• Wayne Fella Morrison Coronial Inquest. (NITV)Source: NITV
A group at the heart of a coronial inquest into the death of an Aboriginal man have failed to have the deputy coroner removed from the proceedings.
Brooke Fryer

23 Apr 2020 - 6:38 PM  UPDATED 23 Apr 2020 - 6:38 PM

Eighteen prison officers and one nurse have lost a Supreme Court bid in South Australia to have a deputy coroner thrown off a coronial inquest investigating the events which led to an Aboriginal man's death in custody. 

Wiradjuri, Kookatha and Wirangu man Wayne Fella Morrison died on 26 September 2016 at the Royal Adelaide Hospital around three days after being pulled from a police van unconscious. 

The coronial inquest into the events surrounding Mr Morrison's death began in 2018. 

The officers and nurse, who are at the centre of the coronial investigation, asked the Supreme Court to make a judgement on whether coroner Jayne Basheer had the power to ask them to present evidence. 

The group contended that the coroner denied them penalty privilege - meaning a person is not bound to answer any questions or present any documents of evidence where it could leave them exposed to a civil or criminal proceeding - on dozens of occasions. The Supreme Court ruled this was not the case.

The Supreme Court concluded on Tuesday that the deputy coroner does not have the power to recommend disciplinary action against correctional officers. 

Justice Malcolm Blue also overturned an order made by coroner Jayne Basheer that the group could not refuse to answer questions or present documents. 

George Newhouse, CEO of the National Justice Project and Adjunct Professor of Law at Macquarie University, told NITV News the decision would not apply to every witness. Some would be able to refuse questioning where it could leave them open to civil or criminal proceedings.

"The Supreme Court decision allows some witnesses at an inquest to make a claim for penalty privilege. If established, the privilege gives a witness a basis to decline to answer a question or produce a document at the inquest if that person would be subject to punishment or penalty," he said.

"Not every witness will make the claim; not every question will expose an individual to punishment or penalty, and not every witness will be able to make such a claim." 

He said that it was uncommon to see officers at the heart of an inquest take it to court. 

"Only powerful institutions like unions, associations, companies, governments and the churches have the financial resources to take up legal issues like this and then appeal them to the Supreme Court," he said.

"So, it is rare for individual witnesses to do so in Coronial inquests."

The group also argued that because of Ms Basheer's previous relationship with the Correctional Officers Legal Fund and a law firm at the heart of the inquest, she had shown "apprehended bias" towards the court. 

However, The Supreme Court ruled that Ms Basheer had not presented any bias and she will remain on the inquest. 

According to the ABC, of the 19 witnesses currently required to give evidence seven have already presented, four are part-way through, and eight are yet to share their evidence.

Sister of Mr Morrison, Latoya Rule, said she trusts the coroner will do what she can. 

"I do support the coroner to do the right thing, that's all we got right now in the system. I rely on her… to make just and fair decisions," Ms Rule told NITV News. 

"She can't actually send anyone to a criminal court or criminal investigation, like this is a Coroner's Court, so going to the Supreme Court was almost like relaying the rules of the coroner's court back to corrections." 

Both Mr Newhouse and Ms Rule said the Supreme Court hearing made an unnecessary delay to the inquest.

The Royal Commission into Aboriginal Deaths in Custody

Mr Newhouse said that it went against recommendation 36 of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC). 

That recommendation outlines "investigations into deaths in custody should be structured to provide a thorough evidentiary base for consideration by the Coroner". 

"The South Australia Government should take steps to change the law so it complies with the recommendations of RCIADIC," Mr Newhouse said

"One solution may be to allow a coroner to issue a certificate that requires evidence to be given at an inquest but which ensures that the evidence given cannot be used against the witness in other proceedings - including disciplinary proceedings or any proceedings where that person would be subject to punishment or penalty."

Ms Rule said "proper investigative tools" must be used when someone dies in custody.

"It's a process of accountability," she said.

"That's the basis of why coronial investigations into Aboriginal deaths in custody exists, to show our lives matter enough to be looked over, and that our families and people like me, Wayne's sister, matter enough to have answers."

The events leading up to Mr Morrison's death 

Days leading up his death, Mr Morrison was restrained by corrections officers in a hallway after becoming violent in his cell at Yatala Labor Prison, where he was being held on remand while awaiting to appear at court by video link. 

He was then carried by his arms and legs face down to a prison transport van, where seven officers accompanied him and transferred to the prison's high-security wing.   

Upon being removed from the van, the officers noticed Mr Morrison was unresponsive, and a call for assistance was made in which multiple officers answered. It took approximately five minutes for an ambulance to be called. 

A key element of the inquest is the three-and-a-half minutes where there is no CCTV footage showing what happened during the journey, raising questions about what truly happened.