Jail trio in death probe reinstated by Commission

THE Corrective Services officers at the centre of the controversial Ian Klum death-in-custody case were reinstated to their jobs by the New South Wales Industrial Relations Commission on Wednesday.

The three officers - David Pearcey, Matthew Barnett and Richard Woelfl - are now suing the Attorney General Greg Smith for defamation over comments he made about them during a radio interview.

The Australian Broadcasting Corporation is also being sued for defamation over its coverage of the coronial inquest into the Klum matter which was held in three sittings in Grafton this year.

Both defamation suits are up for brief mention in the Supreme Court this week - the ABC matter today and the Smith matter on Thursday.

Industrial Relations Commission's Justice Rodney Harrison ordered Corrective Services not to terminate the employment of the officers and made specific rulings for each of the officers.

Justice Harrison ordered that Woelfl, who was the highest ranking officer on the shift, be demoted to a lower grade on returning to the job.

He ordered Barnett be cautioned for his conduct.

No orders for cautions or demotion were given for Pearcey, Justice Harrison finding that the veteran officer was not guilty of misconduct.

Footage showing the three officers looking on as Mr Klum crawled between two cells in a special unit of the jail on June 10, 2010, received national media attention through the ABC.

Mr Klum had placed a "knock-up" call at 2.20am after an incident in the cell which is still the subject of a Department of Public Prosecutions investigation.

The officers told the IRC that their offers of assistance were rejected by Mr Klum so they allowed him to crawl to another cell.

Eight minutes later the officers helped Mr Klum to a medical wing where a nurse attended to him at 3.17am.

An ambulance was called at 5.30am and Mr Klum was taken across the road to Grafton Base Hospital where he underwent further assessment and surgical procedures to reduce a subdural haematoma.

Mr Klum died in a Brisbane hospital four days later.

The IRC hearings in the case ran over six days between July and September and the detailed judgment can be viewed on the IRC website.

Justice Harrison found previous charges of gross misconduct brought by a Corrective Services investigator Schipp unsubstantiated.

The charges put that the officers did not assist Mr Klum as he crawled between cells.

"Mr Klum was offered assistance, which he refused. It became obvious to the officers present that Mr Klum did not want to be touched," Justice Harrison said.

"This attitude is consistent with the fear and anxiety Mr Klum told Dr Petroff that he experienced in gaol.

"It is entirely probable that, had the officers pressed assistance upon Mr Klum against his will, he may have resisted, making matters worse."

Further, the charge of misconduct in leaving Mr Klum in cell 225 for eight minutes was not sustained on the evidence, Justice Harrison said.

"Officer Woelfl acted immediately to obtain medical assistance for Mr Klum.

"The fact that he had to telephone for approval and then wait for the nurse to arrive is a matter of Departmental procedure, not the construction of Officer Woelfl.

"Having regard to the uncontested fact that correctional officers are not permitted to render medical assistance, Officer Woelfl had no option but to call for assistance.

"Officer Woelfl was faced with a difficult set of circumstances and made judgements as he was required to do, which are supportable."

In relation to charges that Woelfl did not establish a crime scene or report the incident properly, Justice Harrison largely accepted the evidence of investigator Schipp that Mr Woelfl failed to make proper observations of cell 219.

"As the Senior Officer in charge, Officer Woelfl was responsible for these errors of judgement, none of which I note go to the care and wellbeing of Mr Klum.

"Failure to investigate, establish a crime scene and report, amounts to misconduct which warrants sanction."

Justice Harrison said that such errors did not amount to serious and wilful misconduct and did not warrant a termination of employment.

Justice Harrison considered the circumstances and the "exemplary service record of Officer Woelfl," before determining that a demotion to a lower grade was the appropriate penalty.

The officers have been suspended from their jobs since the incident.

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