The Minns Labor Government has been met with alarm and outrage as it makes the extraordinary move to defy recommendations of the NSW Ombudsman to enable Corrective Services NSW to find inmates guilty of crimes without enough evidence to prove their guilt beyond reasonable doubt.
A NSW Ombudsman Report released last year found that Corrective Services NSW had repeatedly broken the law by applying the incorrect standard of proof when penalising inmate behaviour. The Ombudsman also found that Corrective Services NSW had forced inmates to sign forms indicating they were guilty of offences when they had evidence to prove their innocence, had defied international law by locking up young Aboriginal men, and had breached their legal requirements to allow inmates to call witnesses to inmate discipline hearings.
1 in 3 charges laid against inmates during discipline proceedings were incorrect,
80% of the cases where the inmate pleaded not guilty contained no record of reasons for the subsequent guilty finding,
Corrections Officers broke the law by failing to notify governors, nurses and security officers in 48% of cases,
70% of charges were not finalised until after a guilty verdict had already been determined,
74% of inmates penalised for correctional centre offences had vulnerability indicators that should have factored into their penalty, but did not, and
43% of inmates penalised were Aboriginal.
Labor Corrections Minister Anoulack Chanthivong has announced changes to the standard of proof to enable inmates to be convicted and given criminal penalties on the civil standard of proof. This will mean inmates can be found guilty on the balance of probabilities rather than beyond reasonable doubt.
Greens MP, spokesperson for justice and Solicitor Sue Higginson said:
“The Ombudsman report that revealed that Corrective Services have been breaking the law for 20 years, through applying the wrong and lesser standard of proof, perpetuating such gross and systemic injustice against inmates, was shocking,”
“It’s utterly astounding that rather than fix the defiance and injustice, the Minns Labor Government is defying the Ombudsman to absolve the decades of lawbreaking and injustice, by stripping inmates of the most foundational human right and democratic principle, the presumption of innocence until proven guilty beyond reasonable doubt. The Minns Labor Government has signalled that it will change the law to change the standard of proof,”
“The NSW Ombudsman found that in the dark underbelly of NSW prisons, a nasty kangaroo court system is being used to impose punishment on inmates where Corrective Services does not have enough evidence to prove their guilt, by using the “balance of probabilities” as the lesser standard of proof, rather than the proper criminal standard. We are talking about decades of deliberate and harmful law breaking by a public agency,”
“Corrective Services has been running an illegal kangaroo court, unfairly dishing out harmful punishments on powerless inmates. It’s incomprehensible that now the Minns Labor Government wants to enshrine this unfair, arbitrary, oppressive and currently illegal approach in law,”
“The Ombudsman exposed that 1 in 3 charges laid by Corrections against inmates under this racket are completely incorrect. In 80% of cases where an inmate pleaded not guilty, there were no recorded reasons to prove their guilt. In 70% of cases charges were not even laid until after a guilty verdict had already been found, and an inmate had been punished,”
“The Ombudsman’s investigation found that inmates have been denied their legally enshrined right to plead ‘not guilty’ to correctional centre offences and denied the right to call witnesses. It’s precisely Corrective Services’ illegal use of the “balance of probabilities” standard of proof that allows this grave injustice and lawlessness to thrive,”
“This culture of deliberate law-breaking is dangerous and harms the community, workers, and inmates. Labor plans to lock in a culture of lawlessness and injustice and worsen outcomes for inmates,”
“The punishments imposed by these kangaroo courts will increase the likelihood of inmates reoffending by traumatising them, depriving them of contact with loved ones, and by limiting their avenues for rehabilitation. Prisons are already catastrophically failing to rehabilitate offenders,”
“Labor Premier Chris Minns is defying the Ombudsman, defying the presumption of innocence that underpins our justice system, and defying his obligation to uphold the law in New South Wales by changing this standard of proof and by letting Corrections off the hook after 20 years of lawlessness and harm.”
Background:
The full Ombudsman report is accessible here.
Case studies identified by the Ombudsman report:
Colin was found guilty of the offence of failing to comply with correctional centre routine (CAS Regulation clause 39) and the offence of intimidation (Regulation clause 138). At the hearing, Colin requested to call a Justice Health nurse as a witness, but the delegate refused his request because he didn’t know the nurse’s name. Colin made a complaint to our office about his request to call the nurse. The governor dismissed the charge following our inquiries and recorded on the discipline action form that it was because ‘procedural fairness was not afforded to inmate’. He also directed that OIMS be amended to ‘reflect dismissal and inmate to be informed.’
Moses was charged with disobeying direction (CAS Regulation clause 130) after refusing to allow an officer to look between his buttocks during a strip search after the officer suspected he saw a syringe secreted there. Moses objected to the direction, saying that he was not going to do it because he ‘was molested as a kid’. He was then told, ‘Just hand over the syringe, you’ll get 7 days pound, happy days, if you fail to comply with my directions, you may be segregated for 14 days and regressed’. Moses was then secured in a segregation cell. It is not clear from the paperwork how long he remained confined and why it was considered necessary to confine him. At the hearing, Moses is recorded to have pleaded guilty and stated ‘I didn’t have nothing – was probably toilet paper.’ He was found guilty of the offence of disobey direction and penalised 56 days off television, buy-ups and contact visits. There is no record on OIMS for any related charge for the suspected syringe.
Tina was charged with the offence of failing a prescribed drug test (Regulation clause 153). As recorded in the IDAF, at the hearing conducted 8 days later, Tina stated the following ‘Miss, I told you the truth that it was dirty – You know I have been asking everyone to help me. I’ve asked for D&A [Drug and Alcohol] Nurse to get back on program.’ There was no record of a referral to the Intensive Drug and Alcohol Treatment Program in either the misconduct package or OIMS.
Kent, an Aboriginal man with a recorded history of self-harm, was charged with, and found guilty of, disobeying a direction (Regulation clause 130) and penalised with 28 days off buy-ups. The misconduct report stated that Kent was found sitting in his cell with a razor blade and was threatening self-harm. The correctional officer gave ‘multiple directions’ to Kent to hand over the razor, then threatened to remove it by force or ‘chemical munitions’ if he did not comply within 2 minutes. Kent did not comply at first, but eventually put the razor down. The witness statement recorded that Kent was then cuffed and strip searched. According to the case notes he was placed on hourly suicide watch. OIMS contains no record or indication an ISP was developed in response to this incident.
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