This further delay was entirely typical of the way the matter had proceeded from the beginning, and invites questions about whether there is any point in persisting with the coronial inquest system as presently constituted in the ACT. Two years is a very long time to wait for findings about a death which excited considerable public interest, involving as it did an Aboriginal death in custody and the embarrassing public revelation that when it comes to botching the handling of such matters, the ACT – whether in the form of ministers, prison authorities, police and even the coronial system – bows to no one.

One might have expected that all of these would be exemplary in following recommendations made by the Royal Commissioners into Aboriginal Deaths in custody about the notification of relations, the giving out of information, or the breadth of inquiry which ought to be conducted. Our system is notionally serving the community with the highest standard of living in the Commonwealth, the highest concentration of lawyers, the best (on average) educated population, and, by its own reckoning, the most liberal and benevolent citizenry so far as goodwill on matters Aboriginal is concerned. But it failed Steven Freeman, a man of poor background and education. And it failed his immediate family, the wider Aboriginal community of the ACT, but also the general community, which has a right to expect much better and much more quickly.

Most of that failure was not deliberate, or willful. But it involved failure, unacceptable ignorance, incompetence and, particularly delay, nonetheless. There were reasons for nearly all of its incidents, but put together, they provide a very unimpressive advertisement for the Canberra justice system. Some of the mistakes, by some of the players might be avoided in future as a result of the experience, although there is no guarantee because the ACT administration and justice system rarely seem to learn much from experience, if only from a habit of rejecting and ignoring any criticism. But one can be almost sure that the system, as it is, will continue to guarantee delay – making it virtually certain that the public does not get the facts until it is almost too late to do anything about it.

Delay serves an array of purposes. It allows politicians, police and prison administrators to stonewall any requests for information about what occurred, claiming that responses must await the findings of an inquest.

As Hal Wootten, one of the commissioners into the black deaths in custody commented, the having of an inquest has often served secretiveness and concealment. Rather than making officials accountable for what they have done, it gives them a screen to protect them from any scrutiny, and a platform from which to suggest that anyone asking questions is a troublemaker to be denied information in case they might misuse it, or patronizingly, as people who should not be told things that might upset them.

The commission had recommended procedures by which the responsibility for notifying relatives after a death in jail belonged with the jail. Notification, where possible, should be done in person, preferably by an Aboriginal person known to the family. It should not be done by police. The notification, it said, should respect “the entitlement of such persons to full and frank reporting of such circumstances of the death as are known’’.

After the ACT Government had accepted this recommendation, and the prison authorities, in a review of their procedures, said they had implemented this, they in fact adopted a policy of leaving notification to the cops. The Australian Federal Police didn’t enlist the help of Indigenous officers to help with the notification, and little detail of what was done was passed on. It was more than eight weeks after the death before any details of the circumstances were given to the distressed relatives.

The failure to provide such information, whether through the minister, the prison or the Coroner’s office (which had charge of the body and was investigating the death) was the more appalling given the fact that Freeman had been the victim of a very severe bashing almost immediately after he had arrived at the jail about a year before his death. Four prisoners beat him into unconsciousness, causing severe head injuries. When he had completed hospital treatment, his mother had begged the courts not to return her son to the prison, fearing he would be further assaulted and killed. But prison authorities assured the court that Freeman would be safe. As it turns out, there was probably no relationship between this bashing and Freeman’s death a year later, but it is hardly surprising that the failure to provide information after the death caused extra grief and speculation, including the suspicion that something was being covered up.

The AFP investigation into the bashing hit a brick wall because of the prison code of silence as a result of punishments doled out to dobbers. After stonewalling requests for information for more than a year on the basis of a future inquest, even after it knew the assault was not being looked at, the AFP quietly dropped the whole investigation. A good many prisoners know the names of the assailants and can tell you why it happened, a matter of honour in relation to cuckolding.

Coroner Cook determined relatively early, before hearings, that there was no association between the overdose and the bashing a year earlier. He decided that the bashing, and the general circumstances of Freeman’s being in jail would not be part of the inquest. And, as is very common in coronial inquiries, he seemed to evince no interest in what happened after the death. There was no discussion of compliance with recommendations of the commission, or the failures with informing the family. Nor any examination of the conscience of the role, if any, of the coroner’s office as the blinds were pulled down. A less legalistic inquiry would have thought all this highly important, as it would have the man’s wider prison experience. One could be sure that both would have been investigated after a death in custody in Britain, with exactly the same law, including a Human Rights Act interpreted there as making a wide inquiry mandatory.

After loud complaints, the ACT government announced it would hold its own administrative inquiry into any prison shortcomings associated with the death, but not into matters actually being investigated by the Coroner, for imagined fear of trespassing into his jurisdiction. The administrative inquiry was conducted by Philip Moss, a former commissioner for law enforcement integrity, with the help of corrective services staff (which rather undercut the proposition that it was an at-arm’s length study) and handed down its recommendation, adopted by government, in October last year, a mere 16 months after the deaths.

Although the Moss Review was extensive, the great caution taken to avoid interfering with the inquest did more than succeed in avoiding an overlap of inquiry. Rather, it left a large set of cracks, not least over the prison’s program of providing addictive drugs, chiefly methadone, in treatment programs. Ministers and prison authorities can (and have) piously said they have accepted the recommendations of both Cook and Moss, and, in respect of the Coroner’s comments, say they had already anticipated them. The reality is that they are now pretty much empowered to do what they like through creative interpretation, filling in the blank spaces, and judicious switching of standards.

Cook made no particular effort to make his recommendations blend with anything coming out of the Moss review. “It was not appropriate for me to have considered the content of those self-initiated reviews or their recommendations given they came into existence as a consequence of Steven Freeman’s death, not prior to it,’’ he said.

The pathway into the drug regime that killed Freeman could hardly have been called rigorous. Freeman was taken at his word about his drug use and needs, without any testing, even though recent random testing seemed to contradict what he said. Freeman may have had some very casual interaction with opiates buthad screened negative to opiate exposure only shortly before his death. He told fellow inmates he had decided he would like to have methadone to make the time in prison pass more quickly.

Fellow Aboriginal prisoners warned him not to, but others coached him on the things he should say to the prison doctor about his non or scarcely existing use, and his supposed withdrawal symptoms,including about his fears of being assaulted, because he owed money to other prisoners for heroin they had given him in the prison.That fear of assault, and the risk that, if undersupplied, he might seek to supplement his medication with contraband heroin, seemed to have been quite influentialin putting him on to the program.The doctor’s capacity to make an assessment was not helped by the way that medical and other information (including results of random drug tests) was not available to him in the health centre.Yet again a clear signal that one of Australia’s most expensive prisons has become a temple of second rate practice and management.

The doctor took Freeman at his word, and put him on a fairly low dose (but still potentially lethal) methadone regime. Freeman had had two doses over two days before he died, essentially of choking in his own vomit while asleep. It seems clear that he was fairly “naïve” to opiates and had developed no tolerance; it is fairly well established that the danger period for such people put on methadone is in the first few days after starting, as levels slowly increase in the blood.

Coroner Cook took evidence about the procedures, and, if critical of aspects of its supervision, and its failure to meet national guidelines promulgated after the prison had adopted its protocols, was not very critical about the decision to put Freeman on methadone.

But that might not be surprising given that about a third of the prisoners are, at any one time, receiving methadone maintenance. Given that most of the prison population have mental health problems, that invites the question of whether the AMC ought to be regarded as a drug treatment centre with a prison component, rather than the other way about, or a mental asylum with a prison component, rather than the other way about. Had authorities factored such figures into their initial plans (and the fact that more than a third of the prison population would be Aboriginal) we might have had a very different, and probably more effective, AMC.

Cook made some general common sense recommendations about the drug programs. But his interrogation, and the hobbling caused by lawyers acting to protect the interests of the minister, the department and the health practitioners, cannot substitute for a more searching and expert independent inquiry into the policy and practices involved, and the clear control weaknesses present in both theory and practice.

The somewhat laissez faire prison approach might well owe something to the notion that it might suit all of the authorities down to the ground if a high proportion of prisoners were stoned and placid, rather than scratchy and irritable, most of the time. In this, it might resemble the pharmacological pacification of people in some nursing homes.

Why did it take so long to come up with fairly ho hum conclusions? Primarily, according to the Coroner, because of the problems of attending lawyers having to juggle their other professional commitments.

“ Deaths requiring the exercise of the coronial jurisdiction are not planned events,’’ he said, of an inquest which began 13 months after the unplanned death in question. “Accordingly, it was appropriate and proper to give consideration to existing diary commitments of all involved. This of course had an unintentional consequence of causing delay in the coordinating of, and securing of hearing dates from all concerned.’’

What a pity that the very reason for having inquests – answering public and family concern about unplanned deaths, and implementing in a timely manner any lessons they involve – must take second place to the availability of lawyers. It’s a good example of why we need a more efficient system, premised on producing answers within a few months of a death.

Jack Waterford is a former editor of the Canberra Times

jwaterfordcanberra@gmail.com