Rough justice: Prison guards guilty of inmate assault

TWO prison guards have been found guilty of assaulting a defenceless, psychotic, naked, handcuffed Aboriginal prisoner and handed hefty fines

TWO burly prison guards have been found guilty of assaulting a defenceless, psychotic, naked, handcuffed Aboriginal prisoner.

Clay Falconer, 43, and Desmond Herbert, 28, were found guilty on Thursday of aggravated assault, a finding which will likely trigger Mr Herbert’s sacking as a prison guard and dash Mr Falconer’s plans to become a police officer in WA.

The courtroom was packed with colleagues, United Voice union bosses, family and friends supporting the two guards, some of whom were reduced to tears as the verdict was handed down, and two of whom could be heard quietly muttering racist insults directed at Judge Tanya Fong Lim and Crown Prosecutor Matt Nathan, SC.

Among the two guards’ supporters at court were James “Jimmy” Sizeland, the now-notorious former head of Holtze Prison’s elite Immediate Action Team, who oversaw the tear-gassing of six teenagers at Don Dale in 2014.

Footage of that incident helped prompt the NT Royal Commission and ongoing legal action against the government.

Prison guards Clay Falconer and Desmond Herbert, wearing long-sleeved shirts and holding newspapers near their heads, leave Darwin Local Court on Thursday

Ms Fong Lim found Falconer and Herbert went beyond the reasonable use of force they were allowed to use when moving psychotic, poo-covered prisoner, Gerald Ryan, into a padded prison cell.

However, she declined to record convictions, saying to do so would be a consequence “too far-reaching”.

The guards argued they had used legitimate “interference strikes” or “distraction strikes” during the transfer, which Ms Fong Lim said was not made out on what she were the “most objective” two pieces of evidence – security camera footage and expert evidence from Alice Springs Prison training boss Frank Tunney.

Ms Fong Lim said Herbert twice kneed Mr Ryan to the head or neck area, while Mr Falconer punched him near the spine, an area that training courses consider off-limits. Jodi Truman, for the guards, said Mr Falconer had dreams to become a police officer while Mr Herbert followed his father’s and uncle’s footsteps as prison guards.

“These are not men who the public need to be protected from,” she said.

Mr Nathan, prosecuting, said the men appeared to be frustrated by the situation, but that they had a duty of care to Mr Ryan, who court records show was in jail for stealing a Guide Dogs NT donation box to fund his drug habit, and who prison guards suspected had smoked synthetic ice in jail.

“What we are dealing with is someone with a medical issue,” he said. “This isn’t someone who has caused a riot.”

“He’s someone who, in the Crown’s submission, had little if any control over his actions.”

In sentencing, Ms Fong Lim said the two likely had a “momentary loss of reason”.

She fined Falconer $5000 and Herbert $8000, plus victims levies and ordered they pay $2350 in costs.