FEDERAL COURT OF AUSTRALIA Scott v Northern Territory of Australia & Anor [2003] FCA 658 PRACTICE AND PROCEDURE – multiple proceedings – abuse of process – action commenced in Northern Territory Supreme Court apt to comprehend causes of action and fresh particulars sued on in Federal Court – Commonwealth sued colourably to attract Federal jurisdiction for action against Northern Territory – embarrassing pleadings – whether any cause of action apparent TERRITORIES – Northern Territory not mere agent or delegate of Commonwealth – Commonwealth not vicariously liable for alleged acts of Northern Territory prison officers ADMINISTRATIVE LAW – police decisions to investigate – whether amenable to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether reviewable by prerogative writs or otherwise Administrative Decisions (Judicial Review) Act 1977 (Cth) Compensation (Fatal Injuries) Act 1979 (NT), ss 7, 8 Coroners Act 1993 (NT) Judiciary Act 1903 (Cth), s 44 Limitation Act 1981 (NT), s 12 Racial Discrimination Act 1975 (Cth) Royal Commission Act 1902 (Cth) The Constitution (Cth), s 75 Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248, referred Commonwealth v Connell (1986) 5 NSWLR 218, referred Deatons Pty Ltd v Flow (1949) 79 CLR 370, referred Fittock v The Queen [2003] HCA 19, applied General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, applied Henry v Henry (1995-1996) 185 CLR 571, applied Hinchcliffe v Commissioner of Police of the Australian Federal Police (2001) 118 FCR 308, applied Jago v District Court (1989) 168 CLR 23, referred Sea Culture International Pty Ltd v Scales (1991) 32 FCR 275, referred LETTY MARIE SCOTT & ANOR v NORTHERN TERRITORY OF AUSTRALIA & ANOR N518 of 2002 LETTY MARIE SCOTT v COMMISSIONER FOR THE AUSTRALIAN FEDERAL POLICE & ORS N519 of 2002 LETTY MARIE SCOTT & ORS v DAVID R MOORE, AUSTRALIAN FEDERAL POLICE & ORS N916 of 2002 MADGWICK J 1 JULY 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N518 OF 2002 BETWEEN: LETTY MARIE SCOTT FIRST APPLICANT NATHAN WILLIAM SCOTT SECOND APPLICANT AND: NORTHERN TERRITORY OF AUSTRALIA FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT N519 OF 2002 BETWEEN: LETTY MARIE SCOTT FIRST APPLICANT AND: COMMISSIONER FOR THE AUSTRALIAN FEDERAL POLICE FIRST RESPONDENT COMMISSIONER FOR THE NORTHERN TERRITORY POLICE SECOND RESPONDENT N916 OF 2002 BETWEEN: LETTY MARIE SCOTT FIRST APPLICANT NATHAN WILLIAM SCOTT SECOND APPLICANT ROBERT J S DOW SECOND APPLICANT DANIEL R TAYLOR FOURTH APPLICANT AND: DAVID R MOORE, AUSTRALIAN FEDERAL POLICE FIRST RESPONDENT AARON APPO, AUSTRALIAN FEDERAL POLICE SECOND RESPONDENT PAUL JEVTOVIC, AUSTRALIAN FEDERAL POLICE THIRD RESPONDENT AUSTRALIAN FEDERAL POLICE TENTH RESPONDENT DAVID R MOORE ELEVENTH RESPONDENT AARON APPO TWELVTH RESPONDENT PAUL JEVTOVIC THIRTEENTH RESPONDENT JUDGE: MADGWICK J DATE OF ORDER: 1 JULY 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. In each matter, the principal proceeding is dismissed. 2. The respective applicants in the respective cases are to pay the respondents' costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N518 OF 2002 BETWEEN: LETTY MARIE SCOTT FIRST APPLICANT NATHAN WILLIAM SCOTT SECOND APPLICANT AND: NORTHERN TERRITORY OF AUSTRALIA FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT N519 OF 2002 BETWEEN: LETTY MARIE SCOTT FIRST APPLICANT AND: COMMISSIONER FOR THE AUSTRALIAN FEDERAL POLICE FIRST RESPONDENT COMMISSIONER FOR THE NORTHERN TERRITORY POLICE SECOND RESPONDENT N916 OF 2002 BETWEEN: LETTY MARIE SCOTT FIRST APPLICANT NATHAN WILLIAM SCOTT SECOND APPLICANT ROBERT J S DOW SECOND APPLICANT DANIEL R TAYLOR FOURTH APPLICANT AND: DAVID R MOORE, AUSTRALIAN FEDERAL POLICE FIRST RESPONDENT AARON APPO, AUSTRALIAN FEDERAL POLICE SECOND RESPONDENT PAUL JEVTOVIC, AUSTRALIAN FEDERAL POLICE THIRD RESPONDENT AUSTRALIAN FEDERAL POLICE TENTH RESPONDENT DAVID R MOORE ELEVENTH RESPONDENT AARON APPO TWELVTH RESPONDENT PAUL JEVTOVIC THIRTEENTH RESPONDENT JUDGE: MADGWICK J DATE: 1 JULY 2003 PLACE: SYDNEY REASONS FOR JUDGMENT His Honour: 1 These proceedings arise out of the death in custody of the late Douglas Bruce Scott ("the deceased"), an Aborigine, in Darwin Prison on 5 July 1985 and out of suspicions held by his widow, Mrs Letty Marie Scott, which have hardened into a conviction that the deceased was murdered. The various proceedings, one way or another, are really aimed at attempting to prove that the deceased was murdered and to bring his alleged murderers to justice. The respondents seek to have all the proceedings summarily dismissed as an abuse of process on various bases, including that each case is legally hopeless. 2 In order fully to understand the matter it is necessary to recount, selectively, some of the history of the death and its aftermath. An Aboriginal death in custody 3 It is accepted on all hands that the deceased died in his cell in the early hours of 5 July 1985. He had been in custody since 29 May 1985 after being charged with relatively minor offences. Dr Lee, a forensic pathologist, as well as police and prison officers, examined the deceased's body in the cell on the morning of 5 July 1985 after the body was allegedly discovered. Dr Lee and the other witnesses gave evidence to a coronial inquest and to a Royal Commission that there was no evidence of head or facial trauma or any other fresh external injuries. There were, however, injuries to the neck, consistent with strangulation by hanging; these were described in a post-mortem report of 14 February 1986. 4 A coroner of the Northern Territory, Mr McGregor, a magistrate, found, among other things, that the cause of death was strangulation by hanging, self-inflicted by the deceased with the intent to take his own life. The Royal Commission 5 For some years in Australia before 1985 there had been concern at the apparently high rate at which Aboriginal persons died in custody, compared with white persons. Based on anecdotal evidence, it was thought that institutionalised racism might be responsible for discriminatory deliberate harm to and/or lack of due care of aboriginal prisoners. The Commonwealth government, in association with the States and Territories (including the Northern Territory) established a Royal Commission into Aboriginal Deaths in Custody. Events transpired such that Mr Elliot Johnston QC, a retired Judge of the Supreme Court of South Australia and, among other things, a long time campaigner for justice for Aboriginal people, became the Royal Commissioner and inquired into the deceased's death. The Royal Commissioner reported on 17 September 1990 that: · Mr Scott had hanged himself, intending to take his own life; · there was no foul play on the part of any other person, officer or inmate, nor any harassment of or discrimination against the deceased contributing to his decision to take his own life; · nevertheless, he had been a prisoner "at risk" of causing himself harm and steps which reasonably could and should have been taken to obviate that risk were not taken. 6 Although the Commissioner's report on Mr Scott's death is lengthy, it is in my view necessary, for various reasons, to reproduce it virtually in full. It is included here as Appendix "A". Among other things it is to be noted that: · the matter was marked by "… great thoroughness of preparation on the part of Counsel Assisting [the Commission] and those instructing and supporting counsel and equal thoroughness on the part of … the families of deceased persons …" · Mrs Scott was viewed very favourably by the Commissioner as a truthful witness and a woman of great determination and loyalty, notwithstanding the deceased's maltreatment of her. · Apparently powerful reasons were given for the finding of no foul play. These included that counsel for the family so submitted, the lack of any sign on the body suggesting it; an "examination" and a "demonstration" showed that self-inflicted hanging would have been physically "quite possible" for the deceased; almost all the prisoners in the relevant cell block gave evidence or made statements which were put in evidence before the Commissioner, but none suggested any suspicious circumstance; "One should be slow to reach a conclusion that a cell hanging is self-inflicted and should not do so without attempting to find a reasonable explanation or motive … [the deceased] was suffering from a psychiatric illness, his life was in a state of severe and chronic disorder and he was exceedingly disturbed … there is no difficulty in coming to a conclusion that he might do damage to himself". · There was an absence of pattern or motive to suggest maltreatment of the deceased by any prison officer. His behaviour in custody "… throughout the whole period was highly unusual. He might have been thought to be cheeky, disruptive or having the system on. But it is absolutely clear that neither officers nor fellow prisoners entertained any such thought; without exception they thought that he was odd or 'mental', that something was wrong with him and that he was to be regarded not in anger but with concern by some and with indifference by others. He was never regarded as … 'a smart alec' or disruptive". · By February 1985 the deceased's life, before his final arrest, was "completely out of control and he realised it". · The deceased had a history of attempted suicide by cutting his wrist, he apparently regarded his marriage as having broken down, and he was "wracked with feelings of remorse and shame" to do with matters that plainly profoundly concerned him. · The deceased sustained an eye injury on 31 May 1985 in the prison. He explained this by saying he fell from his desk, having climbed on it to look at the air duct (from which he was on the day of his death found hanging). A statement by the deceased to some prisoners that he had suffered the injury while trying to commit suicide was not regarded as reliable. It was nevertheless a matter apt to raise suspicion of self-harm. · Dr Lee's findings were re-assessed at the request of Royal Commission staff by two distinguished and independent pathologists from different parts of Australia. One agreed that the cause of death was hanging and agreed with Dr Lee's comment that it was self-inflicted. The other said that there was "… nothing … to suggest that the death was not due to hanging or that the hanging was not self-inflicted". · The Commissioner was impressed by the evidence and attitude of the prison officer who said that he first saw the deceased's dead body. · The Commissioner felt impelled to make a finding, for reasons given, that the deceased had intended to take his own life though all counsel had submitted that it was inappropriate for him so to find. · There were various misunderstandings by persons in authority in relation to Mrs Scott, all likely to increase her distress at the deceased's death. 7 One of the prisoners from whom a statement was tendered was Mr Geoffrey Bindai. He occupied a cell directly opposite that of the deceased. Interviewed on 14 March 1989 through an interpreter by Mr Barbaro, a Royal Commission solicitor, Mr Bindai indicated that he had noticed nothing unusual during the night before Mr Scott's body was found; that he had no reason to believe the death was not a suicide; and that: "I seen the body hanging after the Prison Officer opened the cell. I seen him standing on the chair and tying the sheet to the ceiling. This was in the morning, I then went back to sleep. Then the Prison Officers opened the cells we went then down for breakfast." 8 In a statement signed by Mr Bindai, witnessed by Mr Barbaro and dated 4 April 1989, the allegation that Mr Bindai had seen the deceased on a chair, tying the sheet to the ceiling, was omitted; otherwise the information was repeated. Mr Bindai much later told a different story – see below. Mrs Scott sues for compensation in the Northern Territory Supreme Court 9 In 1992, in proceedings in the Northern Territory Supreme Court (SC No 118/1992), Mrs Scott made a claim for damages against the Northern Territory government for nervous shock suffered as a result of the deceased taking his own life. It was alleged that that event was caused by the negligence of the Northern Territory and/or its employees or agents. Subsequently on 24 April 1995, in proceedings SC 75/1995, Mrs Scott sued on behalf of herself, her infant son Nathan and her other (adult) children in a claim, based on the Northern Territory compensation to relatives legislation (ss 7 and 8 of the Compensation (Fatal Injuries) Act 1979 (NT)), asserting death by hanging, negligently caused. The particulars suggested that self-inflicted hanging and failure to prevent it were to be relied upon. 10 On 19 July 1995 the statement of claim in the 1992 action was amended – the allegation that the deceased had taken his own life was omitted. (This fairly soon followed Mr Bindai's new allegations.) 11 The defence filed in the 1992 action, among other matters, raised a defence based on s 12 of the Limitation Act 1981 (NT) ("the Limitation Act") which provides: '(1) Subject to subsection (2), the following actions are not maintainable after the expiration of a limitation period of 3 years from the date on which the cause of action first accrues to the plaintiff or to a person through whom he claims: (a) an action founded on contract (including quasi-contract) not being a cause of action which is evidenced by a deed; (b) an action founded on tort including a cause of action founded on a breach of statutory duty; (c) an action to enforce a recognizance; and (d) an action to recover money recoverable by virtue of an enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture. (2) Subsection (1) does not apply to a cause of action: (a) to which section 17 applies; or (b) for contribution to which section 24 applies. (3) For the purposes of subsection (1)(d), "enactment" includes a statute of the legislature of the Commonwealth or a State or another Territory of the Commonwealth, or any country or part of a country.' 12 Likewise the defence in the 1995 action pleaded s 17 of that Act, which provides: 'An action arising under section 7 or 13 of the Compensation (Fatal Injuries) Act is not maintainable after the expiration of a limitation period of 3 years from the date of the death.' 13 It appears that Mrs Scott later applied further to amend the statements of claim in the two actions to plead, among other things, that the death was the result of a deliberate act by one or more persons in authority in the prison. Leave was refused in both matters by Master Coulehan in a judgment delivered on 22 October 1998 because of embarrassing and inappropriate pleading and, in relation to the 1992 proceedings, also on the ground that no basis was shown for extending the limitation period pursuant to s 44 of the Limitation Act, again because of a lack of proper pleading. The Master noted that time was not yet running against the child Nathan Scott in the 1995 proceeding. 14 On 22 September 1999 Martin CJ heard applications by Mrs Scott, representing herself, in each case for an extension of time to appeal against the Master's decision and, if granted, to rehear the applications. The respondent Northern Territory also applied for summary judgment in relation to the 1992 action, based on the Limitation Act. His Honour refused to extend the time to appeal and gave summary judgment for the defendant in the 1992 action. In relation to the 1995 action, having regard to Mrs Scott's conduct, his Honour stayed the proceedings with liberty to the plaintiff to apply upon reasonable notice, such application to be made only by a legal practitioner properly instructed to act. 15 In the course of the hearing before me, the applicants indicated that they had sent a letter to the Northern Territory Supreme Court seeking to discontinue the proceedings. Question arise as to whether Mrs Scott could do this in respect of Nathan Scott, without the assent of the Supreme Court, and as to whether in procedurally valid terms the proceedings had been discontinued. In the end, it was not satisfactorily proven that any of the Northern Territory proceedings had been terminated. It was noted that the proceedings also included Nathan Scott (an applicant in two of the current proceedings), an infant at the time, and to that extent the limitation period had not commenced. Fresh evidence: Mr Bindai and related material 16 A friend of Mrs Scott and an applicant in one of the cases before me, Mr Dow, a former Northern Territory police officer, interviewed Mr Bindai on 12 April 1995. Mr Bindai said that he saw prison officers enter Mr Scott's cell the night before he died; one of them was carrying a big black stick. He heard Mr Scott being beaten with the stick and calling for help. This continued for about two hours. Mr Bindai said that he had given this account to the Royal Commission officers who interviewed him. However he was threatened by one of them, Mr Mick Dodson, who said words like "if you don't shut up mate, you'll be next". Mr Dodson was junior counsel assisting the Royal Commission and was and is a well-known and outspoken Aboriginal activist and leader. 17 In a statutory declaration of 27 September 1996 prepared by Mr Rodney Lewis, a Sydney solicitor acting for Mrs Scott, after he spoke to Mr Bindai, Mr Bindai confirmed the story of the beating but said that one of the prison officers had come over to his cell and said "If you don't be quiet you will be next". That man had an eagle tattooed on his arm. He said that he had been visited at Turkey Creek (a remote location) by people from the Royal Commission and that he had told them the same story. Apparently he did not repeat to Mr Lewis the allegation about Mr Dodson. 18 In 1996 Mr Lewis spoke to Mr Laurie Percy and his brother Geoffrey Moreen. Mr Percy said that he and his brother Geoffrey had to clean up the cell after the deceased was hanged. He said he saw blood on his sheet and pillow and on the floor. There was "little bit – big mobs" on the sheet, a "little bit" on the pillow and "little bit – big mob" on the floor. There was also a ball of toilet paper with blood on it. 19 Mr Moreen said he heard the deceased calling out loudly in the night "somebody help me", but he thought he was dreaming and didn't do anything. In the morning he saw his brother (I assume from the record) and Geoffrey Bindai carrying the mattress out. There were "spots of blood", a "big mob" of it, on the mattress. Mr Barbaro's recollections of events in the Royal Commission 20 On 13 March 1995 Mr Lewis interviewed Mr Barbaro, by then attached to the Mental Health Legal Service in Melbourne. 21 Mr Barbaro's attitude and the possibly significant matters appear sufficiently from the quotations extracted from a purported transcript of a tape recording of the interview and which appear at Appendix "B" hereto. 22 To say the least of it, and as I explain further below, nothing in this material supports any suggestion of civil or criminal wrongdoing by Mr Barbaro or Mr Dodson directed against Mrs Scott's interests in having her suggestion of foul play fully investigated by the Royal Commission. The alleged threat by Mr Dodson 23 As indicated Mr Bindai has suggested that, during the Royal Commission investigation, Mr Dodson told him to be quiet or "you'll be next" in the context of Mr Bindai telling Mr Dodson his story of the deceased's beating the night before his death, such that this was a clear threat to Mr Bindai. It is suggested that there is some corroboration of this story from Mr Bindai's mother and sister. The circumstances of the making of this suggestion are unimpressive. It is, on its face, so extremely unlikely as to compel disbelief except on the plainest proof. Concerns put to the Prime Minister in 1996 24 On 3 April 1996 Mrs Scott's then solicitor Mr Lewis wrote, unsuccessfully in the event, to the Prime Minister seeking a "re-opened" Royal Commission into Mr Scott's death. The letter enclosed a detailed submission headed: 'Issues for Consideration The Death in Custody of an Aboriginal person who died on 5 July 1995 at Berrimah Prison, Darwin' 25 It is, I think, important to include this document here. (Appendix "C"). It summarises Mrs Scott's concerns and refers to all the important ways, up to then, in which obviously conscientious lawyers, on instructions, could see to criticise the Royal Commission's report and to suggest that there was new material. The matters which were reasonably capable of being seen as of some serious concern appear to me to be: · The potential evidence of Mr Bindai, possibly corroborated by that of Mr Percy and Mr Moreen; · A photograph which shows the deceased's body hanging but with his feet in a horizontal position rather than in the downward-pointing position which, one imagines they would assume if the deceased was incapable of flexing his ankles, and suggestive that when the photograph was taken, the deceased's feet were on the ground. That would indeed be an unlikely means of hanging oneself to cause death. · Allied with the previous matter, the possibility that there were two sets of photographs, taken at separate times. If confirmed, that circumstance would, however, of itself indicate only that the full truth may not have been told. It is consistent with the death occurring as found by the Commissioner or by foul play. Nevertheless an inference that the purpose of any "re-hanging" was to alter or cover up evidence might be available. US pathologists report their concerns 26 In 1999 Mrs Scott interested the representatives of an American Indian tribal nation in the matter. In the result, Mrs Scott met a distinguished US forensic pathologist and that doctor and some other distinguished forensic pathologists and lawyers subsequently reviewed materials made available to them. These formed what they called in a resultant report ("the US report") "a forensic investigative committee … comprised of forensic and legal experts who agreed to review the available documentation regarding the death of Douglas Scott". 27 The US report raises a number of concerns, particularly the "… significant possibility that the death scene integrity might be compromised" and the committee's conclusion that certain bruises and the fracture of the thyroid cartilage "… are generally more consistent with manual neck compression than with hanging mechanisms". A copy is attached as Appendix "D". 28 References in the US report suggest that the Royal Commission's report was either not made available to, or not absorbed by, those concerned, see, for example, para 6 of the US report: the Royal Commissioner indicated that the cell was inspected and he made relevant findings. 29 On 21 May 2001 Dr Baden, one of those who reported and a former Chief Medical Examiner for the City of New York, separately reported to Queensland solicitors then acting for Mrs Scott. 'I have reviewed the circumstances and medical records concerning the death of Mr Douglas Scott. It is … my opinion, and the opinion of the other members of the Forensic Investigative Committee, that exhumation and examination of the remains of Mr Scott at this time, 16 years after his death, could reveal valuable forensic and medical evidence that would assist in resolving questions that have arisen as to the cause and manner of his death. We have exhumed and examined many bodies interred for more than 16 years that have yielded important and valuable evidence that has permitted a final resolution to questions concerning the deaths.' Exhumation refused by Queensland Attorney-General 30 After the receipt of the US report (and, in time, Dr Baden's letter), Mrs Scott sought to have the Queensland Attorney-General order the exhumation of the deceased's body, which had been buried in that State. The Attorney-General had the US materials, the Royal Commission report, an opinion of a London barrister urging exhumation, the materials previously referred to in the possession of Mrs Scott's former solicitor, and all of the records of Mr Bindai's allegations, among sundry other documents, but refused the request. The Attorney-General, indicated on 30 August 2001 that he had had regard, among other things, to a senior Queensland pathologist's view that: 'it is highly unlikely that autopsying an exhumed body would at this stage, 15 years after a man's death, yield any worthwhile or new autopsy findings. The critical abnormalities, if present, would appear to be subtle bruises and tiny fractures in the larynx or hyoid bone, none of which withstand decomposition at all well.' Other matters of an allegedly suspicious character 31 There were other, indeed, many other matters that cause the applicants suspicion. For example, Mr Taylor in June 2002 telephoned Mr Bowden, the prison officer, who gave a version of events as to the release of the deceased's body from its hanging position different from his testimony many years ago. It is not feasible to deal with the relevance or weight of all these suggestions. Many, like the Bowden matter, are only suspicious to persons of a fixed, not to say fevered, pre-judgment that he is a guilty man. None is of any real significance. Proceedings commenced in the High Court 32 Mrs Scott (the first applicant) commenced proceedings in the High Court on 21 February 2002. The applications then filed were a summons against the Northern Territory and Commonwealth seeking damages for the wrongful death of Mr Scott (now proceedings N518/02) and an application seeking the issue of a writ of mandamus against the Commissioners of Police for the Australian Federal Police and the Northern Territory (now proceedings N519/02). On 7 May 2002, Gummow J remitted both matters to the Federal Court, transferring N518/02 pursuant to s 44 of the Judiciary Act 1903 (Cth) and N519/02 under s 75(v) of the Constitution. Leave was given to the applicant to file and serve amended pleadings in both applications. 33 Upon remittal to this court, the matters were listed for directions. The Commonwealth in N518/02 and the Commissioner of the Australian Federal Police in N519/02 each made an application in the respective proceedings that the matters be summarily dismissed. The attitude of the Australian Federal Police as to further investigation 34 By letter of 27 August 2002 Mr Jevtovic the "Director Operations – Northern", one of the respondents in Case No N916/2002, wrote to Mrs Scott confirming the AFP's refusal to conduct a murder investigation and to advise the outcome of "a preliminary inquiry" to determine whether there was evidence of the commission of any offences against the Royal Commission Act 1902 (Cth). The outcome was that, for reasons given, "it has been decided that your allegations of offences having been committed by officers of the Royal Commission are not supported by any credible evidence and do not warrant further investigation by the AFP". A copy of the AFP response is included at Appendix "E". The attitude of the Northern Territory Police 35 The Northern Territory police also reconsidered in 2002 alleged inconsistency of material given to them by or on behalf of Mrs Scott. Their response was conveyed by a letter of 8 November 2002 from Mr Dauby, the "Assistant Commissioner Crime and Support Command". For reasons given, the response was: "it is concluded that the material which you have provided does not warrant any further investigation by the Northern Territory Police". A copy of the Northern Territory police response is included at Appendix "F". The proceedings in this Court Case No N518 of 2002 36 On the final version of the Statement of Claim, this is an action by Mrs Scott and by her son Nathan Scott, by herself as a guardian, as applicants against the Northern Territory and the Commonwealth. The Northern Territory is sued upon a claim of direct liability, and of vicarious liability in connection with its servants and agents. It is alleged that: · the deceased while in custody at Darwin Prison between 26 May 1985 and 31 May 1985 was seriously assaulted but not provided with any or any adequate medical attention; · in the same period he was unlawfully prisoned; · on or about 5 July 1985 he was assaulted and beaten with batons by "agents and servants" of the Northern Territory; and · the deceased was then "asphyxiated by agents or servants of the [Northern Territory] manually compressing his neck … in circumstances that constitute murder". 37 Particulars of those circumstances are given as follows: · On or about 5 July 1995 the deceased's death was caused by agents and servants of the Northern Territory in circumstances that constitute murder. (a) the agents and servants intended to cause the death of "the deceased" or inflict some grievous bodily harm; or (b) the agents and servants caused the death by means of an act done in the prosecution of an unlawful purpose and in unlawful association with others, such as to be likely to endanger human life; or (c) the agents and servants caused the death by wilfully stopping the breath of "the deceased". · The agents and servants interfered with material evidence of the commission of crime with intent to mislead a tribunal or judicial proceeding. · The agents and servants knowingly fabricated evidence, counseling or procuring the commission of perjury. · The agents and servants conspired to obstruct, prevent, pervert, or defeat, the course of justice. (a) On 5 July 1985 agents and servants of the Northern Territory entered the cell where the deceased was in custody at the Darwin Prison: · carrying batons; · jointly engaged in a protracted assault; · jointly engaged in causing asphyxiation to him; · jointly caused his death; · jointly interfered with material evidence with the common intent to hide their activities and prevent detection and prosecution of their crimes; · jointly interfered with material evidence with the common intent to inhibit detection of the true circumstances of his death; (b) On or about 5 July 1985 agents and servants of the Northern Territory fabricated evidence with the common intent of preventing detection and prosecution of the crimes. 38 Further, servants and agents of the Northern Territory corruptly conspired to influence the outcome of the Royal Commission to avoid individual officers being "at risk for having acted improperly or criminally", threatened Royal Commission witnesses, withheld material testimony of witnesses from the Royal Commission and sought to "corrupt and pervert" the Royal Commission's finding in relation to the death of the deceased. 39 Further, in the foregoing ways, the Northern Territory and its servants or agents breached a "common law duty of care" and alleged statutory duties owed to the deceased. 40 The Commonwealth or its servants or agents were said likewise to have sought to pervert and corrupt the Royal Commission's findings. 41 Damages, ordinary, aggravated and exemplary, "as necessary and rightful beneficiaries to the rights and claims of" the deceased were sought against both the Northern Territory and the Commonwealth. 42 Further causes of action, long on florid rhetoric but short on legal basis, including that various "public law" duties had been breached, including that the respondents breached responsibilities under a number of international treaties, among them the Charter of the United Nations; the International Covenant on Civil and Political Rights; the Refugees Convention; the Universal Declaration of Human Rights and also under the Constitution and the Racial Discrimination Act 1975 (Cth) were also included. There is no basis for arguing that any one or more of such instruments give rise to duties actionable domestically in the way asserted here. 43 The Statement of Claim continued by asserting that the Commonwealth was liable for the wrongdoing of its "agents" the Northern Territory. Case No N519 of 2002 44 In its finally amended state, this application, brought by Mrs Scott alone, seeks orders directing the respondents, respectively the Police Commissioner for the Australian Federal Police and the Northern Territory Police, to show cause why a writ of mandamus should not issue commanding them "to assist the applicant, and such other persons as have good ground for requesting assistance, and fully investigate all material evidence and perform their duties according to the law in relation [to] the circumstances surrounding the imprisonment and death of [the deceased] on 5 July 1985, the Northern Territory Police investigation, the Coronial and Royal Commission inquiries which followed". 45 A paragraph headed "Details of order sought" indicated that what was desired of the respondents was: · the production to the Court, and provision for Mrs Scott "and such other persons as have good ground" to inspect, certain items of physical evidence relating to the investigation of the death of the deceased; · assistance to the applicant to investigate, including by examination of the deceased's body, his alleged unlawful imprisonment, torture and murder; · similar assistance to bring to justice those who conspired to conceal the alleged murder in the Northern Territory police investigation, coronial inquest and Royal Commission inquiry; and · refraining from relying on the findings of the inquest or Royal Commission. Case No N916 of 2002 46 The respondents are the three officers of the Australian Federal Police who agreed to look into Mrs Scott's "new evidence". 47 In the penultimate form of the application, Mrs Scott, her son Nathan Scott, Mr Dow and Mr Taylor (another friend) sought judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the "ADJR Act") of decisions in connection with the investigation of complaints made by them of crimes against the deceased and in connection with the Royal Commission. The application also claimed: · "A declaration … that the court quashes the findings of the Coronial inquest … and the Royal Commission …" · "A declaration … that the court finds that Douglas Scott was unlawfully imprisoned, murdered by four Northern Territory Prison officers, and that the crime of conspiring to pervert the course of justice … by concealment of the murder of Douglas Scott from the Royal Commissioner … was committed …" · "An order that the Australian Federal Police arrest and prosecute the perpetrators of the crimes … including the crime of perjury committed during the Royal Commission by prison officers to conceal the murder of Douglas Scott …" 48 Upon various difficulties, including the requirement that there be a "decision under an enactment" (s 3) for the ADJR Act to apply, being raised, the application was amended to seek, instead, orders said to be in the nature of mandamus. 49 The orders ultimately sought were that: · permission be granted for the US Investigating Committee to conduct an exhumation and "reautopsy" of the remains of the deceased for the purposes of investigating various alleged offences; · the respondents "conduct a bona fide investigation … into the offences complained of by the applicants in respect of the Royal Commission … to identify any Commonwealth offences and establish a basis for further investigation"; · the respondents "conduct an investigation into the death … and that the case be reopened … for the purposes [of] investigation of offences against [s] 42 and [s] 43 of the [Crimes Act 1914 (Cth) ("the Crimes Act")] (these sections respectively concern conspiring to, and attempting to pervert the course of justice in relation to the judicial power of the Commonwealth); · conduct "an investigation into the complaint on evidence provided [by the applicants] … that [named] Northern Territory Prison Officers … murdered [Mr Scott]" and subsequently covered this crime by giving false evidence and conspiracy to conceal the murder; and · conduct an investigation into the [applicant's allegation and alleged evidence] that [named] Northern Territory Police Officers … gave false evidence to the Royal Commission to conceal [the alleged murder and various items of alleged evidence of it]. Sections 42 and 43 of the Crimes Act were referred to and also s 6H and s 6K of the Royal Commission Act 1902 (Cth). The latter respectively refer to knowingly giving false or misleading evidence before a Commission and concealment of documents or things that may be required before a Commission. 50 Orders were also sought that the respondents investigate a number of other allegations, including that Dr Lee gave false evidence to the Royal Commission; that Messrs Barbaro and Dodson concealed "the two original Polaroid photographs" from the Commission; that Mr Barbaro prepared a false statement for Mr Bindai to sign which was different from the evidence Mr Bindai gave to him; that Mr Dodson threatened Mr Bindai to prevent him from "giving his evidence of the murder" to the Commission (s 6L – prevention of a summoned witness from attending before a Commission – was referred to); and that all counsel appearing in the Royal Commission "had a secret meeting and entered into an unlawful agreement … to prevent Mr Bindai from giving oral testimony … with intent to prevent [him] from giving his evidence of the murder". 51 That list does not exhaust the orders sought. In substance the complete re-investigation of all the applicant's allegations of murder, cover-up and wrongdoing in relation to the Royal Commission was sought. Consideration of N518/02 (i) The issues 52 In N518/02, the second respondent (the Commonwealth) filed a notice of motion on 8 July 2002 seeking orders that the amended statement of claim filed on 24 June 2002 (since further amended), as against it, be stayed or dismissed pursuant to O 20 r 2(1) of the Federal Court Rules on the grounds that "it does not disclose a reasonable cause of action; and/or is frivolous or vexatious; and/or is embarrassing; and/or is an abuse of process." The first respondent (the Northern Territory) filed a notice of motion seeking that, as against it, the proceedings be stayed or dismissed on the basis that "no reasonable cause of action is disclosed; the proceedings are frivolous or vexatious; and the proceedings are an abuse of process". 53 Counsel for the Commonwealth submitted that the application was an abuse of process: the claims against the Commonwealth were said to be merely colourable, being designed to maintain an application in the High Court or this Court against the Northern Territory, when the proceedings in the Supreme Court pleading a similar claim for damages had been dismissed or stayed; it is an abuse of process to bring hopeless claims against one respondent (the Commonwealth) for the purpose of attracting jurisdiction to a court which would otherwise not have jurisdiction to hear proceedings against another respondent (the Northern Territory). 54 Counsel point out that the pleadings suggest that the Commonwealth is liable in three respects: (i) conspiracy by unnamed servants and agents of the Commonwealth who: · agreed to influence the outcome of the Royal Commission so that individual prison officers would not be exposed to criminal charges; · threatened witnesses and withheld testimony from witnesses; and · sought to corrupt and pervert the Commissioner's findings in relation to Mr Scott's death. (ii) breach of a common law duty which arose from a "common law duty to all prisoners in their care". However, the applicant relies on the particulars provided in relation to the claim of conspiracy, which are claims of conspiracy relating to alleged misconduct in respect of the Royal Commission proceedings. (iii) breach of a statutory duty said to arise from the Royal Commissions Act 1902 (Cth). 55 The Northern Territory supports the Commonwealth's argument as to abuse of process by forum-shopping. Further, it is said that, even if the allegations made by the applicant that prison officers had murdered Mr Scott were true, the Northern Territory could not be held vicariously liable for such actions. A defendant can only be held vicariously liable for the actions of its servants and/or agents which arise out of or in the course of their employment. The commission of such gross criminal acts as murder could not be regarded as within the scope of the employment. 56 Where a case is said to be quite misconceived and a respondent seeks that the court summarily terminate it, the court should only employ its jurisdiction to do so sparingly. The lack of a real cause of action must be clearly demonstrated, even though argument of an extensive kind may be necessary to demonstrate that the applicant's case is "so clearly untenable that it cannot possibly succeed": General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-30. 57 As I indicated to the parties at the conclusion of the hearing of the notice of motion, it appeared that there was no viable claim that could be maintained in an application for damages against the Commonwealth for actions that occurred in a Northern Territory prison. Nor is there any civil action that can sustain the applicant's claim for damages against the Commonwealth arising out of alleged conspiracy at the Royal Commission. If the acts claimed could amount to a criminal act, the Commonwealth cannot be held vicariously liable for any alleged crime of the kind suggested as the commission of such a crime would not be within the scope of an employee's terms of employment or agency: the crime would be against the Commonwealth as much as against any other person, not a means of, or part of any project directed at, accomplishing the Commonwealth's ends. The Commonwealth, by its government, wanted to know the truth. See also [63] below. (ii) Commonwealth legal liability and officers' responsibility for alleged defaults by Northern Territory officers 58 Counsel for the Northern Territory prepared extensive written submissions on the question of whether the Commonwealth has jurisdiction to investigate alleged offences in the Darwin Prison. They appear to me to be correct. They appear at Appendix "G" hereto. The High Court in Fittock v The Queen [2003] HCA 19 has recently reaffirmed that a "law of the Commonwealth" for the purposes of the Constitution does not include a Northern Territory law. The Northern Territory parliament is not a mere agent or delegate of the Commonwealth c.f. Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 281-3. 59 So far as crimes or civil breaches of statutory duty under Northern Territory legislation are alleged, they are not offences against any "law of the Commonwealth" so as to oblige or even to empower any Commonwealth officer to act in their investigation, unless there is specific, enabling Commonwealth legislation imposing such an obligation or conferring such a power on a Commonwealth officer. The applicants have not been able to point to any such legislation and I believe that there is none such. 60 Likewise, any civil breach of statutory duty imposed by a Northern Territory law is not a breach of any Commonwealth statutory duty. 61 Nor are prison, police or judicial officers appointed under Northern Territory legislation "officers of the Commonwealth" so as to bring them within the original jurisdiction of the High Court which, in matters remitted by the High Court to this Court, is available to this Court. Nor are they within the Court's own broad statutory jurisdiction in relation to matters arising under Commonwealth laws: s 39B(1A)(c) Judiciary Act 1903 (Cth). 62 Insofar as the proceedings depend on the contrary of any of these propositions they are, in my opinion, unarguably foredoomed to failure. (iii) The Northern Territory's position 63 The claim in N518/02 is misconceived as against the Commonwealth, as explained. In relation to the Northern Territory, the respondents' point that an employer is not liable for a murder committed by its employee, in which the employer is not actually complicit, appears to me to be correct. Ex hypothesi such would appear to be unarguably outside the scope of the employment. Murder, or an unprovoked severe beating, of a harmless prisoner could not be regarded as "so connected with unauthorised conduct as to be an improper mode of performing it c.f. Commonwealth v Connell (1986) 5 NSWLR 218 at 221 per Glass JA; see also Deatons Pty Ltd v Flow (1949) 79 CLR 370 at 381-2 per Dixon J. (iv) Abuse of process and the Northern Territory 64 However, the Northern Territory itself might, in my view, arguably be regarded as having a non-delegable duty of care to prisoners such that if all reasonable steps were not taken to prevent harm, including by murder, coming to prisoners from prison officers (as well as from prisoners), the prisoner, or in case of the prisoner's death his dependants, might recover damages. Nevertheless, in the proceedings in the Supreme Court, before they were stayed, steps had been taken to make open, on the pleadings, the proposition that death by murder had occurred. Those steps were taken after Mrs Scott learned of Mr Bindai's allegations. She thus had proceedings on foot in that Court which were suitable to raise murder allegations if she wished to do so. That the proceedings were subsequently stayed is not to the point. Clearly, all that was necessary for the stay to be lifted was for an application to be made for such lifting by a lawyer properly instructed and, inferentially, that the Supreme Court be reasonably assured that the matter could thenceforth be presented in a more orderly fashion: there was no requirement that Mrs Scott be legally represented in the entire suit. Questions of relaxation or applicability of the statutory time bar could have been determined in that Court. 65 The truth, in my opinion, is that Mrs Scott found the forum of the Supreme Court not to her liking and sued the Commonwealth as a mere device to sue the Northern Territory in another forum. If that were not so, she could have sought to join the Commonwealth as another defendant in the Supreme Court. It is an abuse of process as against both the Commonwealth and the Northern Territory so to do. The Commonwealth has not been sued on any legally viable cause of action, but merely colourably. The Northern Territory has been brought to the expense of defending the relevant proceeding in a court in which, manifestly, it could not otherwise have been sued, when there was already on foot in a court of competent jurisdiction proceedings in which the allegations in question might have been raised. The categories of abuse of process are not closed: see, for example, Sea Culture International Pty Ltd v Scales (1991) 32 FCR 275 at 279-80. Multiple proceedings in Australian courts between the same parties (the applicant and the Northern Territory here) ought not be permitted: Henry v Henry (1995-1996) 185 CLR 571 at 590. It is entirely consistent with the prevention of "inconvenience and embarrassment" which underlies such an approach and with the values that support the doctrine of Anshun estoppel to conclude that, in the present circumstances, there is an abuse of process. It is also of no assistance to Mrs Scott that she has lately purported to discontinue the Northern Territory proceedings. Assuming, contrary to my view, that her intentions were legally effectuated, the Northern Territory would still have been, without reasonable warrant, twice vexed, that is to say the object of an abuse of process, and Mrs Scott would simply, by her own act, have thrown away her own, and possibly made more difficult her son's, chance of obtaining redress there. The federal courts do not exist for people to invoke their processes by a merely colourable stratagem or one of self-inflicted harm when, rightly or wrongly, they perceive that they might fail in a state or territory court on the same or virtually the same cause of action or an extant cause of action in which all relevant allegations could be raised. Consideration of N519/02 and N916/02 66 As indicated, these proceedings concern applications, seeking the issue of a writ of mandamus against (in N519/02) the Commissioner of the Australian Federal Police and the Commissioner of the Northern Territory Police, and (in N916/02) against three named Australian Federal Police officers. The applicant sought by the issue of such a writ effectively to compel a re-investigation of all of the material evidence relating to Mr Scott's death and that the respondents should perform their alleged duties according to law in relation to the circumstances surrounding the imprisonment and death of Mr Scott. 67 The respondents sought to strike out the application on the basis that there was no reasonable cause of action shown against them. (In N916/02 the Commonwealth had filed an objection to competency when the proceedings had been founded on the ADJR Act). (i) The role of police forces 68 In the Australian context, the principal function of police forces in relation to suspicious deaths is the investigation of them with a view to establishing whether any person has committed a criminal offence and, if so, to attempt to identify such person and to assemble the evidence to enable prosecution of the alleged miscreant. In addition, in most if not all jurisdictions there are systems of coronial inquiries involving investigations by coroners, usually magistrates, into deaths that, in varieties of ways, are out of the ordinary. In general, the focus is on looking into deaths in unusual circumstances, including, but not only, where foul play might reasonably be suspected. Usually, police are specifically assigned to assist the coroner's inquiries, even where no crime is suspected, and a police officer investigating a particular crime will put his/her material to the coroner through such other police. 69 Offences against laws criminal in nature are of course multifarious and of varying degrees of importance. Few offences are more serious than the murder or serious assault of a person in, or understood to be in, lawful custody by his gaolers. Nevertheless, except in the context of a coronial inquiry, one must allow that, if there appears to be no serious prospect of obtaining a conviction, it may be a quite reasonable decision, even in a very serious case, by the relevant police officer(s) not to expend resources or further resources on an investigation. Among other matters militating against the prospect of obtaining a conviction will often be the lapse of time since the alleged offence. 70 It is true that the courts should respect the importance, subtleties, and intricacies of the processes of investigating and prosecuting crimes and should not be quick to intervene. Nevertheless, police officers, like other public officers, are not above the law. They are, in my opinion, expected and legally required to act "according to law and not humour". While they have a large discretion about the extent, if any, to which they investigate or re-investigate alleged crimes, they must certainly exercise this discretion honestly, in good faith and without caprice. There may well be other limitations on their discretion. I see no reason why, in a proper case, a court ought not intervene to see that police duties, including of investigation, are carried out lawfully. Appropriate exercise of the court's discretion can well prevent any undue disruption of the orderly and proper work of police officers or of the process of vindication of the criminal law. 71 In Hinchcliffe v Commissioner of Police of the Australian Federal Police (2001) 118 FCR 308 ([2001] FCA 1747) Kenny J considered the duties of Australian Federal Police officers. Having surveyed the Australian Federal Police Act 1979 (Cth) and English and Australian authority, her Honour concluded at [35]-[38]: 'The authorities do not support the proposition that the respondents owed a duty of the kind pleaded by Mr and Mrs Hinchcliffe in their amended statement of claim (that is, a duty to investigate their complaint and to consider whether any person should be prosecuted in consequence of such investigation). As the respondents' counsel noted, there can be no duty to consider prosecution if there is no duty to undertake an investigation. At the hearing of the respondents' motion, counsel for Mr and Mrs Hinchcliffe did not really attempt to support the existence of a duty of the kind formulated in the amended statement of claim. Rather, he submitted: "a refusal by police to receive a bona fide complaint, or the refusal to consider it, is a failure to perform their duty which is capable of attracting intervention of the Court." I accept that, where a member of the AFP receives a complaint from a member of the public, the member discharges his or her duty to enforce the law if: (i) he or she gives due and proper consideration to the question whether and in what way an initial inquiry into the complaint should be made; and (ii) he or she acts appropriately upon the view which he or she has formed. A range of matters may be pertinent to the member's consideration of the complaint, depending on the circumstances. Substantially accepting this formulation of the law, counsel for the Hinchcliffes submitted that there was sufficient material before the Court to withstand the strike-out motion and to support the proposition that there had been no real performance of the respondents' legal duty. Whilst this was not as pleaded in the amended statement of claim, I consider the case on this reformulated basis.' 72 I respectfully agree with her Honour's formulation, so far as it goes. Her Honour, it will be noted, embarked on a consideration of whether there was a "real performance of the [police officers'] legal duty". Partly the applicants may suggest that there was no real consideration of "the question … in what way an initial inquiry into the complaint should be made". As to that, my view is that there is no evidence to suggest that no real consideration was given to the matter. 73 Partly, however, the applicants suggest that there was remediable legal error in the decision not to further investigate. I have difficulty seeing why, if a court will go as far as Kenny J (as it seems to me rightly) did, the court should not, in a proper case, go further. It ought not be seen as only "policy decisions" that, while preserving real respect for the proper authorities' capacity to manage a police force, the courts might investigate. Australian experience of the last 20 or 30 years does not support the proposition that all is necessarily well in every police force in the country. Citizens in my view are entitled to look to the courts for assistance in having police do their duty in considering whether to make further inquiries. Different considerations may apply once prosecutions have been launched in a court, but obviously different questions and a different and now well-known framework of legal analysis, founded on preventing court processes being used as a means of injustice, are then involved: see Jago v District Court (1989) 168 CLR 23 and many subsequent cases. 74 I apply that view here, bearing in mind the cautions expressed in the cases and by me as to proceeding, nevertheless, with some care and with due respect for legitimate police processes. However, my opinion is that there is no evidence which could ground a conclusion that, in the case of either police force, there was a breach of such further duty. 75 There is, however, as it seems to me, nothing unlawful in a police officer bona fide determining, where there is some proper material to support the view, that one or more crucial witnesses are unlikely to be believed by a jury, and on that account to cease an inquiry. It must happen frequently in police work. In the case of a very serious crime, such as the various applicants allege here, one would usually expect that such a determination would not be made without interviewing the witness(es) concerned. Nevertheless, unusual circumstances may exist such that a police officer might reasonably come to the view that the matter is not worth investigating further or taking to court. (ii) The approaches of the police forces in this case 76 The applicant's own evidence, taken at its highest, suggests that this is so here. Nothing has been produced to suggest dishonesty on the part of the Australian Federal Police as an institution nor on the part of any investigating officer. The same is true of the Northern Territory police. 77 Neither police force nor its officers have been, so far as the present proceedings are concerned, acting at the behest of a coroner. It is difficult to see how, in the ordinary course, the Australian Federal Police would be so acting. 78 At the heart of Mrs Scott's concerns and suspicions are the allegations of Mr Bindai, the US materials and the photographic materials. 79 As to Mr Bindai, his assertions are inconsistent with the sworn observations of the investigating police and, above all, Dr Lee as well as the relevant prison officers. It seems to me to be inconceivable that the deceased could have sustained a beating such as Mr Bindai suggests without there being any sign of it the next morning that would be detected by police looking for signs of foul play or an experienced forensic pathologist investigating the death in a prison. At least a police officer might reasonably so conclude. 80 Mr Bindai's entirely inconsistent and contemporaneous statements cannot simply be brushed aside, and it is no more than fanciful to account for them on the basis that Mr Bindai was threatened by one of the counsel assisting the Royal Commission. It may, possibly more persuasively, be said that Mr Bindai might, having been in custody himself, have feared reprisals from the prison officers if he had spoken up. In any case, the inconsistent statements do not help the cause of his credibility and a police officer might well judge that they would further damage it. 81 It is also true that the zealotry of Mr Dow's conviction, and the piteous sincerity of Mrs Scott's conviction, would soon be apparent, or could readily be demonstrated, in a courtroom. There is no doubt that, on the only reliable records (Mr Dow's unaided recollections could readily be regarded as not in that category) of what Mr Bindai has alleged, he made his allegations in circumstances where Mrs Scott was present and Mr Dow, her friend, was confidently asserting that Mr Scott had been murdered. The police officers viewed a videotape of Mr Bindai's interview with Mr Dow. 82 It is enough to say that, in all the circumstances, the evidence of the applicant or applicants (as appropriate to the particular case) is not capable of suggesting that an honest police officer acting reasonably could not properly come to the view that Mr Bindai would not be accepted as a reliable and truthful witness. (iii) Significance of the US authorities' opinions 83 The US materials fall short of providing, on their own, positive evidence of murder. Further, only in a general sense would they corroborate Mr Bindai's version – he does not specifically allege any event or sound positively suggestive of Mr Scott's having been killed by one or more prison officers pressing a baton against his neck, which is the hypothesis the applicants want investigated. Mr Bindai's allegations are of course, in any case, extremely serious, but the applicants will not countenance any alternative to the murder hypothesis. Nor do the US experts' observations suggest a wholesale beating with a baton such as Mr Bindai has alleged. Absent a request to the Queensland government by some relevant Northern Territory authority, there appears no prospect of an exhumation of the deceased's remains. In any case, the police were well entitled to take the view that there is only a possibility rather than a probability that further useful medical observations could be made, if exhumation did occur. (iv) The photographic materials 84 The photographs (and Mrs Scott's recollection of her very brief look at the last photographs) at best raise only a possible inference that, as the US experts thought, the integrity of the death scene might have been disturbed. Such a disturbance might obviously be accounted for by stupidity at least as well as by malignity. Why would murderers be likely to re-hang a body any more than innocent persons who might have realised that they or someone else had prematurely lowered the body of a man found dead by hanging? So, in my opinion, might reasonable police officers consider the matter. (v) The weight to be given to the Royal Commission's approach and judgments by its officers 85 Among the reasons for reproducing here so much of the Royal Commission's report is to indicate the evident thoroughness and care that attended the investigation and the Commissioner's consideration of the evidence. It is true that no evidentiary suggestion of murder was made to the Commissioner, and notably not by counsel for Mrs Scott. Of course, counsel are bound ethically not to advance positive suggestions of serious wrongdoing by someone unless they believe there is a proper basis for such a suggestion. Nevertheless, it is clear, if only from recorded interjections by Mrs Scott, that at least she strongly suspected murder and that her attitude must have been communicated to the Commissioner. It is inconceivable that a retired judge of such long and broad experience, necessarily alive to the established realities and allegations of the then recent violence by some prison officers in various parts of Australia, as well as to the realities of violence between prisoners, would not have been keeping a capable and keen eye out for any sign of foul play towards any Aboriginal prisoner who died in custody. For that and other reasons, the police authorities of the Commonwealth and the Northern Territory would be and were well entitled to credit the Royal Commission's findings with great respect. 86 Having regard to experience in these matters, it is equally inconceivable that the Commissioner's evident attitude of thorough investigation, letting the cards fall where they may, would not have communicated itself to and have activated those assisting the Royal Commission, if, which all the circumstances would make one doubt, they needed any such activation. Working relationships in such an inquiry are very close. 87 In these circumstances, if, contrary to the contemporaneous record, Mr Barbaro recalled Mr Bindai making some allegation such as he has since made, the view would readily be open that, when he expressed it, Mr Barbaro's recollection was likely to be mistaken. If it were thought that his recollection might be correct, the view would be well open that there was, during the currency of the Royal Commission, good reason to disbelieve Mr Bindai. There is nothing to indicate that police officers would not be perfectly justified in considering that there is no credible evidence to suggest any criminal wrongdoing by any Commission lawyer. The allegation that Mr Dodson seriously threatened a potential Royal Commission witness with death or a beating, on its face, invites disbelief. The police were, in my opinion, unarguably entitled so to conclude. (vi) Overall 88 Nor, weighing the matters of concern together, does the picture materially differ. Some people, in my opinion, might reasonably think that the new materials, despite all that has gone before, are sufficiently disquieting, having regard to the seriousness of the matter, as to warrant a complete re-investigation. Others might reasonably think differently. The applicants' evidence allows, in my view, no inference to the contrary. 89 To take the second of those views is not to imply any necessary disrespect for Mrs Scott's and her son's plainly heartfelt grief and sense of outrage, nor for Mr Dow's or Mr Taylor's plainly sincere if over-zealous concerns. One might think that there is no practical point in re-opening the matter so late in the piece while nevertheless acknowledging that intuition may be right although satisfactory proof is lacking, that a degree of doubt or suspicion might ever remain, or that, on occasions, appalling things such as Mrs Scott is alleging have occurred and have long after, and against the odds, been established. (vii) Loss of original photographs 90 A matter that agitated Mrs Scott is the apparent loss of the original Polaroid photographs taken by prison officers on the morning of the discovery of the deceased's body. There is nothing to suggest any suspicious explanation of this loss. So far as the materials before me show, the fact is that those photographs are not able now to be examined by anyone. General 91 There are, very obviously to a lawyer, other, including more technical, grounds for considering that various aspects of the three proceedings are quite unmaintainable. I have sought to deal with the aspects that either might have any whiff of legal credibility or which, as far as I have been able to discern, go to the core of the applicant's concerns. 92 It has been difficult to try to keep these proceedings on anything like an orderly footing. As before Martin CJ, Mrs Scott has been a difficult litigant. In her case that is understandable. In different ways, Mr Dow and Mr Taylor have also been difficult to deal with. Why that should have been so is less understandable. I have perhaps erred in according too much latitude to the applicants. In that regard, it is to be observed that Mrs Scott was able to obtain legal representation in the coronial inquest; before the Royal Commission; in the Northern Territory Supreme Court; to investigate the new Bindai and Barbaro material and to make representations to the Prime Minister representing the Commonwealth; to seek from the Queensland authorities exhumation of the deceased's body; and (by two separate lawyers) at times before me. The fact is that in every Australian city it is reasonably possible to obtain competent legal assistance for Aboriginal people with a viable case. In a matter such as this, there is no shortage of capable lawyers prepared to act for nothing if they see that there appears to be a just and viable cause. Among other things, with the consent of the respondent I approached one of the Bar Associations to arrange pro bono help from senior counsel for Mrs Scott's then junior counsel. Assistance was willingly offered, but was not utilised because Mrs Scott dismissed the junior concerned (over an ethical position he apparently held as to the assertion of murder as distinct from a beating causing the deceased to suicide). The time is over-ripe to end the latitude given to the applicants in framing their cases, simply because they are self-represented and sincere in their concerns. 93 No further opportunity for further amendment of any of the pleadings of any of the applicants should be granted. The applicants have been given more than ample opportunity to get their cases in order. 94 Nothing I have said as to the lack of a case for showing legally wrong conduct by the police officers should be understood as indicating a view as to whether, if I were deciding the matter for myself, I would make the same decision as the police. It may well be that, on application to a judge of the Northern Territory Supreme Court under s 44 of the Coroners Act 1993 (NT) to reopen the inquest or hold a new one, or, on approach to a coroner to exercise the powers, it seems, of every Northern Territory coroner to reopen an inquest, a judge or a coroner might quite reasonably come to a different view from that arrived at by the police officers. That would be entirely a matter for the judge or magistrate concerned if the matter should be so agitated. If any such application has already been unsuccessfully made there appears to be nothing to prevent another such application, in the event that there is new material. Disposition 95 In each matter, the principal proceeding is dismissed. The respective applicants in the respective cases are to pay the respondents' costs. I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 1 July 2003 The applicants appeared in person. Counsel for the Commonwealth Respondents: Mr P Roberts SC and Mr G Johnson Solicitor for the Commonwealth Respondents: Australian Government Solicitor Counsel for the Northern Territory Respondents Mr M Grant Solicitor for the Northern Territory Respondents: Solicitor for the Northern Territory Date of Hearing: 11 November 2002 Date of Judgment: 1 July 2003 APPENDIX "A" ROYAL COMMISSION INTO ABORIGINAL DEATHS IN CUSTODY Secretary: John Gavin 45 Flinders Street Assistant Secretary: Jill Sheppard ADELAIDE SA 5000 GPO Box 1005 ADELAIDE SA 5001 Reference: Telephone: (08) 223 6222 Fax: (08) 223 7825 17 September 1990 The Honourable James Henry Muirhead, QC Administrator of the Northern Territory Government House DARWIN NT 0800 Your Honour In accordance with the Commission of Inquiry (Deaths in Custody) Act 1987 as amended on 15 June 1988 and 15 June 1989, I have the honour to present to you the report of my inquiry into the death of the Aboriginal man who died in the Darwin Prison on 5 July 1985. An order suppressing the publication of the names of the young man was made by me at the hearing into the death. In recognition of Aboriginal custom and at the request of the young man's family I do not name the young man in my report. I am also presenting the same report to His Excellency the Governor-General in accordance with Letters Patent issued by him. Yours sincerely Elliott Johnston COMMISSIONER INQUIRY INTO THE DEATH OF THE ABORIGINAL MAN WHO DIED IN THE DARWIN PRISON ON 5 JULY 1985 INTRODUCTION This is the first report submitted by me following inquiry into a death occurring in the Northern Territory. It is, therefore, appropriate that I should say something about the style of reporting that I will adopt. The number of inquiries, the volume of material to be considered in relation to each, the need to give time and thought to the study of issues underlying the deaths both individually and collectively imposes certain limitations upon the nature of reporting. But it is important that reasons be clearly stated for conclusions reached. In this connection I should say that the inquiries which I have conducted have been marked by great thoroughness of preparation on the part of Counsel Assisting and those instructing and supporting counsel and equal thoroughness on the part of counsel for government, the families of deceased persons and other interests such as police and prison officers. That has been of great assistance to me and I express my appreciation. As a result of such thoroughness of preparation and critical examination from various perspectives, it has become apparent in this and other inquiries that some matters of fact are not in dispute being established with certainty. Where this is the case I state the facts and give general reasons for my finding but without going into detail. However, where there is some dispute as to an issue, or where the issue is central to the inquiry I will indicate in detail my reasons for arriving at a conclusion but without (usually) quoting or referring in detail to the evidence which supports those reasons. To do so would make this and other reports intolerably long. I mention that in respect of each custodial death into which I inquire I am required by my Letters Patent to inquire not only into the death but also into '... any subsequent action taken in respect of each of those deaths including ... the conduct of coronial, police and other inquiries and any other things that were not done but which ought to have been done'. My Letters Patent also require me to investigate not only the immediate cause of death and the events and processes leading directly to it but also to examine the underlying causes which contributed to the death; in short to try to ascertain, as far as is possible, not only how the deceased died but why the death occurred. My task is essentially to find facts and report them. In making my findings as to the facts I will apply the standard of proof referred to as 'on the balance of probability', being the standard of proof applied in the civil courts. That onus requires that I feel an actual persuasion that something was said, done or occurred before I make a finding to that effect. The seriousness of a fact in issue, the gravity of the consequences flowing from a finding as to a fact will affect one's readiness to arrive at the stage of an actual persuasion as to the existence of the fact. … SUBJECT MATTER A man, whose name has been suppressed from publication, died in the morning of 5 July 1985 whilst a prisoner in Cell 8 in the remand area (C Block) of the Darwin Prison at Berrimah. He was an Aboriginal [and his death clearly fell within the terms of my Letters Patent, both Commonwealth and Northern Territory]. I conducted an inquiry into the death. [The actual dates of hearing, counsel and the parties for which they appeared, the witnesses called and the exhibits tendered are set out in Appendices to this report. The report divides into four parts: Part One - A synopsis of my findings; Part Two - a closer examination of those findings and the setting out of my reasons; Part Three - an examination of the investigation, including the coronial inquest which followed the death; and Part Four - an indication of the important underlying issues which appear to be associated with the death. As this is my first report of a death in the Northern Territory I include an introduction which I will not repeat in subsequent reports of inquiries into deaths occurring in the Territory.] PART ONE A SYNOPSIS OF MY FINDINGS AS TO THE DECEASED AND HIS DEATH 1.1 A Short Survey of the Background of the Deceased The deceased was born in Townsville on 16 June 1959. His father was an Aboriginal man from Barambah (Cherbourg) Queensland. His mother, an Aboriginal woman, was from Cloncurry. The deceased was the youngest of five children. He, like some of the other children, took the maiden name of his mother. The parents were formally married in the European sense in 1985. His youngest brother, Walter, resided in the Mosman Hall Psychiatric Hospital in Charters Towers for a number of years and died there in 1986. He had one other brother and two sisters. His father was an unskilled labourer who moved around a good deal in search of work. There is material from which one could draw the conclusion that the deceased's early life was difficult. He himself is reported as having said of his parents that both drank heavily and that there was a good deal of domestic violence. He was educated at State primary schools and left school at the age of 14 having completed Grade 7. He spent some time at least in an opportunity class. By the time he left school he had been treated for a number of medical conditions. When aged 4, he attended at Townsville General Hospital casualty section with tonsillitis. He was recorded as suffering from viral meningitis at the age of 6. At age 9 he was treated for an electric shock injury in which he was said to have been thrown several yards. He appears to have suffered a succession of respiratory disorders as well as physical traumas including bullet wounds and a motor vehicle accident which resulted in his spending three weeks in hospital after a period of 24 hours unconsciousness. It is recorded in the medical history records of the deceased in the Community Health Centre files that he began to suffer from 'nerves' at the age of 13. According to a 1977 pre-sentence report (to which I later refer) he left school at age 14 and gained employment at a meatworks. He is said to have had a total of 17 months employment in three separate periods between 1973 and 1975 (aged 14 to 16). By 1977 he had convictions for minor matters and two charges of breaking and entering (1977). He was fined in respect of these offences other than one case of break and enter for which he was placed on a two year bond. He was subsequently charged with breach of that bond and the 1977 pre-sentence report was prepared in connection with that breach. He was examined by a psychiatrist and separately by a psychologist in connection with the preparation of that report. He was thought by the psychiatrist to be 'a rather inadequate, apathetic person, who is passive, shows little initiative, he drinks to excess at times' and he referred to these various problems probably being aggravated by his colour, by which I understand the psychiatrist to mean that the effects of what were perceived to be personality defects and the difficulty of finding a solution to the problems they posed were exacerbated by his patent Aboriginality. The psychiatrist thought that the deceased was 'not the type of active offender who would plan and then put his project into execution. He commits offences by lack of control, irresponsibility, incapacity to appreciate the consequences of his behaviour. Even so, a quality from such weakness means that by being immature, dependent, non-critical and easily influenced, he could still gain from long term re-educative measures. As he is already 18, the limited facilities for re-education in Queensland do not suggest long term beneficial measures with which he could be provided'. In any event, the order made on the breach of bond proceedings was 6 months imprisonment. In the years following, the deceased continued to be affected by ill-health, excessive drinking of alcohol and further offending. He continued to suffer respiratory complaints and was prescribed Valium, Mogadon and Tryptonol. The records of the Aboriginal-Islander Health Service note several attendances in 1980 for alcohol withdrawal 'shakes', palpitations, anxiety, depression. In 1981 he attended with chest pain and, on two occasions, anxiety. The Townsville General Hospital clinical file relating to the deceased indicates a number of attendances between 1979 and 1981 for 'nerves' and five attendances for alcohol withdrawal and related complaints (he was then aged 23-25). He was involved in a number of incidents involving traumatic injury: in 1976 he was treated for bullet wounds to the left knee and arm; in 1977 he was taken to hospital by police after being knocked out in a fight; in 1981 he was admitted for observation after apparently being knocked out with a brick; in 1983 he was stunned in a diving accident. In 1982 he met his future wife, Lettie. She was working as a clerical assistant at the time at a nearby army base and visiting a sister in Townsville. Lettie had two daughters from a previous marriage. When interviewed in 1977, the deceased stated that he had a Jehovah's Witness family background but at that time said that he was no longer attending the church because he 'felt too bad to be a Christian'. It is apparent, however, that he continued his association with the church or at least had renewed it by 1982 because he and Lettie attended the Jehovah's Witness church in Townsville. From there they began to mix socially and were married not long afterwards. Lettie was an important witness in the Inquiry, not only for what she could say about her husband but for other reasons as will appear. It is desirable to leave for a moment the account of the husband to say something of the wife. 1.2 The Background of Lettie Lettie is an Aboriginal woman bom at Glen Helen Station west of Alice Springs, her mother being an Aboriginal woman from that country and her father being a white man from NSW who, according to Lettie's evidence, was manager of the Glen Helen Station. (From evidence received in another matter I think it may be more accurate to say he was manager of certain aspects of the work at Glen Helen Station which was owned at the time by Mr Brian Bowman who now lives in Alice Springs and who has written about the pastoral industry in the Centre.) The father had children by three Aboriginal women and according to one of the daughters, Zita, his marriages to these women were accepted by the Arrernte (Aranda) people. Lettie was the daughter of the third wife; Zita the first. The children were progressively removed as wards under the then Northern Territory Ordinance. The children were dispersed. Lettie herself was taken away from her mother following the death of her father and placed in an institution conducted by the Roman Catholic Church in Alice Springs. Zita and Lettie, who knew nothing of each other's existence, found themselves to be sisters years later in Darwin and, by coincidence, Zita was a Prison Officer at the Darwin Prison when the deceased was a prisoner. In Alice Springs Lettie was educated and obtained employment of various sorts, married, went with her husband to Jay Creek where she also obtained employment and had two daughters by her husband before their marriage broke up. A desire to see another sister took her to Townsville. 1.3 The marriage of the deceased and Lettie and their subsequent life The above is the background of Lettie when she met the deceased in Townsville in 1982. They were married on 9 July 1983. Lettie's daughters were then aged 13 and 9. I have no doubt that he was a man with very considerable psychological problems and very little sense of identity. He was a good looking man with a good physique. Their marriage was not a success but there is no doubt that to the very end Lettie remained very much in love with the deceased and devoted to him even though his behaviour at times was such as to try her almost beyond endurance. To the end she tried with remarkable perseverance to get for him the assistance which she was sure he needed. Her evidence was not unimportant to the inquiry. I say immediately that I found her to be a truthful witness. I am satisfied that she was wrong about a few matters of detail but these were errors of recollection and do not shake my confidence in her general testimony. It is one of the very unfortunate aspects of this matter that following on the death a short report appeared in the N.T. News newspaper. The report stated that 'a police source said that (the deceased) had a history of domestic problems and his de facto wife recently had threatened to leave him'. This report was doubly wrong. Lettie was not a de facto wife and the parties had been separated for quite some time and not at her instigation. After the marriage in 1983, the couple went to Alice Springs where the deceased obtained employment. In September of that year they travelled at their own expense to visit a cousin of Lettie who lived near Auckland, New Zealand. The deceased was promised employment in a business conducted by the cousin's husband. He did in fact work in this business for a short time and also for a construction firm, John Holland Constructions. According to Lettie he was affected by some racial tensions on the job. For reasons which I do not think are clear, the visit to New Zealand ended unsatisfactorily. The couple applied for and were granted assistance to return to Australia and did so in late 1983. They arrived in Darwin where both obtained employment, Lettie at the Daisy Yammir Hostel and the deceased as a cleaner at the Darwin Hospital. According to Lettie, he began to feel the pressure of work there; he complained of his mind 'racing'; and was unsure about his capacity to do the job. On 7 December 1983 as a result of domestic upsets particularly affecting Lettie's daughters she arranged for him to be seen by a general medical practitioner, Dr Kirloskar, who recorded that 'he gets violent for no reason, beats the girls, locks himself in his room'. The doctor assessed him as dangerous to himself and others. She referred him to a specialist. The next day he attended at Darwin Hospital. The doctor there took a history relating to violent outbursts. The patient stormed out in anger and did not return. He must have gone back to Townsville at about this time. In January 1984 Lettie went to Townsville to be with him and found that he was drinking. On the occasion of this visit he attacked a taxi driver who was carrying Lettie as a fare, apparently on the basis that he thought the driver was trying to 'get on' with Lettie. In consequence of that incident he was arrested and charged with assault occasioning bodily harm and other charges and was allowed bail but on terms that he had a surety and that $1000 cash was deposited. One of the features of this incident was that Lettie made superhuman efforts to raise the $1000 and finally succeeded in persuading a Townsville bank manager (to whom she was completely unknown and in a city where she was virtually unknown) to advance her $1000 on the strength of her employment in Darwin and what must have appeared to him her patent good faith. In this way she succeeded in having the deceased admitted to bail. He attended at the hearing, the outcome of which was a good behaviour bond with probation. After these proceedings had been finalised, the couple returned to Darwin, Lettie to resume her post at the hostel, he to look for work and together to reside in a Housing Commission house. Lettie, who by this time was pregnant, remained in Darwin working until September 1984 when she flew to Adelaide because of some complications in respect of her pregnancy and she was there delivered of the first and only child of the marriage, a son. Before leaving, she sought the assistance of friends in trying to secure psychiatric assistance for her husband. When she returned in December she discovered that he was a patient in Ward 5A (the psychiatric ward) of the Darwin Hospital. The deceased's movements are not as well documented. In May 1984 he attended at the Townsville Community Health Centre at the suggestion of his probation officer and requested to see a psychologist. He was seen by Ms Anne Claire who diagnosed anxiety state and proposed a 3-point plan of counselling, encouragement towards a regular healthy lifestyle and encouragement regarding the use of relaxation techniques. He attended again three weeks later and complained of poor concentration, racing thoughts, poor appetite and restlessness. Approximately two weeks later he was back in Darwin and attended at the Royal Darwin Hospital complaining of central abdominal pain radiating to his back which spontaneously relieved during the consultation. A further two weeks later he had returned to Townsville and again saw Ms Claire at the Community Health Centre. The latter spoke with his probation officer who arranged for him to see a social worker at the Townsville General Hospital who in tum recommended psychiatric testing and it was arranged for him to attend a group session with his mother the following day. He completed, on 19 June, a Townsville Hospital Psychiatric Unit form on which he was asked to list the events occurring in his family which had affected him most during the previous year. He listed in order of importance 'marital separation', 'personal injury or illness', 'change in financial state', 'change in living conditions' and 'change in residence'. In relation to the first point, I mention that he later told a doctor at the Royal Darwin Hospital that he and his wife had separated during April 1984. I am confident that the parties had not separated in April 1984 or in June; that Lettie was unaware of a separation at that time. I think that what the deceased was describing was either a feeling that the marriage had broken down or that he had made up his mind to separate. He attended a group session as arranged on 20 June (without his mother). He was vague during the session and stated that he wanted to start a new life; he attended four further group sessions, the last on 27 June and did not attend sessions after that date. On 7 August the Psychiatric Registrar of the Townsville Hospital prepared a summary of the deceased's contact with the unit of the hospital. The report covered the results of psychiatric testing; noted that the patient felt he was schizophrenic but that the writer felt it unfair to make any diagnosis other than to say that the deceased had been admitted for resocialisation and that this had failed. He returned to Darwin and subsequently moved south from there. In October 1984 he was convicted in Katherine of driving an unregistered and uninsured motor vehicle at a time when his blood alcohol level exceeded .08. He was convicted on these charges, disqualified, fined and given time to pay. He must have returned to Darwin because he voluntarily entered the FORWAARD centre for treatment and counselling on alcoholism. But on 20 December, stating that he was entirely unable to cope without further assistance he attended at the Outpatient Department of the Royal Darwin Hospital and shortly afterwards was admitted to Ward 5A. He remained an in-patient at the ward until discharged on 26 January. I think he would have been earlier discharged had it not been perceived that it would be best for him to return to Townsville; arrangements for doing so had to be made which were complicated by the fact that the deceased was unsure as to what he wanted to do and kept changing his mind. In the event, he did in fact return to Queensland and on 31 January saw Dr James, a general practitioner in Townsville, complaining of lack of memory, hallucinations, poor concentration span and agitation. On 1 February he went to the Townsville Hospital and was referred to the psychiatric unit. He complained of confusion and being unable to cope with things. He was advised to return (which he did not do). On 4 February he again saw Dr James. He returned to Darwin probably on 9 February. By this time his life, it seems to me, was completely out of control and he realised it. He was drinking heavily, living at the Salvation Army House, acting violently at times towards his wife and openly associating with other women. He returned home from time to time but mainly when he wanted a meal or to have some washing done. 1.4 The events leading up to the imprisonment of the deceased On 22 February, 1985 there was an incident at the Darwin Hotel. The deceased was there, drunk. Lettie went there as a result of a message. In the course of the incident the deceased assaulted Lettie and addressed a young girl who was in the same part of the hotel loudly and in terms calculated to insult and upset both her and Lettie. The police came; he was arrested and charged with assault upon a female (Lettie), and two counts of disorderly behaviour. He came before the court on these charges and was granted bail on his own recognisance subject to the condition that he report daily to the Officer-in-Charge of the Darwin Police Station between 8.00am and 12 noon and further that he not approach or attempt to contact 'the complainant'. It is obvious that the second condition was not observed and that in fact, whilst Lettie may have wanted the condition to be observed for a few days, she certainly changed her mind and they were together on many occasions. He continued to drink obsessively, to openly associate with other women, to return to the home when he felt like it and in effect when he wanted something done for him. At the time of the laying of the charges Lettie was concerned that he should be dealt with for his behaviour but she was by this time absolutely convinced that he was desperately in need of psychiatric help and she set about trying to see that he got it. I have no doubt that he in fact was seriously in need of assistance. The precise nature of his problems and whether he could have been given very effective help is unclear to me. In connection with the charges against him the deceased was represented by the North Australian Aboriginal Legal Aid Service (NAALAS) and that Service arranged for him to be seen by a psychiatrist, Dr Ferris, for the purpose of a psychiatric assessment. The appointment was for 29 May. On 16 April he was arrested on a warrant for unpaid fines (the Katherine fines) and imprisoned at Berrimah for 12 days after which he was discharged still on bail on the Darwin Hotel offences. On 19 May he was charged with offences arising out of the unlawful entry of a building and larceny. According to Lettie the offences resulted from trying to get food. He was bailed. On 21 May he attended the Accident and Emergency Clinic of the Darwin Hospital with Lettie. I have no doubt that his wife prevailed upon him to go. She did most of the talking to Dr Taylor who was on duty. Lettie told the doctor some of his history (but not all) and that he was waiting to see Dr Ferris. The doctor prescribed Melleril, a psychiatropic drug with lesser side effects than others to be taken during the interval before the consultation with Dr Ferris. At 12.45am on 26 May the deceased was arrested for breach of bail condition, namely failing to report to the police station. He was transferred by police to the Darwin Prison. One consequence of his arrest was that he was unable to keep his appointment with Dr Ferris on 29 May. Lettie kept the appointment and explained both his absence and her interpretation of his problems to Dr Ferris. Dr Ferris attended at the prison later that day but his time was fully booked. He returned to Adelaide the next day. At some stage an arrangement was made for the deceased to see him on his next visit to the prison. The deceased remained in custody in C Block (the remand block of that prison) until his death which occurred on the morning of 5 July 1985 after 4.00am and before 6.22am at which time he was found dead, his body suspended by means of a sheet tied to a ventilation grille in the centre of the ceiling. 1.5 My findings are: (1) That the deceased was lawfully in custody at the time of his death having appeared before the Magistrates Court on 29 May (on the Darwin Hotel charges) and been remanded in custody. (2) The deceased died by hanging. (3) The hanging was self-inflicted. The deceased intended to terminate his life. (4) There was no foul play on the part of any prison officer, any inmate or any other person. There is no evidence to suggest that the deceased was subject while in custody to any harassment or discriminatory behaviour by any person which contributed to his decision to take his life. (5) The deceased was an 'at risk' prisoner. (6) Steps which could have and should have been taken to avoid the possibility of the deceased inflicting or attempting to inflict harm upon himself were not taken. (7) Three factors contributed to those steps not being taken: (a) deficiencies in the system in operation relative to the care and supervision of prisoners; (b) failure to take advantage of one aspect of the existing system of care and supervision. This was a failure on the part of the visiting prison doctor, (c) an error on the pan of one or other of two persons; either an error on the part of an officer in failing to pass information to the visiting prison doctor or an error on the part of the doctor in failing to respond to the information if in fact it was given to him. I am unable to come to a confident finding as to where the error lies in this respect. In the next part of this report I examine these findings and give my reasons for reaching them. PART TWO REASONS FOR FINDINGS 2.1 The Deceased was in Lawful Custody At the time of his death the deceased was in lawful custody at Darwin Prison as a remand prisoner in connection with the offences with which he was charged arising from the incident at the Darwin Hotel. All parties were agreed as to this matter. I add the following observations. The nature of the charges were such that in other circumstances they might have been charged on summons; however, the arrest of the deceased on 22 February 1985 was well justified. It is clear that he was drunk and out of control and would have continued to create a serious disturbance had he not been arrested. He was bailed shortly thereafter at a time when he had no doubt cooled down. The conditions attaching to his bail were reasonable in the circumstances. He was eventually re-arrested just after midnight on 26 May 1985 for a breach of the reporting condition; whether this was imperatively necessary may be open to argument but it is to be remembered that he had by this time been charged with offences committed whilst on bail. He came before the Magistrate's Court on 29 May and was remanded in custody. It was pursuant to that order that he was in custody when he died 27 days later. This is a long time to be in custody on remand and in fact longer than is permitted, in the absence of consent, pursuant to the relevant Northern Territory legislation. The file records that the deceased was represented on the remand by a solicitor from NAALAS. There is no indication on the file as to whether the remand was by consent. I make no criticism of the length of the remand or of the consent if it was given since I have no knowledge of the instructions given by the defendant. It is worth observing that where the remand is of a length permitted only by consent the fact of consent should be recorded. 2.2 The death As a remand prisoner the deceased was housed in C Block at the Darwin Prison; at the time of his death he was assigned to Cell 8. Cell 8 is one of a number of single cells built around a large grassed exercise area. One end of this area is protected by a blank wall and the other leads to the block recreation area, dining area and control room. There is a dormitory for multiple housing of prisoners and some other facilities which need not be mentioned. The block is staffed during the day and evening shifts but has no staff of its own during the night shift. Night shift officers are assigned to the duty of checking all blocks (which includes the checking of each cell). Those checks are done at approximately two hourly intervals although checking is done more frequently if deemed appropriate in respect of any particular prisoner. When prisoners retire at night each cell is locked. The locking device has various positions of which the 4th position is ultra security. The senior officer whose duty it is to do the checking has the only key which can move the lock from position 4. As with other individual cells in C Block, the cell is fitted with an audio device linked to block control during the day and evening shifts and to central control during the night shift. The prisoner can activate the system by pressing a button on the wall of the cell; this passes a signal to control; by flicking a switch control can open an auditory channel between control and the cell allowing the prisoner and the control to speak to each other. When desired, constant auditory supervision can be maintained by control over any cell save only that the control officer must interrupt the supervision to accept a call from another cell. The deceased retired early to Cell 8 on the evening of 4 July. I will speak later of his behaviour during the afternoon. Nothing untoward was observed during the evening. A routine cell check was conducted at 4.00am and the deceased was observed and spoken to. After 6.00am Senior Prison Officer (SPO) Bowden and Prison Officer (PO) Robertson commenced the next routine cell check and what is called the unlock of the cell. The prisoner is aroused and the cell unlocked from position 4. In the course of the unlock SPO Bowden observed that the deceased was hanging with a noose around his neck from a sheet secured to a cross bar in a grill in the ceiling. C Block Journal records that the finding was made at 6.22am and SPO Bowden swore that that was in fact the time when he discovered the hanging. He called out to PO Robertson who was then at the control office. The latter joined him at the cell. Chief Prison Officer (CPO) Birbeck who was in charge of the prison on the night in question was called to the cell. He arrived at 6.27am and viewed the body. He left the cell to obtain a camera and to notify the various authorities. He returned with another officer at 6.35am. Photographs were taken from behind and in front of the body. As from the entry to the cell the body had been checked for vital signs and it had been concluded by all officers that the deceased was dead. Following the taking of the photographs POs Roberts and Lawson released the sheet and the body was lowered on to the cell bed. Police Officers attended as did the Coroner's Constable and at 7.25am at the request of the Coroner's office Dr Lee, a specialist forensic pathologist, attended and viewed the body. During the day Dr Lee conducted an autopsy and came to the conclusion that the cause of the death was strangulation by hanging and was of the opinion that 'the injuries are entirely consistent with having been produced by a self-inflicted hanging'. His view was that death probably occurred closer to 6.20am than to the earlier check. Commission staff requested Professor Steven Cordner of the Victorian Institute of Forensic Pathology to look at the material relating to the case. He was asked if he agreed with the findings of Dr Lee. Dr I.S. Wilke, Assistant Director of the Queensland Department of Health was also asked to examine the case and in the same terms as Professor Cordner. Professor Cordner agreed with the cause of death as given by Dr Lee and agreed with the latter's comment as to the hanging being self-inflicted. He himself had he been providing the autopsy report would have given the cause of death simply as 'hanging'. Dr Wilke reported 'there is nothing in the autopsy report or the other documents to suggest that the death was not due to hanging or that the hanging was not self-inflicted'. His assessment of the time of death was between 5.00am and 6.00am. Professor Cordner's view is that the estimations of the time of death based on observations as to temperature, the appearance of hyperstasis and flexibility of the limbs are so inaccurate that they should not be given any probative weight. The officers who found the body did not attempt resuscitation. In the course of the hearing Mr Tippett, Counsel for the family, was critical of this failure although I do not understand him to maintain that criticism in his final address. In any event, I do not criticise the officers. I was greatly impressed by SPO Bowden both from the point of view of his general ability, his ready and candid responses to questions and by the fact that he has had a considerable experience in dealing with the bodies of deceased persons. I feel confident in his judgment that the deceased was beyond the help of resuscitation when found. However, the question is not an easy one for persons such as Prison Officers, Police Officers and others who may be placed in the position of finding bodies in this or comparable circumstances. I refer to the matter in the last part of this report relating to underlying issues. At this point I merely find that death was by hanging, that the death occurred at some time between 4.00am and 6.22am and that when the body was found suspended in the way described the man was dead and beyond help. No criticism is to be made of the officers who found the body. 2.3 The finding that the hanging was self-inflicted and that the deceased intended to terminate his life It was submitted by Counsel Assisting, supported by all other counsel including Counsel for the family, that I should find that there was no foul play and that the deceased hanged himself. I have no hesitation in making this finding but in view of the importance of the question I should shortly indicate the reasons which compel this finding. In the first place, the body was photographed before it was cut down and it was seen by a number of people prior to the carrying out of the autopsy including Prison Officers, Police Officers, Coroner's staff, ambulance personnel and finally by Dr Lee himself. No sign was detected on the body suggesting foul play; likewise nothing was seen in the cell itself which would suggest foul play. I have already referred to Dr Lee's opinion that the findings at autopsy suggest self-inflicted hanging and the agreement with that view of the other two pathologists. The furniture in the cell is fixed and an examination of the cell, including a demonstration, showed that it would be quite possible for a person of the height of the deceased to stand upon the table and tie one end of a sheet to the ventilation grille. The noose could have been tied earlier or could then have been tied. It would then be a matter of stepping off the table. Death would follow very quickly. Once suspended there was no object that could be reached with hands or feet. The deceased was seen by fellow prisoners to retire early to Cell 8. Nothing suggesting foul play was observed at that stage by any prisoner or by any officer. All prisoners were locked away in the usual manner. The only key which would give access to the deceased was in the hands of SPO Bowden and only that officer, or some other person with his connivance, could have entered the cell. I unhestitatingly accept his evidence that he did not do so or permit anyone else to do so. The cell block is more open than many that I have seen. The front of each cell facing the lawned area has a substantial porthole behind which is a louvre. This is matched by another porthole in the rear wall of the cell and is obviously designed to permit movement of air through the cell. The design is such that if the louvres are open, as they seem often to be, there is a clear (although from each single cell a somewhat restricted) view of the quadrangle area. There would be a tremendous risk in anyone entering Cell 8 or any other of the single cells because such entry would be easily visible to any prisoner on the opposite side of the quadrangle who happened to be awake and taking interest at the relevant time. The turning of the locks would be absolutely unusual at the relevant time of night and likely to be heard by anyone awake or sleeping fitfully. A struggle inside the cell would be very likely heard. There were a large number of prisoners in the cells on the same side of the quadrangle and on the side opposite to Cell 8. Almost all the prisoners who were in the block gave evidence or made statements which were tendered by consent. There was no suggestion of any suspicious circumstances. One should be slow to reach a conclusion that a cell hanging is self-inflicted and should not do so at least without attempting to find a reasonable explanation or motive. It is more convenient that I should deal later with the deceased's state of mind. I say here merely that I find that he was suffering from a psychiatric illness, his life was in a state of severe and chronic disorder and he was exceedingly disturbed; given what is known about him there is no difficulty in coming to a conclusion that he might do damage to himself. I find that the hanging was self-inflicted. 2.4 The finding that there was no foul play on the part of any Prison Officer, any inmate or any other person I have sufficiently dealt with the reasons for this finding in the previous section. It remains to add that I find the cell checks were properly conducted on the night in question (both evening and night shift). Furthermore there is no evidence to suggest that he was improperly treated during his period at the prison, either by Prison Officers or other inmates. There is positive evidence that various officers were concerned about his welfare and took certain steps. I mention what I regard as a rather remarkable circumstance in this case. Steps were taken by Commission staff to get statements from virtually everybody who was in the block at the relevant time as a prisoner; likewise with great assistance from the advisers to the prison officers, statements were obtained from every or almost every officer who is shown by the records as having had anything to do with C Block during the time that the deceased was a prisoner there. As a result there is a large amount of information concerning the behaviour of the deceased while he was on remand and, incidentally, a very considerable agreement between prisoners and prison officers. There is no doubt that the behaviour of the deceased throughout the whole period was highly unusual. He might have been thought to be cheeky, disruptive or having the system on. But it is absolutely clear that neither officers nor fellow prisoners entertained any such thought; without exception they thought he was odd or 'mental', that something was wrong with him and that he was to be regarded not in anger but with concern by some and with indifference by others. He was never regarded by either side as 'a smart alec' or disruptive. 2.5 Was the death of the deceased avoidable? 2.5.1 The Prison In his opening address Counsel Assisting raised this question as the key question to be answered and the hearing developed largely around it. In their final addresses Counsel Assisting and Counsel for the family maintained that the death was avoidable; Counsel for Police and Prison Officers advanced the view that the death was in the then circumstances unavoidable but might have been avoidable had adequate psychiatric services been available in the Darwin Prison; Counsel for the Northern Territory Government claimed that the death was unavoidable and Counsel for Dr Taylor submitted that it was probably not avoidable. Counsel's submissions were well researched and helpful. I certainly agree that the psychiatric services available in the prison were quite inadequate. However, I have come to the conclusion that even on the basis of the existing medical services the death could probably have been avoided. At the very least, certain things which could and should have been done were not done. The explanation as to why those things were not done is to be found in a combination of factors, the two principal factors being inadequacy of the system and errors in the operation of the system. Before proceeding further, I will mention a few matters concerning the prison. It is situated at Berrimah, a suburb of Darwin, and not far removed from the centre of that city. The officer in charge of the prison is called the Superintendent. At the relevant time the then Superintendent was not on duty and his deputy, Mr Natt, was Acting Superintendent. During 1985 the prison had one Registered Nurse, Ms Thomas, working five days per week; a visiting medical officer (Dr Taylor) who attended for sessions on Mondays and Thursdays; a visiting dentist and a visiting psychiatrist, Dr Ferris from Adelaide, who attended for a day each six weeks. As mentioned earlier, Dr Ferris in fact attended on 29 May 1985 and his next visit was scheduled for 18 July. There is a small medical centre in the prison where the Sister worked; prisoners were brought by prison officers from the various parts of the prison to see the doctor and to see the nurse; medicines were made up by the nurse and provided to the relevant officers for administration to the prisoners. There were certain arrangements in place between the prison medical service and the Darwin Hospital although there is some debate about some of those arrangements. But it is clear that the Sister could telephone the hospital and be advised as to whether a prisoner was known to the hospital and if so was supposed to be on medication. The Sister could also arrange for a prisoner's file, if one existed, to be sent under seal to her. Sister Thomas said she could not obtain psychiatric files on her own request but would refer such requests to the doctor. There appears to have been a general disinclination for hospital staff to come to the prison and sometimes the prison refused to convey prisoners to the hospital generally speaking for reasons of lack of transport or escort personnel or in the case of violent prisoners. However, it would appear that prisoners, with physical complaints, were often taken to the outpatient department of the hospital and presumably sometimes admitted. The position was different in relation to psychiatric care. Dr Wieteska, the Darwin Hospital psychiatrist, was at that time the only psychiatrist permanently available in Darwin and was in charge of Ward 5A. It is clear that she was not only the sole psychiatrist but was responsible for all administrative work of the ward. It is perhaps not surprising that she declined to provide a psychiatric service to the gaol, taking the view that Dr Ferris had been appointed to deal with cases in the gaol. Dr Joan Ridley, the current Director of Northern Territory Mental Health Services, stated 'there was no mental health service established in 1985. There was a psychiatric ward of the Royal Darwin Hospital and one psychiatrist based there'. She said 'I think the psychiatrist did see that the forensic area was not her concern unless there was some dire emergency and to that extent didn't welcome additional work coming from that area'. She expressed the view that only in cases of 'imminent danger' would a prisoner have been welcome to the psychiatric service of the hospital. In effect, the only psychiatric service available was a one day, 6 weekly visit by Dr Ferris from Adelaide. This state of affairs existed despite the fact that the Supreme Court of the Northern Territory had twice drawn the attention of the authorities to the situation (see Jabanardi v. R. 22 N.T.R.I. 11; R.v. Jabanardi 50 A.L.R. 147). 2.5.2 The System; The Information Available to the Authorities from Within the Prison: the significance of that information: the system of communication There were three sources of information freely available to the prison administration relating to the question of whether the deceased was an 'at risk' prisoner, that is to say, a prisoner who might do harm to himself (or others) and in consequence required special attention. They were: (a) the evidence of his behavioural pattern in the block as witnessed by the officers on duty (backed up by such other information as might be obtained by speaking to prisoners and, in this case, activity reported by them); (b) the evidence contained in his file at the Darwin Hospital; and (c) some information given to Mr Natt by Lettie. Some part only of the first body of evidence came to the attention of the Acting Superintendent and of the doctor (and even that part was not co-extensive as between them). That was due to a fault in the system. As to the second and third bodies of evidence the Acting Superintendent had some indications of a problem; what information the doctor had cannot be stated in a few words but it is sufficient to say that he did not in his capacity as prison doctor see the file or become aware of its contents - this state of affairs was due partly to inadequacy of the system but mainly to human error, in part that of the doctor and in other part that of Mr Natt or the doctor. I am of opinion that the evidence available to the authorities was such as to clearly indicate that the deceased was an 'at risk' prisoner and that, at the least, special surveillance should have been ordered including at night, together with regular attendance on Dr Taylor. One cannot say with certainty that such surveillance would have forestalled the deceased's action but SPO Bowden had no doubt that the preparations necessary for what he observed in the cell that morning would have been heard on the intercom had it been open. There were two other courses open to the authorities. One was medication, about which I will say something; the other was to seek hospital treatment for the deceased and, if necessary, to see if he could be granted bail for this purpose. The charges against the deceased were not such as to preclude bail. An approach could have been made to the solicitor for the deceased to suggest the seeking of a special hearing to apply for bail on the condition that he attend the hospital as in-patient or out-patient as required. This step would avoid any problems associated with the absence of a psychiatric service to the prison and could have been totally justified to the court on the basis of the absence of that service within the prison. In point of fact none of these available courses was adopted. I will refer briefly to the evidence of the deceased's behavioural pattern. A number of incidents relating to the deceased are recorded in the official journals: 27 May 1985 (the date of reception into the block) The Block Journal records that at 2240 hours: 'Prisoner (the deceased) observed in a state of anxiety in special accommodation. Moved to cell no.7 for good order of the block. SPO Bourne informed.' Special accommodation is the dormitory for multiple prisoners. No further detailed information is available but SPO Thomas said that the prisoner was moved to a single cell because of his strange behaviour and the fact of the intercom being available in the single cells. There is no suggestion of his having altercations with other prisoners. It appears likely that the move was prompted by some strange behaviour on the part of the deceased. Experience indicates that Aboriginal prisoners often prefer shared accommodation to a single cell. The other occupants of the dormitory were at least mainly Aboriginal but it is to be remembered that the deceased was not from the Territory and not amongst his countrymen. The move is not criticised, but the fact that the existence of the intercom in the single cell was one of the reasons is very significant. 29 May 1985 Lettie visited the deceased in the afternoon. The journal records '1515 (the deceased) has visitor. 1614 Prisoner (the deceased) received a "Dear John" from his wife who returned to the block crying. To be kept under supervision at all times'. The entry is signed by Mr Natt. There is also another later entry, apparently written by Mr Natt reading 'Razor removed from (the deceased's) cell no.7'. (The subsequent removal to Cell 8 is not, I think, significant. The cells are identical.) During this visit (about which Lettie gave evidence) the deceased took the child into his arms for a time. It is obvious that he was greatly moved. I think the marriage by this time was at an end. It is absolutely clear that Lettie did not give to the deceased a 'Dear John' letter or any other sort of letter. Basically I think it was he who had terminated the marriage. It is certain that he was not given new information on 29 May about a marital breakdown because his prison medical record which was opened on 24 April 1989 (he was then serving 12 days in default of payment of fines) shows his wife as next of kin but records his marital status as 'separated' (which information could only have come from the prisoner himself). I think it may well be that Lettie told him she was going to set out to make a new life for herself. In any event, obviously the prison officers, either on the basis of his tearful condition on his return to the block or very possibly because of what he told them, recorded that he had received a 'Dear John' letter. (A 'Dear John' letter is the accepted term for a letter from a wife to a husband advising that she is leaving him.) The direction 'to be kept under supervision at all times' is routine for the recipients of a 'Dear John' and meant that he was to be sighted every half hour and to be monitored continuously by the intercom when in his cell on a continuing basis for a period from 24-48 hours. The removal of the razor from the cell was also a routine precaution. It was up to the officer in charge of the block to make a decision as to when the supervision should be discontinued after the minimum period of 24 hours. It was not the custom to record in the journal when the order was revoked. 31 May 1985 Duty officers SPO Thomas and PO Jones entered the deceased's cell at 7.00am on this day (routinely). It was then 39 hours after the special supervision order was made. They found that his left eye was closed, badly swollen and bruised. They asked what happened and were told 'I climbed on to my desk to look at the fan [which I understand is the air duct] and I fell down hitting my head on the floor'. They made prompt arrangements for the prisoner to be seen by the Sister. PO Thomas wrote a memorandum addressed to the Superintendent which went through the channels and was marked 'Noted - Seen by VMO NFA (no further action)'. There is a good deal of mystery about this incident. The officers were plainly puzzled because although black eyes (so they said) are not uncommon due to fights, this prisoner was quiet, kept to himself and did not seem to be in conflict with others. He had certainly not had any conflict with prison officers. SPO Thomas felt there was no basis for not accepting the explanation although PO Jones was inclined to have doubts. I accept that neither of them suspected attempted suicide. The Sister was puzzled also; she did not understand the type of injury on the basis of the given description and remarked at the time that the eye was pointing the wrong way. She was unable to do very much about the matter at that time because the deceased was due to go to court for further remand and had to leave early. This incident is all the more puzzling since the supervision order of Mr Natt would run at least until 4.30pm or thereabouts on 30 May. It could well run until 4.30pm on 31 May. Certainly the minimum period of observation would cover most of the time during which it was possible for the deceased to have been involved in some incident with a fellow prisoner. After 4.30pm he would have been paraded for his evening meal and there would not have been a great deal of further time before he was locked in his cell. It seems to me that there is a strong probability that he did in fact sustain the injury whilst he was locked in his cell and not as a result of any earlier interaction with any other prisoner. There is some evidence from some prisoners that much later the deceased made a statement that he had sustained the black eye trying to commit suicide. But the circumstances in which the alleged statement was made indicate that it might not be reliable even if it was made, about which I have much doubt. I am unable to conclude that the injury was sustained as a result of an attempt by the deceased to inflict damage on himself. It is clear that he was not at the time being monitored, since any such fall whether in the circumstances put by the prisoner or on the basis of an attempt at hanging would most certainly have been heard on the intercom system. I am somewhat worried as to whether or not he ever was supervised on the intercom system since, given their doubts about what had happened and given that the termination time of the order was not recorded, I would have thought that the officers would have checked with control as to whether the incident was recorded. But there is no suggestion that this was done. However I am unable to make findings about this matter. What is, however, very important is that the Sister was not told of the earlier incidents of 27 and 29 May. She herself said that she would have expected to have been made aware of them and I find that had she been made aware of them her level of suspicion in respect of the eye injury would have been considerably heightened. 1 June 1985 It was noted in the journal that the black eye had not been treated and a dressing was applied to it. 3 June 1985 This was one of Dr Taylor's visiting days. He saw the deceased routinely. It was the practice for each prisoner as received to be routinely seen by the doctor. This was usually done more quickly than occurred in this case but that may well have been due to the deceased being in court both on 29 and 31 May. Dr Taylor observed the black eye, noted the explanation and made a few clinical notes. Dr Taylor of course had no knowledge of the incidents of 27 or 29 May. 20 June 1985 SPO Thomas observed certain behaviour on the part of the deceased which caused him to send a memorandum to the Superintendent. I find that he accurately set out what he observed in his report which is reproduced below. This memorandum went through the administrative hierarchy. I think that SPO Thomas is a caring officer and that his memorandum reflected his concern. He was well spoken of by some of the prisoners as a sympathetic person. Mr Natt had a high opinion of him. Thomas said that he had been in the prison service for 14 years and never seen an inmate carry on in the way described. The memorandum was as follows, formal parts omitted and the deceased referred to as 'A': Sir, Being 'C' Block Supervisor I have to report that on Thursday 20th. June 1985, at approximately 1120 whilst supervising the prisoners during their lunch period I noticed prisoner 'A' slide off his chair and positioned himself face down on the floor with his knees up under his stomach his arms were streched out full length above his head as if he was bowing to some god. I went over to were 'A' was I asked him what is the matter? he did not seem to hear me, I beckond to prison officer KIIVER to assist me this time I put my right hand on his left shoulder asking 'A' again what is the matter? this time he did answer saying I'm allright: I said! If you would like to go to your cell I have no objections. Prisoner 'A ' said! No I am alright, he then stood up shook his head then he positioned himself back on the chair at the table where he was originally seated, he then continued on eating his lunch, this prisoner was in this bowing position for approximately two minutes. Prisoner DAWSON. R, D:370. came to me after lunch saying that he has noticed prisoner 'A' put himself in this position several times before. I asked prisoner 'A' if he felt alright? he said! Yes, I said if you would like medical attention do not hesitate to ask for it. This prisoner was received in this institution on the 27th. May 1985, during the time that he has been here I recommend that psychiatric treatment is necessary. Chief Prison Officer EGAN informed of this incident. (Sgd) M.J. Thomas On receipt of the memorandum (which when he received it had a notation from A/Deputy Superintendent (Administration) Egan that the 'prisoner has had some erratic behaviour patterns since wife advised him of separation shortly after reception'), Mr Natt said that he was sufficiently concerned to ring Dr Taylor and discuss the matter with him, after which he wrote a short note addressed to Dr Taylor (which is on the deceased's medical file) in which he referred to, and attached, Mr Thomas's report and suggested that it might be appropriate to examine the prisoner. He said that he wrote this letter because he wanted to record that the matter had been drawn to the attention of Dr Taylor who, he thought, showed some lack of concern in the course of the telephone conversation. Dr Taylor has no recollection of this conversation. In one sense the conflict on this point between Mr Natt and the doctor is of no significance since the report came to the doctor via the letter but it mirrors a rather similar and more important conflict to which I refer later. 24 June 1985 This was a visiting day for the doctor. The deceased was on the doctor's parade and the doctor read Mr Natt's letter and the report from SPO Thomas. The deceased told the doctor he didn't know why he was there. He was given an outline of the Thomas report. The doctor asked if he could explain it. The notes continue: 'Unable to give an explanation of his behaviour. When asked if he remembers the situation says he cannot think. Asked whether he cannot explain it he says "yes"'. There is no other notation. The prisoner was returned to the block. Dr Taylor saw Mr Natt about mid-day the same day; he expressed the view that the deceased was a strange man and that he had not found an explanation for his behaviour. He did not recommend that any particular steps be taken except that the prisoner see Dr Ferris on his next visit (18 July). On the same afternoon, Lettie saw Mr Natt who recorded the visit in his journal. Natt was told that the deceased had a long history of psychiatric problems in Townsville and Darwin Hospital; that his brother had been in a psychiatric institution, Mosman Hall, in Charters Towers. Clearly Lettie was seeking psychiatric help for her husband. She was advised that the Superintendent would speak to Dr Taylor. Other things were said but the essential information supplied was as above. Mr Natt formed the impression (I find honestly but mistakenly) that Lettie was about to go to Broome to settle there and to make a final break from her husband. She was in fact about to go to Broome but for a short visit only. There is no record of Mr Natt passing to the doctor the information received. Natt says he did although he has no recall of when or how he did so. Dr Taylor, in effect, denies that he was told. For a variety of reasons I incline to the view that he was not told. What is certain is that he did not call for the Darwin Hospital patient file relating to the deceased. The total result of SPO Thomas's memorandum and Lettie's visit to Mr Natt (a visit secured with some difficulty) was absolutely nil. The deceased was not given medication, or extra monitoring; no caution was issued to staff; no treatment was prescribed or any further medical consultation arranged pending the next visit by Dr Ferris. 27 June 1985 The C Block journal records that at 1730 hours the deceased was secured in his cell because he was lying on the kitchen floor. 29 June 1985 The C Block journal reports that at 1722 hours the deceased was secured by SPO Bourne and PO Lynn 'to maintain security in the kitchen area'. (I take 'secured' to mean that he was placed in his cell.) I have covered the matters that are journalised. There is, however, more to it than is recorded. I have already referred to statements tendered from officers and prisoners. They constantly refer to the act of a salaaming as almost a daily occurrence; the deceased is described as 'crying'; not mixing with other prisoners; depressed; disturbed; odd. PO White said that nearly every day he would get down on the floor in the dining room; PO Lynn described him as a disturbed man, praying before meals and showers; PO Hagan described seeing him standing in the middle of the common room, his hands in the air yelling 'fuck'; PO Singleton spoke of behaviour which occurred twice. C Block being a remand yard, prisoners for court were often lined up and marched out of the block. Singleton said that twice the deceased joined the line and when questioned said he was going to go to Perth. I regard these incidents as important. In a prison (as the evidence in this and other inquiries well shows) the movement of people and the counting of bodies is understandably important. The idea of a Darwin prisoner solemnly lining up with a group of prisoners to be checked over, marched out and taken to court on the basis that he is off to Perth is striking. I can well imagine some officers, according to temperament and mood, treating it as a joke meriting a laugh, toleration or a mild rebuke or as cheekiness to be treated as such. Clearly PO Singleton felt that the incident was not in these categories. He sought an explanation, was told by the deceased that his head 'was racing' (the same expression as he had used to Lettie). There was some evidence of the deceased saying that his black eye was the result of an attempt at suicide and of other bizarre acts, including hitting his head or face against a wall. But the evidence for these matters is much less compelling. I prefer not to rely on it except that I find on the balance of probability that he behaved in a disturbed manner on the late afternoon of 4 July (the day before his death) in the recreation or adjacent area, shouting out in obvious distress and possibly speaking of self harm. I mention further an event of 1 July 1985. SPO Horsfall was on duty in C Block. He struck me as a mature and responsible officer. He had little to do with C Block but happened to be relieving there that day. (It so happened that Mr Natt was attending at the block in the course of his duties that day.) Mr Horsfall received reports from officers that the deceased had on various occasions acted in a very strange manner. The nature of the information was such as to make Horsfall think that he should report it to Mr Natt. He did so. Mr Natt's response was to inform Horsfall that he was aware of the prisoner's behaviour. I think that that was an inadequate response. It is of course quite true that Mr Natt was aware of various unusual things being done by the deceased but nothing had come to his notice since SPO Thomas's report of 20 June; he had spoken with Lettie on 24 June. As far as Mr Natt was aware, there may well have been significant developments in behavioural patterns since then. Mr Natt's response was (beyond telling Mr Horsfall that he was aware 'of the prisoner's behaviour') to instruct him to communicate with the Aboriginal Legal Aid apparently to make sure that the prisoner was being represented. On this occasion, in my opinion, a valuable opportunity of having a general check-up on the deceased's behaviour was missed. It is quite plain that the reports aroused Horsfall's professional concern. In my opinion the evidence available to the prison authorities from the officers in C Block was such as to lead to the reasonable conclusion that the deceased was an 'at risk' prisoner who should be accorded special attention, at least of the sort instituted on 29 May (to be observed every half hour when out of the cell and to be subject to continuous auditory supervision when in the cell). The effect of the information conveyed to Mr Natt by Lettie should have been to heighten the appreciation of this need. In fact, all this information was not before the people who could advise or take effective action. Dr Taylor had from prison sources (the reason for this emphasis subsequently appears) such information as he obtained from the Thomas report and his two consultations with the patient and knowledge of the fact that he was to be seen by the psychiatrist, Dr Ferris, on the latter's next visit (and, possibly, advice from Mr Natt as to Lettie's information). The consultations were not extensive. The first was a routine reception consultation (with attention to the black eye) and the second was quite perfunctory. This was due in large part to the fact that the deceased was not forthcoming but it is equally clear from the notes and the evidence that Dr Taylor did not press the matter at all. Mr Natt had knowledge of making the order for special supervision of 29 May, the contents of the two reports, the information supplied by Lettie, Dr Taylor's report to him that the deceased was 'a strange man' whom the doctor did not understand and perhaps that he was to be seen by Dr Ferris. Both knew that Dr Ferris would not be attending until mid-July. Neither had any information later than 24 June except in the case of Mr Natt that he had received SPO Horsfall's report of 1 July of strange behaviour which he treated as of no importance. Neither knew that from the day of his arrival the deceased's conduct had been such as to bring him under notice, that his disturbed behaviour was a daily occurrence or virtually so and that behaviour being open to the scrutiny of both officers and prisoners. (I do not overlook the theoretical possibility of Mr Natt having further information by way of informal channels but he has not stated that he had additional information and I certainly do not find that he did so.) Why did Mr Natt and Dr Taylor not have the information that was available from the block? While there may be elements of personal shortcomings, basically it was because of a deficient system of reporting. There was no regular system of recording or reporting to senior administration or to the medical centre behaviour that might attract concern. It is quite plain that there was not a fixed rule as is well indicated by SPO Thomas's report of 20 June. This officer thought that what he observed on that day warranted a report to his senior officers with a recommendation for psychiatric treatment. The same and other bizarre behaviour had plainly been observed by other officers on many occasions prior to 20 June but had not been reported or indeed noted in the C Block Journal. The constant nature of his bizarre behaviour is not recorded; the significance of its repetition is accordingly lost. The concerns of many individual officers are not recorded nor the events described by PO Singleton. There was almost a total lack of communication from the block to the medical centre. The deceased was taken to the Sister with his physical injury, his eye turned and blackened, but the Sister was not told, as she said she would expect to be told, of the Block Journal entries of 27 May or 29 May nor of the events recorded. I feel no doubt that the Sister was puzzled by the account of the injury and would have been much more suspicious had she been told of those events. The decision to have the deceased attend the doctor's parade on 24 June was not accompanied by any effort to collect the evidence as to the prisoner's behavioural pattern even though SPO Thomas's report disclosed that while his personal observation was limited to one incident his information was of more general behaviour (confirmed by Mr Egan's note on the report which is above referred to). The Block Journal did not state when Mr Natt's order of 29 May for increased supervision was revoked (a matter of considerable importance in estimating the significance of the black eye incident). If the information given by Lettie was passed to Dr Taylor there is no record of it having been done so either in Mr Natt's records or in medical records. My finding is that the system of communication of information from the block to the senior administration and from the administration to the medical centre was defective. 2.5.3 The System: The Darwin Hospital Records: The Second Source of Information Available to the Prison Authorities in the Person of Dr Taylor As earlier indicated, the Darwin Hospital medical records of any prisoner in the prison were available to the Prison Medical Service except that psychiatric records were supplied only on the request of Dr Taylor. There were no problems in this case of medical ethics. The same Department conducted the Darwin Hospital as the Prison Medical Service (and indeed at that time the prison itself). Dr Taylor was on the medical staff of the hospital and entitled to access to all clinical records. It appears that the Prison Medical Service in fact contacted Darwin Hospital on the deceased's admission in April (at the time of his unpaid fine imprisonment) since the Prison Medical Record shows in the box marked 'Hospital Registration Number' the correct number of his Darwin Hospital file. The presence of the entry was an indication that he had been a patient at the hospital. The hospital file was never called for by either Sister Thomas or by Dr Taylor. An examination of the hospital file would have shown the following (I leave out of account a small number of visits for apparently insignificant problems): (1) The deceased was referred by letter of 7 December 1983 from Dr Kirloskar which asserted that the patient gets violent, beats the girls (Lettie's daughters), locks himself in his room, and is assessed as dangerous to himself and others. (2) On the next day he attended at the hospital and was seen for 15 minutes during which a brief history was taken of violent outbursts, after which he stormed out. (3) On 20 December 1984 he presented himself at the hospital Outpatient Clinic. He had just come from FORWAARD (an alcohol rehabilitation centre in Darwin). He said that he was alcoholic and no longer able to cope. He gave a history, inter alia, of some sexual deviancy and of attempted suicide by cutting his left wrist. The time of this attempt is uncertain from the records. (Dr Lee who conducted the post mortem noted evidence of injury to both wrists which he thought was likely to be self-inflicted.) The deceased was admitted to Ward 5A in the care of Dr Wieteska. He remained as an in-patient until discharged on 26 January 1985. Naturally there are extensive clinical notes which I do not deal with in detail. He is variously reported as being upset and mildly violent; he is given medication, reads the bible, sometimes sleeps soundly and is other times disturbed; he leaves the ward on one occasion and goes drinking but returns; he interacts with Lettie, sometimes by telephone, sometimes by going out to see her - sometimes acrimoniously sometimes apparently enjoyably; on 9 January 1985 he said that he had married a woman whom he did not love and that she gets upset when he tells her; he is obviously delighted with the baby; he talks repeatedly of going to Townsville; he is sent for psychological assessment by Dr Manypeney, a young (graduated 1983) but impressive doctor who was in charge of the case from early January. The doctor described him as a 'patient who would sit with his head in his hands and speak into his lap'; the assessment showed low borderline intelligence and lack of assertiveness. (4) While the deceased was in hospital Lettie found in his wallet a letter addressed to his Jehovah's Witness brothers in which he confesses to various acts of sexual deviancy. Lettie told Dr Manypeney of finding the letter and of its contents and this accounts for the information being in the notes; the doctor discussed the matters with the deceased who appears to have confirmed them. The letter was tendered in evidence. I think that he was in a highly disturbed state when he wrote the letter and that the letter and his admissions to Dr Manypeney may be a rather exaggerated account. I make no findings about this conduct. But whatever the true situation in that respect, the fact of the letter and the discussion with Dr Manypeney showed that he had considerable problems with matters of sex, that he was wracked with feelings of remorse and shame which may well be related to the supplicatory gestures noted in the prison. (5) He was discharged with a diagnosis of: 'Principal problem: Depression Other problems: ? Personality Disorder? Low IQ' The discharge note related the condition of the depression to: · 'Marriage breakup but would still like to see his children [sic]'. · 'Unresolved conflicts over past experiences' of sexual deviancy. · 'Poor social supports'. He was discharged on medication. The notes show that he was seen at some length by Dr Wieteska during his admission. The discharge report was written up by Dr Manypeney but the practice of the ward indicates that the diagnosis had been arrived at by consultation between Dr Wieteska and the other doctors in the ward. (6) The notes show that the deceased attended on 10 April 1985 complaining of an injured thumb. He explained the injury together with facial and body abrasions as being due to frequent falls through drinking. On 16 April he attended and was diagnosed as having bronchitis. (7) The deceased attended with Lettie at the Accident and Emergency Clinic of the hospital on 21 May 1985 and was seen by Dr Taylor who happened to be on duty at the time. The clinic was not appropriate to the consultation, but it was late afternoon and probably the outpatient clinic was closed. In any event, Dr Taylor saw the couple in the Accident and Emergency Clinic. Lettie did the talking, giving a history of the deceased forcing himself on women and she mentioned some of the deviant acts referred to above. She complained also of his violence: 'one day he might kill us'. Dr Taylor says, and I accept, that the Clinic was probably reasonably busy at the time. Nevertheless, it is clear from the clinical notes that Dr Taylor must have spent quite some time with them and he made good notes of the interview. The deceased contributed little but said 'he just feels like doing these things'. Dr Taylor noted that he looked depressed. Dr Taylor's notes are on a history sheet containing part of an earlier entry, indicating that he had the deceased's file in front of him. He said that he didn't study the file, that he glanced through it. The set-up of the file is such that the most cursory flick through it would reveal a psychiatric admission to Ward 5A. It is to be remembered that at this time the deceased had an appointment to see Dr Ferris eight days later, of which Dr Taylor was made aware. The upshot of the consultation was that the deceased promised to keep the appointment with Dr Ferris and Dr Taylor prescribed Melleril in such quantity as would cover the period to the consultation with Dr Ferris (it is a highly sedating, low potency, neuroleptic). … This was the last occasion that the deceased was seen at the hospital prior to his becoming a prisoner at Berrimah. It is plainly obvious that examination of the hospital file would only serve to heighten any concern that arose from the knowledge of his behaviour in the prison. He had been diagnosed as depressive and was recorded as having acted violently on various occasions; he had stated that he had on one occasion attempted suicide. He had a long standing and acute alcohol problem; his family life was in disarray; he was about to be examined by a psychiatrist and had been put on medication pending that consultation. Why was it that the hospital file was not obtained and examined? (i) It was not disputed that in hindsight it would have been better for Dr Taylor to have called for the file; but it was argued by Counsel for Dr Taylor and for the Northern Territory that without hindsight there was no occasion to do so. I have come to the opposite conclusion. … It is true that Lettie did the talking. I am sure that Lettie arranged the whole visit. But this very fact illustrates the difference between a prisoner on the one hand and a free person on the other. A free person has the help, guidance, assistance of family, friends or such other support system as is normally available to him/her. This was the case with the deceased in May. His wife had organised him to the hospital and given information to the doctor. But when the deceased becomes a prisoner he loses that and other support. If there are matters which embarrass him about which the prisoner is reticent, there is no-one else to speak for him/her. When the society deprives a person of liberty, the support systems are lost or largely so; the prison authorities becomes the support system. There is a strong duty of care cast upon the authorities. … (iv) I add only that if Mr Natt did in fact convey to Dr Taylor the information given to the former by Lettie then the case was stronger again for the examination of the file. … It was argued that the failure to examine the file had no practical effect. Dr Taylor, it is said, examined the prisoner on 24 June; he did what he could with a prisoner who was clearly not wishing to open up to the doctor; the doctor did his best; he came to the conclusion that the man was not likely to harm himself, that the proper course was to let the matter stand until Dr Ferris came to the prison in mid-July and that the perusal of the files would not have led to any different point of view. I reject that proposition because it flies in the face of (a) Dr Taylor's own evidence about the importance of knowing the outcome of Dr Ferris's consultation (if held) or altematively knowing that it had not been held; (b) his evidence that had he seen the medical records - (i) he would have regarded a diagnosis as a matter of some urgency (as opposed to his attitude on 24 June when he made no diagnosis), and (ii) that it would have been proper for him to recommend closer supervision of the prisoner during the day and when locked away in his cell, including the audio channel being left open and a closer monitoring of the situation by the doctor himself. Further, irrespective of the doctor's own evidence on this matter it seems to me that good sense would suggest these same conclusions. … 2.5.4 The Mental State of the Deceased: the courses open to the authorities: why they were not taken and the importance of proper systems A good deal of attention was directed to the question of the psychiatric condition of the deceased and in particular as to whether the clinical picture was that of a person who attempts suicide rather than one who consummates suicide. Interesting views were expressed by three psychiatrists: Dr Joan Ridley of Darwin, Professor Jones of Tasmania and Dr Kutlaca of Adelaide. None of these doctors had seen the patient when alive but each was supplied with a considerable body of material relating to his history. It is likely that the deceased did not have a serious depressive illness but that he had an abnormal personality, suffered a long standing dysthymic disorder with anxiety features and vulnerability to environmental stresses. Such persons are regarded as people who may attempt suicide (and who sometimes succeed) rather than as people who have a strong suicidal ideation and who consummate suicide. Insofar as the question of classification is important I am prepared to accept as most probably correct that the deceased fell into the category of attempter (although it is to be noted that there is some evidence, as the experts say, to support the possibility of traumatic brain damage and schizophrenia). However, even on this classification, it is to be noted that Professor Jones makes the point very strongly that 'this clinical picture [attempted suicide] which, outside prison only infrequently leads to the death, is associated with death much more commonly in prison'. I accept the evidence that the category of persons who outside prison consummate suicide is exceedingly difficult to detect in advance and that the much larger group of attempters are at varying degrees of risk outside prison and of varying degrees of (heightened) risk inside prison. It was suggested that the difficulty, perhaps in many cases the extreme difficulty, of picking the person who consummates suicide makes it inappropriate to come to a conclusion that steps should have been taken which were not taken. I think that this argument is not sound and is indeed beside the point. Prison administrators, prison officers, prison medical staff other than doctors cannot possibly be expected to be able to reach a decision that a person is in the category either of an attempter or one who might consummate suicide, except perhaps in the most obvious of cases. What they are required to do is observe behaviour which might indicate risk, record and report it and to act on the basis of possibilities of risk, rather than on the basis of a diagnosis which they are not equipped to make and should not be called on to make. The evidence clearly establishes (and all the experts have acknowledged) that the deceased was at the least a disturbed person, vulnerable to pressure, lacking in social supports, with a serious alcohol problem, showing signs of remorse associated with sexual problems or perceived sexual problems, lacking in self esteem and depressed at least in the non-medical sense and having been diagnosed at the hospital as depressed in the medical sense. Such persons are known to attempt suicide and sometimes succeed without necessarily having a strong suicidal ideation; they are known to be more at risk in prison than outside prison. … The problem is that all this was not taken together for the reasons already discussed. At least as from 24 June (or as from as soon after that date as the medical file could be obtained and perused) special steps should have been considered: namely medication within the prison, hospital treatment either as a prisoner or by way of an application for bail with conditions, frequent observation in the block during waking hours and more frequent observation during sleeping hours by way of continuous auditory supervision, and continued supervision by Dr Taylor. None of them were. Leaving aside the second option, the others could certainly have been put in place without any real difficulty. And Mr Natt said that he could see no impediment to the prisoner being taken to hospital if the doctor had advised it. Associated with the close supervision by Dr Taylor there could and should have been a drawing together of available information as to behaviour patterns of the deceased and a recording from that time on of observations in the Block Journal. It is important that society should insist upon a high sense of responsibility in these areas of care of those deprived of liberty and normal support systems. It is no doubt easy for vigilance to be relaxed but this requires that there be well designed systems in operation that minimise that risk. … 2.5.5 Did the Deceased intend to take his Own life? I have come to the conclusion that the deceased intended to take his own life. In coming to that conclusion I have steadily borne in mind that while the appropriate standard of proof on this and other issues is proof on the balance of probabilities I am to take into account the seriousness of the question and that I am not to make the finding unless satisfied to do so on the balance of probability having regard to that seriousness. I have been particularly concerned about the finding because it was put to me by all counsel that it was inappropriate to make this finding and that I should find that it was impossible to come to a conclusion as to whether the deceased had an intention to end his life. My view is that if I come to a firm decision bearing in mind the seriousness of the issue then I should declare my view. The deceased has a right to have his intention found if it exists. If this man's life had become so intolerable to him that it would seem proper to him that he should end it then I believe it is important that that should be stated, subject of course to the proper degree of persuasion being present as to the truth of the matter. I make it clear that I am not finding that it was a very long considered or well considered decision. Obviously it could not be completely spur of the moment because the act required preparation. It did not require lengthy preparation nor lengthy premeditation. But in my view the facts dictate the conclusion that when he acted as he did the deceased intended to bring his life to an end. A letter which the deceased wrote to his mother from the prison on about 23 June does not suggest that be then had such thoughts. I am well aware that some persons who procure their own hanging do not understand how quickly death may follow on the tightening of the noose around the neck. Undoubtedly some do not understand that death can be produced in circumstances where the full weight of the body is not suspended. There is much reason to believe that some persons who, particularly in prison, bring about their own death by hanging may well think that their predicament will be discovered before death has intervened and that their action is some type of demonstration or a cry for help or an attention seeking exercise. But I do not believe that the well established facts of this case allow of any such possibility. 1. The deceased had been in the block for well over a month; he knew the routine; he knew there was not a fixed time for making cell inspections although there was a rough approximation to a two-hourly inspection; he knew that be could not foretell the time when the officers would next look in his cell. 2. As I have said, the furniture in the cell was fixed; there was no great difficulty in attaching the sheet to the grille while standing on the table and perhaps it could have been done while standing on the bed. But the arrangement of the fixtures in the room was such that once the step was taken from table or bed, once the body was suspended, there was no possibility of making any contact that would offer support either with arms or legs; the body was suspended out of reach of anything that could relieve the pressure of the noose. 3. If the deceased had wanted to make a demonstration of any sort for any reason, but with the intention that he would be discovered before death intervened, there was not the slightest difficulty in acting in a way that might procure that end. · He could have waited until he heard the noise of the officers approaching his cell or the noise of the locks being turned from no. 4 position in adjoining cells; · he could have shouted out to fellow prisoners through the porthole in his cell that he intended to do himself harm in the expectation that they or some of them would press the intercommunication button and tell control; · he could have pressed his own intercommunication button and advised control of what he was proposing to do. No doubt that would have brought officers on the run to his cell. Of course he may have underestimated the suddenness of death and he might still have died even if he had taken any of these courses but he did none of these things. There was no attempt to draw the attention of anybody to what he was proposing to do, even though the means were readily at hand to do so. There was no indication of any intention that he should be discovered in time; only an intention to put himself in the hanging position in circumstances where he could not retrieve himself, when he had no clear indication of when the officers would arrive in the course of their checking and without notice to any of those who were in prison around him. For these reasons I find that the act of hanging was self-inflicted and with the intention to cause death. PART THREE POST DEATH INVESTIGATION 3.1 The Police Investigation The Northern Territory Police were advised at about 6.30am of the death and a contingent of police officers arrived at 6.55am; the Coroners Constable at 7.18am; Inspector Burke and other officers at 7.48am; two officers of the Criminal Investigation Branch, Sgt Stevens and Det. Martin at 8.09am; and finally Supt Ilett arrived at 8.17am. Sgt Stevens and Det. Martin were assigned to the investigation with the Sergeant in charge. All deaths in custody should be investigated by experienced investigators accustomed to investigating suspected major crimes. The two CIB officers were suitable persons to be assigned to the task, each being suitably experienced and neither having had any connection with investigations resulting in the imprisonment of the deceased. They carried on their work as a team under the leadership of Sgt Stevens and I will not distinguish between the work done by the one and the other. Sgt Stevens frankly said that the information given to him from the prison was that the deceased had been found hanged in his cell and that the hanging was self-inflicted: however, he said that he maintained an open mind until later in the day, treating the matter as one which could fall anywhere between the range of suicide and murder. In my opinion there is no evidence that he did not do so. Sgt Stevens gave evidence that the main purpose of his investigation was to determine if there was any criminality in the death and he came to the conclusion that there was not. Whilst I later make one or two points I think the investigation was satisfactory, and indeed much superior to many others, in relation to that question. Firstly, the investigators checked the body and the environment in which it was found for any signs of foul play: they examined the body for external signs of injury and confirmed their conclusion that there were none with the pathologist who had by then arrived at the cell; searched the cell for any sign of violence or of a suicide note; examined the feasibility of a self-inflicted hanging; noted that a sheet was still present around the deceased's neck; they arrived at the cell before the body was removed and remained there afterwards; examined the cell for blood, vomit or any other signs of interest, found none and noted that the cell appeared neat and clean; examined the photographs taken by CPO Birbeck of the body while still in the hanging position and directed forensic photographs to be taken of the body while still in the cell. Secondly, they turned their attention to the officers who were on duty at the time taking statements from them. They interviewed and took statements from the prisoners occupying the cells on each side of the deceased's cell on the basis that these prisoners were the ones most likely to have heard sounds of a scuffle or other unusual activity during the night. They were given access to statements prepared by some Prison Officers for the Superintendent but formed the view that some of them were too brief and recalled the persons individually and spoke to them. They spoke with the Superintendent and were given access to the deceased's prison file (this is of course a file separate from his medical file) and perused that. They had obtained from the pathologist his preliminary view of the time of death which was put at within four hours - that provided, even allowing for a generous margin of error, good ground to believe that death occurred after lockup. They examined the Block Journal seeking significant entries. I am unclear as to what they might have regarded as significant but I think probably any incidents of violence or ill treatment of the prisoner which might have driven him to an act of self-harm. They made no notes of the inspection of the journal so clearly they did not regard as significant the materials to which I have referred. By the afternoon they had carried out these various tasks and had spoken to the pathologist, Dr Lee (who by this time had completed the post mortem examination) and obtained a verbal report from Dr Lee to the effect that in his opinion death was by self-inflicted hanging and that there were no signs whatever to suggest foul play. Against this background they came to the conclusion that criminality was not involved in the death. They realised, however, that they should endeavour to find medical or other evidence which might explain or show consistency with a self-inflicted hanging. They made some inquiries which led them to the Darwin Hospital and there to Dr Manypeney from whom they obtained a report setting out something of the history of the deceased, including his admission to Ward 5A, and expressing Dr Manypeney's opinion that the deceased was a mild suicide risk. Statements relative to all these matters were prepared for the coroner. Sgt Stevens correctly thought it was appropriate to consult the family as to whether there was any history that might lend support to a finding of self-inflicted hanging. For this purpose he telephoned Lettie's home in Darwin and was rebuffed by her in the following circumstances. As earlier mentioned, Lettie was planning to leave for Broome when she spoke to Mr Natt on 24 June and she did so shortly thereafter. Apparently she did not leave a forwarding address. Following the death, police made some attempts to contact her through Broome and Kununurra but were unable to do so. As things turned out she was in fact en-route back to Darwin at the time her husband died. She arrived back in Darwin knowing nothing of the death, telephoned the prison to make inquiries about her husband and of course had to he told of his death, for which she was totally unprepared. She was naturally extremely upset. It was against this background that she received the telephone call from Sgt Stevens who, without knowing the background to which I have referred, drew the conclusion that she was not interested. I should add that the coroner's constable ascertained the whereabouts of the deceased's mother in Queensland and telexed Queensland police requesting them to notify the mother of the death. I do not think that any criticism is to be made of any person in respect of the unfortunate way in which Lettie became aware of the death. Her upset was compounded by the press item to which I have earlier referred. I think that one can infer that the journalist responsible for that item obtained this information from a police officer. I think that the information should not have been given in that way. However, there is no evidence as to the circumstances in which, or the person by whom, the information was conveyed. I make two observations about the investigation as relating to the question of criminality. I think there was an important question as to the means by which the prisoner could summon help, equally applicable to a situation involving a second party threat or some self-destructive act. It was thus important to ascertain whether the intercom system was working. As a matter of probability I think that the detectives did not become aware of the existence of the system and in any event if they did they did not note it or test it or make any inquiries as to whether it had been used during the night. There is accordingly no direct evidence that the communication system to Cell 8 was operational at the time, nor contemporary direct inquiry from the control officer as to whether there had been any communication. SPO Bowden had no doubt that the system was operational and I find that it probably was but it is clear that it should have been checked and inquiries made then and there as to whether it had been operated; secondly, the sheet (both that part which was around the neck and that part which was attached to the grille at the time when the deceased had been cut down) should have been kept and I think that more officers, including all officers on the day and afternoon shift of the previous day should have been interviewed and also a larger number of prisoners. 3.2 Criticism of the Investigation The investigation was conducted on too narrow a focus and did not have regard to whether proper care had been afforded to the deceased. It was at this point that interviews with a larger number of officers and prisoners was particularly important and also a close examination of the prisoner's medical records (as to which it seems unlikely that the investigators knew that there were such). This investigation was conducted in 1985 and it is quite apparent from the experience of the Commission that in almost all cases custodial deaths were then approached from the point of view of whether there was evidence of foul play and in most cases coroners approached their task in the same way. Accordingly, while the investigation can be criticised, I do not think it appropriate to criticise the investigators. I refer to this topic in the part of this report dealing with underlying issues. My conclusion is that subject to the matters that I have mentioned the investigation was appropriate and was such as to put before the coroner material on which the coroner could properly come to a conclusion as to the cause of death and whether there was criminality involved in it. 3.3 The Autopsy Dr Lee, an experienced forensic pathologist, attended at the Darwin Prison and examined the body in the cell. He subsequently carried out a post mortem examination. I have indicated that the conclusion to which he came as to the cause of death, and that the death was self-inflicted was concurred in by Professor Stephen Cordner of the Victorian Institute of Forensic Pathology and by Dr I.S. Wilke, Assistant Director of the Queensland Department of Health. Dr Lee put the time of death at closer to 6.20am than to 4.00am when the last check was made; Dr Wilke assessed time of death as between 5.00am and 6.00am. Professor Cordner considered that the estimation of time of death (based on observations of temperature, hyperstasis, flexibility of the limbs) is so inaccurate that it should not be given any probative weight. The latter point is one of considerable importance in some cases (of which this is not one). I will refer to it in a report of another inquiry into a death in the Northern Territory. Neither Professor Cordner, nor Dr Wilke made any adverse comment on the procedures or the methodology employed by Dr Lee. Dr Lee was himself a very satisfactory witness. I conclude that the post-mortem examination was performed in a highly professional manner and I accept Dr Lee's findings. I mention that during the postmortem Dr Lee noted scars on both wrists of the deceased; he actually made sketches of the scars which he retained and produced because he associated the location and the shape of the scars with self-inflicted injury. 3.4 The Coronial Inquiry The coronial inquiry commenced before Mr Cavitt SM on 7 July 1986. Mr Wallace appeared as Counsel Assisting. Evidence was called from PO Wood and through him statements were tendered of SPO Bowden, PO Robertson, two other prison officers and Dr Taylor. The coroner received various documents, the remand warrants under which the deceased was being held; the reports from SPO Thomas to the Superintendent dated 31 May and 20 June 1985 and Mr Natt's letter to Dr Taylor, and others. Sgt Stevens was called and gave evidence as to his inquiries and through him the postmortem report and certificate of blood analysis were tendered. Dr Manypeney gave evidence as to the deceased's treatment in the Darwin Hospital and his view as to diagnosis and prognosis. He explained that when discharged the deceased had been supplied with only one week's supply of Melleril on the basis that 'the ward practice was that patients that we thought had any risk at all of suicide would only be given small amounts of medication at the time as there would be the possibility of overdosing on those medications'. Dr Taylor gave evidence concerning his consultation with the deceased and Lettie at the Accident and Emergency Clinic and of having prescribed Melleril to cover the deceased between that time and the time when he was to see Dr Ferris. Dr Taylor also gave evidence of his consultations with the prisoner on 3 June and 24 June. That stage was reached on 18 September 1986 and the matter was adjourned to 30 September. The coroner was concerned to ascertain whether the prisoner was on medication at the time of his arrest and if so what medication, and whether he had been deprived of medication by it being put into his property at the prison. The prison property records could not be found, hence the adjournment to 30 September 1986 on which date the matter was adjourned again until November 1986. At that point there was a serious disruption in the hearing and the matter did not come on for further hearing until 7 August 1987. Obviously such a long delay was highly unsatisfactory. Mr Wallace in a statement to the Commission said 'everyone seemed to lose control'. Two main factors seemed to have contributed to this: firstly, continuing difficulty in trying to locate the property record; secondly, an inability to trace the whereabouts of Lettie and hence difficulty in solicitors instructed for the family getting instructions. Both of these matters appear also to have played a part in the not inconsiderable delay between the death and the commencement of the inquest in the first place. Lettie acknowledged her non-attendance at various of the adjournments of the inquest and her failure to give evidence; she said '... well poor Jon [Mr Jon Tippett her counsel both at the inquest and the Royal Commission] could be flat out to find me ... because I just felt so depressed and stressed ... that I just left: that this man couldn't even find me' (her clear meaning being that despite his conscientiousness Mr Tippett was unable to track her down). I think that Mr Cavitt was right not to formally close the inquest without every effort to have Lettie in attendance and to ascertain the position in relation to medication. Although such delays are undesirable there seems to have been some real reasons. One reason for the final delay was the resignation from the bench of Mr Cavitt SM with the result that another magistrate had to be assigned to the hearing, Mr McGregor SM. Apparently by consent all material before Mr Cavitt was tendered before Mr McGregor who dealt with the matter promptly; submissions were made on 11 September and findings handed down on 16 September 1987. In the course of the hearing before Mr Cavitt, Mr Tippett had sought to tender the hospital records but the tender was rejected. It seems likely that one way or another the coroner saw the records because the findings referred to schizophrenia in relation to the deceased; there does not seem to have been any reference to that in the material before the coroner and it seems that the only place where he would pick up such a suggestion was from the medical records. The finding was that the death was by hanging and that the deceased had committed suicide. Mr McGregor SM considered that the deceased at the time was depressed and that the probable reasons for his depression 'were his predicament as one in custody facing serious charges and his reaction to the news that his de-facto wife, Lettie -, was leaving him'. It is hard to know how the matter of Lettie being his de-facto wife ever arose. I have already indicated that the medical record showed the deceased was married and that Lettie was his wife. I do not think that the deceased was in the predicament of 'one in custody facing serious charges' (all counsel experienced in the Northern Territory agreed that the offences with which he was charged would be extremely unlikely to lead to significant prison sentences although of course one does not know what the deceased's perception of the situation was). In any event, I think that his psychological state was little related to the likely penalties to be imposed upon him. As I have already made clear, he did not become aware in prison that Lettie was leaving him. Accordingly, I am unable to agree with the coroner in his views as to the main cause of the prisoner's depression. Of course the coroner did not have before him material from the C Block Journal concerning the deceased nor the views of prison officers and prisoners to whose evidence I have referred. It was natural that the focus of the police investigation having been on the question of whether there was foul play, the coronial inquiry tended to be on the same point. The coroner, however, did go rather more widely. He pointed out that the grille in the ceiling, allied with the fact that it can be reached by standing on the table or bed constituted a temptation to a prisoner feeling an urge to inflict harm and he recommended that this temptation should be removed. (I record that this has been done by the placing of mesh over the grille, thus allowing the circulation of air but denying access to the bars.) He also expressed the view (referring to the findings of a Victorian investigation 'Prison Suicide in Victoria and Methods of Prevention') that 'with hindsight one may say he should have been in a cell with others for surveillance, moral support and the company'. This was, respectfully, a good point to make on the material before him. There is much evidence (in this and other inquiries and from my discussions with prisoners) that many Aboriginal prisoners prefer to be in shared accommodation rather than a single cell. However, it is quite clear that some Aboriginal prisoners prefer the single cell. Given the matter recorded in the C Block Journal (which was of course not before the coroner) for 27 May 1985 it may be that the deceased was one who preferred his own cell. It is quite certain that on several occasions he sought and was given leave to retire early to his cell. (I refer on this matter generally to the Interim Report of the Commission Chapter 6.5, p.36.) PART FOUR UNDERLYING ISSUES My Letters Patent authorise me for the purpose of reporting on any underlying issues associated with the deaths into which I inquire 'to take account of social, cultural and legal factors which (in my judgment) appear to have a bearing on those deaths'. I make reference to a number of matters which appear to me to be raised by a consideration of this particular death. I will not discuss these matters at any length because they need to be looked at from a wider focus than the facts of this particular case. They will be discussed more broadly in my Final Report. 4.1 The prison medical service in the Darwin Prison in 1985 There were obvious weaknesses in the service in 1985. These included a scarcely existing psychiatric service, a permanent staff of only one and a very part time visiting doctor. I do not think that it is necessary to argue the inadequacy of this service in the principal prison of the Northern Territory, particularly since the position has been drastically improved in the meantime. … 4.1.1 Communication within the Prison of Health Information In my view, however, the most difficult and complex problem that emerges in this inquiry is that of communication; and it is not made any easier by the fact that questions of medical ethics may sometimes stand in the way of complete openness. However, in this case no such special questions arose. … It would be totally inappropriate of me to presume to devise systems. But I put forward the following as a guide to the pooling of information which is essential and as a possible starting point for discussion. Prison administration should accept the concept of an 'at risk' prisoner (see below). I believe that this concept is now accepted. As soon as an 'at risk' prisoner is identified a special file should be raised in respect of that prisoner. … 4.1.2 The concept of the 'at risk' prisoner There is no doubt that prisons are places of great stress and that all or at least a great many prisoners are subject to various risks of different kinds associated with the nature of their predicament and the nature of their environment both physical and psychological. It was recognised by all doctors who have given psychiatric evidence before me that people having any tendency towards suicidal ideation are generally at greater risk in a prison than outside prison. These are the ever present risks and prison administrators routinely have strategies for reducing the risks - such things as regular observation, separation of prisoners into different categories, the provision of employment in some cases, the organisation of education programs, craft programs, AA meetings etc. These strategies are practised in many (and perhaps all) prisons with, no doubt, varying degrees of success. But there are individuals who are at risk above and beyond the general level. In some cases the risk is obvious; the state of physical health of the prisoner may call for special precautions; the nature of the offence with which the prisoner has been charged or of which be has been convicted may put him at risk of reprisals from others; some special pressure from outside the prison may be acting on the prisoner (an example, recognised by the Berrimah administration, is the receipt of a 'Dear John'). In other cases the special risk may arise from a variety of factors which are not so easily recognised as the above. One category which can readily be admitted, even if not so easily recognised, is the person having the sort of profile which the deceased presented in which case observations as to how the prisoner appears to settle down and to react to his surroundings will be important. It is obvious that the deceased did not settle down well. I do not repeat what I have already said of the deceased but he is a good example, in my view, of this type of 'at risk' prisoner. I should notice a point in the evidence of Dr Ridley. In her statement (NT/7/90), after setting out the history and profile of the deceased, she said: The profile of the deceased had many features common to a large number of prisoners on remand...'; and she referred to a survey conducted by her staff of remand prisoners in Darwin Prison, in one week of February 1989. In so far as that might seem to indicate that, at least in respect of the remand section, it is not possible to identify 'at risk' prisoners, I do not accept that to be the case. … I think that prisons must attempt to identify these 'at risk' prisoners even though they may sometimes be wrong. I suspect that if the approach is to err on the side of caution the task may often be less difficult in practice than in theory. 4.2 The social, cultural and legal factors underlying the death I do not know a great deal about the life of the deceased prior to his marriage. It is certainly clear that he had a disturbed early life and that he sustained quite a large number of traumatic injuries. He engaged in self-destructive abuse of alcohol, attempted suicide on his own testimony, lacked self esteem evidenced directly by his statement that 'he felt too bad to be a christian' and indirectly by many other actions, and eventually brought about his own death. It is undoubtedly the case that the modem lifestyle of many Aboriginal people is characterised by violent or self-destructive behaviour. There are many studies conducted both in Australia and overseas which suggest that such behaviour is commonly found amongst indigenous people who have been colonised, their land expropriated and their traditional social and cultural patterns disrupted and that such behaviour is directly related to that experience. It is important that the Commission should study this question with a view to understanding the contribution of Aboriginal history to the phenomenon of the over-representation of Aboriginal people in custody and the death of some of them. The deceased's death does not, unfortunately, shed much light on this important question because of the very little information before the Commission on the early life of the deceased and the life of his family. There is evidence in the hospital and other records to which I have referred to suggest that he had a disturbed childhood. But what we see there is really a series of incidents not connected by any on-going description of his life in relation to his parents, his siblings or the society around him. His mother and father were interviewed by officers of the Commission (to whom they gave full co-operation) but they could remember little of their son's early life. Mr Richards is 68 years of age. He was a member of the Australian Permanent Army and is totally and permanently incapacitated as a result of prisoner-of-war injuries. His memory, he says, is poor. Mrs Richards is a little younger but her memory is not good. Mrs Richards made some observations: 'He was happy go lucky when he was with others but sometimes when he was alone he was morose ... However (the deceased) did keep many things to himself. On other occasions he would tell us things which I couldn't understand. Bruce (her husband) and I tried to figure it out, but I don't think he made sense. He had 'nerve' troubles and the doctors used to give him tablets'. I think it unwise to discuss the important question of the possible connection between violent and self-destructive behaviour and the historical experience of Aboriginal people from the background of a life of which little is known. I merely refer to the view of the psychiatrist who prepared the 1977 pre sentence report in which, after referring to the problems of the patient, he added 'All this is probably aggravated by his colour'. 4.3 Appropriate action by officers finding a hanging In this case, the officers who found the deceased hanging, first tested for vital signs and then called the Officer-in-Charge; the latter obtained a camera, took photographs and the body was then cut down and put on the cell bunk. Dr Lee, the pathologist, thought that this procedure was really the worst of both worlds, as it were, in the sense that resuscitation was not attempted nor was the body and the scene left undisturbed for forensic examination. … Schedule 1 HEARING DATES COUNSEL ASSISTING PARTIES GIVEN LEAVE TO APPEAR (a) Hearing Dates: 25 October 1988 20 March 1989 21 March 1989 22 March 1989 3 March 1989 28 March 1989 29 March 1989 30 March 1989 31 March 1989 3 April 1989 4 April 1989 5 April 1989 6 April 1989 7 April 1989 10 April 1989 11 April 1989 14 April 1989 19 April 1989 20 April 1989 21 April 1989 (b) Counsel Assisting: Mr P. Loftus Mr M. Dodson (c) Parties Given Leave to Appear: Party Represented by Government of the Northern Territory Mr T. Riley (appointed Queen's Counsel during the course of the inquiry) and Mr D. Anderson The Northern Territory Police Association Incorporated and Prison Officers Association of the Northern Territory Mr C.R. McDonald Wife of the deceased Mr J. Tippett Dr Trevor John Taylor Mr D. Farquhar Schedule 2 LIST OF WITNESSES Name Occupation Transcript Page No. BIRBECK I.W. Prison Officer 536-581 BOWDEN W.H. Prison Officer 587-626 DARGIE J. 1276-1307 DRUETT R.A. 983-1042 GARLING W. Representative of the North Australian Aboriginal Legal Aid Service 1308 HORSFALL S. Acting Chief Prison Officer 338-353 JONES G.F. Acting Senior Prison Officer 321-337 KING C. Welfare Officer 1229-1275 LEE Dr K.A.P. Pathologist 737-802 MANYPENEY Dr G.R. Medical Practitioner 1043-1121 NABOBBOB L. 940-977 NATI' R.W. Acting Superintendent Darwin Prison 687-734 803-939 RIDLEY Dr J.M. Director, Mental Health Services, Northern Territory 1123-1227 ROBERTSON H.J. Prison Officer 263-320 (-)L. Wife of the deceased 44 -202 SINCLAIR C.J. Senior Nursing Sister 44 -202 STEVENS M.A. Police Officer 642-686 TAYLOR Dr T.J. Prison Doctor (visiting) 357-485 496-533 1413-1430 THOMAS M.J. Senior Prison Officer 486-495 WALLACE J.Z. Prison Officer 207-217 Schedule 3 EXHIBIT LIST Exhibit Document Description NT/7/1 Coroner's file NT/7/2A Department of Law - Inquest file NT/7/2B Department of Law - Prosecutions file (nil content) NT/7/2C Court of Summary Jurisdiction file NT/7/3A Police file - death of deceased NT/7/3B Police file - previous offences NT/7/3C Police file - death of deceased NT/7/3D Police file - Prior Offences - Queensland NT/7/4A Correctional Services files - Northern Territory NT/7/4B Queensland Correctional Services file NT/7/5A Probation and Parole file - Northern Territory NT/7/5B Queensland District Court file NT/7/6 Health files NT/7/7 Report of Doctor A. McLeash on Dr Helen Wieteska NT/7/8 Legal files NT/7/9 Statement of Vivienne Jane Hunter NT/7/10 Prisoner Register (Feb. 85 - Dec. 85) NT/7/11 Darwin Prison Superintendent's file (26 Oct. 84 - 18 Aug. 85) NT/7/12 'C' Block Journal (12 Apr. 85 - 15 Aug. 85) NT/7/13 'C' Block D Wing journal (15 Feb. 83 - 1 Sept. 86) NT/7/14 Evening and Night Senior Prison Officers' journal (13 Mar. 85 - 17 July 85) NT/7/15 Superintendent's Request Parade journal (17 Apr. 84 - 18 June 85) NT/7/16 Superintendent's Request Parade journal (19 June 85 - 7 May 86) NT/7/17 Chief Prison Officer's Weekend journal (25 Dec. 82 - 4 Aug. 85) NT/7/18 Disciplinary Reports on Prisoners journal NT/7/19 Observation Deck journal (24 Jan. 85 - 24 Oct. 86) NT/7/20 Sister's journal (24 Jan. 84 - 21 Jan. 87) NT/7/21 Official Visitors Book (24 May 85 - 12 Aug. 88) NT/7/22 Gate journal (28 May 85 - 20 Aug. 85) NT/7/23 Medication journal (9 Feb. 85 - 12 Jan. 87) NT/7/24 Search Book (26 Jan. 82 - 21 Nov. 88) NT/7/25 Police file - Crime Report and Prior Convictions NT/7/26 Police Running Sheets - General and CIB NT/7/27 Statutory Declaration of Robert Jobson (CIB - NT) NT/7/28 Letter from Director (Custodial Services) Correctional Services, 20/2/89 NT/7/29 Plan of Cell 8 NT/7/30 Statement of wife of the deceased, original 17/3/89 NT/7/31 Statement of John Smith 21/3/89 NT/7/32 Original copy of statement of M.J. Adams 21/3/89 and annexure warrant of commitment NT/7/33 Statement of J.Z. Wallace NT/7/34 Statement of C.J. Sinclair NT/7/35 Statement of E.G. Brusch NT/7/36 Statement of D.G.E. Crabbe NT/7/37 Statement of P.D.Jr Bungumalalambin NT/7/38 Statement of R.A. Dawson NT/7/39 Statement of R.R. Dorey NT/7/40 Statement of E. Mamarika NT/7/41 Statement of J.L. Mackie NT/7/42 Statement of S.J. Luta NT/7/43 Statement of W.P. Green NT/7/44 Statement of J. Friday NT/7/45 Statement of R. Druett NT/7/46 Statement of L. Nabobbob NT/7/47 Statement of B.R. Pascoe NT/7/48 Statement of J. Patlas NT/7/49 Statement of L. Percy NT/7/50 Statement of T. Simonoski NT/7/51 Statement of T.J. Hudson NT/7/52 Statement of G. Wood NT/7/53 Statement of T. Kiiver NT/7/54 Statement of G. Kearney and additional statement dated 13/4/89 NT/7/55 Statement of Detective Inspector G. Manison NT/7/56 Statement of J. Wolthers NT/7/57 Statement of L. Graffling NT/7/58 Statement of B .D. Richards NT/7/59 Statement of D.M. Richards NT/7/60 Statement of S. Sparks NT/7/61 Statement of H.J. Robertson 14/3/89 NT/7/62 Statement of G.F. Jones 23/3/89 NT/'7/63 Statement of S. Horsfall 13/3/89 with annexure NT/7/64 Statement of Dr T. Taylor 22/3/89 NT/7/65 Letter from T.O. Fegan to Dr J.V. Quinn 8/7/86 NT/7/66 Letter from T. Taylor to Dr M. Chalmers 12/10/83 NT/7167 Statement of M.J. Thomas 13/12/88 with attachments NT/7/68 Annual Medical Report years 1985-86 of visiting Medical Officer by Dr Taylor NT/7/69 Determination No. 4 issued pursuant to provisions of Northern Territory of Australia Prisons (Correctional Services) Act 1980 NT/7/70 Statement of I.W. Birbeck and two annexures dated 23/3/89 NT/7/71 Series of photographs numbered 1-20 photos 1 and 4 of deceased in cell taken by Mr Birbeck NT/7/72 Statement of W.H, Bowden with two annexures dated 30/3/89 NT/7/73 Photocopy of plan of 'C' Block cell Darwin Prison marked for identification by witness Bowden showing separation cells (supressed from publication) NT/7/74 Statement of B.T. Medley with three annexures dated 23/3/89 NT/7/75 Statement of M.A. Stevens with four annexures dated 5/8/88 NT/7/76 Statement of R.W. Natt with three annexures dated 30/3/89 NT/7/77 Memorandum from Director (Custodial Services) to Superintendents dated 2/9/88 re suicide or attempted suicide by hanging NT/7/78 Statement of K.A.P. Lee dated 29/3/89 and supplementary report undated as well as sheet headed with name of deceased and showing on a pro forma sketch injuries to left and right wrists NT/7/79 Report of Prof. Cordner of 20/3/89 NT/7/80 Photocopy of report of Dr Wilkey dated 30/8/88 NT/7/81 'C' Block Medical Instruction journal (7 Apr. 83 - current) NT/7/82 'C' Block Superintendent's Instruction Journal held in C Block control room (9 Aug. 83 - current) NT/7/83 Telephone journal containing log of outgoing telephone calls held in main prison control tower (15 Apr. 85 - 18 Aug. 85) NT/7/84 Radio Journal logging radio calls to and from main prison control centre (4 May 85 - 21 Oct. 85) NT/7/85 Certificate of Marriage (certified copy) NT/7/86 Statement of Dr G. Manypeney with annexures NT/7/87 Title page of text entitled 'Psychiatry for the House Officer' and Chapter 7 entitled 'The Suicidal and Assaulting Behaviours' NT/7/88 Original Report of Dr D. Kutlaca and letter from Solicitor Assisting the Royal Commission to Dr Kutlaca and Chronology of events prior to the death of the deceased NT/'7/89 Facsimile Copy of Report of Prof. I. Jones and letter of 17/2/89 from Solicitor Assisting the Royal Commission to him (Note: same chronology provided as to Prof. Jones) NT/7/90 Original Report of Dr J. Ridley NT/7/91 Statement of C. King NT/7/92 Statement of J. Dargie NT/7/93 Plan of 'C' Block marked by witness Dargie showing where the deceased hit his head NT/7/94 Statement of W. Carling NT/7/95 Statement of J. Dowling NT/7/96 Statement of M. McIntosh with attachments NT/7/97 Letter to Royal Commission from Department of Social Security dated 28/3/89 NT/7/98 Notes on view taken at Darwin Prison on 20/3/89 NT/7/99 Book of fifteen photographs taken by Police Photographic Section on 20/3/89 during course of view NT/7/100 Statement of R. Ahwon in form of checklist with attached handwritten statement and typed copy of handwritten statement NT/7/101 Statement of J. Bindai NT/7/102 Statement of K. Bourne 22/3/89 NT/7/103 Statement of B. Bulunpulun 18/3/89 NT/7/104 Statement of Chief Inspector M. Burke with attachments NT/7/105 Statement of G.A. Butterworth NT/7/106 Statement of E. Calway-Pridham with attachments from St John Ambulance NT/7/107 Statement of M.T. Davern in form of checklist NT/7/108 Statement of R.J. Denmead APPENDIX "B" 2 …. GB I know bits and pieces of it . I remember it reasonably well. Letty has had continual contact with me from I think we met about a month or so prior to the hearing actually starting. So that was late 88 early 89 since that time Letty has been in contact with me throughout most of that time until now so its something I remember reasonably well I wont go overboard about my memory I remember it reasonably well. I remember it reasonably well better than I do say the first two cases.. RL Right and well. Is there then something that is exceptional or of note about the case of Scott. 3 GB Well I think so, apart from the fact that Letty has been in contact with me and she is the only person in the Royal Commission days from the family side that has been in relatively constant contact. There is also the fact that it was our belief by investigation and I think the Commissioner's finding on investigation that this was a very very clear cut negligence case of the highest order and was fairly clear on the evidence that we got that Letty had done an awful lot to alert the prison and the doctors to her husbands situation and that nothing had been done. I think findings are clear on that. Rap it up it was all pretty dramatic stuff. That made it a bit different from most of the other things that we had been doing. RL And so you met her about a month before the case had started and you had contact with her from time to time since then. GB Yes. RL Before we go into the Royal Commission can I ask you about your relationship with her. How would you describe it and at what level has it been conducted and so on? CB We have phone conversations on and off through the whole period and at time when she was in Melbourne just before Christmas on her way though to Adelaide so I saw her. Sorry that was Christmas 1993 she came around and visited me then. I had a bit of contact with her when she was living up at Darwin and going around to her place. It is hard to describe the relationship really its volatile, but Letty is a very worried women undoubtedly and very upset by what has happened for obvious reasons. So our conversations are generally are very emotional. I think we get on reasonably well. There are times when Letty really has. a go at me but that it frustration boiling over. There are time to when I just also say enough is enough, I don't need to put up with this any more but we generally get on generally speaking its a reasonably friendly relationship. I am basically trying to support her through what I consider has been a very difficult time for her at a time when a number of people have just not done there best by her the have not acted in a professionally like, um both at the time but also since some of the actions of some of the people that she has had to deal with have been pretty ordinary, so I have been trying to help her through that a lot as well. RL Okay. now the. Lets talk about the meeting which took place in the course of the Royal Commission which I understand it took place in Commissioner Dodson's rooms. This is connected with the photographs that were shown. Can you just tell me about the meeting and what led up to that meeting or conference and what occurred? CB First the meeting actually took place in the Royal Commission offices, Mick Dodos had come up to Darwin relatively short notice to assist us, our Counsel assisting was Geoff Niemes and Bob Belair who were the two Senior Counsel assisting for the Commissioner and for just at that time something came up which meant that they were unable to do this particular case. It originally was going to be Bob Belair and Mick Dodson who took over the running of this case so both Bob and Mick were up talking to us and Elliot would come up often. 4 RL Elliot. GB Elliot Johnson. Then Bob Belair also had to pull out so we instructed a guy called Pat Loftus a Darwin Barrister who I think is still in Hong Kong. I am not one hundred per cent sure about that I think that's where he is prosecuting. Very experienced man. He came in and become Senior Counsel assisting. Prior to that Letty had come up to Darwin and it was the policy of the Royal Commission that the family that we would meet the families and we would talk them through the procedure and explain what was going to happen. We would where ever possible introduce them to the Counsel assisting and the Commissioner if they happen to be around. That obviously was not always the case in Darwin. But we would try to do that where ever possible introduce them to all the rest of the staff as well. Tell them that they could come and see us anytime and we would also take them to any evidence that we considered to be sensitive. We would take them to any evidence that we would believe to be of cultural significance. We would ask them whether they wanted names suppressed and things. This name is actually suppressed as a result of Letty's request to have it suppressed. So we as I say go though evidence. What we had in this case was two photos of the body actually hanging that was unusual in Royal Commission cases most times the body had already been disturbed prior to photo's being taken in this case. Because of that I think I discussed it with Elliot Johnson from memory. If I did it would have been in the presence of some or all of the Counsel assisting and I think this would have happened earlier enough for it to have been Geoff Niemes or Belair may be Mick Dodson was there I don't think Pat Loftus would have been there at this stage. It was decided that I would show Letty the photos as soon as we were able to. To say that he they are this is what is going to be handed out to explain to her that we were not allow those photos to be publicly released as those photos were only going to be released to Counsel to parties being XXX released to the public. One of the things with the Royal Commission was that we tried to release everything publicly. All statements were released publicly and names blanked out in things like that. All photos where possible were released publicly and we tried to do everything as publicly as possible this was one of the obvious exception. Letty arrived in Darwin as I say I think that would have been about one month before the hearing. We brought her up and she was having difficulty getting from Adelaide to Darwin. She was in Adelaide at the time. She was having trouble getting up so we brought her up and that was partially at the request of her Counsel who wanted her up early so they could take a statement. When she came in there was herself, Michelle and her second daughter (RL Diana) Diana and her son XXX. They came in and I took them to my office and sat them down and said that I have got some photographs here that are distressing photos they are photos, of Douglas he is actually in a cell and they are photos of him hanging and I asked whether they would like to see them and they wanted to see them and so I tried to prepare them a bit and then I just showed them the photos. I am pretty confident that I showed them the originals. They were two polaroid photographs. I am pretty confident that time those were the only copies that I had so I believe that I showed them the polaroid photos they were very upset by that. I believe I was the only other person in the room at the time. 5 I can't think of any one else that would have been present. They were obviously upset by it and after a little while they began to calm down a bit and I took the photos back and went though the rest of the files with them as well to show what other photos that there have been what we did from then was as we got each statement we XX files to Letty and to Letty's Counsel and to her solicitor and where ever possible we would actually go through the statement with her so we were confident she new what was going on all the time. So that was that meeting. I cannot remember the exact date of that it would have been about a month or so XXXXXXXXXXXX RL What was her reaction at the time she saw the photographs. Can you describe that? GB She was very distressed. She cried and she was very upset It was the reaction of someone who was seeing her husband hanging in a cell I suppose. It was the distress caused by that at that stage. that is what it appeared to be to me. RL Do you have a recollection of what the photographs XXX CB Yes those photographs were photos of Doug hanging. A sheet was tied to the roof of the cell and tied around the neck. Two photographs were taken from slightly different angles. One depicting Doug hanging a face shot and the second was taken slightly further around and showed the knot that XXX partially showed the knot. Basically two photos with the body upright. Both were taken from I think they were taken from the back of the seat towards the door and they were both taken from pretty much, they were both taken from the front of the body but one was taken fromXXXXX RL And what about the sheet. It was a sheet was it not that by which he was hanging. (GB Yes) Could you see any part of the ceiling or what it was that the sheet was attached to in the photographs. GB No I don't think so. I am just trying to recall that I know that there was cell there was a XXXX showed a light or something I know that's were the sheet was tied but I can't recall whether you can actually see and I just have the feeling that might be for another reason. RL What about the body was it suspended at any distance from the floor can you recall that. MB XXXXXXX in seducible It was suspended above the floor XX clearly above the floor. RL What sought of distance make an estimate was there anything for example like a bed that was referable to it. CB XXX The bed is not all that high XX It is a bit hard to remember clearly I am pretty sure it was off the ground. 6 RL off the ground. So there wasn't anything exceptionable about Letty's reaction. She didn't make any statements that alarmed you what was shown in the photos. GB No not at that time. … 8 GB The bundle of photographs were tendered as a bundle of photographs to the Commissioner so that he had the same numbered bundle of photographs as did everyone else so that he could flick through and see what everyone else was seeing. The two original polaroid files were on the Coronial file I think and I think you will find they were actually tendered as a part of the Coronial file. I certainly now of no reason why they were not tendered and in fact I believe they were tendered but I can't tell you exactly how it was done but certainly I am pretty sure they are on the Coronial file that formed a part of the Coronial file so it is possible that is one way that it was tendered as part of the Coronial Enquiry. There is, no doubt that the Commissioner had both seen and new of the differences of the polaroid photos. RL These two sets. We have got the original polaroids two of them and we have got police photographs and we have you and I actually discussed some differences which appear to exist between the two sets and you are now aware from the conversations that you have had with Letty that she maintains that there are some distinctive differences between the originals that she saw and the copies that have been propounded as true copies of the original. Now you have had conversations about this (GB Yes) What do you are you aware has she made you are of the differences she claims exists between them. GB Um. I am not to sure how to answer that question. I think I know some of the differences I don't know. I know them all yeh. I know that one of those differences she spoke about was the sheet and what the sheet looked like the photos XX was a pattern that shows up white on one of the photos so there was that difference that I am aware of and also the position and tying of the knot. There is police photos of a knot tied around the neck um we discovered that that knot was tied by the police or by pathologists to demonstrate the type of knot that could possible could have been used in the Scott case. RL When did you discover that. GB When the forensic pathologist Dr La. RL Was that in this statement? GB yeh I thinks so. I think so. I am pretty confident of it that he took a very cool? statement from him and I am pretty sure that it would have been in somewhere along the line. Because we certainly all new about it because what we thought a pretty outrageous thing. Mainly because it hadn't come up at the Coronial. It had been mentioned that that photo had not been a photo of the actual knot um this was definitely a retied knot and of course that knot is different but appears to be different and was probably different to the original knot certainly was not the original knot no matter what else. Those are the differences that I am aware of that Letty claims. Now I don't the knot one the explanation I have given there is the explanation that I believe to be the true one. I have no arguments to so that it is not the true one. As far as the actually colour of the sheet is concerned it appeared to me that that was a matter of photography but I've 9 said to Letty on a number of occasions that she has been right about so many dam things that I am not prepared to say that she is right about this one. I insist that I don't see it myself but I think the explanation is in the photography who knows she might be right again. … 12 … RL No there is also reference in the transcript about undertakings which were sought from Counsel for Mrs Scott as to the conduct of prison officers and police. Can you explain what that would be about. CB Prior to the hearing at the beginning we held a standard conference. 13 continued to tape 3 Tape 3 side one RL This is partial answer to the question – What undertakings sought and what that was all about concerning the conduct of prison officers and police? GB Conference was held between all Counsel involved do you want the names? RL Yes ‑ okay. GB Trevor Riley he was Counsel for the Northern Territory Government, David Anderson Solicitor for the Northern Territory Government, Colin McDonald Representing the Police Association and Prison Association, Steve Southwood who is instructing solicitor, John Tippet representing the family. I don't think he had an instructor there at that stage in that. He may not have had an instructor at all at that stage. We had a bit of trouble with Letty's solicitors at the time he pulled out suddenly and so the bar was being transferred to another firm actually that went to a guy called Pat Mallard at XX. John was there and I think David Farquar was there. David Farquar was from Povey's appearing as Counsel although he was a solicitor and barrister he was appearing as Counsel for Dr Taylor who we sent warning letters to Superintendent Matt and Dr Taylor warning them that it was possible that adverse findings might be made against them at the Royal Commission and advising them of their rights to represented at the hearing generally telling them to be, what their legal rights were. At that meeting it started with John Tippet telling us that there will be no allegations of murder made on his instructions against any of the prison officers or police officers or anything like that. He made it fairly clear at that conference that other allegations would be made, negligence and the like but not allegations of murder. Now there were times during the course of the hearing where John's line of questioning moved from what appeared to be negligence line of questioning to murder line of questioning and quite often when that happened Colin McDonald in particular would stand up and bring up the fact that no such allegations were going to be made and what on earth is going on here um so that I don't know if there exactly the undertakings that you are talking about but my memory of what was happening there at the time. It was certainly made very clear to us from point 1 that John Tippet was saying that his instructions were not to run a murder case in this matter. … 20 RL You now that Letty Scott is making allegations and she has done for many years about foul play and murder having taken place in connection with the death of her husband. GB Yes. RL And as I understand it you had a number of conversations in relation to her about that. GB Yes. RL Have you ever agreed with her that foul play may have taken place. GB May have taken place ‑ yes certainly. RL In what format what form could be foul play have taken place. GB It would have to have been by the prison officers so I believe. RL Do you think that there is any evidence available of that. GB There is one statement and one witness. RL And that is. GB An aboriginal prisoner who made a statement to the effect that he had heard noises when the prison officers were in there. 21 RL Do you remember the name of that person. GB No he was a aboriginal person who lived in a place called Doon Doon Station which is about 100 kilometres south of Kununurra in Western Australia his name would appear on list of statements tendered um he was the only witness that gave any indication that there may have been foul play. RL And what was made of his statement. GB Not a lot, not a lot. The statement was factually long in a number of ways and after discussion amongst the Counsel um I cannot remember personally that conversation or not but after discussion amongst all Counsel it was decided that he would not actually be brought to give oral evidence in front of the Commission and that his statement would just be kept. So his statement was tendered upon the Royal Commissioner um but there was not a lot of credence given to that statement um for various reasons to say that this was factually correct in a number of ways um we attempted to as a result of that statement we attempted to check a number of things so see whether we could get any confirmation of anything on the statement but we were not successful in doing so. RL And the conference that you mentioned is that noted in your book. No record of that conference. GB No that would have. I don't know when that would have taken place. I can tell you it was after the weekend of the Darwin Football Game final and it was very close to the time that the Royal Commission started so it may have been a part of the conference during the hearing. As I say I don't even though if I was present at that meeting. I know it was a decision that was taken by all Counsel by the Royal Commission um as a matter of course those decisions were referred to all Counsel and not by us um I no that one was particular because of the nature of the contents of the statement including it had to be shown to everyone and how we proceeded had to be decided really on the basis XX what they wanted to do we were perfectly prepared to call the witness if any of the Counsel asked for that witness to be called. RL Do you know who took his statement. GB I did. RL So where was his statement taken. GB At Doon Doon Station. That is the reason I remember the XX. I got stranded in Turranurra by floods and had to try and fly back and they actually had to force someone to sit on someone else's lap so I could get on the plane. It was Darwin grand final weekend and everyone was flying in for the Grand final. So I took his statement on the must of been a Thursday or a Friday of the grand final. One of our field officer's had gone to speak to him and tracked him down at Doon Doon station and attempted to speak to him but he refused to speak to her other than to give XXX. It result of that exercise it was decided that I would go down as field officer and attempt to take a better statement. I did attempt to take a full statement but he did not give me a awful lot of information and it was clear um would not like to talk um. 22 RL Was he perhaps frightened to talk? GB That was not the impression that I had he was clearly cultural and inappropriate in his talk about?? I got nothing of the impression that he was bitting to talk he was worried about his future um [hard to understand] but he is very very difficult to read an aboriginal person who is very very difficult to read XXX there is no doubt being wrong about that maybe XXXXX that wasn't the impression that I got he is a aboriginal from a highly cultural family a traditional life to a large extent. It's very difficult for anyone person to speak properly XXX. RL So Letty's made these allegations and she has made them consistently and over a long period of time. Now I need to just ask you your reaction to some statements that I have had given about conversations that have taken place with you and I have got a statement here by Letty and she refers to sometime between July and August of 1993 a telephone conversation that she had with you, sorry that's not right I'm sorry, it's a statement by Robert Dow who says he had a conversation with you once again I withdraw that um he says you had a telephone conversation with Robert Cavanagh who is a barrister GB Yes RL Um and Robert and Letty were with Cavanagh at the time. Do you remember talking to Cavanagh. GB Vaguely ‑ yes. RL And do you remember what you said to me. Could it have been that sensational. Could it have been statements about possibility that there was foul play? GB No. My comments about foul play would have been consistent my comments are that I know of no evidence supporting foul play um and that it is a possibility it is not something that I can rule out the evidence that he had that could prove foul play but I doubt whether could be right about it ‑ it could be foul play I don't know um it's not my call I wasn't there it is a possibility. That has been my comments right though this whole thing. I recently started refusing to speak to Robert Dow partially because of personally reasons and partly because … … 24 RL And do you think that some of those matters might actually require further enquiry. GB I don't know I have good XX as well there's some information that comes to me generally comes via Robert and I don't know how accurate his information is I'm I actually spoke to him once at a time that I thought he was Letty's barrister rather whom he actually was and that conversation is rather amusing he is telling me things that indicated clearly that it was murdered and not suicide and I was advising him ways to get that confirmed if he was right. One of those concerned was the broken bone in the neck that bone is the scaffle there is a broken bone in the neck and Robert now claims that could not possibly have happened unless it was a murder um hanging now that is something which at the time we checked very carefully what we checked it with our pathologist Wilky and Collins um that was really XX so we had Lee who did the original XX Wilky and Collins and um I think it was Collins who in particular said yes that's XX although it does not happen often in cases there is nothing unusual about it happening um and to be able to agree XX I think there was other evidence in the Royal Commission. We were getting transcripts from all other cases as well so we had alot of experts as well I think there was evidence XX about that. But Robert has rung me up once and said no they can't possibly be the case and it has got to have been a murder hanging XX you've got this new beaut wonderful person who said that it is the only possible way it could be INAUDIBLE but the Adelaide forensic pathologists Ross his first name or surname one of the two is Ross he name has just gone from my memory. I told them that is where they should go and get this checked out that sought XX RL Do you have a view about the case and the way it was handled at the Royal Commission which would lead you to think that it has been adequately inquired into. Have you got any views about that. GB I certainly believe that it was adequately inquired into that it was … RL now that you have had this further contact has you view changed at all. GB No there is still no evidence that it was a murder that I am aware of no credible evidence that it was murder other than what we had at the time that is that one statementfrom one witness and as far as the rest of it is concerned there is still nothing that requires further investigation. I think the negligence side of this case is blindingly obvious. I am going to try to remember occasions speaking to the people the NT government about how XX RL Which people GB People who were on the case. David Anderson who was the instructing solicitor um I've spoken to Brian Eed who is the leader of the opposition who is the shadow attorney general XXX I just mentioned to them that it was really XXX case and may be they might think about handing out some compensation XX giving something to Letty to help to assist her I know its not agreeing that it's this murder but it's not do any harm to give some assistance that they do something they just drag it on and on XX 25 now that's my view it remains my view I think we investigated that as well as we possibly could we interviewed most of the prisoners that were there we interviewed XX field officers we went through ever book and ever record we got either Jones and David K to psychiatrists to do psychiatric profiles to see whether it was psychiatrically consistent that he may have committed suicide or see whether there was some reason XX we had two independent forensic checks Wilky and Collins the original pathology work and in all of that in absolutely all of that we can't absolute certainty rule out foul play there is nothing to indicate to me that makes me XXX case … 26 RL I have just shown you a document which is dated 24 October 1994 and in hand writing Friday 7th October 1994 statutory declaration and it's a declaration by Robert Dow and you have had a look at it. I refers to conversations that you have had with Letty and I think also with Robert Dow and in part of those conversations there is a reference and it is highlighted in yellow highlighter a reference to the position of the stool and in particular directed to the differences between the polaroids and the photographs that were purported to be copies. end of tape 4. Tape 5 side one RL Just completing my question. Do you have any comment about that document you just read which purports to be a statutory declaration by Robert Dow and its machine dated 24th October 1994. GB Yes saying that its a mixture of Robert's usual fact fantasy and wishful thinking quite a part of the conversation is accurate that the details dealing with Robert are more accurate than the details dealing when Letty and I are speaking which really hardly exists however there is a reference there to being two sets of photos and of Doug being hung twice and how I had said that is proof. I have never said that to any one at any time I have never said it to Letty at any time despite Letty putting enormous pressure on me to make me do so I have never said it to her and I certainly would never say it to Robert under any circumstances. … 27 … GB The one taken on the 18th March was Bulun Pulun. Just clearing up a few last points here. Letty had said at one time or another prior to us starting at the hearing of the Royal Commission that there was foul play involved in the death of her husband. There is no doubt of that allegation had been made at some stage to people at the Royal Commission and we were aware of it prior to the Royal Commission so it was not a new allegation to us we were told by John Tippet as a part of that conference that we had the notes of his instructions were that he was not to raise foul play that's the way it came out of that conference. I suppose the other thing about that was that if not at that conference the notes that I took were the patent notes the notes that we went through not at that conference but certainly at one conference between various Counsel John Tippet XX was raised. John Tippet had appeared at the Coronial and he was now appearing at the Royal Commission and we felt that there was a possibility that his conduct would be criticised also so that was certainly raised with him and he certainly considered his position prior to appearing at the Royal Commission. APPENDIX "C" ISSUES FOR CONSIDERATION The Death in Custody of an Aboriginal person who died 5 July 1985 at Berrimah Prison, Darwin The issues which are raised below arise from a consideration of statements; evidence; Coronial report of Cavitt, S.M. and McGregor, S.M. and statements, evidence, transcripts and the report of the Royal Commission into Aboriginal Deaths in Custody (RCIADC). Items 1 ‑ 5 deal with issues, controversy and apparent contradictions arising from evidence given to the Coronial Inquiry (CI) and/or the RCIADC; Items 6 ‑9 deal with material not put before the RCIADC and Item 10 raises further matters and issues for inquiry. In support of the matters referred to in this submission, the following documents are attached:‑ 1. copy statement of Letty Scott dated 13 August 1993 (regarding viewing of polaroid photographs) 2. copy statement of Letty Scott dated 5 July 1995 (regarding viewing of copy polaroids and police photographs) 3. copy letter from Robert Cavanagh to Rodney Lewis dated 11 April 1995. ------------------------------------------------------------------------------------------- 1. Time of Death ‑ conflicting evidence of body temperature 1.1 Prison Officer (PO) BOWDEN spoke to SCOTT at 4.00am. He was the only one to look into the cell on that occasion (RCIADC transcript P266) 1.2 PO ROBERTSON described SCOTT ‑ "He was stone cold" and later that "the body was cold to touch" (RCIADC transcript P267 and P290) 1.3 PO BIRBECK said he "found the body cold and wet" (RCIADC transcript P556). 1.4 SGT STEVENS found "the body was coolish" (RCIADC transcript P661‑2) 1.5 DR LEE, forensic pathologist found "the body warm to the touch" (RCIADC transcript P742). DR LEE also had an explanation for the description of "cold, clammy" at P782 and dealt with the meaning of evidence concerning a warm body at P802. 1.6 The St John Ambulance Northern Territory Officers report indicates "patient still warm, no obvious signs of rigor mortis'. Inquiry into the Death in Custody of Douglas Scott Deceased Page 2 Issues : A. DR LEE pointed out at P802 RCIADC transcript that the information which is conveyed by the statement that "the body is warm to touch" is that this is a body which has not been dead for a long period of time. It is an estimate of the time of death but not a good one. There are however other conflicting assessments of temperature of the body which give rise to an element of doubt on the issue of the time of death. B. Detective SGT STEVENS gave evidence at the Coronial Inquest that at paragraph 5 of his report he said "DR LEE examined the deceased and estimated that the deceased died within the previous 4 hours from when he examined him at 8.30am". 2. How did the hanging take place? 2.1 In his findings of 16 September 1987 Mr McGregor SM indicated that there was "a grill in the ceiling, accessible from bed or stool, ... a great temptation which could be removed" (P23). 2.2 PO ROBERTSON observed in his evidence that there was "a Footstool under the bench" (RCIADC at P268). 2.3 The Royal Commissioner Mr Elliott Johnston QC (RC JOHNSTON) found that "the furniture in the cell is fixed and an examination of the cell, including the demonstration, showed that it would be quite possible for the person of the height of the deceased to stand upon the table and tie one end of a sheet to the ventilation grill. The noose could have been tied earlier or could then have been tied. It would then be a matter of stepping off the table. Death would follow very quickly. Once suspended there was no object that could be reached with hands or feet." (RCIADC transcript P20). 2.4 RC JOHNSTON and further at P67 to say "the Coroner, however, did go rather more widely. He pointed out that the grill in the ceiling, allied with the fact that it could be reached by standing on the table or bed constituted a temptation to a Prisoner feeling an urge to inflict harm..". 2.5 The Coroner made a presumption at page 23 of‑the transcript as follows: "I presume, it could be reached by standing on the bed or any other furniture in the cell?" 2.6 Acting Senior PO G B WOOD: "they do get issued with plastic stools within the cell blocks. They have got a writing desk in Inquiry into the Death in Custody of Douglas Scott Deceased Page 3 one corner, beside the concrete bed. You can reach it from one of the stools". 2.7 A perusal of one of the photographs purporting to be a copy of the polaroid photograph taken by PO BIRBECK which shows the deceased from the rear discloses what appears to be the top of the stool in the foreground next to the bed. The perusal of another of the police photographs shows the stool at the end of and to the side of the bed upon which the deceased was laid out. DR LEE viewed the polaroid photographs at the prison on the day of death and became aware from the original polaroid photograph that the stool was not in a position to be used by the deceased. Nevertheless in his post mortem report (P1 paragraph 3) DR LEE states "the ceiling height is 266cm and the height of the stool that he was standing on was 44cm". 2.8 In his statement to the RCIADC DR LEE said "Although I did not measure the height of the bed the photos show that it was about 30cm and could have been used". 2.9 A perusal of the photograph of the interior of the cell with the deceased layed out on the bed appears to indicate an equivalent height of stool to bed. DR LEE said in his statement to the RCIADC "there is not a lot of difference between the bed and the stool" (P2). 2.10 DET SGT STEVENS says "I saw DR LEE taking measurements of the body, of the distance from the ceiling to the floor and the height of the foot stool (sic). Issues: A. The bed was measured on a recent visit and inspection of the cell in Darwin at 27 cms. There is therefore a difference between bed and stool of about 17 cms. B. From the copy of what purports to be a photographic enlargement of the polaroid photo depicting the hanging body and stool there must be serious doubts the stool could have been, or indeed was used, by the deceased. C. If, as RC JOHNSTON found, the deceased stepped from the table, there is a high probability the length of sheet connecting the grill to his neck would have been drawn as taut or tightly as possible before stepping from the table, thus undoubtedly leaving his head much closer to the ceiling than the photographs demonstrate. D. The statement of RC JOHNSTON that ‑"once suspended there was no object that could be reached with hands or feet" appears on the face of it, incorrect. The bed was immediately adjacent and the deceased appears from the relevant photograph to be capable of easily touching the floor with his feet. Inquiry into the Death in Custody of Douglas Scott Deceased Page 4 3. The presence/absence of blood 3.1 PO ROBERTSON stated that "there was no blood" (RCIADC transcript P267). 3.2 DGT STG STEVENS said that "that he found no signs of blood" (RCIADC transcript P653). 3.3 In his statement of 6 March 1989 Mr LAURIE PERCY in the course of cleaning up the cell afterwards said "he saw blood on the pillow". Issues: A. There is a conflict of evidence on the record of the RCIADC which appears to have escaped notice. The reference to blood by Mr Percy was apparently overlooked and should have been further investigated. He was not asked to give evidence to the Commission. His recent statement (see later) makes this aspect of the matter of the utmost importance. 4. What the photographs show 4.1 Deceased is shown in the photograph taken from the rear while hanging in a light colour T‑shirt with a pair of shorts torn on the left side. 4.2 The deceased is shown hanging by the neck with a large knot made in a sheet possibly of the same pattern as the sheet shown covering the bed depicted in the same photo. 4.3 4.3 A further examination of the photographs especially of the deceased lying prone full length on the bed appears to indicate a pattern of trains, boats and planes on the sheets. 4.4 An examination of the photograph which is a close up representation of the neck of the deceased appears to indicate discolouration and markings on the right side of the neck but which are substantially obscured by the lighting or the manner in which or the aspect from which the photograph was taken. That photograph is taken of the deceased without clothing on the upper torso, apparently at the morgue by Constable Niemann, police photographer. 4.5 A further photograph taken of the left side of the neck and chin below the left ear with the deceased apparently still clothed in a T‑shirt shows markings under the left side of the neck at the jaw. No apparent markings on the throat. Inquiry into the Death in Custody of Douglas Scott Deceased Page 5 4.6 Another photograph which shows the full face of the deceased with no T‑shirt showing around the throat but with the sheet loosely hanging around the shoulders of the deceased appears to show a discolouration or marking on the left hand side the throat just about the Adams Apple. 4.7 A further close up photograph taken of the deceased without sheet or upper torso clothing or T‑shirt does not show any such apparent markings. 4.8 The photograph of the deceased hanging shows his feet touching or almost touching the floor. Issues: A. Dr Lee, the Northern Territory Forensic pathologist at that time, makes reference to "wide band marks"... "poorly defined (RCIADC at p.762) some of which are evident from the photographs, in his statement. What seems to be apparent from a close inspection of the photograph referred to in 4.4 requires, in our submission, a much closer examination, perhaps by scientific means to enhance the image. 5. Who took the body down and how? 5.1 PO ROBERTSON states in his evidence to the RCIADC that "I tried to cut the sheet with the scissors which did not work. LAWSON and I then took the weight off the body and I think Mr BOWDEN climbed on the stool to undo the knot at the bed... Once the knot was undone we layed him on the bed with the sheet which he had loosened still around his neck". 5.2 PO BIRBECK said that "we cut it away" (the ligature) at P548 of the RCIADC transcript. Issues: A. There is a clear and important difference in the evidence of these officers, which needs to be further tested and analysed. 6. The Question of the Photograph 6.1 During March of 1989 in about the first week of the Royal Commission Inquiry into the death of the deceased a meeting was held, attended by staff of the Royal Commission and members of the family of the deceased . 6.2 The meeting took place at the Darwin Magistrates Court Building on the Corner of Nicholls Place and Bennett Street in Darwin. The meeting was attended by Geoffrey Barbaro, solicitor assisting the Inquiry into the Death in Custody of Douglas Scott Deceased Page 6 Royal Commissioner, Mick Dodson, counsel assisting the Royal Commissioner and Letty Scott, Diana Cavanagh and Michelle Mosley. These persons Scott, Cavanagh and Mosley are the immediate family of the deceased. Letty is his widow and Diana and Michelle his daughters. At the meeting the immediate family were shown two polaroid photographs being photographs showing the deceased hanging in his cell. The specific features of the photographs according to the clear recollection of Scott, Cavanagh and Mosley are as follows: 6.2.1 The deceased was hanging by a plain sheet. 6.2.2 The sheet which was around the neck of the deceased had five slip knots, and the sheet was very tightly twisted. 6.2.3 The feet of the deceased were at least two feet (24 inches) from the ground. 6.2.4 The head of the deceased appeared to be on a very close proximity to the ceiling of the cell. 6.2.5 There was no chair, stool or any other item observable in the photograph. 6.3. During the Royal Commission Hearing 22 photographs were tendered into the evidence during the evidence of Prison Officer IW. Birbeck on the 30th March, 1989. Those 22 photographs were identified as Exhibit NT/771. The tender of the 22 photographs can be seen at page 544 of the Transcript of the Royal Commission Hearings. Of the total of the 22 photographs 2 were seen to be photographs of the deceased hanging in his cell. 6.4 During August 1993 Letty Scott together with another attended at the office of her then solicitor, Mr Paterson of the firm Stockley and Company in Brisbane. At that meeting Letty Scott was shown copies (but original photographs) of Exhibit NT/7/71. We are instructed that the photographs showing the body of the deceased hanging by his neck in his prison cell on the 5th July, 1985 were quite different in most respects, from those photos which Letty Scott and her daughters had seen during the meeting in Darwin in March 1989. The differences were as follows: 6.4.1. The sheet around the neck of the deceased was patterned with trains and boats and planes. 6.4.2. The body was hanging some observable distance from the ceiling of the cell. Inquiry into the Death in Custody of Douglas Scott Deceased Page 7 6.4.3. The feet of the deceased were situated one or two inches only away from the floor (in the copy photograph they appear to be touching the floor). 6.4.4. There was near the floor some sort of elevated platform which appears to be a stool. 6.4.5. There was one knot only in the sheet around the neck of the hanging body of the deceased. 6.5 Since Letty Scott observed these photographs at the office of her Solicitor she has developed a justifiable concern and even conviction that the true circumstances of the handing of the deceased has not been explained. Certainly, on one view of it the body was hanging, or found to be hanging, on two separate occasions in the cell. But the Royal Commission Inquiry did not elicit any evidence whatsoever that the body of the deceased was rehung after his body was found hanging in the cell. The evidence, so far as it is relevant, is that Prison Officers Lawson and Robertson were instructed and did releasethe body of the deceased from its hanging position and lay it on the bed after the body had been photographed by Prison Officer Birbeck. 6.5 Attached to this Submission are copies of the original photographs being copies of Exhibit NT/771 referred to herein. 6.6 There was never any explanation of the appearance of the hanging body of the deceased in photographs seen by Letty Scott and her family in Darwin and those produced to her through her solicitors in Brisbane. 6.7 This aspect of inquiry alone raises, in our respectful submission sufficient doubt for the purpose of instituting and undertaking some inquiry on this aspect. 6.8 Rodney Lewis, Solicitor, has spoken at some length to Geoffrey Barbaro concerning this matter but Geoffrey Barbaro is unable to agree that the photographs which were tendered into evidence at the Royal Commission Hearing (NT/7/71) are, insofar as they show the hanging body of the deceased different from the photographs where he showed Letty Scott and her family in Darwin during the Royal Commission Hearing. The lack of any satisfactory explanation for the differences adds, in our submission, to the need for a search for a proper explanation. Inquiry into the Death in Custody of Douglas Scott Deceased Page 8 6.9 Another matter involving Mr Barbaro arises from information received by Mr Rodney Lewis from Mr Robert Cavanagh, now senior lecturer in the Faculty of Law at the University of Newcastle, and formerly counsel to Mrs Scott. He has advised of a conversation he had with Mr Barbaro and after that conversation telling Mrs Scott ‑"Barbaro just told me that he did show you the polaroid photographs at the beginning of the Royal Commission Inquiry and he says those photographs are different from the Territory Police photographs." Mr Cavanagh also advises that: ‑ "I do recall discussing with Mr Barbaro the issue of Mr Scott being hung twice and recall Barbaro being concerned that that may have happened.". 6.10 Any inquiry would, in our submission, seek to locate the originals of the polaroid photographs which were taken by Chief Prison Officer Birbeck. Inquires have been made continually over the years by Mrs Scott as to the whereabouts of the polaroid photographs. Most recently, a request has been made and acted upon by your department to search the records held of this matter. A thorough search of all the records was made in August 1993 without success. However, the file of the Coronial Inquest had already been returned to the Coroner's Office in Darwin on 20 April 1993. A recent written enquiry of that office has produced the written response by the Coroner's Clerk, Mr Arkinstall, that the file was indeed returned to the Office of the Coroner in April 1993 but "does not contain the two original polaroid photographs..." 7. The Observations of Jeffrey Bindai 7.1 One of the exhibits tendered during the course of the Royal Commission Inquiry was a Statement of J. Bindai and identified with Exhibit Marking, Nt/7/101. We have undertaken at the Doon Doon Station via Kunnunurra in Western Australia specific inquiries as to the circumstances of the taking of the Statement by Counsel assisting the Royal Commission with Mr Bindai on the 4th day of April, 1989. It is sufficient for the purposes of this submission to indicate that Mr Bindai now claims that the account put into evidence is only a partial statement of what he told the representatives of the Royal Commission and does not contain the whole account of what he said. 7.2 Mr Bindai has much of significance to provide as to those events at the time of the death of the deceased. Specifically they are these matters: ‑ Inquiry into the Death in Custody of Douglas Scott Deceased Page 9 7.2.1. Mr Bindai was at the Darwin Gaol as a prisoner for a period of about two months before the 5th July, 1985, the day on which the deceased was found hanging in his cell. 7.2.2. Mr Bindai occupied a cell in C Block directly opposite from the cell occupied, at the time of his death, by the deceased. 7.2.3. On the evening before the 5th July, 1985 Bindai was placed in his cell at about 8 o'clock and much later that evening he heard a sound, looked out of his cell and saw four Prison Officers, carrying batons, enter the cell of the deceased. According to Mr Bindai he heard Scott calling out for help and he heard sounds coming from the cell. 7.2.4. Mr Bindai claims that other prisoners adjacent to the cell of the deceased shouted out and made comments concerning what was then taking place inside the cell of the deceased. 7.2.5. Mr Bindai claims at some point during the time that the Prison Officers were in the cell of the deceased, one of them came out and made a threat to Mr Bindai before returning to the others in the cell of the deceased. 7.2.6. Mr Bindai claims that the deceased was further assaulted by the Prison Officers inside his own cell. 7.2.7. Mr Bindai claims that the Prison Officers, after being in the cell for some time left it and walked away. 7.2.8. Rodney Lewis has recently interviewed Mr Bindai at his home in Western Australia and has confirmed again the substance of his story 8. The Observations of Laurie Percy 8.1 During an interview which Rodney Lewis had with Mr Laurie Percy at Darwin recently he indicated that on the morning Mr Scott's body was found in the cell he was asked to go in and clean up cell. In the course of cleaning of the cell he saw blood on the sheet, pillow and on the floor of the cell. He also found blood on a ball of paper underneath the toilet. Inquiry into the Death in Custody of Douglas Scott Deceased Page 10 Issues: A. The amount of blood which Percy now says he saw in the cell is in stark contrast to the reference to blood in his original statement. At all events, even the reference in his original statement to blood was not subject of any enquiry or discussion before the Royal Commission. 9. The Observations of Geoffrey Moreen 9.1 Geoffrey Moreen is the brother of Laurie Percy and both were in cells opposite that of the deceased on the night and morning in question. 9.2 Mr Moreen, in a recent conversation with Rodney Lewis in Darwin, made a statement which included the following:­ "I remember hearing in the night Kelly called out:‑ "Somebody help me but I thought I was dreaming and I didn't do anything.". 9.3. The reference to "Kelly" is a reference to the deceased. Apparently Mr Scott was also known by that name at least to Mr Moreen. 9.4. Mr Moreen also states that on the following morning he saw Laurie Percy and Geoffrey Bindai carrying the mattress from the cell in the course of cleaning it. He says he saw blood on the mattress. Issues: A Mr Moreen by his statement appears to support and corroborate the claim that the deceased called out during the night and also that there was blood observable on the mattress. 10. alternative scenario 10.1. Prisoner returns to cell early. 10.2. Four prison officers enter the cell during the night, with batons; Prisoner heard to cry for help. 10.3. Prisoner is murdered either in the course of, or before being hung from the grill in the cell. 10.4. Upon entry shortly after daylight the next morning, P.O. Birbeck takes two polaroid photographs of the Prisoner hanging from the grill in the ceiling, depicting the Prisoner hanging and with his head close to the Inquiry into the Death in Custody of Douglas Scott Deceased Page 11 ceiling, feet some distance from the floor, with a plain sheet having a tightly twisted noose with several slip knots. 10.5. Prisoner is then taken down whether cut down or untied and then rehung with a different sheet, with a single slip knot, with feet apparently touching the floor and head at a distance which can be calculated to be not less than about 80 cms from the ceiling, having regard to the deceased's known height and the height of the ceiling. 10.6. The Police photographer, Constable Nieman, arrives. 10.7. Police photographer takes further photographs of the body hanging from the ceiling, later processed in such a way as to represent copies of polaroid photographs and tendered in evidence before the Royal Commission as copies of the two polaroid photographs which P.O. Birbeck took when he first entered the cell. 10.8. Prisoner is then taken down and placed on the bed where further photos are taken. 10.9. The body is removed from the cell and Laurie Percy and Geoffrey Bindai are ordered to clean up the cell. In the course of doing so, Percy and Bindai report seeing blood. 11. Other Matters 11.1. There are in addition to the issues raised above, other matters which are of the gravest concern to Mrs Scott. They are upon our instructions as follows:‑ 11.2. The bed sheets depicted in the photographs of the deceased have a pattern of trains, boats and planes. Not only does this not record with her recollection of the plain white sheet in the photograph she saw in Darwin but there is the real question of whether they were at that time regulation prison issue. 11.3. The same question arises from the clothing of the deceased as depicted in the photographs and whether or not that was at that time regulation prison issue. Both of these issues have been sources of great anxiety and should be settled by proper evidence. Neither was raised at the inquest or at the RCIADC. 11.4. Mrs Scott remains unconvinced that a person of the height and build of the deceased could have reached the grate in bare feet in order to tie and twist the sheet by which he was hanged. A description of the Inquiry into the Death in Custody of Douglas Scott Deceased Page 12 knot and sheet was produced by PO Robertson, in a statement taken on 8 March 1989 for the RCIADC (p5). 11.5. Only a full and careful reconstruction and re‑enactment of the event will resolve Mrs Scott's anxiety. She is not satisfied that the visit to the cell by RC JOHNSTON accomplished that purpose. 11.6. Mrs Scott had a telephone conversation with PO Bowden (then retired) on 7th October, 1994. During that conversation Mrs Scott's instructions are that the following exchange took place: "Your husband didn't die of strangulation like Dr Lee putdown, he died of a broken neck" 11.7. The notion that the deceased died of a broken neck did not figure at all in any of the evidence given at the Inquest or at the RCIADC. It is a serious issue and on which needs to be pursued. 11.8. The photograph of the deceased taken full rear view hanging shows his feet without any sign of drooping. In other words they appear to be on the ground. This seems to Mrs Scott a curious way in which someone might hang themselves, with feet on the ground. Taken another way, the evidence from PO ROBERTSON is that the deceased's feet were about 2 inches off the ground. The photograph adverted to shows no drooping of the feet, yet the photograph of the body on the bed shows the feet with a distinct droop. This contradiction further confirms that the feet were touching the ground. 11.9. The photograph taken of the upper torso from the right appears to show a mark or possible wheal and faintly but apparently extending around the mid neck region. The absence of proper illumination in this and other photographs would demonstrate poor forensic work at best and at worst the potential for concealment. 11.10. The photo last mentioned should be the subject of further detailed forensic analysis. 11.11. There was no evidence given of marks on the neck of the kind apparent on the photograph referred to in 10.9 by any of the PO's or by the forensic pathologist, Dr Lee. 11.12. It is of significance and in our submission a serious lapse of duty of the RCIADC that the inquiry into the death of the deceased began with the Inquiry into the Death in Custody of Douglas Scott Deceased Page 13 tendentious assumption that there was no culpability on the part of the prison officers in the incident. Such an assumption, even though with the agreement apparently of all parties, predicated an outcome which, with the benefit of having the matters now available as further evidence and debate upon the issues put in this submission, was simply not warranted if a proper and thorough forensic inquiry was undertaken. 11.13 In his Reasons for Findings RC Johnston found (p. 16) that when the deceased came before the Magistrate's Court at the end of May 1985 he was remanded in custody for a period "...in fact, longer than is permitted, in the absence of consent, pursuant to the relevant Northern Territory legislation." Since there was, according to the Royal Commissioner, no knowledge of the instructions of the defendant (deceased) he has concluded, without the benefit of evidence on this point, that the deceased was lawfully in custody. This will be the subject of vigorous examination at the Inquiry in support of which this submission is made. 19th April, 1996 (Signed) APPENDIX "D" RECONSTRUCTION REPORT DEATH OF DOUGLAS BRUCE SCOTT PRESENTED TO: MASHANTUCKET PEQUOT TRIBAL NATION BY: FORENSIC INVESTIGATIVE COMMITTEE Dr. Henry C. Lee Dr. Michael Baden Dr. Cyril Wecht Dr. Pete Dean Linda B. Kenney, Esq. Timothy M. Palmbach, Esq. Margaret Lee Douglas Scott Report RECONSTRUCTION REPORT INVESTIGATION: Death Investigation of DOUGLAS BRUCE SCOTT REQUESTING AGENCY: Mashantucket Pequot Tribal Nation Michael Thomas, Tribal Councilman A. Searle Field, Chief of Strategic Planning & Enterprise Development DATE OF INCIDENT: July 5, 1985 DATE OF REQUEST: November 1, 1999 DATE OF REPORT: June 29, 2000 _________________________________________________________________________ ITEMS EXAMINED: 1. Copies of Black & White photographs of Cell Block where Douglas Scott was found hanging on the morning of July 5, 1985. 2. A set of documents pertaining to the investigation into Douglas Scott's death, including; · Witness Statements · Press Releases · Forensic Pathologist / Autopsy Reports · Transcripts · Photograph Information · Correspondences with Political and Government Officials 3. Video tape of Witness Statement Douglas Scott Report INTRODUCTION: In 1985, Douglas Bruce Scott, a member of the Anmatyerre aboriginal Nation in the Northern Territory of Australia was incarcerated for alleging using obscene language. While in custody Douglas Scott was allegedly beaten, resulting in a badly injured eye. He was then remanded for 60 days and kept in solitary confinement until his death on the morning of July 5, 1985. On July 5th, at 6:22 AM a correction officer found Douglas Scott hanging in his cell, C Block, Cell No. 8, Berrimah Prison Near Darwin, Northern Territory, Australia. Based on the documents supplied by Letty Scott, wife of Douglas Scott, regarding her husband's death in 1985, Letty Scott has been seeking answers to questions regarding Douglas Scott's death, as well as expressing her opinion that there was a conspiracy to prevent justice in this case. Letty Scott was unable to have the investigation re-opened, however, she brought attention to this matter. In response to her requests, as well as a more generalized concern in Australia about the over-representation of Aboriginals deaths in custody, a Royal Commission convened to study these matters. Concluding their inquiry, the Royal Commission did not render a finding supporting the allegations that there had been unlawful conduct involving the Aborigine prison deaths, reported as suicides. In October 1999, upon the request of Mr. Michael Thomas, a Tribal Councilman for the Mashantucket Pequot Tribal Nation, and Searle Field, Chief of Staff, a meeting was set-up for Dr. Henry C. Lee and Letty Scott, wife of the late Douglas Scott. On November 1, 1999, Dr. Lee met with this group, and several photographs and documents relating to the death of Douglas Scott were given to Dr. Lee for review. Douglas Scott Report In subsequent discussions with Searle Field and Michael Thomas it was mutually agreed upon that Dr. Lee would form an international forensic investigative committee to review the documents related to the hanging death of Douglas Scott. Subsequently, a forensic investigative committee was established, and was comprised of forensic and legal experts who agreed to review the available documentation regarding the death of Douglas Scott. This committee was chaired by Dr. Henry Lee and included Dr. Michael Baden, Dr. Cyril Wecht, both are world-renowned forensic pathologists, and Dr. Peter Dean, a renowned coroner and Forensic Medical Examiner in England. In addition, the committee included Linda Kenney, Esq., a renowned trial attorney, and Major Timothy Palmbach, Esq., Commanding Officer for Division of Scientific Services, Judge Haskell Pitluck, Illinois Superior Court Judge, and Boulder District Attorney, Alex Hunter. (See Appendix A for copies of each committee members' curriculum vitae). On March 11, 2000 some the forensic team members met with Michael Thomas, Searle Field, Henry Sockbeson, and other tribal officials to discuss the preliminary findings and future actions. After a detailed review of the submitted photographs and reports the forensic investigation team concluded with the following observations. I. STUDY OF CRIME SCENE PHOTOGRAPHS: This forensic team was provided with a very limited amount of information or documentation pertaining to the crimes scene. Douglas Scott Report There were twelve (12) black & white crime scene photographs. After a detailed study of the submitted photographs and document, the following information pertaining to the crime scene was revealed. 1. Photograph #1 is a copy of a black & white photograph depicting Douglas Scott hanging within his cell, C Block, Cell No. 8. Douglas Scott is wearing a white short sleeve T-shirt, shorts, with bare feet. Douglas Scott is hanging from a patterned sheet tied around his neck. It appears that his right leg is bent slightly at the knee, and that portions or both feet are touching the floor. A bed is located to the right of Douglas Scott, and a wall mounted table unit is located in front of and to the right of Douglas Scott. There is no stool visible in this photograph; however, there is a shadow projected onto the wall in front of Douglas Scott that appears to resemble a leg of a piece of furniture. 2. Photograph #2 is a copy of a photograph depicting a closer view of Douglas Scott's face and his chest while he is still hanging from the sheet. There are dark colour stains located on his right chest area. These stains are consistent with dripping marks, however, there is no information about the nature and composition of theses stains. Therefore, whether or not these stains are consistent with a blood-dripping pattern is unknown. A few small darkish droplet stains can also be seen on the upper left portion of his shirt. Whether there were additional blood droplets is unknown. Douglas Scott Report 3. Photograph #3 is a view of Cell No. 8 after Douglas Scott's body had been removed from the sheet ligature and placed on the bed, depicted in the lower right portion of this photograph. The sheet from which Douglas Scott was hanging has already been removed from the ceiling grate. A stool can be seen in the lower left of the photograph, at a location to the left of where Douglas Scott was found hanging. This stool was not visible in Photograph # 1. Whether or not there was a stool in the cell originally, and if so what, the exact location of that stool, is unclear. In addition, whether or not the prison guards used this stool to take down Scott's body is also unknown at this time. 4. Photograph #3 also shows an overall view of the interior area of the cellblock. A window is observed on the wall, in the cell, near where Douglas Scott was found hanging. In the upper portion of the window the louvers appear to be open. It appears that there are circular holes in the window to allow for ventilation. This window appears to be an external window, allowing for ventilation. On the wall perpendicular to the window was an attached wall unit with a small-attached desktop and shelf below. On top of the desktop were several small items and some dark colored article of clothing. 5. Photograph # 4 is a close-up view of the front portion of this stool. A measuring tape was placed in front of the stool. From the tape, it shows that the height of the stool appears to be 42.5 cm from the floor. However, in a reference from the submitted scene reports, the height of the stool was reported as 44 cm. Douglas Scott Report 6. Based on submitted documents, the following table lists measurements relating to the scene within cell no. 8 and the body of Douglas Scott. CRIME SCENE MEASUREMENTS: ITEM: HEIGHT HEIGHT (cm) (inches) Ceiling height in Cell Block #8 266 104.8 Stool in (report) 44 (42.5)* 17.3 Stool in (photo) 42.5 16.7 Bed 30 11.8 Sheet –ligature Unknown Unknown Douglas Scott's height – Pathologists Report 183 72 Douglas Scott's height -(Apprehension Report) 180 71 Douglas Scott's weight -(Apprehension Report) 5'6" (?) 73 kg (Medium build) Conversion: 1 cm = .394 inches * From tape measure in Photograph #4 7. Photograph #5 is a view of the metal grate located on the ceiling of Cell No. 8. The sheet that was used in the hanging of Douglas Scott was reported as secured to this metal grate. Douglas Scott Report Without a scale or ruler, the size of the grate openings is unclear at this time. In addition, there is no photograph available to depict the view while the sheet was still attached to the grate. Therefore, the exact location where the ligature was attached is unknown. 8. Photograph #6 is a closer view of this ceiling grate. No screws or fasteners are visible on the surface of this grate. The grate consists of six (6) divisions in vertical columns and five (5) divisions in horizontal rows. The size of the opening for each division is unclear. In addition, whether or not any trace evidence was collected from the grates is also unclear. 9. Photograph #7 shows Douglas Scott lying on his bed after he had been taken down from the ceiling. The following information was observed. There is a dark, wool like blanket lying adjacent to the right side of his body and this blanket appears to be in contact with the left side of his body. The sheet is loosely secured around his neck. 10. Photograph #8 is a close-up view of Douglas Scott's face with the sheet around his neck and head. The sheet is not tightly wrapped around his neck in this photograph. There is no T-shirt on him in this photograph. It appears that the T-shirt has already been removed from his body. Whether this is a re-staged photograph is unclear at this time. Douglas Scott Report 11. A close-up view of the right side of Douglas Scott's neck, after the sheet has been pulled back from the neck, is depicted in Photograph #9. Several areas on the left side of his neck appear darker than the rest of his skin color. No deep groove impression was observed in this photograph. 12. Photograph #10 is a close-up view of the left side of Douglas Scott's neck. In the midsection of the left side of his neck, there is an area that is much darker than the adjacent skin color. 13. Photograph #11 is a close-up view of the right side of Douglas Scott's neck. This photograph clearly was taken after the T-shirt and the sheet were removed. There are some areas with slight discoloration; however, no clear impression is observed. 14. Photograph #12 depicts the sheet and knot once removed from Douglas Scott's neck. This knot appears folded by insertion of the end of the sheet through a loop. An exact description of the knot style can only be made by direct examination of the sheet. However, based on the photographs and description in the report this is consistent with a simple knot. Douglas Scott Report II. INTERPRETATION OF THE REPORTS & DOCUMENTS: After reviewing the submitted reports and documents the following information was determined. A. Time Line of The Investigation Based on the submitted information a time line pertaining to the investigation into Douglas Scott's death was prepared. 4:30 AM Last report check on Douglas Scott 6:22 AM S.P.O. Borden found the body 6:27 AM C.P.O. Birbeck was called 6:30 AM Northern Territory Police advised 6:35 AM Returned with camera 6:55 AM N. T. Police arrived - Pictures were taken ? Body was taken down ? Blanket put over body 7: 18 AM Coroner / Constable arrive 7:25 AM Pathologist - Dr. Lee arrived at scene 7:48 AM Inspector Burke & other officers arrive 8:09 AM C.I.D. Detectives arrive- Sgt. Stevens & Det. Martin 8:17 AM Superintendent Ilett arrives Douglas Scott Report B. Time of Death Issue: 1. The Pathologist, Dr. Lee, estimated the time of death to be 6:00 AM. However, Dr. Lee stated that the calculated time of death was determined to be 3 hours +/- 2.8 hours from 6:05 AM. This range suggests that the time of death occurred anytime between 2:17 AM and 7:53 AM. This is of significance in that the records indicate that the well being of Douglas Scott was last checked on at 4:30 AM, well after a potential time of death. His body was discovered at 6:22 AM. 2. Some of the factors that should be considered in the time of death calculation were as follows: Ř Dr. Lee stated that the body was warm to the touch at 7:25 AM. (This conflicts with S.P.O. Borden's reported comment that the body was cold at his arrival, 6:22 AM). Ř No rigor mortis was detected Ř Hypostasis was present Ř Body temperature = 36.5 degrees Ř Temperature in Cell No. 8 = 24.5 degrees 3. Conclusion Regarding Time of Death Issue: Some of the factors that would affect the time of death determination were not reported as considerations into the time of death calculation. The factors or issues are as follows: Douglas Scott Report a. Photograph # 7 depicts the body lying on the bed inside Cell No. 8 with a blanket partially covering the body. If this blanket covered the body it would have an effect on the cooling process, thus, affecting the time of death interval calculation that incorporated a body temperature value. b. Photograph # 1 depicts Douglas Scott hanging from the ceiling. It is difficult to determine, due to the poor quality of the photograph, however, there appears to be substantial settling of blood in the lower legs. If those markings are in fact the settling of blood, it is noteworthy in that this degree of settling normally could takes 2-3 hours to develop. c. It would be very beneficial to obtain prison records, reports, video tapes or any other documentation that may accurately identify the precise time Douglas Scott was last seen alive by prison officials or reported on prison documents. C. Issues Relating to External Injuries: 1. Upon review of the limited available photographs and reports, members of the forensic team made the following observations and comments regarding external injuries. a. There is a vague band of impressions around the neck. This band of impressions is 4-5 cm wide anteriorly, and 6 cm wide on the sides of the neck. Douglas Scott Report b. There were some irregular patterns of old scars observed on his head and wrists. c. No other signs of external injuries. d. Ms. Eileen Pridham's observations appear inconsistent with autopsy findings. 2. Conclusions Regarding External Injuries Issues: Based on the research and study, in general, the following mechanisms of death can occur in hangings: a. Obstruction of the airways, commonly due to the tongue being raised and forced against the back of the palate and pharynx, and occlusion of the veins carrying blood back from the head to the heart. These two mechanisms, often in combination, will produce obvious physical signs including petechial haemorrhages into the face and eyes from capillary bleeding and obvious signs of congestion and discolouration resulting from venous engorgement. b. Sufficient pressure to cause blockage of the arteries may cause death sooner but, in practice, pressure on the carotid arteries is more likely to cause death as a result of reflex cardiac arrest due to distension of the carotid sinus. The rapidity of this mechanism, which can occur in both manual strangulation and hanging, commonly results in death with a pale face and no petechial haemorrhages or signs of congestion. Douglas Scott Report c. Sudden death without asphyxial signs is a well recognized occurrence in hanging resulting from reflex cardiac arrest, particularly if there is more of a drop or free-swinging likely to cause sudden pressure or traction on the carotid arteries. It is also well recognized, however, to occur as a likely consequence of manual strangulation or throttling, as the fingers can easily be placed in a position where they may inflict deeper and more direct pressure on the carotid sinus than can be achieved with the more diffuse pressure of a broad ligature. 3. Based on the limited amount of photographs and records submitted, the observed external injuries of Douglas Scott showed a lack of asphyxial changes or signs of venous engorgement. D. Issues Relating to Internal Injuries: 1. Upon review of the limited available photographs and reports, members of the forensic team made the following observations and comments regarding internal injuries. a. A single area of bruising was observed at the base of the right superior thyroid cornu. This bruising was associated with a fracture. b. A 4 mm area of bruising was noted in the anterior part of the mid-left thyro-hyoid muscle. c. Red Herrings of the heart. Douglas Scott Report d. Hypostasis was present. 2. Conclusions Regarding Internal Injury Issues: These bruises and the fracture of the thyroid cartilage are generally more consistent with manual neck compression than with hanging mechanisms. E. Physical Evidence: 1. There was a limited amount of information provided regarding what items of evidence were seized, what type of analysis was conducted on that evidence, what results were obtained from that analysis, and if the evidence is still available for additional examination. Inquiries should be made to locate the following items of physical evidence. a. All of Douglas Scott's clothing worn at the time of his death b. Sheet used as the ligature c. All articles of bedding from cell No. 8, particularly the blanket used to cover the body d. The stool depicted in the supplied photographs e. Any latent fingerprints or footprints observed or located during examination of the scene. f. Any fingernail clippings or scrapings Douglas Scott Report III. SUMMARY AND OBSERVATIONS: After a detailed review of the submitted photographs and documents, discussions among the forensic investigative committee members, and meetings with family and representatives from Mashantucket Pequot Tribal Nation the following summary could be drawn from the limited available information. 1. There were no scene diagrams or sketches available, only occasional references to measurements in related reports. No videotapes were provided, either of the actual crime scene or of monitoring systems depicting that area of the jail during the times in question. In order to gather as much information as possible, so that the most comprehensive investigation and reconstruction can be conducted, this committee is requesting an inquiry to obtain all forms of scene and autopsy documentations. Any form of documentation identified should be provided in its original format. 2. There appears to be a significant possibility that the death scene integrity might be compromised. There was no indication or report documenting proper scene security procedures. This concern is supported by factors such as an unexplained differences in articles located within the crime scene when comparing the limited photographs depicting the scene. An example of this is the position of the stool within cell number 8. More detailed records and descriptions of the original scene would be useful for future analysis. Douglas Scott Report 3. It would be beneficial to locate the original photographs of the scene and autopsy. The quality of the original photos may be sufficient to accurately determine certain issues, such as whether Douglas Scott's feet were in contact with the floor. Further, if the original photographs were Polaroid photos then there is additional information that may be obtained. Polaroid film is manufactured with sequential numbering; therefore, it is possible to determine if two Polaroid photos were taken in sequence, or if there were intervening photos. 4. To insure that all photographs taken at the crime scene were submitted for review, a request for all negatives and/or a proof sheet should be made with the agency responsible for taking the photographs. In addition, it would be beneficial to know if there are any color photographs available, as color film was commonly the accepted standard in 1985 to document crime scenes and autopsies. 5. Based on the height of the ceiling in cell number 8, and the height of the Douglas Scott it is impossible for Douglas Scott to tie the sheet around the ceiling grate by standing on the floor. If Douglas threaded the sheet through the grate openings and tied the knot he would have needed to stand on the bed, wall table, or stool. Since the original photograph depicting Douglas Scott hanging from the ceiling does not show the stool adjacent to or below him, the stool is an unlikely scenario. 6. There is a lack of diagrams or measurements concerning the heights of the bed and wall table, as well as their relative position to Douglas Scott. Douglas Scott Report Therefore, it is important to have an original sketch design of the cell block, or make a visit to the jail to determine whether or not it is possible for Douglas Scott to have stood on either the bed or wall table to tie the sheet to the grate. 7. There is no information pertaining to potential footprints or fingerprints observed on the tabletop, or impressions on the bedding. That information might be useful to reconstruct the incident. 8. Since there is no information regarding the size of the openings in the ceiling grate, or the distance of the interior cross pieces in the grate, it is not possible to determine how difficult it would be to thread the sheet through the grates and tie a secure knot in the sheet. The presence of these cross pieces would make it more difficult to thread and secure a relatively thick ligature such as a sheet. In addition, there are no close-up photographs depicting the exact location and style of knot in the sheet. 9. It would be beneficial to determine how much weight that grate could support before being pulled from the ceiling. It is essential to determine the exact weight of Scott and the condition of the grate. 10. There is no report or indication that any attempt was made to process the grate for latent fingerprints or trace evidence. Douglas Scott Report Due to the small size of the opening in this grate and the cross bars above the grate it is likely that the person who tied the blanket to this grate would have touched the surface of the grate, possibly leaving fingerprints. It may be possible to process the grate for fingerprints at this time as fingerprints have been proven to be very durable over time. 11. An examination of the sheet is essential to determine the elasticity of the sheet. It is important to note the degree of elasticity when the sheet is supporting the weight of Douglas Scott's body. The elasticity factor would affect the overall distances from the ceiling, to the neck, to the floor, and the possibility of there being sufficient material for Douglas Scott to have stood on either the bed or wall table with the available slack. It is so important to examine the sheet for the presence of trace and transfer evidence. This evidence may provide additional information. 12. Due to the numerous issues regarding the possibility of successfully conducting a self-induced hanging, given the dimensions and structures located within cell block no. 8, it is necessary to conduct a detailed re-examination of the actual cell block. Douglas Scott Report 13. Although the autopsy report by Dr. Lee provided some valuable information, a direct interview, and review of the original autopsy records, data, and photographs may be able to provide some essential information for reconstruction of the incident. 14. Documents and information supplied to this committee indicate that were numerous inmate hangings involving Aboriginal prisoners. A review of all of the records pertaining to these individual hangings would be beneficial. Information such as the location of each hanging, and particulars relating to the mechanism and instruments used during the hanging may provide valuable insight. Death Investigation of Douglas Bruce Scott Reconstruction Report of Forensic Investigative Committee: _____(Signed)____________________ Dr. Henry C. Lee Chief Forensic Services Professor _____(Signed)____________________ Dr. Michael Baden Forensic Pathologist _____(Signed)____________________ Dr. Cyril Wecht Coroner, County of Allegheny _____(Signed)____________________ Dr. Peter Dean Coroner, Essex, England _____(Signed)_____________________ Linda Kenney, Esq. _____(Signed)____________________ Major Timothy Palmbach, Esq. APPENDIX "E" Fax from 61732221232 27/08/02 09:29 Pg: 2 Australian Federal Police To fight crime together and win ABN: 17 864 931 143 ___________________________________________________________________________________________________________________________________________ P.O. Box 920, Spring Hill Qld 4004 Telephone: 07 32221258 Facsimile: 07 32221231 Mrs Letty SCOTT, P.O. Box 75, Darlinghurst NSW Dear Mrs Scott, The purpose of this letter is to inform you of the outcome of the AFP's consideration of your most recent allegations concerning what you claim are offences against the Royal Commission Act 1902 (C'th) said to have been committed during the course of the Royal Commission's inquiry into the death in custody of your late husband, Douglas Bruce Scott. Federal Agents Moore and Appo were detailed to consider your allegations. On 27, 28 and 30 May 2002, those Agents met with you and your "assistant", Mr Daniel Taylor, at AFP HQ in Sydney. During those meetings you continued to make allegations that your late husband was murdered whilst in custody in the Northern Territory and that the AFP should investigate his alleged murder. ­This was despite our earlier advice to you that the AFP was not authorised to conduct such investigations. You were again told that the AFP would not be conducting a murder investigation, but would conduct a preliminary inquiry to determine whether there was evidence of the commission of any offences against the Royal Commission Act. One of the specific allegations made by you was that Polaroid photographs depicting Mr Scott hanging in his cell were not produced in evidence in the Royal Commission. You claimed that these photographs were inconsistent with other photographs that were produced and that that this withholding of evidence was deliberate and done with a view to conceal evidence of the murder of Mr Scott from the Royal Commission. When questioned about these Polaroid photographs you told Federal Agents Moore and Appo that, in March 1989, in about the first week of the Royal Commission, a meeting was held at an office at the Darwin Magistrates Court Building attended by Mr Geoffrey Barbaro (solicitor assisting the Royal Commission) and Mr Mick Dodson (counsel assisting the Royal Commission), Ms Michelle Mosley (your daughter) and Ms Diana Cavanagh (your relative) and yourself. On that occasion you said you were shown two Polaroid photographs of Mr Scott hanging in a cell. You told the Federal Agents that on seeing the photographs you immediately became hysterical and could no longer look at the pictures. You said that you only saw the photographs for a fraction of a second. You described the Polaroid photographs as depicting: · the deceased (Mr Scott) hanging by a plain sheet; · the sheet around the neck of the deceased with five slip knots and tightly twisted; · the feet of the deceased at least two feet from the ground; · the head of he deceased appeared to be in very close, proximity to the ceiling of the cell; Fax from 61732221232 27/08/02 09:29 Pg: 3 · no chair or stool or any other item was observable in the photograph. A further allegation made by you to Federal Agents was that evidence of a fellow‑prisoner of Mr Scott, Mr Jeffrey Bindai, was withheld from the Royal Commission. You said that the effect of his evidence was that Mr Scott had been assaulted by prisoner officers prior to his death. A third allegation made by you was that a lawyer assisting the Royal Commission (Mr Michael Dodson) had threatened or intimidated witnesses (the only person you specifically mentioned in this connection was Mr Jeffrey Bindai) to prevent the giving evidence to the Royal Commission. A fourth allegation was that there had been an agreement amongst lawyers appearing at the Royal Commission (including counsel appearing for you and your family) that evidence indicative of murder be suppressed. AFP investigations On 15, 16 and 17 July 2002, Federal Agents Moore and Appo examined the records of the Royal Commission into Aboriginal Deaths in Custody (matter number 7 ‑ Douglas Bruce Scott) held by the National Archives in Canberra. Those records were extensive and included working notes and papers of the Royal Commission. Polaroid Photographs Examination of the Royal Commission's documents revealed that a series of twenty photographs (exhibit NT7/71) were tendered in evidence at the Royal Commission. Those photographs did not include any Polaroid photographs. However, there was reference in the documents to two Polaroid photographs having been taken by Prisoner Officer Birbeck. Whilst the original two Polaroid photographs were not located within the Royal Commission's records, there was located within a Correctional Service file copies of two Polaroid photographs taken by Prison Officer Birbeck. Those copies were of poor quality. They depicted a front view of the deceased hanging in his cell, and a rear view of the deceased hanging in his cell. Close examination (including examination by Federal Agent Gerritsen, a forensic examiner) of the photographs that were tendered showed that five of those photographs were enlargements of the Polaroid photographs taken by Prisoner Officer Birbeck. Three of the photographs were enlargements of the rear view and two were enlargements of the front view. Each of the rear view enlargements was slightly different, consistent with the photographs having been differently cropped. The enlargement and cropping process of some of these five photographs create different impressions of the distance of the deceased's body from the ceiling. The enlarged photographs clearly show patterning on the sheet around the deceased's neck. None of the five enlarged photographs clearly depicts a stool, although there is a shadow consistent with a stool leg in the enlargements. Federal Agents examined the evidence given before the Royal Commission. All of the evidence was to the effect that the deceased had a stool in his cell at the time of his death. All cells had a small fixed desk and stool. There was no evidence to suggest that the stool was removed from his cell. Evidence of Jeffrey Bindai Examination of the Royal Commission's records indicated that at the time of Mr Scott's death, Jeffrey Bindai occupied a cell directly opposite the deceased. Fax from : 61732221232 27/08/02 09:29 Pg 4 The Royal Commission records indicate that on 14 March 1989, Mr Geoffrey Barbaro, from the Royal Commission, interviewed Mr Jeffrey Bindai at Doon Doon Station in Western Australia. Mr Barbaro used a pro forma list of questions, consistent with all other interviews of potential witnesses. The answers to the questions were placed onto the pro forma sheet. Mr Bindai's signature appears on each page of the interview sheet verifying its correctness. The documentation revealed that Mr Bindai was interviewed in the presence of Mrs Shirley Margaret Bray, a countryman and interpreter in the Kija language. The following questions and answers appeared: "Q7. Did you see or hear anything unusual on that night before he was found. A. No. Q8. Have you any reason to believe that the death was not suicide? Have you heard any suggestion by anyone about foul play? A. No, No. Q9 Do you have any information to suggest that Doug was suicidal? Had he said anything to you about that? A. Yes, No. Q10. Did you ever hear or see Doug behaving strangely? A. Yes, Head down and praying. Q12. Do you know of any reason why he might have taken his own life? A. No." On the last page of the statement the following additional comments appeared: "I seen the body hanging after the Prison Officer opened the cell. I seen him standing on a chair and tying the sheet to the ceiling. This was in the morning, I then went back to sleep. Then the Prison Officers opened the cells we went then down for breakfast. I seen the Police and Ambulance Officers before they released us from the cells. I was in the cell by myself." The Royal Commission documentation revealed that on 16 March 1989, the pro forma question and answer sheet was converted into a draft statement. On 29 March 1989, a file note was made by Mr Barbaro that read: "Jeffrey was a shy person who appeared to have trouble understanding English. By the time we got to the point that this statement stops it was clear he did not wish to talk about the matter further and that it would have been unfair to ask him to sign the statement." Fax from : 61732221232 27/08/02 09:29 Pg 5 The Royal Commission documentation revealed that on 4 April 1989, a hand‑written signed statement was made by Mr Bindai and witnessed by Mr Barbaro and a typed version of that statement was also produced and dated 4 April 1989. This typed statement was tendered into evidence at the Royal Commission (exhibit NT/7/101). Federal Agents noted that the only difference from what was said by Mr Bindai on 14 March 1989 and the statement tendered to the Royal Commission was the omission of the words. "I seen him standing on a chair and tying the sheet to the ceiling. This was in the morning, I then went back to sleep". Agents Moore and Appo were provided with a copy of a taped video record of conversation between Mr Bindai and a former NT Police officer and one of your supporters, Mr Robert Dow. The interview apparently took place on 12 April 1995, almost ten years after the death of Mr Scott. Also present at this interview were Mrs Martha Laurie, a Justice of the Peace from Kununurra, Western Australia, the deceased's wife, Mrs Letty Scott and Kenny Green the Chairperson and Public Officer for Dillon Springs Aboriginal Corporation and Executive Member for the Committee To Defend Black Rights. Agents Moore and Appo listened to and viewed the tape and reported on its contents. After those present at the interview were identified by Mr Dow, Mr Dow commenced the interview by saying: "I'll talk to you Jeffrey about what happened in Darwin Prison in regards to the murder of Douglas Scott in the cell that was opposite you." During the interview, Mr Bindai said that he saw prison officers enter the cell of Mr Scott and that one was carrying a big black stick. He said that he heard Mr Scott being struck with the stick and crying out for help. He said that this continued for two hours. Mr Bindai said that he told this version of events to the Royal Commission officers when he was interviewed by them. After prompting from the questioner, Mr Bindai said that he was threatened by Mick Dodson (from the Royal Commission) who said to him words to the effect: "if you don't shut up mate, you'll be next." Federal Agents reported that: · throughout the interview Mr Bindai was provided with alternative answers; · after not being able to remember or not providing a suitable answer to the interviewer, he was continually reminded of what he was alleged to have said in an early conversation with these present (which was not recorded); and · on a number of occasions he was prompted by both the interviewer and Mrs Scott as to his recollections. It is noted from Mr Bindai's extensive criminal history that he has an alcohol problem. AFP investigation of the records of the Royal Commission disclose that attempts (which were almost entirely successful) were made to interview all of the prisoners and prison officers who were in a position to have had had contact with Mr Scott during his period in custody. There is nothing in that material that supports the version of events elicited from Mr Bindai in l996. Insofar as Mr Bindai's latest version of events is said to be evidence that Mr Scott met his death by foul play and not by suicide as concluded by the Royal Commission, this is contradicted by a substantial body of evidence tendered at the Royal Commission and accepted by it. That evidence included medical evidence, evidence from a forensic pathologist and a large body of lay evidence Fax from 61732221232 27/08/02 09:29 Pg: 6 concerning the mental state of Mr Scott at the time of his death. All of this evidence indicated that Scott took his own life. We note that allegations have been made that an eye injury sustained by Mr Scott prior to his death was consistent with ill treatment having been meted out by prison officers to Mr Scott and that this supports Mr Bindai's latest version of events. AFP investigations of the Royal Commission documents show that this is not correct. A considerable amount of time and effort was devoted by the Royal Commission into the subject of Mr Scott's eye injury. The major evidence concerning how Mr Scott sustained his eye injury came from a prisoner who had befriended Mr Scott. That prisoner said that when he pressed Mr Scott as to how he injured his eye, Mr Scott became embarrassed and eventually said that a couple of days before, whilst attempting to kill himself, he had fallen from fixed bench. Intimidation of potential witnesses Apart from the allegation made by Mr Bindai in 1996 referred to above, AFP found nothing to indicate that there may have been any intimidation of witnesses by persons connected with the Royal Commission. Agreement of lawyers to withhold evidence So far as the AFP is able to understand this allegation, it relates to your concern that prior to the Royal Commission's formal hearing into Mr Scott's death, it was agreed by your then counsel that there was no evidence indicating that Mr Scott had met his death by reason of foul play and that therefore this line of questioning would not be taken. There is nothing to indicate that such a decision was taken by your counsel other than for bona fide and good reasons. Conclusion On the basis of AFP's preliminary inquiries, it has been decided that your allegations of offences having been committed by officers of the Royal Commission are not supported by any credible evidence and do not warrant further investigation by the AFP. Yours faithfully, Paul Jevtrovic Director Operations Northern 27 August 2002 APPENDIX "F" : Your Ref. : Our Ref. Mrs Letty Scott P.O. Box 75 DARLINGHURST NSW 2010 Via facsimile 6102 95141157 Dear Madam REPRESENTATIONS IN RELATION TO THE DEATH OF DOUGLAS BRUCE SCOTT AT DARWIN PRISON ON 5 JULY 1985 The Commissioner of Police for the Northern Territory has been provided with various material, information and representations which you say constitutes new evidence relative to the death in custody of your late husband, Douglas Bruce Scott. That material has now been considered by the Northern Territory Police. The Northern Territory Police have also been provided with a copy of the letter from the Australian Federal Police to you dated 27 August 2002. It is your contention that this material is inconsistent with the findings of the initial investigation by Northern Territory Police into the death, the findings of the Northern Territory Coroner, and the Findings of the Royal Commission into Aboriginal Deaths in Custody. An examination of the material indicates that the matters which you allege give rise to the inconsistency may broadly be described as follows:- (1) Polaroid photographs indicating that the body of the deceased had been tampered with prior to the taking of official police photographs and showing, in essence, that the deceased had been "hung twice"; (2) a Reconstruction Report of the death of Douglas Bruce Scott prepared by a Forensic Investigative Committee on request from the Mashantucket Pequot Tribal Nation dated 29 June 2000; (3) an e‑mail communication dated 13 March 2000 detailing advance comment from certain members of the Forensic investigative Committee; (4) a letter dated 21 May 2001 from Dr Michael Baden, a member of the Forensic Investigative Committee, in relation to the exhumation of the body; _______________________________________________________________________________________ Peter McAulay Centre PO Box 39764 Winnellie Northern Territory 0821 Telephone (08) 8922 3344 Facsimile (08) 8927 0381 PO Box 2630 Alice Springs Northern Territory Telephone (08) 8951 8888 Facsimile (08) 8951 8855 -2- (5) transcript of interview, notes of interview and statutory declaration of Geoffrey (Jeffrey?) Bindai dated 12 April 1995, 3 March 1996, 4 March 1996 and 27 September 1996 respectively; (6) notes of interview with Laurie Percy dated 1 March 1996; and (7) two sets of notes of interview with Geoffrey (Jeffrey?) Moreen, the first dated 1 March 1996 and the other undated. Northern Territory Police have assessed this material and the purpose of this letter is to inform you of the outcome of that assessment. The Polaroid photographs In relation to the Polaroid photographs, Northern Territory Police agree with and adopt the assessment made by the Australian Federal Police and reported to you in the AFP letter of 27 August 2002. It is also the case that both the Polaroid photos taken by Prison Officer Birbeck and the photographs taken by the police forensic team were in the possession of the investigating officers up to the conduct of the Royal Commission into Aboriginal Deaths in Custody. The officer in charge of the Northern Territory Police investigation, Superintendent Michael Stevens, advises that he now has no independent or specific recollection of comparing the Polaroid photographs with the photographs taken by the police forensic team. He states, however, that during the investigation he examined both sets of photographs and would have conducted further investigations had any inconsistency been apparent. The Reconstruction Report and related forensic opinion Northern Territory Police have read and considered the Reconstruction Report dated 29 June 2000, and a copy has been provided to Dr Kevin Lee, the Forensic Pathologist who conducted the post‑mortem examination of the deceased and subsequently produced a Post Mortem Report dated 14 November 1986. It is apparent from the text of the Reconstruction Report that the forensic team was provided with a very limited amount of information and documentation in relation to the crime scene. It is implicit in the Summary and Observations made by the Committee that it was not in possession of sufficient information to draw any firm conclusion. The Committee has also made certain observations in the absence of any proper foundation, particularly the observation that there appeared to be a significant possibility that the death scene integrity might be compromised. The officer in charge of the Northern Territory Police investigation advises that standard and appropriate crime scene procedures were applied to ensure that the scene was not contaminated. Similarly, the observation that the use of a stool by the deceased was an unlikely scenario is inconsistent with the observations of the attending forensic pathologist, who on attendance at the scene noted both the presence of the stool and its height. -3- Dr Lee has also reassessed his original findings and report in light of the matters raised in the Reconstruction Report. Dr Lee is the Senior Specialist Forensic Pathologist with the Department of Forensic Medicine based at the Royal Newcastle Hospital. He is a Fellow of the Royal College of Pathologists (London). He has held appointments as a forensic pathologist in London, Africa, and Australia. He has practised as a forensic pathologist for 32 years. Dr Lee has conducted approximately 1,000 post‑mortem examinations involving strangulation by hanging or alleged strangulation by hanging. Dr Lee states that the fracture noted in his Post Mortem Report associated with bruising at the base of the right superior thyroid cornu was in the nature of a tear of a cartilaginous structure. This is a typical fracture in the hanging scenario. The pathology disclosed on examination of the deceased's head and neck was entirely consistent with hanging by medium of a soft noose such as a sheet. The pathology shown on post‑mortem examination was generally inconsistent with manual compression by means of hand, baton or similar implement. The type of struggle which would generally the expected with manual compression of that nature would have resulted in more obvious and prominent bruising. Multiple areas of bruising and external skin damage in the nature of abrasions would be expected. There were also no defence wounds in the way of bruising on the knuckles, wrists and elbows which would generally attend an assault. Dr Lee also observed that it would be almost impossible to incapacitate or kill a person, manoeuvre a body weighing 75 kg into a noose, and raise the body to ceiling height without there being bruises or other signs of injury showing on autopsy. The material contained in the e‑mail communication of 13 March 2000 and Dr Baden's letter of 21 May 2000 operate only as an adjunct to the conclusions detailed in the Reconstruction Report. Neither Dr Lee or the Northern Territory Police found anything in the Reconstruction Report which would alter the evidence, conclusions and findings detailed in the original Coronial Investigation File. Further accounts given by Geoffrey Bindai The interview recorded in the transcript of 12 April 1995 is of little or no evidentiary value. It would appear to be a reconstruction of an unrecorded conversation which took place earlier that day. It is remarkable for the prevalence of leading questions and suggested answers. It is apparent from the text of the transcript that Bindai is attempting to give an account consistent with the intentions and/or wishes of the interviewers. The purported recollections of conversations with Bindai on 3 and 4 March 1996, and the subsequent statutory declaration dated 27 September 1996, all recount an episode in which the deceased was beaten in a prolonged and savage fashion by four prison officers with a baton or batons. It is not possible to attach any credibility to the accounts given by Bindai. First, the subsequent accounts are entirely inconsistent with the statement given by Bindai on 4 April 1989 to the solicitor assisting the Royal Commission. Secondly, the subsequent accounts given by Bindai are entirely inconsistent with the observations made by investigating police and the forensic pathologist. The officer in charge of the Northern Territory Police investigation advises that he conducted a very close inspection of the body of the deceased when it was found. -4- That inspection disclosed no sign of trauma or soft tissue injury consistent with any form of assault, physical abuse or forcible hanging at the hands of some other person or persons. At all times, the focus of the Northern Territory Police investigation was to determine whether there was any foul play in the death of the deceased. This was a matter of comment by the Royal Commission: see paragraph 3.2 of the Report of the Inquiry into the Death of the Aboriginal Man Who Died in the Darwin Prison on 5 July 1985 delivered by Commissioner Elliot Johnson QC on 17 September 1990. Dr Lee also advises that during the course of the post­mortem examination he conducted investigations to determine whether there were any signs of injury consistent with assault, including subcutaneous dissection of the throat, face, knuckles, elbows and wrists. There was no such sign. Thirdly, it is noted in the recollection of conversation dated 4 March 1996 that Bindai "was in a state of moderate intoxication after drinking liquor for two days (Rum and Beer) (in Halls Creek)". That two‑day period would seem to incorporate the date of the alleged conversation on 3 March 1996. Northern Territory Police also agree with and adopt the observations made by the Australian Federal Police in relation to the Bindai allegations. Further account by Laurie Percy Northern Territory Police have considered the notes of interview with Laurie Percy dated 1 March 1996. The notes of interview have no explanatory content or introduction, nor do they make specific reference to any particular time or event. They did not identify either interviewer or the interviewee, and are not signed by either person. It is presumed that they relate to events on the morning of 5 July 1985. The conversation recorded in the notes is in the main disjointed and cryptic, and does not provide the reader any real chronology of alleged events. The conversation as recorded again discloses leading questions. It is not possible to give this document any weight if it is suggested that the notes of conversation contain allegations that the deceased was hanged by some other person or persons. The reference to the hanging is too vague, and such a suggestion would be entirely inconsistent with the questionnaire completed by Percy on 6 March 1989 in the course of the Royal Commission. In that questionnaire Percy indicated that he believed the deceased had committed suicide. Percy's allegation that he cleaned blood from the deceased's cell is also unsustainable. Investigating police and the forensic pathologist conducted an examination of the cell for blood, vomit or any other signs of interest. None were found. Dr Lee also advises that the autopsy disclosed no source of blood in the nature of an external injury, and no sign of internal bleeding. It is apparent from the questionnaire completed and signed by Percy that any cleaning activities that he may have conducted in the cell took place after the attendance by police and the forensic pathologist. Account by Geoffrey Moreen Northern Territory Police have also assessed the notes of interview with Geoffrey Moreen dated 1 March 1996. Again, it is not possible to attach any weight to the document for the reasons detailed above in relation to the Percy account. -5- It is also the case that the Northern Territory Police have been unable as yet to confirm that Geoffrey Moreen was in custody in C block on the day in question. The assessment has been conducted on the assumption that he was. Conclusion Following this assessment and consideration, it is concluded that the material which you have provided does not warrant any the further investigation by the Northern Territory Police. Yours faithfully John R Daulby Assistant Commissioner Crime and Support Command 8 November 2002 APPENDIX "G" IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NO N518 OF 2002 BETWEEN: LETTY MARIE SCOTT AND ANOTHER Applicants AND: NORTHERN TERRITORY OF AUSTRALIA AND ANOTHER Respondents NO N519 OF 2002 On remittal from the High Court of Australia IN THE MATTER OF APPLICATION FOR WRITS OF MANDAMUS AGAINST THE COMMISSIONER FOR THE AUSTRALIAN FEDERAL POLICE AND THE COMMISSIONER FOR THE NORTHERN TERRITORY POLICE Respondents EX PARTE: LETTY SCOTT Applicant/Prosecutor OUTLINE OF SUBMISSIONS BY THE NORTHERN TERRITORY OF AUSTRALIA AND THE COMMISSIONER FOR THE NORTHERN TERRITORY POLICE IN RELATION TO JURISDICTION OVER AND RESPONSIBILITY FOR THE INVESTIGATION OF OFFENCES WITHIN THE DARWIN PRISON 1. The plaintiffs contend that the provisions of the Crimes Act 1914 (Cth) ("the Crimes Act") have application to matters arising in the Darwin Prison on or about 5 July 1985 involving or relating to the death of the deceased and the subsequent investigation of that death. Further, or in the alternative, the plaintiffs contend that the Australian Federal Police have an obligation or responsibility to investigate those matters. 2. In light of those contentions, the Court has called for further written submissions in relation to: -- (1) whether the Northern Territory of Australia exists as a polity distinct from the Crown in right of the Commonwealth of Australia; (2) whether in the Northern Territory at the material time, the substantive criminal offences of assault and murder were governed by the laws of the Northern Territory or the laws of the Commonwealth; and (3) whether the Crimes Act has or can have application to the matters or occurrences alleged to have taken place in the Darwin Prison. The constitutional position of the Northern Territory of Australia 3. The Northern Territory was administered by the Commonwealth between 1911 and 30 June 1978. At all times during that period it remained a part of the Crown in right of the Commonwealth with no separate juridical personality. From 1 July 1978 there was established a separate body politic under the Crown by the name of the Northern Territory of Australia.[1] So much has been held by the courts in a raft of cases since self-government.[2] 4. With the passage of the Northern Territory (Self-Government) Act 1978 (Cth) ("the Self-Government Act"), all land within the borders of the Northern Territory vested in the new body politic by dint of section 69 of that Act, subject only to a power in the Commonwealth to acquire land within the Northern Territory pursuant to section 70 of that Act. 5. The Northern Territory Legislative Assembly has a plenary power to legislate on all subject matters, subject to certain qualifications which are not relevant for these purposes.[3] The executive power of the Northern Territory is conferred by section 35 of the Self-Government Act by reference to enumerated heads of power prescribed by regulation 4 of the Northern Territory (Self-Government) Regulations. Those heads of executive power include relevantly: -- (1) "The Public Service of the Territory" (2) "Maintenance of law and order and the administration of justice" (3) "Correctional services" (4) "Police" 6. Upon self-government, existing Territory ordinances were continued in effect as if passed by the newly established Legislative Assembly.[4] The criminal laws of the Northern Territory, such as they were at the time, became laws of the Territory rather than laws of the Commonwealth. The Criminal Code of the Northern Territory of Australia, which takes the form of a Schedule to the Criminal Code Act (NT), was passed by the Legislative Assembly of the Northern Territory in 1983. The interaction between Commonwealth criminal laws and Northern Territory criminal laws 7. Since the advent of self-government, the interaction between Northern Territory criminal laws and Commonwealth criminal laws is, in effect, the same as the interaction between State criminal laws and Commonwealth criminal laws. Whilst section 109 of the Constitution, which provides that Commonwealth law will prevail over State law to the extent of any inconsistency, has no application to the Northern Territory, Commonwealth law will prevail over Northern Territory law in the same manner by reason of the Northern Territory's status as a subordinate body politic created pursuant to section 122 of the Constitution.[5] 8. Accordingly, the criminal law of the Northern Territory will apply to offences committed within its borders unless it is inconsistent with a Commonwealth criminal law, or unless there is a Commonwealth criminal law which intends to deal exhaustively with the subject matter: see R v Loewenthal; ex parte Blacklock (1974) 131 CLR 338; R v MacPherson [1996] 1 Qd R 656.[6] 9. Conversely, the Commonwealth has a largely plenary legislative power in relation to Territories created pursuant to section 122. That being so, the criminal laws of the Commonwealth, including the Crimes Act, will apply to matters and occurrences in the Northern Territory insofar as their terms provide. The employment of prison officers 10. Prior to self-government, public sector employees in the Territory were employed in three distinct capacities. First, the Public Sector Ordinance 1928 established a Public Service of the Territory consisting of the Department of the Administrator and comprised by the various branches set out in section 8 thereof. Secondly, the Australian Public Service had a number of Departmental branches in the Northern Territory staffed by APS personnel. Thirdly, there were various authorities such as the Housing Commission, the Port Authority and the Territory Parks and Wildlife Commission which were constituted by dedicated ordinances. All public sector employees were employees of the Commonwealth. 11. The Public Service Ordinance 1976 repealed the Public Sector Ordinance 1928 as it had been amended from time to time. Certain of its provisions commenced on 22 December 1976, with the remainder coming into effect on 1 January 1977. The repealing Ordinance created a Public Service of the Northern Territory. By operation of section 38 of the repealing Ordinance, prison officers employed in the prisons and other correctional facilities of the Northern Territory were deemed appointed as employees of the Public Service of the Northern Territory with effect from 1 January 1977. 12. With effect from 1 July 1978, the Public Service of the Northern Territory became part of the Crown in right of the Territory and from that time prison officers employed in Northern Territory correctional facilities were employees of the Crown in right of the Territory rather than employees of the Commonwealth. The powers, obligations and responsibilities of the Australian Federal Police 13. The Commonwealth has established its own police force, presently pursuant to the Australian Federal Police Act 1979 (Cth). The Northern Territory has, pursuant to the grant of legislative power made upon self-government, established its own police force with the passage of the Police Administration Act 1978 (NT), and operates that police force pursuant to the executive authority vested expressly by the Self-Government Act.[7] 14. The functions of the Australian Federal Police, leaving aside those special functions arising under the Witness Protection Act 1994 (Cth), are limited to: (1) the provision of police services in relation to the Australian Capital Territory, Jervis Bay and, by arrangement, external Territories; (2) the provision of police services in relation to the laws of the Commonwealth, property of the Commonwealth (including Commonwealth places), and the safeguarding of Commonwealth interests; and (3) the doing of anything incidental or conducive to the performance of the foregoing functions.[8] 15. The term "laws of the Commonwealth" as it appears in the Australian Federal Police Act 1979 (Cth) does not include within its ambit laws passed by the Legislative Assembly of the Northern Territory (such as the Criminal Code Act 1983 (NT)). So much is apparent from the distinction that is drawn between the Commonwealth, the States and the Territories in the text of the Crimes Act.[9] Nor is it open to argue that any law made by the Legislative Assembly of the Northern Territory is a "law of the Commonwealth" on the basis that the statute is passed by a legislature created by a law of the Commonwealth (in this case the Self-Government Act).[10] 16. This limitation of responsibility to Commonwealth matters is reflected in those provisions of the Crimes Act dealing with warrants, arrest and investigation. 17. Part 1AA of the Crimes Act deals with search warrants and powers of arrest. A reference to an "offence" wherever appearing in that Part is defined to mean an offence against a law of the Commonwealth, or an offence against a law of a Territory other than the Australian Capital Territory. (It is to be noted here that the definition of "Territory" which appears in section 3 of the Crimes Act provides that the term "Territory" does not include the Northern Territory. The term "State" is defined in that same section to include the Northern Territory.) 18. Thus, the power to make application for, issue and execute search warrants is largely limited to the investigation of offences against a law of the Commonwealth, and does not extend to the investigation of offences against a law of the Northern Territory. Similarly, the power of arrest without warrant is limited to circumstances where there is a reasonable belief that a person has committed or is committing an offence against the laws of the Commonwealth. 19. Part 1C of the Crimes Act is titled "Investigation of Commonwealth Offences". As the title connotes, it is limited in its operation to Commonwealth offences. That term is defined for the purposes of the Part to mean an offence against a law of the Commonwealth. 20. It follows from the foregoing that the powers, obligations and responsibilities of the Australian Federal Police in relation to any matter or occurrence in the Northern Territory are enlivened only if that matter or occurrence involves a breach of the laws of the Commonwealth or an offence against Commonwealth property. The investigation of offences against the criminal laws of the Northern Territory is within the executive authority of the Northern Territory Police. It falls, then, to consider whether the matters or occurrences alleged by the plaintiffs (assuming for the purposes of the argument that those allegations are well-founded), may be characterised as offences against a law of the Commonwealth, and in particular the Crimes Act. The operation of the Crimes Act 21. The Crimes Act creates various offences including offences against the Federal Government, offences relating to the protection of the Constitution and public service, offences relating to the administration of justice, offences by and against public officers of the Commonwealth, espionage and official secrets. 22. The general thrust of the Crimes Act, insofar as it creates substantive offences, is to make provision for matters of a purely Federal character or matters falling properly within the Commonwealth purview by reason of their international flavour, viz offences against the Sovereign and Commonwealth government such as treason and sedition (see Part 2 and Part 2A), offences in relation to child sex tourism (see Part 3A), piracy (Part 4), unlawful access to Commonwealth computers (see Part 6A), espionage (see Part 7), and offences relating to the postal and telecommunications services of the Commonwealth (see Part 7A and Part 7B). There are no Commonwealth offences of assault, murder or unlawful homicide. In relation to matters taking place within the Northern Territory, those offences are created by the Criminal Code of the Northern Territory. The only category of offences which might conceivably attract the application of the Crimes Act to the death of the deceased at Darwin Prison on 5 July 1985 are those offences relating to the administration of justice appearing in Part 3 of the Act. 23. As the plaintiffs' argument is presently understood, it is contended that the deceased was murdered by prison officers and that the fact and evidence of the murder was concealed and/or destroyed by those prison officers responsible, and subsequently by members of the Northern Territory Police Force charged with the investigation of the death. The contention follows that the effect of that concealment and/or destruction was to pervert, defeat or obstruct the administration of justice in some sense contemplated by Part 3 of the Crimes Act. The argument calls for an examination of each of the offences created by Part 3. 24. Sections 32, 33, 48B and 50 have been repealed and, in any event, are irrelevant to the plaintiffs' contentions. Sections 34, 41, 44, 45 and 49 are irrelevant to the plaintiffs' contentions. Sections 46 through to 48A deal with the escape of prisoners and related matters, and have no bearing on the present circumstances. 25. Section 35 creates the offence of knowingly giving false testimony "in any judicial proceeding". That offence has no application to any matter or occurrence taking place within the Darwin Prison at the material times. At most, the argument would follow that those prison officers and police who gave evidence during the course of the coronial inquest and the Royal Commission into Aboriginal Deaths in Custody knowingly gave false testimony in breach of section 35. 26. The argument fails on a number of bases. First, the term "judicial proceeding" is defined for the purposes of Part 3 to mean: "…. a proceeding in or before a federal court, court exercising federal jurisdiction or court of a Territory, and includes a proceeding before a body or person acting under the law of the Commonwealth, or of a Territory, in which evidence may be taken on oath." 27. As has already been seen, the term "Territory" as defined for the purposes of the Crimes Act does not include the Northern Territory, and laws passed by the Legislative Assembly of the Northern Territory are not laws of the Commonwealth. Accordingly, section 35 can have no application to the coronial proceedings or to the Royal Commission insofar as it was making inquiry pursuant to the Commission of Inquiry (Deaths in Custody) Act 1987 (NT). 28. Secondly, section 35 has no application to the Royal Commission insofar as it was making inquiry pursuant to Letters Patent issued by the Governor-General. The operation of the section is limited to judicial proceedings. Royal Commissions do not exercise judicial power and their proceedings are not judicial proceedings. Their function is to inquire, report and recommend. They do not decide issues as between parties.[11] This is so even where the Commission in question is inquiring into whether an individual has committed an offence.[12] 29. Even if one were to accept that the provision was not limited in its operation to judicial proceedings, the statutory definition is rendered exhaustive in its scope by use of the term "means". The term "judicial proceeding" is thereby limited in its meaning to proceedings in or before a federal court, a court exercising federal jurisdiction or a court of a Territory. The subsequent inclusion of "a proceeding before a body or person acting under the law of the Commonwealth, or of a Territory, in which evidence may be taken on oath" does not operate to extend the meaning of the term beyond the initial limitation.[13] Thus, for example, a body acting under the law of the Commonwealth in which evidence may be taken on oath may only be characterised as a "judicial proceeding" for the purposes of Part 3 if it otherwise falls within one or other of the limiting designations, viz a federal court, a court exercising federal jurisdiction, or a court of a Territory. The Royal Commission was not such a body.[14] 30. Section 36 of the Crimes Act creates the offence of fabricating evidence or knowingly making use of fabricated evidence with intent to mislead any tribunal in any judicial proceeding. For the reasons detailed above in the context of section 35, there was no relevant judicial proceeding. 31. Section 37 of the Crimes Act creates the offence of corrupting a witness by the giving, conferring, procuring or promise of some property or benefit in exchange for giving false testimony in any judicial proceeding. For the reasons detailed above in the context of section 35, there was no relevant judicial proceeding. In any event, there is no suggestion in the plaintiffs' contentions of any activity of the nature proscribed by section 37 taking place in the Darwin Prison during the course of the alleged murder or the subsequent investigation. 32. Section 38 of the Crimes Act creates the offence of deceiving a person called or to be called as a witness in any judicial proceeding by the making or exhibiting of a false statement or representation. For the reasons detailed above in the context of section 35, there was no relevant judicial proceeding. 33. Section 39 of the Crimes Act creates the offence of destroying any book, document or other thing that is or may be required in evidence in any judicial proceeding. For the reasons detailed above in the context of section 35, there was no relevant judicial proceeding. 34. Section 40 of the Crimes Act creates the offence of preventing a witness from attending court in any judicial proceeding. For the reasons detailed above in the context of section 35, there was no relevant judicial proceeding. In any event, there can be no suggestion of any activity of the nature proscribed by section 40 taking place in the Darwin Prison during the course of the alleged murder or the subsequent investigation. The plaintiffs' allegations that certain witnesses were precluded from giving evidence by Counsel assisting the Commission operate solely in relation to matters taking place during the course of the proceedings of the Commission, and not to any matter which transpired either in the Prison or during the course of the investigation by Northern Territory Police. 35. Sections 42 and 43 of the Crimes Act create respectively the offences of conspiring and attempting to obstruct, prevent, pervert or defeat the course of justice in relation to the judicial power of the Commonwealth. Those offences have no application to the present circumstances. First, the conduct of the coronial inquest was not an exercise of judicial power, much less that of the Commonwealth. Secondly, as has already been discussed, Royal Commissions do not exercise judicial power. Thirdly, there can be no argument that the Supreme Court of the Northern Territory has jurisdiction to try the offences of assault and murder under the criminal laws of the Northern Territory (as alleged by the plaintiffs), that in so doing it exercises the judicial power of the Commonwealth, and that as a consequence the alleged concealment of the murder at the Darwin Prison, and during the course of the subsequent investigation, constituted an attempt or conspiracy to pervert the course of justice in relation to the judicial power of the Commonwealth. In the criminal context, the judicial power of the Commonwealth is invoked for the purpose of the punishment of offences committed against Commonwealth criminal laws.[15] Northern Territory Courts are not federal courts[16], they do not exercise federal jurisdiction[17], and in hearing offences against Northern Territory criminal laws they do not exercise the judicial power of the Commonwealth. In this context, matters heard in a Territory (or State) Court are only properly characterised as being "in relation to the judicial power of the Commonwealth" where the court is exercising jurisdiction in relation to an alleged offence against the criminal law of the Commonwealth.[18] Arrangements in relation to prisons and the administration and enforcement of Commonwealth criminal laws 36. The Crimes Act creates substantive offences in accordance with its own terms.[19] It should be noted, however, that jurisdiction for the hearing of Commonwealth criminal proceedings is vested in State and Territory courts. Thus, the Judiciary Act 1903 (Cth) makes provision in sections 68 and 79 vesting State and Territory courts with jurisdiction in relation to Commonwealth offences. This has been said to disclose a policy "to place the administration of the criminal law of the Commonwealth in each State [and Territory] upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice": see Williams v The King [No 2] (1934) 50 CLR 551 at 560; Leeth v Commonwealth (1992) 174 CLR 455 at 467. The administration and enforcement of Commonwealth criminal law is conducted on that basis, except where the Commonwealth Parliament has provided for a particular matter. The Commonwealth Parliament has made express provision for matters such as the investigation and prosecution of Commonwealth offences, and the sentencing of Commonwealth offenders.[20] 37. These provisions only operate to put in place machinery for the administration and enforcement of Commonwealth criminal laws by Territory courts. It does not follow that Commonwealth criminal laws have any application to the Northern Territory beyond their terms, or that the Australian Federal Police have any authority or responsibility in the Northern Territory beyond the investigation and prosecution of Commonwealth offences. 38. Similarly, there is provision in section 3B of the Crimes Act for the Commonwealth to make arrangements with the various States and Territories, including the Northern Territory, for officers of the Territory to exercise powers and perform functions, and to make available facilities and procedures, in relation to the carrying out or enforcement of orders under the Crimes Act. Arrangements have been made between the Commonwealth and the Territory and published in Gazette S345 of 17 July 1986, Gazette S221 of 3 August 1990 and Gazette S293 of 12 November 1990. Those arrangements are limited to matters of machinery and provide in essence that the facilities of the Northern Territory will be made available for the carrying out of sentences and orders passed or made under the Crimes Act, the provision of a probation facility in respect of the carrying out of sentences passed and orders made under the Crimes Act, and the provision of facilities for the confinement of persons charged with Commonwealth offences who prove either unfit to be tried or otherwise suffer from mental illness or intellectual disability. 39. These arrangements are simply reflective of the fact that whilst the Commonwealth has the legislative power to create a system of corrections and prisons for offences against laws of the Commonwealth, it has not chosen to do so and relies instead on arrangements with the States and Territories. Again, those arrangements do not operate such that the Australian Federal Police have any authority or responsibility in the Northern Territory beyond the investigation and prosecution of Commonwealth offences. Conclusion 40. It is submitted, by way of summary and conclusion, as follows: -- (1) The Northern Territory of Australia is a body politic separate from the Crown in right of the Commonwealth. (2) The Northern Territory has a plenary legislative power, which includes power to make laws in relation to the creation of criminal offences, the establishment of a prison system, and the creation of a police force quite separate and distinct from the Australian Federal Police. The Northern Territory has executive authority in relation to "Maintenance of law and order and the administration of justice", "Correctional services" and "Police". (3) The Northern Territory Police have responsibility for the investigation of offences against Northern Territory criminal laws. Those laws include the offences of assault and unlawful homicide. Since self-government, those laws are properly characterised as laws of the Northern Territory rather than laws of the Commonwealth. The Australian Federal Police, insofar as the Northern Territory is concerned, only have responsibility for the investigation of offences against the criminal laws of the Commonwealth. The criminal laws of the Commonwealth do not create offences in the nature of assault or unlawful homicide. (4) The Crimes Act has application in the Northern Territory as a law of the Commonwealth. Accordingly, the Australian Federal Police cannot have responsibility for the investigation of the matters or occurrences alleged by the plaintiffs to have taken place in the Darwin Prison unless those matters may be characterised as giving rise to offences against a law of the Commonwealth, and in particular the Crimes Act. (5) The plaintiffs contend that the deceased was murdered by prison officers at the Darwin Prison and that the fact and evidence of the murder was concealed and/or destroyed by those prison officers responsible, and subsequently by members of the Northern Territory Police Force charged with the investigation of the death. The matters or occurrences alleged by the plaintiffs (assuming for the purposes of the argument that those allegations are well-founded), do not give rise to any offence against the Crimes Act such that the Australian Federal Police or the Commonwealth generally might have any authority or responsibility for the investigation of those matters and occurrences. ……………………………………………… MICHAEL GRANT Counsel for the Northern Territory of Australia Counsel for the Commissioner of Police for the Northern Territory William Forster Chambers 1 August 2002 [1] See Northern Territory (Self-Government) Act 1978 (Cth), s5. [2] See Capital Duplicators v ACT (1992) 177 CLR 248 at 281-3, 284; Traut v Rogers (1984) 27 NTR 29 at 31, 35; R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170; Jennings Constructions v Burgundy Royale Investments (1987) 162 CLR 153; Northern Territory v Skywest Airlines (1987) 48 NTR 20; Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 25 FCR 345; Waters v Acting Administrator for the Northern Territory (1993) 46 FCR 462; Svikart v Stewart (1994) 181 CLR 548; Wake and Gondarra v Northern Territory (1996) 109 NTR 1. [3] See Self-Government Act, s6. [4] See Self-Government Act, s73. [5]The Queen v Kearney; Ex ParteJapanangka (1984) 158 CLR 395. [6]It is also the case that where the Commonwealth acquires land within a State, the laws of that State cease to operate in that place except as expressly provided: see Worthing v Rowell & Muston Pty Ltd (1970) 123 CLR 89; R v Phillips (1970) 125 CLR 93. There can be no suggestion in this case that the laws of the Northern Territory did not operate in the Darwin Prison by operation of the principle. First, land within a Territory created pursuant to section 122 of the Constitution cannot be characterised as a Commonwealth place for the purposes of section 52(i) of the Constitution: seeSvikart v Stewart (1994) 181 CLR 548. Secondly, upon self-government all land within the borders of the Northern Territory vested in the new body politic by dint of section 69 of the Self-Government Act, and there has been no relevant acquisition pursuant to section 70 of that Act. [7] It is also clear that Northern Territory Police are officers of the Crown in right of the Territory, rather than the Crown in right of the Commonwealth. The Commissioner of Police is appointed by the Administrator for the Northern Territory. The Commissioner of Police determines the number of members and ranks of the Police Force, and makes appointment to those ranks. The Crown in right of the Territory is liable in respect of torts committed by members of the Northern Territory Police in the performance of the duties: see Police Administration Act 1978 (NT), s163. [8] Australian Federal Police Act 1979 (Cth), s8. [9] See paragraphs 15 to 18 below. [10] It has long been held that laws made under section 122 of the Constitution are not laws made by the Commonwealth Parliament for the purposes of section 76(ii) of the Constitution: see Northern Territory v GPAO (1999) 196 CLR 553 at 597; Kruger v The Commonwealth (1997) 190 CLR 1 at 169-170; Spratt v Hermes (1965) 114 CLR 226 at 249-250. For these purposes, whilst a law made by the Commonwealth Parliament in exercise of the power conferred by section 122 of the Constitution is a law of the Commonwealth, a law passed by the Legislative Assembly of the Northern Territory is not. [11] See Lockwood v Commonwealth (1954) 90 CLR 177; R v Collins; ex parte ACTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471 at 473; Ross v Costigan (1982) 59 FLR 184 at 119-200. [12] Victoria v Australian Building Construction Employees' & Builders Labourers' Federation (1982) 152 CLR 25. [13] See Pearce & Geddes, Statutory Interpretation in Australia (5th Edition), paragraph [6.60]; Zickar v MGH Plastic Industries Pty Ltd (1996) 140 ALR 156 at 170. [14] This construction draws support from the fact that section 6H of the Royal Commissions Act 1902 (Cth) contains its own code for the punishment of witnesses who knowingly give false or misleading evidence before a Royal Commission. Nor does this specific provision vest the Australian Federal Police with responsibility for the investigation of any alleged assault or murder taking place at the Darwin Prison. The responsibilities of the Australian Federal Police extend only to matters transpiring during the course of the Royal Commission. [15] R v Kidman (1915) 20 CLR 425. [16] Spratt v Hermes (supra) at 251. [17] Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 at 599. [18] R v Murphy (1985) 158 CLR 596 at 611-612. [19] There is also other Commonwealth legislation which creates substantive offences such as the Taxation Administration Act 1953, the Income Tax Assessment Act 1936, the Social Security Act 1991, the Australian Securities Commission Act 1989, the Trade Practices Act 1974. The allegations made by the plaintiffs could not conceivably give rise to any offence under that legislation and those provisions are not relevant for present purposes. [20] Crimes Act 1914 (Cth) Parts 1B and 1C; Director of Public Prosecutions Act 1983 (Cth).