It feels strange writing this court report on account of the fact that this one happens to be the matter that involved the death of my own son, Daniel and a very long and cruel 5 years waiting to get to this point. Forgive me if I run off track at times. I will try to describe this as fairly as I can ...
Okay ... The first thing that was evident as I walked onto level 6 of the building was a familiar face that I hadn’t seen for a very long time. My stomach was so tied up in knots it was hard to think clearly but I knew the face ... I knew the face ... I knew it but I just couldn’t place it. The woman walked up to me and I could see she was very much distressed. She asked me if I remembered her, and I knew I should have, her voice now was familiar. She said, “It’s Lyn, Lynette Oaten...” and with that we both broke down in tears and hugged.
This was the lady that headed up the investigation into Daniel’s death. I remembered talking with her a couple of times during those early months and then she kind of disappeared. I was told she was on leave and then had left Workplace Services (now SafeWork SA) and the country. I never really knew why although I suspected it had something to do with Daniel and the case she was working on.
Lee Salvemini from VOID was there (thank you Lee) and Carren Walker who used to work for Nick Xenophon had come along. I didn’t know whether I would be able to get through my Victim Impact Statement so Carren was there as my back up. I also met a lady called Lyndal. I’d spoken to her a few times on the phone leading up to this day - I’m still not really sure who she is in the big scheme of things but I knew she’d come to offer support and that’s what I needed on this day.
The court room began to fill - most of the faces I didn’t know but seemed vaguely familiar. I assumed they were from the media. I noticed Greg Madeley now - he’s Daniel’s uncle and was a huge role model for Danny. I don’t see much of Greg anymore but I couldn’t help but see Daniel in him. He looked like he was sitting on the edge of a cliff and had placed himself right next to Jim Grosse - the Diemould CEO.
Magistrate Hardy entered - we all stood. My heart was beating so hard I could feel my neck engorge with my pulse. Karim Soetratma (Crown) began to talk about that day ... He spoke quietly - deliberately.
I tried so hard to concentrate but felt my thoughts wandering off all the time. I kept telling myself, “you need to listen - you need to hear this...”. Each time I’d unlock my mind and absorb something ... something new, something that I’d not yet had a chance to digest. I heard Karim talk about how one young apprentice rushed to the borer, seeing Daniel (my beautiful son) spinning on that beast of a thing. He mentioned how this young man had to step over one of Daniel’s feet that had been ripped off so he could get to the controls. Arghh - this is so crushing! I should have been allowed to know this years ago. I should have had a chance to deal with that evidence - to hear it and digest it. Damn I felt the indignation - the bile in my stomach began to rise. My head pounded so hard I thought it might burst. Now I am focused on this vision - someone walking by my son spinning on a machine and stepping over his foot on the ground.
This is something I will never understand. I wonder whether our lawmakers have any idea how damaging it is for family members to be left out in the cold for years with so little information about what their loved one has endured. I understand why it is important that some detail is given at these hearings. I would not think it appropriate to have this kind of thing suppressed because I believe the court must have a clear understanding of the horror that these workers face. I just don’t get why this particular information is guarded *IF* family members need to know.
I can only speak for myself and I fully appreciate that we are all different. For me personally, I needed to grasp what Daniel went through that day. I needed to hear it from the start so I could perceive it, feel it and deal with it. I truly believe that as Daniel’s mother, I had a right to know this rather than be bombarded and gouged with new wounds at this point. I can see no harm or damage to either the prosecution or defence in making detail within statements that relate to these matters available to family members who ask for it.
Nest there was a DVD played. The horizontal borer was being shown to the Magistrate outlining its structure and operation. The screen was turned away from us. Chad asked if I wanted to watch it. No ... This was not the time for me to see it for the first time. It was bad enough hearing it screaming - that was more than enough. I blocked my ears - it screamed death in my ears. Someday maybe I’ll confront this thing but it will be on my terms. It will be on a day I can scream right back at it. It will be on a day that the CEO of Diemould will not be within my reach.
And so now the time to read my Victim Impact Statement. It took a lot out of me just putting it together...the moment seemed to have arrived where I could finally tell these people what has happened to my life since Daniel was killed. For the first time I had some real concerns that I may not be able to get through reading it. Carren Walker sat beside me knowing that if I failed to deliver it, she would step up and finish the job. It was important to me personally that I hold myself together long enough to get through it - every word...so come what may, I would try.
Initially there was some doubt as to whether I was going to be able to read out the statement. Just as I was about to take my seat, the lawyer for Diemould stood and began to outline that while they do not specifically object to having me read my VIS, they wanted to remind the court that it was not my legal right to verbally deliver a VIS. Of course, they knew what I was about to say - they had seen a copy before today. The Magistrate asked whether they objected to the VIS being read out. Their reply was no, but that they wanted to outline that it was not my legal right and would leave it to the Magistrate to decide. I stood there like an idiot not knowing whether to sit or walk away. If they had no objection, then why this? Were they hoping the Magistrate would deny me on the basis of the written law? I guess I could understand why they (Diemould) would have much preferred to have this VIS quietly submitted.
Which brings me to another point. What in Heaven’s name ever happened to the amended Victims of Crime laws? I was under the impression this piece of legislation had been passed. This legislation was supposed to give those who suffered a loss like an industrial fatality the legal right to read a Victim Impact Statement? I know Nick Xenophon pushed this back in 2006. I know this because I wrote to so many members of parliament looking for support to earn this right for industrial court cases. I was so sure the legislation, then picked up by the Labor Government had made its way through both houses. I so clearly recall seeing something from the AGD. What the heck happened in 3 years??
Anyway, the Magistrate allowed me to read the statement and I managed to get through it from start to finish. The only way I was able to do that was read the words - not look up - to not think about what is being said, just concentrate on each sentence and pretend its someone else’s life.
With a short recess now I was desperate to get out. I felt sick - I wanted to get a cigarette into me and prepare for the next phase of the hearing. Hearing what they (Diemould) had to say. For half a decade I wondered what they would say - how they would justify all this.
Outside the court room I was stunned to see a line up of cameras. Oh, don’t get me wrong, I was glad they were there. I always felt that these horrible tragedies have been quietly swept under the carpet for too long. I’ve spoken to too many families who feel that their loved one died without anyone ever knowing why or how. That was one of the things I desperately wanted to change with VOID. Let’s make sure these workers are not forgotten. Let’s make sure there if follow up from the day of the worker’s death and let us all see the outcome.
I ran off to the toilets to find a young woman in there crying. At first I wasn’t sure why she was so upset but it soon became evident that she’d been sitting in on the hearing. She was a reporter and - a single mum. I was at a loss how to talk to her right there and then and honestly, I didn’t have the energy. What I really wanted to do was stick my head over the toilet bowl. I couldn’t very well do that with someone else in there with me. I’d get the questions from the media done and then race downstairs for some cool air...oh and yes, that nicotine my body was screaming for.
Just as we were racing down the lift I had signs from Karim that the Magistrate is due back in. Aargh! That recess was just too short. I told Karim that I needed to get outside for just a minute, would be back in a few minutes. As it turned out, the lawyer for Diemould suggested they would wait for me because they wanted me to hear their opening statements. Okay ... Isn’t that interesting. For 5 years I’ve not mattered one iota in all of this and now suddenly they’re willing to hold up the proceedings for Daniel’s mother. Go figure...yes, well it was all a bit lost on me I’m afraid. I’ve never felt very important in the big scheme of things and at this moment it didn’t feel any different.
The rain had come. For months and months we’d not seen a drop and here it was, gushing out of the sky. You know the week my son died it rained and rained and I remember thinking at that time that the Heaven’s were shedding tears. Today it felt no different.
Back in the court room we heard Diemould’s legal representative begin. The first 10 minutes or so seemed to focus on their regret and condolences. I sat there in bewildered non-resonance. Where was all this before today? Why now? See, now it just felt contrived and artificial. Now it felt like it was all about saving face. “Too late”, she cried ... You’re just too bloody late!!
Now...what happened next was quite strange.
Was I dreaming here or was the defence now focused on the comments I made in my Victim Impact Statement? It seemed like there was a lot of time spent now arguing the many and varied points that I had raised. I was being made to sound like I had no grip on reality...that I had poor perception. I desperately wanted to front this lawyer and tear his presumptuous terminologies apart ...piece by piece.
First they tackled that phone call - Anthony Crocker asked the Magistrate to disregard my comments because apparently this was the first they’d heard about that phone call. In my Victim Impact Statement I made reference to a phone call taken by Daniel from someone at Diemould a week or so before he died. The call was in relation to a miscalculation on a machining job he was doing. Daniel was clearly upset after he got off the phone. He told me he thought he could lose his job. I was dumbfounded that the company had allowed a 1st year apprentice loose on such critical work without someone watching over him. I referenced this in my statement because I believe he was being put under undue pressure for his level of experience. Crocker argued that this was not a part of the evidence and so it should be disregarded. Diemould apparently rejected any such notion that it occurred. I do vaguely recall giving a statement to Lyn Oaten and mentioning that this call had taken place ...so I do wonder today why it was not part of the evidence.
In my Victim Impact Statement I also spoke about my disgust at the decision this company took in hitching onto lengthy legal arguments rather than facing the charges. I said that I felt it was their choice and that it was a conscious decision to go that path and it was made to potentially minimise the damages they faced. They were unsuccessful ...and so it is perhaps a mute point in the eyes of the law but it will never be a mute point in the eyes of the dead worker’s mother who had been hauled through 5 years of rhetorical anguish.
Anthony Crocker (Diemould’s lawyer) then began to tackle the statements I had made in relation to that legal challenge, making reference to the irrelevance of a death in the charges laid. Crocker implied that I had clearly not understood the point and that all they were trying to determine was whether it was necessary and appropriate to include in the particulars the allegation of death.
I was very clear in my mind what the lawyers were attempting to achieve. You see, I have this statement by Senior Judge Jennings and Judge Gilchrist, made in their decision handed down in 2007, very firmly etched in my mind. It read verbatim as follows:
It (Diemould Tooling) submitted that it was inappropriate for the summons to make reference to the fact that Mr Madeley was fatally injured. It argued that as s 19 concerns the obligations that an employer has for its employees the actual, as opposed to potential consequences of the alleged breach, are irrelevant. This can be immediately disposed of. The fact of Mr Madeley’s death is relevant because it demonstrates the magnitude of the risk to which Diemould’s employees were exposed. (Page 7 paragraph 16)
In my Victim Impact Statement I also took the opportunity to confront Daniel’s employer to ask them what right they thought they had in hiding the facts behind what had actually happened to Daniel that day. I recall sitting in the Diemould’s office with the Managing Director and the young apprentice who assisted Daniel. This was just a few days after Daniel’s death. I needed to know what happened to him - what he endured. I was given an inaccurate (sugar coated) version of the facts. They opted to hide the truth...and that would have been okay had I then not had to deal with the reality years later. Whatever their motivation was (and please spare me the ‘they wanted to spare you’ story) they had an obligation to tell me the truth - as it was. Nothing these people had done in the years preceding this day in court ever suggested they had anyone’s best interest in mind aside their own. I did not get a reply from the company - nor did I expect one. This was just more that the defence deemed was not relevant to the case.
On this day I heard things that I will never, ever forget. They spoke about how terribly sorry and regretful they were and yet these words seemed so utterly deceiving and contrary to their behaviour based on the 5 years of judicial game playing that had led us here. I listed to the droll of words coming from the defence attorney - highlighting specific ‘items’ he thought important. He began to read out the statement made by Neville Grosse, the Managing Director of Diemould Tooling at the time Daniel was killed. Neville Grosse (now deceased) discussed all the things the company had done to rectify the unsafe practises that had led to my son’s death. What confronted me however was his general use of the word ‘problem’.
We have booked 20 people on an occupational health and safety course. We have initiated quite a lot of other things, all designed to put us in a position where we never, ever have to face this problem again.
I think it's fair to say that we have spent a lot of money here. We have provided people with new types of clothing. We have provided people with safety glasses, which include prescription-type safety glasses. We have turned the place upside down in an attempt to go overboard and ensure, once again, that we never have the problem again.
Was it just my ultra-sensitive mood or does the reference he made to what happened to Daniel really just amount to a problem? A problem is an awkward predicament, a dilemma. Daniel’s death was nothing less than a traumatic nightmare, not a bloody problem. It seemed so utterly inconceivable to me that this statement would be read out verbatim as it was. My mind boggled at the idea that all’s well now because we even have prescription-type safety glasses. Hell!
I felt at this moment that I understood now why it had taken me 5 years to get to this point. It made sense now. The employer of my dead son had absolutely no concept of the magnitude of their actions or its far reaching devastating impact. The mind set here in this court room today was clearly missing the point.
The defence began to close by saying that Diemould had not committed an offence intentionally nor recklessly. I was thinking to myself, why is he making reference to an intentional reckless conduct? This is completely different offence (the old Section 59). In my mind it would be akin to a defence attorney arguing that their client had not murdered anyone when the client was only ever charges with manslaughter. Diemould Tooling Services were charged with a much lesser offence than S59. In fact the ‘old’ Section 59 was worded in a sense that made it impossible to try unless there had in fact been an intentional reckless act of negligence in the workplace. This company, like almost all, was charged with a breach of S19 - a failure in its duty of care. Alas, I’m no lawyer but that didn’t sit well with me at that moment. I could not understand the point of this at all.
His next words were, and this in relation to what the company was perhaps guilty of, “It was a failure to understand the idea that one should reduce or engineer a solution to the hazard rather than rely on employees to obey rules and procedures as the only way to deal with hazards. It is a failure to engage in the science of structure foresight.”
And there you have it again - the word ‘foresight’ - done to death over and over.
More importantly and with the wrath of an axe coming down through my heart, I saw that accusing digit finger now, ever so stealth like, finally shown itself. They have taken the final swipe - an opportunity to point blame squarely at a dead worker for his failures. It was unforgivable. I guess you had to sit through the hours of presented evidence to appreciate why this comment was in such poor form. What rules and procedures for crying out loud????
I went home gutted. So much to digest - things I had heard for the first time. It didn’t seem fair that after 5 years I would now have to confront many more images with far more detail than ever before.
It turns out the justice system, through it’s archaic methodology, inflicts its very own special brand of punishment onto families. My only hope was that the Magistrate would return a very harsh penalty. I could see no reason why this company would be offered any form of discount what so ever.
