failed to make any proper inquiries specifically in relation to the incident involving detainee T. and also involving the death of the deceased. He also failed to take any steps to ensure that the video tape which would have been present in the control room on the morning of the 15th of April 1996 was seized and handed over to the police. In the same way as Mr. MacKenzie failed in his responsibility concerning that video tape, Mr. Van Hinthum has also failed.
Mr. Van Hinthum has failed to ensure that decisions of significance in relation to the welfare of detainees such as removal from one unit to another or the changing of observations were documented in such a way so as to make clear who made the decision and the basis upon which that decision has been made.
He has further failed to take proper steps to ensure that the clear lack of coordination of the various outside agencies in their dealings with the BRC was overcome.
Mr. Van Hinthum did not impress me as a particularly reliable witness and I have reservations about some of the evidence given by him particularly in relation to conversations he has had with other officers. The circumstances in which he called the meeting at the BRC prior to the commencement of the Inquest possibly give raise to concerns as to his precise intention. Ultimately, however, there is no real evidence to indicate that Mr. Van Hinthum acted in other than an innocent or naive way in relation to his dealings with other officers, and in relation to the calling of the meeting and to his contact during the Inquest with other officers.
While Mr. Buddin clearly indicated his suspicions concerning the absence of meetings and minutes of meetings, there is no evidence before me to suggest that anything sinister occurred in relation to this period of time other than it coincidently covered some of the same period of time during which the deceased was present in the BRC.
Mr. Van Hinthum’s style of management seemed to be that he required matters to be drawn to his attention so that he might take relevant action. He appeared to have no understanding that there may be some other way to be more actively involved in the management so as to bring matters to his attention by his own actions rather than relying upon others. Indeed, he appeared to be reluctant to conduct any investigations or inquiries.
It is fair to say that Mr. Van Hinthum did make attempts to change the environment of the BRC but in my opinion it is clear that he, ultimately like Mr. MacKenzie and others, either gave up or was overwhelmed by the task confronting him. Any change introduced by Mr. Van Hinthum seems to take either a remarkably long time or to be triggered only by some action clearly brought to his attention.
This, in my view, is not an appropriate approach to the management of an institution which has the problems clearly evidenced at the BRC. It is clear that there is a need for a vigorous and robust individual to take over the role of Superintendent at the BRC in order to ensure that the matters that have been exposed by this Inquest are confronted and dealt with satisfactorily and as speedily as possible. This description does not in any way conform to my impression of Mr. Van Hinthum. It is clear, in my view, that Mr. Van Hinthum did not have the capacity to perform the tasks which clearly needed to be carried out to change the culture and the operations of the BRC. He would never, in my view, be able to adequately perform such a role. It is clear on the evidence before me that his failings as the acting Superintendent are such that he is not an appropriate person to have any role at the BRC.
James Walter Ryan Mr. Ryan was appointed as Director of A.C.T. Corrective Services in January 1997 and, accordingly, was not in any way involved in the circumstances of the death of the deceased. He will, of course, be responsible for the future reforms which are clearly necessary at the BRC. Mr. Ryan’s evidence indicates that he is aware of the need for reform and has begun to implement a plan to overcome the glaring difficulties at the BRC. Of particular significance in relation to Mr. Ryan’s evidence was his recommendation for the appointment of a Corrections Health Board. This Board, as I have said on a number of occasions, is in my opinion an essential and urgent need and action should be taken forthwith to set it up.
Mr. Ryan made a number of other suggestions which I will take up in due course as in my view much of what he said is commendable and it’s introduction desirable.
While Mr. Ryan indicated that in his view there had been a leadership vacuum and a lack of supervision, particularly in relation to the role of Mr. Van Hinthum, he did express some sympathy for Mr.
Van Hinthum’s position particularly in relation to the failure of the administrative authorities to confirm him in his position or, alternatively, to remove him. For whatever reason there seems to be a substantial body of evidence suggesting that a large number of persons involved in A.C.T. Corrections, including those employed at the BRC, remained for long periods of time in acting positions. Finally, I must pick up on the comment made by Mr. Ryan, and indeed others, that the comments made during my judgment concerning the failures of custodial officers does not indicate that all custodial officers conducted themselves in the same way as those employed on the evening of the 14th and 15th of April 1996. While
evidence was largely restricted to this particular shift, it is clear on the evidence that good work is done by the large body of corrections officers employed and that frequently those good works and achievements are not adequately commented upon. It is clear, however, that in the absence of appropriate supervision and management even the most dedicated officer can easily fall into inappropriate ways. The future of the BRC rests with the introduction of new protocols, practices and coordinated activities, the success of these changes rest, in part, upon each individual officer clearly understanding their role and their responsibilities and that above each individual officer there be an active role from management to continue to encourage proper practices at the BRC and to actively discourage improper practices at the BRC.
SUBMISSIONS Submissions were received from a number of parties represented at the Inquest and I am grateful to all those who have supplied submissions for their response. In particular, a substantial submission was prepared by the Community Advocate and I intend to adopt a number of the recommendations made in that submission. I am of the view, however, that a number of the recommendations are not appropriate for me, as Coroner, to recommend but I do intend in my report to the Attorney-General under section 58 of the C.A. to forward a copy of the submission from the Community Advocate as in my view her submission needs to be considered by those who consider the other recommendations made in my Judgment.
The submissions filed on behalf of the Australian Capital Territory were somewhat disappointing and, indeed, it may be necessary for consideration to be given by those advising the Australian Capital Territory of the role to be played by the Australian Capital Territory in future Inquests which involve facilities and services provided for the benefit of the community by the A.C.T. At the commencement of the Inquest leave was granted to Mr. Erskine, of Counsel, instructed by the A.C.T. Government Solicitor, to appear on behalf of the A.C.T. This broad leave ultimately gave rise to problems and embarrassment. Mr. Erskine indicated during the evidence of Mr. Black that he had, in fact, not been appearing for Mr. Black notwithstanding that his conduct as Counsel would have indicated to the contrary, as Mr. Black was not at the time of his giving evidence to the Inquest an employee of the Territory. At the same time Mr. Erskine ceased to act for a number of other custodial officers, but continued to act for other persons who had given evidence or who may have been called to give evidence. This situation, of course, led to a multiplicity of Counsel appearing to represent various witnesses.
It is clear as a result of this Inquest that there are circumstances which may arise during inquests involving interests of the A.C.T. where it is inappropriate for a single representative to appear to represent the interests of the A.C.T.
The difficulties which arose in this case, which had not been foreseen by the parties, caused embarrassment not only to the conduct of the Inquest but, no doubt, also to Counsel representing the
I make these comments not by way of any criticism of Mr. Erskine, but merely to indicate the potential for conflict arising during inquests of this type and would suggest that careful consideration will need to be given in the future as to the proper and adequate representation of the A.C.T. and the interests of those employed by the A.C.T.
(b) how, when and where the death occurred;
(c) the cause of death;
(d) the identify of any person who contributed to the death." I, accordingly, make the following findings:
(a) The deceased was Shannon Robert Camden.
(b) The deceased died of suffocation from hanging between about 4:00 a.m. and 6:35 a.m. on the 15th of April 1996 in the Belconnen Remand Centre, Belconnen in the Australian Capital Territory.
(c) The cause of death was suffocation from hanging.
(d) Subsection (d) of section 56 requires that I shall find, if possible, the identity of any person who contributed to the death of the deceased. For reasons which I will go into in more detail in my comments concerning section 24 of the Act I am not prepared to find that any person contributed to the death of the deceased.
I shall return in due course to make comments under the provisions of section 56(4) and section 58, but at this point in time turn to consider the provisions of section 24. Section 24 of the C.A. is in the following terms: "The Coroner holding an inquest into a death in custody shall include in a record of the proceedings of the inquest findings as to the quality of care, treatment and supervision of the deceased person which, in the opinion of the Coroner, contributed to the cause of death." It is my view of the evidence and my reading of the Act that it is more appropriate to make a finding as to the contribution to the cause of death in relation to the deceased than it is to make a finding in relation to the contribution to the death of the deceased. The evidence concerning the dereliction of duty on the part of the custodial officers at the BRC does not, in my view, amount to a circumstance in which I could find that any of those persons "contributed to the death" of the deceased, but in my view it is clear that they contributed to the cause of death.
The death of the deceased arose as a result of the deceased hanging himself in unit A1 at the BRC in the early morning of the 15th of April 1996. I am not able to find a precise time of death in relation to the deceased, but the best evidence of Professor Herdson is that he died some time around 4:30 a.m.
on that morning. At the time of his death he had been in the BRC for some two months awaiting the result of proceedings firstly in the Magistrates Court and then in the Mental Health Tribunal. The quality of care, treatment and supervision of the deceased encompasses more than his supervision by the custodial officers at the BRC, but I accept on the evidence that it is not possible to say that any person or organisation or the lack of care, treatment and supervision of any person or organisation other than the employees of the BRC in any way contributed to the cause of death of the deceased.
While it might be suggested that the long history of the deceased and the difficulties he encountered in seeking a diagnosis and treatment for his condition may have contributed to his death or to his cause of death, in my view such a situation is too remote to the death of the deceased to enable a finding to be made concerning that circumstance. In my view the only factor which might be regarded as having contributed to the cause of death of the deceased was the quality of care, treatment and supervision of the deceased during his period of detention at the BRC. More particularly I believe it is appropriate to focus upon the conduct of those officers charged with the specific responsibility for his supervision on the evening of the 14th and 15th of April 1996, together with the supervisors of those officers. I intend, in the circumstances, to deal with each officer individually.
Walter Black Mr. Black was the supervisor of three junior officers who were on duty at the relevant time. It is clear on the evidence that Mr. Black failed completely to exercise any proper supervision of his officers and, therefore, supervision in relation to the deceased. The evidence clearly indicates that the deceased came into the BRC as a prisoner-at-risk and suicidal. He continued to maintain this status for the whole of his period of detention. His conduct during his period of detention was the subject of a number of reports and also led to his examination by Dr. Rosenman, who gave express advice to the BRC concerning the risk represented by the deceased. Notwithstanding all of these facts, Mr. Black failed completely to appropriately supervise and, in my view, contributed to the cause of death of the deceased.
John Kelly Mr. Kelly was the custodial officer who, on the evidence, had undertaken the responsibility to conduct the required observations of the deceased every 30 minutes. There is no doubt that he did not do this. I have read carefully the helpful submissions prepared by Ms. Ryan on behalf of Mr. Kelly, and in particular her submission that Mr. Kelly cannot be held responsible for what happened on the 15th of April 1996. I cannot accept this submission. It is clear on the evidence that the deceased died either during the time that Mr. Kelly was responsible for the observations or shortly before he commenced his period of observations. There is no evidence to suggest that anyone other than Mr. Kelly had any responsibility for any observations that were to occur after 4:30 a.m. While it is true that the deceased was only on 30 minute observations at the relevant time, it is clear from the evidence that at least one other detainee, namely detainee L., was on 15 minute observation and that detainee L. was also in A yard. It would be clear in those circumstances that if Mr. Kelly had carried out his responsibilities correctly then he would have been required to attend in A yard every 15 minutes to observe at least detainee L. If he had done this on a regular basis then it would have been clear to all those detainees in A yard, including the deceased, that there was a constant observation being kept on the yard. Such a regime would, in my view, have made it extremely difficult, if not impossible, for the deceased to have carried out his plan of hanging himself. In my opinion it is inevitable that there be a finding that Mr. Kelly contributed to the cause of death of the deceased.
Bradley Gordon Mr. Gordon was the custodial officer who, according to the evidence, conducted the first two observations in relation to the deceased and, indeed, other detainees in the BRC on the evening of the 14th and 15th of April 1996. Having completed this series of observations Mr. Gordon retired and for a period of some hours slept. Subsequent to his sleeping he then watched the television. It is clear on his own admissions that from at least 11:30 p.m. on the 14th of April 1996 he played no part at all in carrying out his joint and several responsibilities as a custodial officer employed, amongst other things, to conduct the observations of detainees. His complete failure to carry out his responsibilities, in my view, cause me inevitably to find that he also contributed to the cause of death of the deceased. I have perused the submissions filed on behalf of Mr. Gordon and there is nothing contained therein that would sway me from this finding.
Gavin Curbishley Mr. Curbishley, according to his evidence, conducted a larger number of observations during the evening from about 11:30 p.m. until 4:30 a.m. There is nothing, of course, in the evidence to prove that Mr. Curbishley did, in fact, conduct these observations other than his evidence to that effect. He, along with Mr. Kelly and Mr. Gordon, had a joint and several responsibility to ensure that all of the requirements, particularly in relation to observations, were carried out under the terms of their employment. Mr. Curbishley also failed to carry out his responsibilities and clearly his failure is the same as that of Mr. Gordon and Mr. Kelly. I accordingly find that he contributed to the cause of death of the deceased.
Arnoldus Van Hinthum Mr. Van Hinthum was the acting Superintendent at the time of the death of the deceased and as such was responsible in an overall way for the proper running, including the quality of care, treatment and supervision of the deceased, while he was in detention at the BRC. For reasons which I have indicated already I am of the view that Mr. Van Hinthum failed in his responsibilities as the acting Superintendent and in those circumstances also, in my view, contributed to the cause of death of the deceased. I have read with care the submissions prepared by Mr. Refshauge on behalf of Mr. Van Hinthum and I am not persuaded by those submissions to make a finding other than that Mr. Van Hinthum contributed to the cause of death of the deceased.
Edward Grahame MacKenzie Mr. MacKenzie was present at the time the deceased was discovered, but in my view cannot be found to have contributed to the cause of death of the deceased. His failure to properly draw to the attention of Mr. Van Hinthum and others the clear failings of Mr. Black and Mr. Kelly are in my view too remote from the cause of death of the deceased to enable a finding of this type to be made against Mr. MacKenzie.
I would formally find, pursuant to the provisions of section 24, that the quality of care and the failure of supervision on the part of Mr. Van Hinthum, Mr. Black, Mr. Kelly, Mr. Gordon and Mr. Curbishley contributed to the cause of death of the deceased.
Section 58 of the C.A. allows a Coroner to make recommendations to the Attorney-General on any matter connected with an inquest, including matters relating to public health or safety or the administration of justice. Based upon the evidence put before me during the Inquest, I would make the following recommendations:
I would recommend that prosecutions be commenced immediately against John Michael Kelly, Bradley John Gordon, and Gavin Curbishley for perjury and for attempt to pervert the course of justice.
I would recommend that prosecution be commenced immediately against Edward Grahame MacKenzie for attempt to pervert the course of justice.
I would recommend that consideration be given to charging Edward Grahame MacKenzie with perjury.
I would recommend that immediate proceedings commence, or be continued, under the relevant provisions of the Public Service Acts relating to public servants in the Territory to dismiss from the Public Service (a) Edward Grahame MacKenzie, (b) John Michael Kelly, (c) Bradley John Gordon and (d) Gavin Curbishley.
I would recommend that consideration be given to the commencement of proceedings under the relevant Public Service Acts to terminate the employment of Arnoldus Marinus Joseph Van Hinthum.
I would recommend that the Corrections Health Board proposed by Mr. James Ryan be set up as a matter of urgency and that all of the matters referring to problems relating to provision of services for detainees suffering from mental dysfunction, or other behavioural problems, be referred to that Board so that appropriately coordinated services for the care, treatment and supervision of detainees in custody be implemented as a matter of urgency. This recommendation would also cover any similar person who comes into contact with the criminal justice system in the Territory.
I would recommend that independent of the considerations of the Corrections Health Board that urgent consideration be given to the question of provision of adequate resources to mental health services of the Territory so as to enable the speedy preparation of assessments as and when required by the Mental Health Tribunal or the Courts of the Territory.
I would recommend that urgent consideration be given to the construction of a new and appropriate remand facility in the Territory to more adequately cope with the wide range of persons who are detained at the facility.
I would recommend that as part of the ongoing review spoken of by James Ryan that there be a complete review by an external agency of the operations of the Belconnen Remand Centre with particular reference on recommendations concerning appropriate administrative procedures.
I would recommend that urgent consideration be given to the construction in the Territory of a proper facility at which detainees with particular mental health or behavioural problems are able to be detained under proper medical supervision. It has been suggested by Mr. Ryan that this facility ought to become attached to the Canberra Hospital. I would support his suggestion.
I would recommend forthwith the acquisition and installation of a system similar to that referred to in the Report provided by Mr. Hornigold and described by him as an Automatic Guard Tour System. Such a system would provide, now, some greater degree of certainty in relation to the conduct of observations as required in the BRC.
I would recommend that the Superintendent of the BRC have access to all medical, correctional or welfare files created at the BRC in relation to individual detainees. If this access requires a legislative basis then such legislation ought to be introduced as a matter of urgency.
I would recommend that urgent consideration be given to the development of procedures whereby the medical officer at the BRC is able, as a matter of urgency and with little difficulty, to access any available medical information relating to individual detainees particularly when it exists within the Territory. This, no doubt, would be an appropriate matter to be considered by the Corrections Health Board.
I would recommend the urgent consideration of the development of protocols between the BRC and it’s staff and all external agencies who provide support to the BRC so that all those involved clearly understand their particular role and responsibility in relation to the provision of support and care for detainees at the BRC. This is another matter which may be able to be considered by the Corrections Health Board.
I adopt the following recommendations made by the Community Advocate in her submissions:
It is recommended that all people with mental dysfunction detained at the BRC should have a case manager appointed by the mental health service to collaborate closely with Corrective Services, so that there is a single person who holds that person’s trust and who holds all the relevant information about that person’s condition and history so that informed plans can be developed for the person’s care in custody.
It is recommended that such a case manager be in a position to access all the relevant information about the person’s condition and history and know about other professionals or agencies involved. This could be achieved with the person’s consent, with legal substitute consent (guardianship) and through interagency protocols.
It is recommended that when hearing applications in relation to a forensic patient in custody that the MHT (Mental Health Tribunal) be properly informed and provided with thorough assessments which bring together the total story of a person’s mental state and not just that part reflected in a 30 minute or a 70 minute assessment. An investigative assessment is required, not just a diagnostic assessment. It is clear that current resources do not make this possible.
It is recommended that where the State takes away people’s rights, the very strong onus of responsibility on Government to provide the necessary resources to achieve their safe custody be accepted and implemented.
Comments Section 56(4) of the C.A. provides: "A Coroner may comment on any matter connected with the death or fire, including public health or safety or the administration of justice." I list hereunder a number of matters which I have considered more appropriately reserved for comment rather than for specific recommendation. A number of the matters, however, while more appropriately regarded as comments are significant and ought to be given proper consideration.
The evidence concerning the situation of the deceased prior to his going into custody clearly indicates a need for consideration to be given by the relevant mental health authorities in the Territory to attempting to provide a more adequate service than clearly was available to the deceased, especially in the last months of his life. Such consideration would seem to be necessarily one which involved discussion with the parents of young people in a similar situation to that which confronted the deceased and his parents. Mrs. Camden, in particular, gave evidence of the need felt by her and an organisation to which she belonged to be able to provide to relevant authorities information concerning the real problems that they, as parents, had experienced in their dealings with mental heath authorities. This she felt had not occurred in the past.
Dr. Lubbe’s evidence suggests that it would seem to be desirable for mental health authorities to have some form of coordinated approach which would allow any treating psychiatrist or other medical specialist, to become aware with little difficulty of the fact that a person with whom they have been dealing is perhaps being treated or examined by some other practitioner or at some other hospital.
It is clear from the evidence concerning the Mental Health Tribunal that urgent consideration must be given to changing the procedures of the Tribunal, particularly in relation to the composition of the Tribunal itself. It would be my recommendation that the Tribunal, in relation to it’s presidential member, ensure insofar as is possible that the magisterial presidential member have no other dealings with a respondent in any other magisterial capacity.
It would be appropriate for more careful consideration to be given by the Registry to the preparation of the applications before the Tribunal so as to ensure that the Tribunal clearly appreciates the nature of the application or applications which might then be before the Tribunal.
It would be desirable if more care careful thought was given to the impact staffing shortages had upon the detainee and also the impact upon those outside the BRC who might wish to visit or communicate with a detainee.
It is clear on all of the evidence that there is, if not on a continual basis then on a very regular basis, a clear need for a unit of the type originally created and called the "special care unit".
It must be understood by outside agencies that persons detained in the BRC are frequently in a critical situation and that there will inevitably be an urgency about the need to provide support to the
Rosendahl is, on an as needed basis.
There is a need for a procedure to be adopted which clearly indicates to all officers their individual responsibilities and how they are to carry them out. The way in which outside agencies can be contacted and whose responsibility it is to arrange the contact, and it is a matter of the utmost urgency that the paper war which occurs at the BRC should end. It is also a matter of urgency that procedures be implemented which ensure that information necessary for the proper care and supervision of detainees comes to the attention of all relevant custodial officers as quickly as possible and that there is proof that such information has come to the attention of all relevant custodial officers. The ad hoc system which clearly operated as at the date of the death of the deceased must end.
It would seem to be desirable that an officer who makes a report concerning an individual detainee ought be advised of what, if any, action was taken in relation to that report. It is clear from the evidence that this failure to advise officers may well lead to a situation where officers no longer bother to make reports as they are not aware of what action, if any, is taken in response to their efforts.
It is clear that there needs to be clear documentation of consultations and decisions made by the Superintendent with respect to the movement of detainees within the BRC. No doubt the introduction of the detainee meetings which involve the Superintendent and others will assist in overcoming the absence of documentary evidence concerning decisions of this type.
It is clear that there is a need for a vigorous and robust individual to take over the role of Superintendent at the BRC in order to ensure that the matters that have been exposed by this Inquest are confronted and dealt with satisfactorily and as speedily as possible. This description does not in any way conform to my impression of Mr. Van Hinthum. It is clear, in my view, that Mr. Van Hinthum did not have the capacity to perform the tasks which clearly needed to be carried out to change the culture and the operations of the BRC. He would never, in my view, be able to adequately perform such a role.
It is clear on the evidence before me that his failings as the acting Superintendent are such that he is not an appropriate person to have any role at the BRC.
As noted in my recommendations a number of recommendations and submissions were made by the Community Advocate in her submissions. I have adopted a number of her recommendations as appropriately to be made as recommendations by me. There are, however, a number of other recommendations contained in her submissions which I adopt in the form of comments.
It is recommended that Magistrates making referrals to the MHT (Mental Health Tribunal) in relation to a person with mental dysfunction, at the same time arrange for immediate advice to be given to the OCA (Office of the Community Advocate) so as to maximise the time the OCA has available to gather information for any MHT (Mental Health Tribunal) hearing or to become involved if the person is not legally represented.
It is suggested that requests for assessment reports for the purposes of the MHT (Mental Health Tribunal) be specific about the questions being asked and that those providing the reports be specific about exactly what advice is being provided and be very clear about the limitations of their reports.
It is suggested that the MHT (Mental Health Tribunal) not be forced to rely on the same service (ideally) or professional, for assessment reports which form the basis for involuntary treatment orders, which then is asked to treat the person therapeutically and involuntarily.
CONCLUSION The evidence called before Inquest into the manner and cause of the death of Shannon Robert Camden has revealed a situation in which the facility in which he was being detained is inappropriate for it’s purpose and that the supervision and care of detainees by the staff had become, at least in relation to some staff, corrupted by a culture which represented an exaggerated and misunderstood concept of mateship and a refusal to "dob in your mates". It is to be hoped that the exposure of the system failures and the inadequacies of individuals and the facility will lead to changes which will prevent deaths such as the one under investigation in this Inquest.
I would wish to end my judgment by thanking, once again, all those whose unstinting efforts have enabled the exposure of the problems about which evidence has been given. Without their efforts, and in particular the efforts of Mr. Buddin, the Director of Public Prosecutions, and his instructing solicitor, Ms. Elizabeth Jones, this exposure would not have occurred. I would wish to publicly thank and commend the efforts of my Associate, Mrs. Neila Schmidt, for her efforts and support during the Inquest and, more particularly, during the preparation of this judgment. Without her effort, which in my view was above and beyond the call of duty, this project would not have been so swiftly concluded.
I feel it is appropriate to end my judgment by quoting from Mrs. Camden whose evidence ended the Inquest.
"We would like it remembered that through the tragic death of our son, Shannon, the administering of the care, treatment and supervision of detainees at the Belconnen Remand Centre has been totally restructured to hopefully prevent a family ever having to endure the pain, suffering and grief which we will bear for the rest of our lives without our son, Shannon." day of 1997
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