By Paul Gregoire and Ugur Nedim
At around 1.40 pm on 23 May 2012, three inmates entered the cell of Caleb O’Connor at the privately-run Parklea Correctional Centre and bashed him with a sandwich press, causing severe head injuries.
As the attack took place, the doors to adjacent cells had been left open, which blocked CCTV vision of the perpetrators, as they entered and exited the inmate’s cell.
Parklea Nursing Unit manager Davina Bidart had been warned by a trusted inmate on 17 May that he’d heard others in the prison yard discussing how they were going to bash another detainee in the industries section of the prison that day.
The prisoner further told the nursing manager that the unidentified inmates said they were going to attack this unnamed detainee, because they’d only just learnt that he was being incarcerated over a charge of rape, and not the other offences they’d previously been lead to believe he was in for.
Nothing to worry about
Ms Bidart told Parklea operations manager Glenn Halliwell about the tipoff. And on checking the records, he came to the conclusion that it was Mr O’Connor the other inmates were referring to. After being remanded for 16 months, O’Connor had just been convicted of rape three days prior.
Mr Halliwell and intelligence manager Jeff Deal spoke to O’Connor about the assertions that he could be bashed on 17 May. And the inmate looked genuinely “surprised and bemused” by the suggestions, as he said he got on well with the other inmates and there weren’t any issues.
Halliwell then spoke to the informant. And based on what he found, the operations manager submitted a report to Parklea general manager Peter Ma’a on the same day, stating there was “no other information or intelligence available to support the information provided”.
The report stated that O’Connor’s offences did increase his risk of being targeted. But, no further action was taken at that stage. And no one highlighted the fact that they’d failed to tell O’Connor that the alleged threat was due to other inmates just having learnt of his real crimes.
The private operator was liable
Mr O’Connor sued the private company that ran Parklea at the time for damages on 5 March last year, claiming it was negligent in connection to the injuries he’d suffered at the hands of other inmates. And the NSW Supreme Court determined GEO Group Australia was liable over the incident.
The initial civil proceeding were only to ascertain whether the Florida-based company was negligent in its duty of care in regard to the bashing. And the issue of damages was to be dealt with during a separate hearing.
Justice Julia Lonergan found that Ma’a had failed to act on the report’s assertion regarding O’Connor’s conviction increasing his risk of being a target, and that Halliwell and Deal had proceeded on the assumption that the attack would only take place on the day the threats were made.
The trial judge relied upon expert evidence of former Corrective Services NSW employee Lee Downes oulting the proper procedure would have been to move O’Connor into segregated custody and then transfer him, which would have been in accordance with GEO operating procedures.
According to her Honour, O’Connor should have been “swiftly” separated “on the day the information was given” and then transferred. “If those steps were taken, he would have avoided the bashing at Parklea the following week at the hands of the three assailants.”
GEO was not satisfied with the case outcome, so the corrections company appealed the decision to the NSW Court of Appeal (NSWCA) on 27 August last year. It did so based on nine grounds, all of which were promptly dismissed by a three justice panel.
The first four grounds related to GEO’s assertion that under relevant laws, Mr Ma’a didn’t have the authority to segregate and transfer Mr O’Connor, as this power is reserved for the NSW Corrective Services commissioner. And therefore, the company didn’t neglect its duty of care.
However, NSWCA Justice Richard White set out that based on expert testimony the transfer powers contained under section 23 of the Crimes (Administration of Sentences) Act 1999 (NSW) are not just reserved for the commissioner in practice and are regularly exercised by general managers.
The next ground was the claim that the trial judge didn’t give reasons as to why GEO had been obliged to segregate and transfer O’Connor and had failed in its duty of care. But, Justice White pointed out that her Honour actually provided two valid reasons in relation to this.
The first involved O’Connor’s resistance to transfer not being based upon the full story, as he was never told the other inmates had just learned the true nature of his crimes. And the second was, regardless of the prisoner’s position, correctional authorities should have ensured he was protected.
The final failing grounds
Justice White made clear that the sixth and seventh grounds were “misconceived”, as they revolved around the unchallenged assumption that the other inmates were previously unaware of O’Connor’s real crimes.
His Honour explained that this was irrelevant, as the authorities should have been protecting him from the threat that had been overheard, irrespective of when the other inmates were made aware of his being detained over rape charges.
The next ground argued was as to why Ma’a’s failure to transfer the inmate wasn’t addressed under cross-examination. And it was found the manager gave evidence as to why he didn’t place O’Connor in protective custody, not segregation, so he couldn’t be cross-examined on evidence not given.
The final ground entailed GEO’s assertion that the scope of its duty of care didn’t rest solely on the case of O’Connor, but it should be considered “against the background” of a “whole multitude of risks” that prison authorities hear about on a daily basis “that might or might not crystallise”.
However, the NSW Supreme Court dismissed this final ground also, as in accordance with Parklea standard operating manuals, what should have occurred on the day is that O’Connor be segregated and then transferred for his own safety.
No grounds for appeal
So, on the 24 December last year, Justice White dismissed the appeal and ordered GEO Group to pay court costs. And NSWCA Justices Fabian Gleeson and Paul Brereton both agreed with these orders.
Justice Brereton added to the final findings that prison authorities had been acting on the false assumption that “the threat was diminished once the day to which it related had passed”.
And his Honour concluded that this “overlooked the obvious”. Namely, that if the threat wasn’t acted upon during the day it came to light, and the inmate wasn’t subsequently segregated, then “it was likely to re-present at the next available opportunity”.