Dozens of unanswered questions: inquest attempts to unravel the death in custody of Wayne Fella Morrison

Five years since the Indigenous man died in an Adelaide hospital, prison guards with him in his final hours avoid key questions

“I do not recall”, “I don’t remember”, “I cannot recollect” – these were the phrases heard at least 45 times during Friday’s hearings in courtroom nine of the South Australian supreme court.

In just two hours of stilted evidence given by two prison guards involved in the restraint and transport of 29-year-old Indigenous man, Wayne Fella Morrison, prior to his death, the coroner gleaned little about the events of 23 September 2016.

The lapses in memory among the witnesses were accompanied by at least 71 separate claims for penalty privilege – a legal protection that allows witnesses to coronial inquiries to refuse questions where the answers may expose them to a penalty.

Appearing before the coroner, Jayne Basheer, were corrections officers Neale McLeod, Neil Bradford and Martin Crowe, three current and former prison guards who were directly involved in the events leading up to Morrison’s death.

All invoked the privilege when asked about their role that day – leading to tense scenes at the supreme court building in the south-west corner of Victoria Square as the hearing played out in a staccato fashion.

McCleod – during the first 13 minutes of his appearance – claimed privilege 12 times. Bradford, meanwhile, told the inquest he did not recall details of events at least 21 times over 50 minutes of evidence. During his half hour appearance, Crowe took the privilege at least 17 times.

In one exchange, counsel assisting the coroner, Anthony Crocker, attempted to ask why Bradford had entered the prison through a public entrance to attend a meeting with managers after Morrison had been rushed to hospital.

Bradford said he could not recall what he had been doing at the time.

Crocker: Having had your memory refreshed can you assist her honour as to what had been happening shortly before that? Why are you on the public side and coming back in through the nonstandard entry way?

Bradford: No recollection.

Crocker: What had you been doing say from half past 12 to 4 o’clock that day?

Bradford: Can you repeat the question?

Crocker: From half past 12 and from 4 o’clock when the van gets taken back. What were you doing?

Bradford: No recollection.

Later, having grown frustrated with the course of proceedings, Crocker asked Bradford whether he could help the coroner with any evidence, at all.

“Ma’am this was an event from five years ago,” Bradford said. “I can’t recall specific conversations, the footage shows I was there. But as to what conversations? It’s been five years.”

A series of delays

In the half decade since Morrison died on 26 September 2016, his family initially fought to have the inquest fast tracked with a campaign that included a protest shutting down traffic at the intersection of Rundle and Pulteney Street in Adelaide.

When the inquest formally began in late August 2016 – a process involving 48 prison guards and staff – an appeal to the supreme court in 2019 caused hearings to be put on pause. While the inquest was expected to pick up in early 2020, the onset of the pandemic delayed the process further.

As of December 2018, it had generated over 3,300 pages of transcript.

In that time the inquiry has allowed a unique look at the inner workings of the Yatala Labour prison and the culture of those who work at the site.

Morrison died at the Royal Adelaide hospital three days after at least 12 officers piled on top of him in a hallway outside of his prison cell following an incident involving two other guards.

Forced to the ground, Morrison was then restrained by his wrists, his ankles and placed in a spit hood. A group of guards then carried Morrison to a prison van. Video played for the court shows the procession stopping at an elevator to reposition the spit hood.

Morrison was then loaded into the back of the prison van face down.

Seven prison guards travelled with him on the 125 second trip to Yatala Labor prison’s high security G-Division, but only five guards were present in the back with Morrison – Trent Hall, Darren Shillabeer, Liam Mail, Martin Crowe and Jean-Guy Townsend.

Of them all, Shillabeer and Hall were positioned closest to Morrison’s head.

No CCTV footage exists of what happened during the transit and what occurred during that trip has been a key focus of the inquiry.

Upon arrival at the entry way at G-Division, Morrison was removed from the van and placed on the ground. Video footage played for the court shows dozens of prison guards and staff looking on. It took nearly three and a half minutes for CPR to begin and nearly five minutes for 000 to be called.

Morrison’s family were alerted to the incident when he failed to appear by video link for a scheduled hearing at Elizabeth Magistrates court for a bail application. When they attempted to learn his whereabouts, the hospital said they had not admitted anyone called Morrison. The family later learnt that he had been admitted under the false name “Ben Waters”.

While the family waited in a hospital car park after spending an hour and a half attempting to see Morrison, the Department of Correctional Services called a press conference to announce an “incident” at the prison.

A report released by the South Australian ombudsman in September 2020 was damning in its conclusions about the department’s treatment of the family with ombudsman Wayne Lines saying he was “appalled”.

“Mr Morrison’s family should never have been put in the situation that they were put in. I am appalled at their treatment,” Lines said.

“In my view, Mr Morrison’s family were not treated with the openness, frankness and sensitivity that they deserved. It is not at all surprising that Mr Morrison’s family appeared to regard the department’s actions with suspicion. The department’s actions did not instil confidence or trust in its dealing with Aboriginal prisoners in custody.”

Morrison – a Wiradjuri, Kokatha and Wirangu man – had not been convicted of any crime and was being held on remand.

The inquiry into the circumstances around his death was delayed in 2019 when 18 prison guards and a nurse unsuccessfully tried to have the coroner removed from the proceedings alleging she was biased.

In that time the coroner has heard how, on the morning of Morrison’s scheduled court appearance, an altercation in his cell lead to his restraint. Guards who appeared during earlier hearings described the initial assault as sudden, unprovoked and violent. Morrison, they say, was “big and strong”.

While the inquest has yet to hear from the pathologist, in his opening address Crocker said “positional asphyxia” – the name for a situation where how a person is placed when they are restrained stops them from breathing – contributed to Morrison’s death. The family says the force of the restraint left Morrison’s body bruised.

To date several guards have given evidence saying that they have received no training regarding positional asphyxia or additional retraining to do their job.

In one exchange from the earlier hearings, Claire O’Connor, counsel representing of Morrison’s family, asked prison guard Steve Connor whether a spit hood fitted tightly around the neck of the person wearing it. During the exchange, Connor was asked whether he had ever tried one on.

“Why would I put a spit hood on my own head?” Connor said.

A patchwork of detail

Over the last three weeks, the coroner heard how little has changed at the prison since Morrison’s death in 2016. Guards previously appearing at the inquest have given evidence of a culture that was resistant to further training, while others have said the only additional training they have received was in Controls, Restraints and Defensive, Techniques (CRDT) six months after Morrison died.

In another appearance by Gordon Burnell, G Divisions unit supervisor on the day, the coroner heard how Burnell did not call for an ambulance despite the clear medical emergency, instead choosing to call a “Code Black”.

A “Code Black” signals a major security or health incident is in progress, which requires all available staff to attend. When asked why Burnell did not immediately call for an ambulance, he said he believed that in a prison environment “different rules apply” and that he assumed an ambulance would be called as part of the code.

The court had also previously heard from Detective Sergeant Lisa Pettinau who was part of the initial police investigation at the prison. Pettinau described a series of delays and procedural roadblocks meant prison guards were not separated or prevented from leaving the prison, evidence was not retained and crime scenes weren’t sealed.

“It was frustrating, yes. I expected a more collaborative approach,” she said.

These earlier hearings have been followed by three gruelling weeks where evidence has focused on three specific events – what happened during the immediate restraint, the transport to G-Division and what occurred in the aftermath as prison officers reacted to Morrison’s hospitalisation.

When Shillabeer appeared before the inquest on Thursday, he said he “could not recall” several events, including being asked by supervisors to stay nearby to assist with an active police investigation into the incident.

However, the guard said that once leaving the prison he drove to Port Augusta – three and a half hours from Adelaide - to watch a friend play football and did not return until Monday.

Shillabeer said that while on the road he had taken a phone call from a supervisor but could not recall what was said during that conversation and confirmed he continued driving after the call ended.

This patchwork of detail has lead to frustrations within the courtroom as the coroner and counsel assisting have sought to ascertain evidence about what occurred in the back of the van.

In the last three weeks, lawyers for the prison officers and the department have fought to have the guards who were present in the van with Morrison appear on the same day and limit the questions they faced.

The South Australian government has since changed the law to allow coroners to compel witnesses to give evidence even where they may risk incriminating themselves. But because the laws do not apply retroactively to proceedings that have already begun, they do not apply in this case.

Though the coroner ruled that each guard would have to appear one-by-one, the cumulative effect of a multiple disruptions to the process have taken its toll.

Following a series of interruptions on Wednesday, coroner Basheer sought to stamp her authority on her courtroom.

“If I sound frustrated, it’s because I am,” Basheer said. “This is an inquiry into the facts and broad circumstances of the death of Mr Morrison. I have ruled that the gatehouse is a permissible topic.

“If I’m wrong, so be it. If I’m wrong, I’m wrong, but I will not tolerate any further delay in these proceedings and have the Morrison family sit at the back of this court and be subjected to what they must wonder is a derailing of their one hope that this inquest might actually probe something that was of interest to them.”

If the process has been frustrating for officials, it has certainly been trying for the family who on any given day are outnumbered by lawyers three-to-one. Morrison’s mother, Caroline Andersen, has refused to watch the video of his restraint and at several points she and Morrison’s sibling, Latoya Rule, have had to leave the courtroom in distress.

With several more weeks to go before closing submissions will be given, the cost they are paying for answers is already high – and growing by the day.


Royce Kurmelovs

The GuardianTramp

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