Smith, Charmaine --- "Broken Beds and Broken Lives: Veronica Appleton v State of NSW" [2005] IndigLawB 54; (2005) 6(14) Indigenous Law Bulletin 10

• Broken Beds And Broken Lives: Veronica Appleton V State Of Nsw1
• Decision
• Implications Of The Decision

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Broken Beds and Broken Lives: Veronica Appleton v State of NSW[1]

by Charmaine Smith

On 3 March 2000 a young Aboriginal man sat in solitude in his prison cell. He did not have the company of another inmate or even a passing prison officer. Fresh, self-inflicted lacerations marked his left arm and he suffered abdominal pain from swallowing razor blades eight days previously in an attempt to harm himself. Earlier in the morning he had been released from the crisis unit of the correctional centre where he had been deemed at high risk of suicide. The bed in his cell was broken and supported by four moveable milk crates. Unnoticed, the young man moved one of the milk crates from under his bed and placed it beneath the doorframe to his cell. He took a sheet from his bed and stood on the milk crate to loop the sheet through a bar located above his doorframe. Several hours later the young man’s body was found hanging in his cell.

The young man was 19-years-old and had a history of psychiatric illness and previous attempts at self-harm. He was an inmate at Cessnock Correctional Centre (‘the Centre’) and during his sentence had been admitted on a number of occasions to the Centre’s Acute Crisis Management Unit (‘the Crisis Unit’ or ‘ACMU’).

The Crisis Unit is described by the Department of Corrective Services as ‘a safe and temporary environment for inmates assessed as being highly at-risk or suicidal or who have previous self-harm histories and are currently in crisis.’[2] It is a small wing of the Centre, which comprises 10 cells that are closely monitored by correctional staff.

While the young man was in the Crisis Unit, he was assessed by the Centre’s Psychologist and deemed fit to return to Wing 4, a general ward in the Correctional Centre. No case management plan was implemented and the correctional staff in Wing 4 was not advised that he had been recently considered suicidal or prone to self-mutilation.

On the day of his release from the Crisis Unit, the young man was placed into a cell:

•	on his own;
•	with a bed supported by four moveable milk crates;
•	with various accessible hanging points; and
•	with little monitoring or supervision by correctional staff, who had not been informed of his circumstances.

Within hours he had taken his own life, by hanging.

Cessnock Correctional Centre did not formally notify Mrs Appleton of her son’s death. Instead, Mrs Appleton only became aware of her son’s death when she received a telephone call from a friend who worked at the Centre. On becoming aware of his death, Mrs Appleton attended at the Centre to view her son’s body. She was unaware that she would be taken to his cell and not warned about the condition of his body. As she walked toward the landing where her son’s body lay, inmates yelled out abuse to her including ‘the dog’s dead, the dog’s dead, boo hoo mummy’s here.’

Decision

Mrs Appleton sought a finding of negligence against the Department of Corrective Services, and compensation for the psychiatric injuries she suffered as a consequence of her son’s death. In her decision dated 28 July 2005, Judge Quirk of the District Court identified three key issues arising from the circumstances detailed above:

• Whether the defendant owed the deceased a duty of care to protect him from self-harm, and if so, whether the defendant breached its duty of care.
• Whether the defendant owed the plaintiff a separate and direct duty of care to prevent foreseeable harm to her, and if so, whether the defendant breached its duty of care in the manner in which she was informed of her son’s death and shown his body.
• Whether the plaintiff suffered a recognisable psychiatric injury as a result of the death of her son, above that of a normal grief reaction.

Judge Quirk found that the defendant had breached its duty of care to the deceased. She stated:

In my view the defendant breached its duty of care in not taking any further precautions to prevent impulsive self-harm by [the young man] after his discharge from the ACMU and in particular by placing him in a cell with easy and immediate access to a hanging point by moveable milk crates... I also find that not monitoring him or assessing him in some fashion and placing him in a cell alone amounted to breaches of its duty.[3]

After considering medical evidence from both parties, Judge Quirk found that Mrs Appleton had suffered a ‘severe and debilitating illness’ following the death of her son, which affected her ability to participate in normal activities and enjoy life to the full. Consequently, Mrs Appleton was awarded judgment in the sum of $50,970.

With regard to the duty of care owed to Mrs Appleton, Judge Quirk was not satisfied that the defendant had breached its duty of care by permitting Mrs Appleton to see her son’s body in the cell and by failing to arrange counselling.

Implications of the Decision

In the decade that preceded the report of the Royal Commission into Aboriginal Deaths in Custody (‘the RCIADIC’), Indigenous deaths in custody represented 20 per cent of all deaths in custody.[4] Statistics published by the Australian Institute of Criminology since this time, demonstrate that this rate has continued to rise. In 2003 alone, Indigenous deaths in custody represented 25 per cent of all deaths in custody.[5]

While the Department of Corrective Services continues to stress its commitment to implementing the recommendations of the RCIADIC Report,[6] the circumstances of this case demonstrate fundamental deficiencies in custodial procedures. These include poor standard of cells, inadequate training of correctional staff and an unreliable system of communication for the exchange of relevant information between staff members about inmates that are at high-risk of suicide or self-harm.

Perhaps most significantly, the decision of Veronica Appleton v State of New South Wales[7] emphasises the need for a greater understanding of the legal duty of care owed by corrective services to those in its care; particularly those with mental illnesses.

Commissioner Elliot Johnston QC, author of the RCIADIC Report, believed this duty of care was of such fundamental importance to the custodial relationship that it should form part of recruitment training and be continuously reinforced and explained by senior officers to officers under their charge.[8] This was the basis for Recommendation 122 of the Report where it was envisaged that custodial authorities could be held legally responsible for the death of a person where the death was caused or contributed to by a breach of that duty.

Charmaine Smith is the Solicitor on the Indigenous Justice Project at the Public Interest Advocacy Centre (‘PIAC’). She is a descendant of the Kaurna and Narungga people in South Australia.

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[1] Veronica Appleton v State of New South Wales (Unreported, District Court of New South Wales, Judge Quirk, 28 July 2005).

[2] New South Wales Department of Corrective Services, Annual Report 2003/2004, (2004) 18.

[3] Veronica Appleton v State of New South Wales (Unreported, District Court of New South Wales, Judge Quirk, 28 July 2005) 86.

[4] David Biles and David McDonald (eds), ‘Deaths in Custody Australia, 1980 – 1989: The Research Papers of the Criminology Unit of the Royal Commission into Aboriginal Deaths in Custody’ (1992).

[5] Marissa McCall, ‘Deaths in Custody in Australia: 2003 National Deaths in Custody Program (NDICP) Annual Report, Technical Background Paper No 12’ (2004).

[6] New South Wales Department of Corrective Services, Aboriginal Offenders Strategic Plan 2003 – 2005 (2003).

[7] Veronica Appleton v State of New South Wales (Unreported, District Court of New South Wales, Judge Quirk, 28 July 2005).

[8] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report: Volume 1 (1991).