The State of Western Australia v Flanagan - [2020] WASC 281

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- FLANAGAN [2020] WASC 281
CORAM:   CORBOY J
HEARD:   28 APRIL - 5 MAY & 12 MAY 2020
DELIVERED          :   28 JULY 2020
PUBLISHED           :   31 JULY 2020
FILE NO/S:   INS 105 of 2019
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

CARL ANSELL THOMAS FLANAGAN
Respondent

Catchwords:

Criminal law - Sentencing - Trial of issues - Whether the State has proven allegations about the offender's conduct during a prison riot

Legislation:

Criminal Code (WA), s 67

Result:

Issues determined

Category: B

Representation:

Counsel:

Applicant	:	Mr N Cogin & Mr L Gabriel
Respondent	:	Mr D Mckenna

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Respondent	:	Dominic McKenna

Case(s) referred to in decision(s):

Nil

CORBOY J:

The issues

Mr Flanagan pleaded guilty to a charge that on or about 24 July 2018 at Greenough Regional Prison he riotously assembled with others and, as a result, property was unlawfully damaged or destroyed by fire. Riotous assembly is an offence by s 67 of the Criminal Code (WA), read with s 62.
The State filed an amended statement of material facts (ASMF). The statement included 16 allegations about Mr Flanagan's conduct during the riot. The allegations were relevant to determining the seriousness of his criminality for the purpose of sentencing. The allegations were not admitted and a trial of issues was held. The trial occupied five days of evidence.

Greenough Regional Prison

Prisoners at the Greenough Regional Prison (the Prison) are housed in six units: unit 1 is a maximum security unit; units 2 and 3 are medium security units housing male prisoners; unit 4 accommodates female prisoners; unit 5 houses male prisoners who are provided with self‑care facilities; and unit 6 is a minimum security unit.
Annexed to these reasons is an aerial photograph of the prison. The large rectangular area in the middle of the prison complex comprises units 2 and 3. I will refer to that area as the main prison complex. The southern wing of the main prison complex forms part of unit 2; the northern wing forms part of unit 3.
Units 2 and 3 extend along the eastern and western wings of the main prison complex with metal security grilles separating the units at mid-points along the wings. The area between the four wings of the main prison complex is divided into two courtyards. A mesh fence runs between the eastern and western wings separating the courtyards. The northern courtyard can be accessed by unit 3 prisoners; the southern courtyard forms part of unit 2. Obviously, prisoners cannot move between the courtyards because of the dividing fence.
Each courtyard contains a basketball court. There is a gazebo in the unit 2 courtyard. The floor of the gazebo is paved with bricks. The brick paving extends a short distance beyond the gazebo walls. The edge of the brick paving is fixed with concrete. There is a square flower bed at the western end of the unit 3 courtyard. The bed is marked out by large limestone bricks that have been placed vertically in the ground.
An internal corridor runs down the middle of the unit 2 and unit 3 cell blocks. Cells run off each side of the corridor. A verandah runs along the side of the cell blocks facing the unit 2 and unit 3 courtyards.
Unit 4 is located beyond the northern wing of the main prison complex. There are two mesh fences running east‑west behind the main prison complex that separates the complex from unit 4. The fence closest to the back of unit 3 is covered with Colorbond to provide a privacy screen for female prisoners. There is a path between the two fences. I will refer to the fences separating the main prison complex from unit 4 as the unit 4 fences.[1]
[1] The fences are shown in photographs forming part of exhibit 10.
There is a courtyard in front of the unit 4 cell block which includes a basketball court and a path leading to the entrance of the block. There are gardens on the eastern side of the Prison on either side of the unit 4 fences. There are also sheds and offices towards the south-east corner of the Prison - a gardens office, a gardens shed and storage unit and a facilities shed. There is also a garden shed in the unit 4 compound.
Units 1 and 5 are located on the western side of the Prison. The cell blocks connect to the main prison complex. However, there are courtyards for the units that lie between the western wing of the main prison complex and the cells.
Central control is located at the south‑west corner of the main prison complex, with administrative buildings to the south of the complex. There is an oval and open area to the west of the main prison complex. Access to the oval can be gained through an emergency door at the south‑west corner of the Prison, adjacent to unit 1.
An office for officers managing unit 2 is located at the south-east corner of the main prison complex. The equivalent unit 3 office is located at the north-east corner of the complex and the unit 5 office is in the north‑west corner. A senior officer's office and a workshop/education area (referred to as the 'industrial area') is located in the southern wing of the main prison complex between central control and the unit 2 office.
The Prison is secured by an inner and outer perimeter fence. The area between the fences is referred to as the Centrak.
There are CCTV cameras located at various points around the Prison. Camera 23 is located on the roof of unit 5. Camera 24 is located on the north‑east corner of the main prison complex. Camera 25 is located on the laundry building which is to the southern end of the Prison, just outside the main prison complex. Camera 42 is located on the outer perimeter at the southern end of the Prison close to the carpark. Film taken from the cameras was played during the trial ‑ film taken from camera 23 was received as exhibit 13; film from camera 24 was marked as exhibit 12; exhibit 14 was film from camera 25; and exhibit 15 was film taken by camera 42.
There is a radio network connecting prison officers throughout the Prison. Exhibit 23 was a summary of radio transmissions commencing at 16:01:54 on 24 July and concluding in the early hours of 25 July 2018.
As at 24 July 2018, Mr Flanagan was a unit 3 prisoner.

The remaining issues to be determined

Mr Flanagan accepted that the State had proven beyond a reasonable doubt 11 of the allegations made in the ASMF about his participation in the riot on completion of the evidence. The concession was contained in his counsel's written closing submissions.
The allegations that Mr Flanagan accepted the State had proven were that he had:
(1)not surrendered when offered the opportunity to do so by prison officers;
(2)been on the roof of the Prison during the riot;
(3)attempted to gain access to the canteen in unit 2;
(4)used an angle grinder to cut the hinges on a door in unit 4;
(5)thrown missiles at the unit 5 office windows;
(6)thrown projectiles at prison officers at the garden side of the Prison (that is, the eastern side);
(7)walked around unit 5 with tools offering to free prisoners;
(8)smashed the windows of the unit 3 office;
(9)made contact with a salt container in unit 4;
(10)made contact with an extendable baton removed from a secure area;
(11)been one of the last of the 16 prisoners arrested when prison officers were able to regain control of the Prison.
In his closing submissions, the prosecutor did not press an allegation that Mr Flanagan had broken the fence between the unit 2 and unit 3 courtyards.
The concessions made by the State and Mr Flanagan meant that the issues that remained to be determined were primarily confined to allegations made in the ASMF that Mr Flanagan:
(1)was an instigator of the riot;
(2)had set fire to a wheeled garbage bin;
(3)had walked around with a jerry can pouring petrol on fruit trees;
(4)had broken up limestone bricks to use as weapons - the limestone bricks to which this allegation referred were the bricks that marked out the flower bed in the unit 3 courtyard.
The State's closing submissions raised other matters that might be contentious. Some of those matters concerned discrete factual questions about Mr Flanagan's alleged conduct during the riot. Other submissions concerned the context in which it was alleged Mr Flanagan had acted; it was contended that Mr Flanagan was associated with the conduct of other prisoners in a way that made him either culpable for their conduct or aggravated the seriousness of his offending. Further, the prosecutor advanced the proposition in his oral closing submissions that, to Mr Flanagan's knowledge, the purpose of the riot was to provide cover for a planned escape by some prisoners. That allegation was not accepted by Mr Flanagan.
It will be necessary to say something further about those aspects of the State's submissions but I note that they raised factual issues concerning:
(a)Mr Flanagan's explanation for how his DNA came to be on an extendable baton - the State submitted that Mr Flanagan's explanation was 'incredible and inherently unbelievable' and that it should be found that he had either armed himself with the baton or was involved in arming other prisoners;[2]
(b)Mr Flanagan's knowledge of the possible use of a salt container as a Molotov cocktail;[3]
(c)Mr Flanagan's reasons for going to unit 4 - the State submits that Mr Flanagan's evidence that he went to the unit to check on the welfare of female prisoners should be rejected;
(d)the extent of Mr Flanagan's connection with the fires that were lit during the riot;
(e)whether the riot was for the purpose of covering a planned escape and if so, whether Mr Flanagan was aware of the plan and participated in the riot to further that purpose.
[2] Exhibit 4 comprised photographs of the baton in the location in which it was found following the riot.
[3] Exhibit 8 comprised photographs of the salt container in the location in which it was found following the riot.
Similarly, there were some matters raised in Mr McKenna's closing submissions that went beyond the four matters identified earlier as the allegations contained in the ASMF that remained to be determined.
The additional matters to which the parties referred in their closing written submissions arose out of the evidence adduced during the trial. Accordingly, the court has received the evidence necessary to determine the matters for the purpose of sentencing. Further, oral closing addresses were made with the benefit of the parties' written submissions. However, I am not certain that the parties have had a full opportunity to address all of the matters raised in their written and oral closing submissions. Mr McKenna's submissions, in particular, were primarily directed to the four allegations made in the ASMF that were in dispute. The State's closing submissions, on the other hand, extended well beyond those allegations to encompass, as I understood it, all of its submissions on the facts on which it contended Mr Flanagan should be sentenced.
Further, the line between where the trial of issues finished and general sentencing submissions commenced was not entirely clear to me as the trial progressed. That is not a criticism of the parties. Rather, the difficulty primarily reflects the fact that Mr Flanagan was charged with, and convicted of, a single offence which encapsulated events that occurred over a period of about 12 hours. Moreover, the evidence on which the facts for sentencing Mr Flanagan are to be found is not confined to the oral evidence and exhibits presented in the trial of issues but includes the whole of the prosecution brief. This has made ensuring procedural fairness more difficult.
Accordingly, I will allow the parties to provide further oral submissions before making all of my findings of fact. The submissions can be made at the sentencing hearing and, in my sentencing remarks, I will supplement the findings of fact made in these reasons to the extent necessary.

The witnesses

The State called the following witnesses:
(1)Assistant Superintendent Sandra Sue Patten;
(2)Prison officers Kevin John Murphy; Shane Edward Day; Bruce Murray White; Desmond John Brick; Gavin Andrew Foster; Mark Edward White; Simon Peter Cook; Elaine Francis Renton (Ms Renton was a reception officer as at July 2018) and Glenn Allan Higgins;
(3)Superintendent Peter Dale Illich (superintendent of the Prison);
(4)Preston Charles Quartermaine (as at July 2018, Mr Quartermaine was a prisoner at Greenough prison);
(5)Kevin Andrew Park (as at July 2018, Mr Park was a vocational support officer at the Prison).
Mr Flanagan elected to give evidence.
As previously mentioned, the prosecution brief was also received as an exhibit.[4]
[4] Marked as exhibit 21.

The State's onus

The allegations made by the State about Mr Flanagan's participation in the riot are adverse to him for the purpose of sentencing. Accordingly, the State carries the onus of proving the allegations beyond a reasonable doubt. Obviously, each allegation has to be separately considered and determined. Each allegation refers to a separate act or acts that the State asserts was committed by Mr Flanagan during the riot.
Mr Flanagan participated in an electronically recorded interview with detectives following the riot. As already noted, he also elected to give evidence in the trial of the issues. Four points are to be noted about his election to participate in the recorded interview and to give evidence in the trial.
First, Mr Flanagan made admissions in the recorded interview and in his evidence. The mitigating factors to be taken into account in sentencing Mr Flanagan include that he participated in the recorded interview and made admissions in the interview and in his evidence.
Second, the fact that Mr Flanagan made admissions in the recorded interview and in his evidence is also a factor to be considered in assessing the credibility of his statements to the interviewing detectives and his evidence in the trial.
Third, Mr Flanagan admitted that he lied during his interview with the detectives. The lies that he admittedly told are identified later in the reasons. As the direction given to juries for what is referred to as an 'Edwards lie' indicates, a person may lie to the police or others for 'innocent' reasons when confronted with an allegation of wrongdoing. However, the only reasonable inference for one of the told by Mr Flanagan (that he did not smash the unit 3 office windows) is that he was seeking to minimise his participation in the riot. The fact that he lied for that reason is also a factor to be taken in account in assessing his credit.
Fourth, that Mr Flanagan participated in an electronically recorded interview with detectives and elected to give evidence does not detract from or alter the onus that rests on the State. Mr Flanagan's statements in the recorded interview and his evidence are added to the evidence presented by the State and form part of the whole of the evidence to be considered in determining whether the State has proven beyond a reasonable doubt the four allegations that remain to be determined - and any other allegation that is adverse to him. I must be satisfied on the whole of the evidence that the State has proven the allegations it makes against Mr Flanagan. If any part of his evidence is rejected, it is to be put to one side. The question that remains is whether the State has proven beyond a reasonable doubt any of the allegations to be determined on evidence that is accepted.
Any matter that is favourable to Mr Flanagan for the purpose of sentencing need only be proven on the balance of probabilities.

The riot - events until some prisoners escaped

This part of the reasons deals with the allegations made by the State that Mr Flanagan was an instigator of the riot and that he broke up limestone bricks to use as weapons. The evidence covers a period between about 15:40 and 17:00 on 24 July 2018 - until about when some prisoners escaped by cutting a padlock to a gate in the inner perimeter fence and scaling the outer perimeter fence with ladders obtained from the maintenance shed. I have found that the escape was complete by 16:53:30.

The evidence of prison officers and radio transmissions

A fire started in cell 22, unit 2, at approximately 4.00 pm. Cell 22 was occupied by Tremayne Comeagain and Tennessee Pearce.[5] The fire started when a mattress used by Mr Comeagain was set alight.[6] Exhibit 6 comprised a bundle of 16 photographs showing the mattress that was the seat of the fire and the damage caused to cell 22.
[5] The cell was a 'three up' but the third occupant was not identified.
[6] ts 376 - 77 and ts 386 - Brick.
Senior officer Cullerton was the manager for unit 2. Officer Cook was the control officer for the unit on the afternoon of 24 July 2018. Senior officer Cullerton and officers Cook and Brick were in the unit 2 office when the fire commenced in cell 22.
The fire alarm in cell 22 was activated and senior officer Cullerton and officer Brick went to the cell to investigate. Senior officer Cullerton made a code red call across the Prison's radio network on seeing the fire in cell 22. Three sirens also sounded to indicate that there was a fire.[7] The radio transmission summary (exhibit 23) recorded that a code red call was made at 16:01:54. The radio transmission referred to cell 22, unit 2. A further code red call referring to unit 2 was made at 16:03:33.
[7] ts 234 - Patten; ts 462 - Flanagan.
Another code red call was made at 16:03:46. The call advised that there was riotous behaviour in unit 2 with projectiles being thrown.[8]
[8] Officer Cook gave evidence that the red code call referred to riotous behaviour in unit 3 (ts 402). However, other officers stated that the call referred to unit 2. That was consistent with the record summarised in exhibit 23 and also with evidence given by Assistant Superintendent Patten and other evidence that is referred to in the reasons. I found that the red code call did refer to riotous behaviour in unit 2 as recorded in exhibit 23.
Officer Brick stated that he was the only officer in the corridor on the eastern wing of unit 2 when the riotous behaviour code red call was made. He went through the grille into unit 3 and exited into the courtyard.
Officer Higgins went from central control to unit 2 on hearing the fire code red call. He heard the riotous behaviour code red call as he proceeded down the wing. He returned to the unit 2 office and, as he did so, prisoners started throwing bricks towards him. Tremayne Comeagain and Tennessee Pearce were the 'main' prisoners throwing the bricks. He and other officers were forced to evacuate back to central control when it appeared that the windows to the office were starting to break.[9]
[9] ts 438 - Higgins.
Officer Cook stated that he was involved in evacuating prisoners from unit 2 after the fire code red calls. He then went to unit 3 and, as he did so, he saw Tremayne Comeagain starting to throw rocks from the unit 2 courtyard. He also saw Tennessee Pearce pick up a large pole which he used to smash the unit 2 day room windows. He managed to secure a small number of prisoners behind the two main grilles in unit 3 and then bricks started to be thrown from the unit 3 courtyard. He retreated to the unit 3 office.[10]
[10] ts 402 ‑ 403 - Cook.
Assistant Superintendent Patten went to unit 2 on hearing the fire code red calls. She assisted in evacuating prisoners from unit 2 into the courtyard.
As Assistant Superintendent Patten returned to the senior officer's office, bricks and rocks started to be thrown in unit 2. She went to unit 3 to isolate the prisoners in that unit from what was happening in unit 2.[11]
[11] ts 191 ‑ Patten.

Prisoners had congregated in the unit 3 courtyard. Mr Flanagan was one of the prisoners in the courtyard. She asked him to assist in persuading prisoners to return to their cells but he declined, saying that it was not safe to do so.[12] Assistant Superintendent Patten stated that, at this point, prisoners in unit 3 were watching but were not participating in the 'riotous behaviour' in unit 2.
[12] ts 193 - Patten.
A radio call was made at 16:15:43 advising that riotous behaviour was occurring in unit 3. At 16:16:46 and 16:16:54 radio calls were made that projectiles were being thrown in unit 3.
Prisoners on the unit 2 basketball court commenced pushing against the cyclone fence that divided the unit 2 and unit 3 courtyards. At 16:17:37, a radio message advised that 'they're pushing the fence down between two and three'. Part of the fence was then breached so that prisoners could move between units 2 and 3.
Assistant Superintendent Patten was advised by officer Brick that the fence dividing courtyards for units 2 and 3 had been breached. She and officer Brick retreated to the unit 3 office and, at about the same time, unit 3 prisoners started throwing rocks at the office from the unit 3 courtyard.[13] Subsequently, Assistant Superintendent Patten and other officers left the unit 3 office when it appeared that the windows to the office were about to break.[14] They left through a rear exit door and made their way back to central control. She estimated the time between the fire code red call and evacuating the unit 3 office to be approximately 40 minutes.[15] However, Assistant Superintendent Patten also stated that she was only in the unit 3 office for a few minutes before it was evacuated.
[13] ts 194.
[14] ts 195.
[15] ts 196.
Officer Foster was in the visitor centre when the code red calls were received. He escorted prisoners from the centre to unit 1 where the prisoners were secured. He was then tasked to go to unit 3. A number of prisoners, including Mr Flanagan, were in the unit 3 courtyard. He ordered Mr Flanagan and other prisoners to return to their cells. Mr Flanagan commenced walking towards his cell in response to the order but:[16]
… Then there was a sudden change and he turned to the right of me and his demeanour changed.
What did he do? - - - He - he just suddenly turned. The - that was when the fence between - the adjoining fence of unit 2 and 3 was pushed down and prisoners from unit 2 came barraging toward unit 3 side, and at that point myself and officer Bishop retreated.
[16] ts 391 - Foster.
The unit 3 office was damaged after it had been evacuated by prison officers. Exhibit 9 comprised a bundle of photographs showing damage to and around the unit 3 office. Exhibit 10 comprised a bundle of photographs showing damage sustained to the rear of unit 3 - that is, the back of the cell block, the pathway that ran behind the northern wing of the main prison complex and along the unit 4 fences.

Findings on the evidence of the prison officers and radio transmissions

I accept the evidence of the prison officers about the events summarised in the previous section. Their evidence was not challenged nor was the accuracy of the radio transmission summary tendered as exhibit 23 disputed. I make findings in terms of the facts stated in the previous section. The findings are consistent with admissions made by Mr Flanagan and what was captured in the CCTV film that was received as exhibit 12.

Mr Quartermaine

Mr Quartermaine was a unit 2 prisoner as at 24 July 2018. He moved from the unit 2 courtyard to the unit 3 courtyard under the direction of prison officers when prisoners started throwing rocks in unit 2.
Mr Quartermaine stated that he saw prisoners in the unit 3 courtyard breaking bricks to use as weapons. It was apparent that Mr Quartermaine was referring to limestone bricks that had been used to mark out the flower bed at the western end of the courtyard.
Mr Quartermaine said in his evidence‑in‑chief that he saw Mr Flanagan with rocks in his hands. He was then asked whether he saw Mr Flanagan do anything else and he replied:[17]
Apart from breaking bricks and throwing them at I don't know where, no, I did not. All I saw was Mr Flanagan break bricks and use them as weapons. I didn't see what he hit or what he was throwing at.
[17] ts 317.
Immediately before giving that evidence, Mr Quartermaine said that Mr Flanagan was 'standing back and he waited until the last minute. Everybody else, all the other prisoners who were breaking bricks were using them as weapons'.[18] That evidence was picked up in cross‑examination with Mr Quartermaine being asked if he knew what time this had occurred. He replied, 'No' but added that initially Mr Flanagan had just stood next to the flower bed and had not broken any bricks until later.[19]
[18] ts 316.
[19] ts 321.
Mr Quartermaine confirmed that the bricks were reasonably large and were broken up by prisoners smashing them on the basketball court. He thought that the mortar holding the bricks in place around the flower bed could not have been very good as prisoners were able to kick the bricks out of place so as to loosen them.[20]
[20] ts 322.
Mr Quartermaine was then asked where he was positioned when he saw Mr Flanagan starting to break the bricks. The following exchange occurred:[21]
[21] ts 323.
I had never moved. I was still on the northwest - Mr Flanagan didn't break any blocks. He picked up some rocks after they were broken.
And:
Alright. So Mr Flanagan didn't get any of those large blocks and smash them, is that what you're saying? - - - Yes.
Alright, but you're saying that he did what? - - - He did pick up some bricks and use them as projectiles.
He picked up bricks, what sort of bricks? - - - The pieces of the limestone. I just call them bricks or rocks.
Alright. So you didn't see him kicking these limestone blocks out and dislodging them? - - - No.
You didn't see him picking these up and smashing them? - - - No.
What you're saying is you saw Mr Flanagan picking up some of the pieces from the smashed blocks and doing what? - - - Using them as projectile weapons.
My findings on Mr Quartermaine's evidence are stated later in the section dealing with whether the State has proven that Mr Flanagan broke up bricks to use as weapons.

The CCTV film

Camera 24

As previously noted, exhibit 12 contained CCTV film taken from camera 24 which was mounted on the roof at the north eastern corner of the main prison complex. The CCTV film incorporated a digital clock that had been added by the State to assist in relating what was captured by the camera to other parts of the evidence. The prosecutor advised that the time shown by the digital clock was 'from the prison time'.[22]
[22] ts 263.
The camera angle for camera 24 was not fixed. The camera could be manipulated to zoom in and out and to rotate. The camera was generally directed towards the unit 2 and unit 3 courtyards. However, the camera focus and angle changed on a number of occasions during the film that was played to the court. Consequently, the time shown on the film's digital clock could not be necessarily related to the time recorded in exhibit 23 for various radio transmissions.
The CCTV film at 15:43 showed a prisoner standing on the brick paving immediately outside one wall of the gazebo. The prisoner bent down twice and lifted part of the concrete edging a few centimetres. He then allowed the concrete to again settle on the ground.
By 16:00, several prisoners had entered the gazebo and one prisoner was seen to lift and remove parts of the concrete edging to the brick paving immediately outside a wall of the gazebo. The concrete was taken from the same spot that had been lifted by a prisoner at about 15:43.
At approximately 16:01:15, camera 24 scanned across to the unit 3 courtyard and focused on the western end where the flower bed was located. At 16:01:55, a prisoner was seen going to one side of the flower bed, bending down and leaning or pushing against two of the limestone bricks that marked out the bed. Mr Flanagan identified himself as that prisoner. The action of bending down and leaning or pushing against the bricks was a momentary action lasting no more than a second. Mr Flanagan appeared to lean on the bricks rather than attempt to move them back and forth. He then walked a little distance away from the flower bed.
At about 16:02:45, the camera angle again changed. A number of prisoners were shown lined up against the fence dividing the courtyards for unit 2 and unit 3. A few prisoners were standing in and around the gazebo and another rectangular flower bed that was also surrounded by bricks and which was situated adjacent to the gazebo in unit 2. A prisoner picked up concrete from the edge of the gazebo brick paving and moved towards the unit 2 office (the digital clock showed the time at about 16:03:30). A few seconds later, two prisoners were seen throwing something towards the day room windows immediately behind the gazebo. Two window segments appeared to have been shattered.
At about 16:06:45, camera 24 scanned back to the unit 3 courtyard. A prison officer conferred with a woman at the eastern end of the basketball court.[23] The camera then panned back to courtyard 2.
[23] I infer that the woman was Assistant Superintendent Patten. The digital clocked showed approximately 16:07:40.
At about 16:08:40, a prisoner in the gazebo removed a handle from a broom. The prisoner used the broom handle to smash further segments of the day room windows. Rocks were thrown at the windows. The next few minutes of film showed prisoners collecting pieces of brick and other debris from around the gazebo.
At about 16:12:06, a prisoner identified as Mr Flanagan was captured talking to three unit 2 prisoners through the mesh fence dividing the courtyards for units 2 and 3. The camera then swung back to focusing on the gazebo area. By this time, a number of bricks from the brick paving area had been disturbed.
At about 16:13:30, camera 24 scanned back to the unit 3 courtyard and focussed on the western end. Rocks or pieces of debris were on the basketball court and two or three prisoners were picking up or holding the rocks. One prisoner was shown throwing a rock or piece of debris towards the unit 3 office.
At 16:13:58, the camera focussed on the rectangular flower bed at the western end of the unit 3 courtyard. Several prisoners were around the flower bed and a few prisoners were picking up rocks or other debris. A few seconds later, two prisoners threw rocks near the unit 3 office area.
At 16:14:01, Mr Flanagan was shown moving from the flower bed and carrying a rock or part of a limestone paver in each hand. He was on the northern side of the courtyard moving towards the unit 3 office area. The CCTV film did not capture whether Mr Flanagan smashed a limestone brick to obtain the pieces he had in his hand or whether he had collected the pieces from the ground.
Two prisoners were shown pushing against the fence dividing the courtyards at about 16:15:17. A prisoner walked across the unit 3 courtyard to assist and another prisoner also joined in the attempt to breach the fence. At about 16:17:00, a prisoner passed through the fence.
At about 16:23, a number of prisoners moved across the unit 3 courtyard in the direction of the unit 3 office. It was not possible to tell from the film whether the prisoners entered the office at this point. However, it was plain that a number of prisoners in the unit 3 courtyard were attracted by whatever was happening in and around the office at this time.
At about 16:24, two prisoners were shown on the roof of unit 3 and shortly afterwards, a prisoner could be seen at the rear of unit 3 adjacent to the unit 4 fences. At 16:25:12, other prisoners were on the roof and a few seconds later, a prisoner was seen to be on the path between the unit 4 fences. At 16:27:40, a prisoner could be seen accessing the unit 4 courtyard by dropping down from large metal piping that ran along the top of a fence. A prisoner was also shown climbing the unit 4 fence. At 16:28, a prisoner disconnected camera 24.

Camera 23

The primary focus of camera 23 was on the unit 4 and unit 5 courtyards. However, it captured a part of the unit 3 courtyard and across the roof of various parts of the Prison.
At about 16:30, CCTV film from camera 23 showed a number of prisoners on the unit 3 roof. At around 16:38, a number of prisoners could be seen on the path between the unit 4 fences and shortly after, a prisoner shown on top of the fence closest to the unit 4 courtyard.
At about 16:42:10, the camera focussed on prisoners climbing off the Prison roof and through an air vent. Assistant Superintendent Patten stated that the air vent led to the maintenance workshop. The State submits that prisoners obtained tools and ladders from the workshop for the purpose of effecting an escape from the Prison. I am not certain whether that allegation is admitted by Mr Flanagan.

Camera 25

Camera 25 was positioned on the laundry roof and was able to pan across the southern end of the Prison and along the eastern side, including the Centrak on that side. The State did not add a digital clock to the CCTV film captured by the camera and played to the court. However, the prosecutor explained that the CCTV film taken by camera 23 and played to the court commenced at 14:00.[24] Although not expressly stated, I have inferred that the film taken by camera 25 and played to the court also commenced at 14:00.
[24] ts 263.
At 2:47:43 into the CCTV film (14:47:43), the camera panned across the eastern side of the Prison and a few prisoners could be seen at the outer perimeter fence. The camera zoomed in on the prisoners and a ladder was shown leaning against the fence. A prisoner was at the top of the ladder, eight prisoners were at the base of the ladder and another prisoner was a short distance away. A second ladder was handed to the prisoner at the top of the ladder leaning against the fence. He lowered the ladder down the other side but it appeared to be too short to enable the prisoners to complete their escape. The last prisoner on the first ladder lifted that ladder up and over the other side. Ten prisoners then descended the ladder and escaped. Their escape was complete by 2:53:13 into the film - this is, by 16:53:03.

Findings on the CCTV film

The quality of the CCTV film played to the court was generally good. However, events were sometimes captured from a distance that limited the ability of witnesses to confidently identify particular prisoners. Further, it was obviously more difficult to reliably discern what was captured by the cameras as it became dark. Counsel were sensitive to those limitations in dealing with the film.
Nevertheless, what was recorded by the CCTV cameras as described in the preceding sections was not affected by either of those limitations. I make findings according to what has been described. The summary has been taken from my review of what was captured by the cameras. I have accepted that the time recordings forming part of the film as played to the court were accurate.

Mr Flanagan's evidence

Evidence‑in‑chief

Mr Flanagan worked in the prison laundry on 24 July 2018. He finished work in the laundry at about 3.00 pm. He went back to unit 3 and had a shower. He stated that he then went to the unit 3 office to fill out a form and was at the office when he heard the fire alarm.[25] He asked an officer about the muster point and was told to go to the unit 3 basketball court.
[25] ts 462.
The State submitted that Mr Flanagan's evidence that he was in the vicinity of the unit 3 office filling out a form when the fire sirens were triggered should be rejected as he was captured on CCTV film in the unit 3 courtyard at 16:01:55 – the first fire code red call was timed at 16:01:54. I infer that the call was made after the fire sirens as it was made by senior officer Cullerton on viewing the fire in cell 22. Further, Mr Flanagan stated that he could see some smoke coming from the cell while he was in the unit 3 office area (cell 22 was close to the security grille between units 2 and 3 on the eastern wing of the main prison complex). I am not prepared to reject Mr Flanagan's evidence that he only moved to the unit 3 courtyard after hearing the fire sirens.
I found Mr Flanagan to be an honest witness when testifying about the events on which he gave evidence notwithstanding that he had lied in his electronically recorded interview. He made a number of admissions in his evidence; typically those admissions were made without equivocation and generally, his evidence did not appear to be contrived. Tellingly, he stated that he did not attempt to put out the fire in the wheelie bin despite officer Day's evidence that he saw Mr Flanagan endeavouring to do so with a fire extinguisher. However, there were some points in Mr Flanagan's evidence about his motives for acting that will require careful consideration after receiving the parties' further submissions.
Mr Flanagan agreed that he was asked by Assistant Superintendent Patten to return to his cell and that he had said he was not prepared to do so 'because of what happened early on about the fire'.[26] He also agreed that he had ignored the direction given by officer Foster to return to his cell and he agreed with the officer's description of the change in his demeanour. He said he did not obey the direction, 'because I wasn't thinking, really'.[27]
[26] ts 464.
[27] ts 465.
Mr Flanagan told detectives in his electronically recorded interview that he had not smashed any windows. He stated in his evidence that this was a lie and that, 'it would have been after everything happened, really, breaking - throwing a brick and smashing a window'. The broken window was in the unit 3 office. He smashed a window using a brick which he had found lying on the basketball court; the brick had been thrown across from unit 2.[28] He threw the brick after prison officers had abandoned the unit 3 office.
[28] ts 467.
Mr Flanagan was asked about the part of the CCTV film that showed him bending down and leaning or pushing against the limestone bricks that marked out the flower bed:[29]
What did you do when you were next to the limestone garden bed on the first occasion? - - - I stood up next to the limestone brick and think I leant forward. I'm not quite sure. I don't know if I grabbed it or - yes. I can't remember, really, just
…
Did you kick any of the limestone blocks that constituted the wall of the garden bed? - - - No.
Did you test the limestone blocks of the garden bed to see whether they could be dislodged easily? - - - No.
Why is that you went over to the limestone garden bed, then walked away and came back to the limestone garden bed? - - - Like I said, just - I was just sitting around, standing around. I had no intention to do anything at the time. I was just walking up and down to see what was going on with them other boys. Yes, that's all I was doing.
Did you yourself break any of the limestone blocks in the garden bed? - - - No.
Did you plan this riot with anyone? - - - No.
[29] ts 476 ‑ 477.
Mr Flanagan stated that he remained in the unit 2 courtyard for approximately 30 minutes before going to unit 4. He left unit 3 through a window in the senior office's office.[30] He went to unit 4 to speak to a girl to whom he had been writing letters. He opened the door to her cell using an angle grinder given to him by another prisoner.[31]

Cross‑examination

[30] ts 468.

[31] ts 468 ‑ 469.

Mr Flanagan stated in cross‑examination that he was related to, or knew, many of the unit 2 prisoners including Tennessee Pearce and Tremayne Comeagain. He reiterated that he first realised there was a fire in unit 2 when he was speaking to officers at the unit 3 office and saw smoke and an officer running to cell 22. He then went to the unit 3 courtyard. From the courtyard he was able to see Tennessee Pearce, Bevan Comeagain and Tremayne Comeagain chucking rocks and smashing windows. He was asked what he did when he got to the unit 3 courtyard and he replied:[32]
I was standing around, boys that I knew from unit 2. I was walking over there, ask them what's going on, with the boys. It was Blair that I was talking to, Comeagain. He was the older brother for Tremayne and Devon. Yes, I was just asking him what was going on, are they alright?
Sorry, you were talking to who? Blair, were you? - - - Yes, yes.
So Blair was over near the fence? - - - Yes.
And you were asking Blair what was going on. Had you done anything before asking Blair what was going on? - - - No, I was standing up over in the corner, in the - where the garden bed was, mucking around there, talking with the boys. Then I walked back over to Blair.
When you say you were mucking around, didn't you go over and bend down at the flower bed, and lean against the limestone block? - - - Yes.
Why did you do that? - - - Not quite sure.
Well, weren't you loosening the limestone block because you knew that the boys over on the other side were getting involved in rock throwing? - - - Well, that one there, that was cemented in. So I don't know how. So if I was loosening them by pushing them.
Well, that's what you were doing, wasn't it? You were pushing the limestone block to see if you could get some ammunition? - - - No, I was - I wasn't actually doing that there, trying to loosen up the limestone bricks.
[32] ts 495 ‑ 496.

Mr Flanagan agreed that he had been instructed by prisoner officers to move away from the fence and that he had disobeyed that command. He said he was trying to find out what was going on and it was put to him that he wanted to see if 'they were fair dinkum about continuing this thing'. He replied, 'they were already - they were already going all the way, from the start'. It was then put to him, 'you knew it was on'? He replied, 'not until later'. The following exchange then occurred:[33]
Well, you knew it was on the moment you came out onto the basketball court and you saw them throwing rocks at the windows? - - - Yes.
Unit 3 could have stayed in control, couldn't it? - - - Not really, because they made their way through the fence anyway.
They made their way through the fence, but you had been told to go to your - to lock down, hadn't you? - - - Yes.
You didn't want to go lock down? - - - No.
You want [ed] to participate in the riot? - - - Not quite.
Well, but you did, didn't you? You did participate in the riot? - - - Wasn't until later, when everything started like in unit 3.
[33] ts 496 ‑ 497.
Mr Flanagan stated that three of the younger prisoners started booting the limestone brick surround to the flower bed. He was standing nearby. He decided to get involved in the riot, 'when the officers took off to the office in unit 3, and after they left - as soon as they left from unit 3 office, that's when I got involved'. At that stage, he 'just tagged along'. He did not throw the rocks he was holding in his hands straightway; it was only after the officers 'took off from the unit 3 office' that he threw the rocks.[34]
[34] ts 998.
Mr Flanagan said he was angry and frustrated by the treatment he had received while in the Prison when he decided to join the riot. I inferred that was a reference to disciplinary action that had been taken shortly prior to 24 July and about which Mr Flanagan had given evidence.
Mr Flanagan was cross‑examined on what he told detectives in his electronically recorded interview about his escape out of unit 3. He admitted that, contrary to what he told detectives, he did not escape from the unit through a shower window. He said he told the police that he had escaped from unit 3 by that means 'because at the time I was down back in Hakea, just a lot of stuff going through my head at the time. I realised later that - what I got myself into. I was pretty stupid, so I wasn't thinking'.[35] Questioned further, he said that Bradley Silvester had told him to tell the detectives that he had escaped from unit 3 through the shower window and that Mr Silvester and another prisoner had left the unit in the same way. He had been told to say that by Mr Silvester sometime after 24 July 2018.
[35] ts 491.
Mr Silvester is one of the prisoners who the State alleges escaped from the Prison. That allegation was not disputed by Mr Flanagan.
Mr Flanagan told detectives in his electronically recorded interview that he had endeavoured to persuade Mr Silvester not to escape. He stated that he recalled telling the detectives that 'I tried to get him to snap out of it'. The cross‑examination continued:[36]
[36] ts 492 ‑ 493.
You knew that Mr Silvester was going to escape before he went, is that right? - - - Yes.
And you knew that in that afternoon? - - - Yes.
Where were you when you told Mr Silvester to snap out of it? - - - I was still on - on the basketball court in unit 3.
So that was before Mr Silvester got locked down was it? Let me take you back. That question might not be particularly fair to you. Do you know whether Mr Silvester got locked down? - - - Yes, he was locked down.
In unit 3? - - - In unit 3.
The long wing? - - - The long wing, but he ended up getting out.
Do you know how he got out of the unit 3 long wing? - - - Well, through that grille.
Did you see him do that, or is that what he told you? - - - No, I seen him do it.
You saw him get out? - - - Yes.
And where were you when you saw him get out? - - - I was on the basketball court.
What stage of the riot had you reached, or had it reached when Mr Silvester got out of the unit 3? - - - It was after when all the officers had left the unit 3 office when Silvester come out of the shower block through the grille.
It should be noted that the grille over a shower window in unit 3 was damaged.[37] It was not in issue that Mr Silvester escaped from unit 3 through the shower window after the grille was forced open.
[37] See photograph No 1, exhibit 11.
Mr Flanagan stated that he spoke to Blair Comeagain when he went to the mesh fence dividing the unit 2 and unit 3 courtyards (that is, before the fence was breached). He said that he asked Mr Comeagain what was going on. According to Mr Flanagan, Mr Comeagain said:[38]
He was just telling, he didn't know too. He was a bit wild that his younger brothers were running amuck, and I tried to tell him that - talk to them and ask them what was going on, but it was too late by then.
By 'too late', Mr Flanagan meant that unit 2 was already out of control.
[38] ts 496.
Mr Flanagan admitted that he wanted to damage property by throwing bricks at the unit 3 office windows. However, he denied entering the office and joining with other prisoners who were smashing the interior of the office. He said that he went to unit 4 about 20 minutes 'after the unit 3 incident'.[39]
[39] ts 502.
The findings I have made about whether the State has proven beyond a reasonable doubt that Mr Flanagan was an instigator of the riot and that he broke up limestone bricks to use as weapons are set out in the next sections. The findings are based on all of the evidence and findings referred to above – that is, the evidence of the prison officers, the radio transmission summary, the CCTV film and Mr Flanagan's evidence.

Was Mr Flanagan an instigator of the riot?

An allegation that seeks to characterise the effect of a person's conduct can be problematic. The allegation is necessarily in the form of a conclusion and, as such, can invite unhelpful debate about what is meant by the allegation and whether the person's conduct can be properly described by the characterisation alleged.
The prosecutor clarified in closing what the State meant by the allegation that Mr Flanagan was an instigator of the riot: that he was aware the riot was to occur and he was involved in initiating the disturbance. The clarification still begged important questions: was there a difference between being aware that the riot was to occur and being an instigator of the riot and what was meant by 'the disturbance'? Was Mr Flanagan alleged to be an instigator of the riotous behaviour in unit 2 that triggered the code red call or the instigator of some other activity?
I have not found it helpful for the purpose of assessing the seriousness of Mr Flanagan's offending to determine the State's allegation in the form it is expressed. Rather, I consider the seriousness of Mr Flanagan's conduct is better assessed by reference to findings about what he actually did during his admitted participation in the riot.
However, as to the allegation that Mr Flanagan was an instigator of the riot:
(a)I find that there was a plan to at least break up some of the brick paving around the gazebo in the unit 2 courtyard and to throw pieces of concrete and brick at the unit 2 office sometime prior to when the fire in cell 22 was started. I make that finding having regard to what was shown in the CCTV film captured by camera 24 at about 15:43. The prisoner who, at that time, lifted part of the concrete edging to the brick paving at the gazebo was not identified. However, his act was plainly done in anticipation of what subsequently occurred in the unit 2 courtyard from around 16:00; there is no other reasonable inference.
(b)The only reasonable inference is that at least Mr Comeagain and Mr Pearce were involved in planning what occurred in the unit 2 courtyard immediately after the fire in cell 22. However, it is not possible to say which other prisoners, if any, were also involved in planning the riot.
(c)I find that the riot commenced in unit 2 at about the time that the riotous behaviour code red call was made at 16:03:46. That approximates the time when two prisoners were captured by camera 24 throwing something towards the day room windows immediately behind the gazebo in unit 2.
(d)There was no direct evidence that, prior to the fire being lit in cell 22, Mr Flanagan knew that some prisoners intended to engage in riotous behaviour in unit 2. The first fire code red call was made at 16:01:54. Obviously, the fire in cell 22 was lit before that time. I accept that Mr Flanagan's actions in bending down and leaning against the limestone bricks that formed the flower bed at the western end of the unit 3 courtyard was suspicious. That occurred at 16:01:55. However, his action in bending down and leaning against the bricks was momentary. I was unable to conclude that he was testing whether it was possible to move the bricks so as to enable them to be removed, smashed into pieces and used as projectiles.
(e)Accordingly, I am not satisfied beyond a reasonable doubt that Mr Flanagan was involved in planning a riot in unit 2 or elsewhere in the Prison prior to the fire being lit in cell 22 and the riotous behaviour commencing in unit 2.
(f)I further find that there was no riotous behaviour in unit 3 at that time or for some minutes afterwards. I accept Assistant Superintendent Patten's evidence that there was no riotous behaviour occurring in unit 3 when she went to the unit 3 courtyard to organise prisoners to be locked down. Assistant Superintendent Patten was captured by camera 24 walking across the unit 3 courtyard and conferring with another prison officer at approximately 16:06 ‑ 16:07. There was no evidence from the CCTV film that prisoners were engaging in riotous behaviour in the unit 3 courtyard at that time.
(g)However, I find that by about 16:13 at least a few prisoners in unit 3 had decided to join the riot that had been commenced in unit 2. I make that finding from what was captured by camera 24 at 16:30:30 - prisoners were gathering rocks and debris and the only reasonable inference is that they intended to emulate the conduct of the prisoners who were rioting in unit 2 by throwing rocks at the unit 3 office.
(h)At 16:14:01, Mr Flanagan was shown carrying a rock or part of a limestone brick in each hand as he moved away from the flower bed at the western end of the unit 3 courtyard. I am satisfied beyond a reasonable doubt that Mr Flanagan had decided to join the riot that had commenced in unit 2 by this time. It is not possible to make a finding as to whether he made that decision sometime earlier between 16:00 and 16:14.
(i)I am satisfied beyond a reasonable doubt that prisoners gained access to the unit 3 office at or shortly after 16:23 having regard to what was depicted in the CCTV film taken by camera 24 at that time. I further find that prison officers abandoned the unit 3 office immediately before prisoners gained access. It is significant in this context that prisoners had escaped from either unit 2 or unit 3 by about 16:24 – prisoners were on the roof of unit 3 by this time and shortly afterwards, prisoners were on the path between the unit 4 fences.
(j)It is not possible to make a finding about when Mr Flanagan threw pieces of brick or rock at the unit 3 office windows.
(k)Mr Flanagan admitted that he knew Mr Silvester intended to escape by the time that the unit 3 office had been abandoned by prison officers. Obviously, the fact that prison officers left unit 3 would have facilitated Mr Silvester's escape through the shower window. There was no direct evidence as to when the shower grille was smashed to enable Mr Silvester to escape.
(l)Mr Flanagan said that Mr Silvester told him of his plan to escape as he 'jumped out of the shower window'.[40] There was no reasonable basis for rejecting Mr Flanagan's evidence to that effect. That evidence places Mr Flanagan already at the rear of unit 3 at the time he spoke to Mr Silvester. The evidence did not establish whether Mr Silvester was one of the prisoners who entered the air vent at around 16:42. However, all of the prisoners who escaped had reached the outer perimeter fence by about 16:47. Having regard to the findings that have been made about Mr Flanagan's movements in units 3 and 4 and the findings about Mr Silvester's escape from unit 3 and the Prison, I am satisfied beyond a reasonable doubt that by about 16:30, Mr Flanagan was aware that prisoners intended to escape during the riot that was by then occurring in units 2 and 3 and about to spread to unit 4.
[40] ts 503.
I will give the parties a further opportunity to make submissions on the State's contention that, by participating in the riot, Mr Flanagan intended to create a diversion to facilitate the escape. It should be noted in that regard that I have not made any finding about the State's submission on what it contends was shown in CCTV film taken by camera 24 at about 16:17 and Mr Flanagan's evidence at ts 527. I did not consider that the submission assisted in determining whether the State had proven beyond a reasonable doubt that Mr Flanagan was an instigator of the riot but it may be relevant for any finding to be made about Mr Flanagan's motives in joining in the riot.

Did Mr Flanagan break up the limestone bricks?

Mr Flanagan was not captured on CCTV breaking up limestone bricks taken from the flower bed at the western end of the unit 3 courtyard. The only direct evidence that Mr Flanagan smashed bricks was given by Mr Quartermaine. However, there was a significant shift in Mr Quartermaine's evidence in cross‑examination - he stated that Mr Flanagan had not smashed bricks taken from the flower bed but had only thrown pieces of brick or rocks. Accordingly, I could not be satisfied beyond a reasonable doubt that Mr Flanagan did smash limestone bricks to enable broken pieces to be used as weapons.

The progress of the riot

The western response group

Assistant Superintendent Patten stated that she reported to Superintendent Illich after leaving the unit 3 office and returning to central control. It was decided to establish an incident control facility. That was established at approximately 5.00 pm. It was also decided to seek assistance from the special operations group in Perth.[41]
[41] ts 197 - Patten.
Officer Murphy said he was working with officer Day in unit 6 late in the afternoon of 24 July 2018. After hearing the fire and riotous behavior code red calls, he and officer Day directed the unit 6 prisoners to return to their rooms. They then offered to be redeployed into the main prison complex. They were redeployed at approximately 16:30.[42]
[42] ts 251 ‑ 254 ‑ Murphy.
A number of prisoners were cleared from unit 2 and secured in unit 1. Further, a number of female prisoners who had returned from an outside work party were also secured in an area within unit 1.[43]
[43] ts 253 ‑ 254 ‑ Murphy.
Prison officers were divided into two response groups. Officer Murphy referred to the response groups as the western and eastern response groups, reflecting the side of the Prison to which the groups were subsequently deployed. It is convenient to use officer Murphy's nomenclature.[44]
[44] ts 253.
Officer Murphy was allocated to the western response group. He stated that the western response group were directed shortly after 17:00 to move from central control and establish a position in unit 5 where they could observe unit 4 and prisoners who were on the roof of the Prison.[45] They took up a position in the unit 5 office. By this time, the unit 4 fences had been breached and male prisoners had entered unit 4.[46]
[45] ts 254.
[46] The first radio call referring to prisoners entering unit 4 was timed at 16:29:36.
Some prisoners entered unit 5 to speak to other prisoners. Officers who were not wearing PPE were directed to leave the unit 5 office. Officer Murphy and some other prison officers who were in riot gear remained in the office. However, the office was 'attacked' - officer Murphy stated that the office was attacked twice. Pieces of concrete and other items taken from the unit 4 basketball court area were used in an attempt to shatter the windows to the unit 5 office. Eventually, all of the officers in the unit 5 office were directed to evacuate. That was at about 21:30. Officer Murphy thought that he, and the other officers who were in riot gear, had stayed in the office for about 30 minutes after the office had first been evacuated by some prison officers.[47]
[47] ts 255 ‑ 257 ‑ Murphy.
According to officer Murphy, Mr Flanagan was one of the prisoners who entered unit 5 and spoke to a prisoner. He said that Mr Flanagan was also involved in attempts to break the windows of the unit 5 office by throwing bits of concrete and other material prior to all officers evacuating the office.[48] Mr Flanagan admitted that he went to unit 5 at one point to speak to another prisoner and that he subsequently 'attacked' the unit 5 office.[49]
[48] ts 257 ‑ 258.
[49] ts 517 ‑ 518 - Flanagan.
I accept officer Murphy's evidence about the activities of the western response group and Mr Flanagan's conduct in unit 5. His evidence was not disputed and it was consistent with admissions made by Mr Flanagan in his evidence and the concessions he made after all of the evidence had been presented in the trial.

The eastern response group

Officer Bruce White was placed in charge of the eastern response group. He stated that his group were initially directed to split up and go to the grilles at either side of the industrial area. He did not fully act on that direction as he considered that it was unsafe to split his group.[50]
[50] ts 340.
The group was then directed to go to the eastern side of the Prison near the garden area. However, as they did so they were informed by female prisoners in the gatehouse that some prisoners had broken into the fuel canister area within the garden shed/ storage. The group investigated and discovered that the shed had been smashed open.[51] Officer Bruce White and another officer then inspected the maintenance shed and found that it was open. The shed ought to have been locked. These and related events are further considered later in the reasons.
[51] ts 340.
The eastern response group remained on the eastern side of the Prison to observe what was happening further north towards the unit 4 fences. Officer Bruce White stated that in the next 30 ‑ 45 minutes they saw prisoners moving to and from the unit 4 compound through gaps in the Colorbond fence.[52] He recognised Mr Flanagan as one of the prisoners who was moving around unit 4.[53]
[52] ts 341 ‑ 342.
[53] ts 342.
Subsequently, the group moved further north, closer to the unit 4 fences. There appeared to be a fire on the unit 4 side of the Colorbond fence and smoke was coming from the top of unit 3. The group did not advance any further as prisoners started to throw rocks. Officer Bruce White identified Mr Flanagan as one of the prisoners throwing rocks. Mr Flanagan accepts that he threw rocks at the prison officers who were on the eastern side of the Prison.
The eastern response group retreated. According to officer Bruce White, it was still light at this time.[54] However, officer Day, who was a member of the eastern response group, thought that the group had been forced to retreat from a position closer to unit 4 at about 20:00. Officer Day stated that a fire in unit 3 was burning out of control by this time.[55]
[54] ts 344 - White.
[55] ts 330 ‑ 331 -Day.
The eastern response group was still on the eastern side of the main prison complex as night set in. By this time, fires in unit 3 and unit 4 could be seen. A wheelie bin was set on fire but officer Bruce White did not see who lit the fire.[56] Evidence about the fire is summarised later in the reasons when the question of whether the State has proven that Mr Flanagan lit the fire is considered.
[56] ts 345 - White.

I accept officer Bruce White's evidence about the events that he described and the sequence of those events as summarised in this section. I make findings according to that evidence. However, I make no findings from officer Bruce White's evidence as to the precise time at which the events occurred. I also accept the evidence given by officer Day that is referred to in this section.

Central control

The eastern response group eventually returned to central control. However, officer Bruce White stated that he and other prison officers were forced to abandon their position after about 45 minutes due to smoke from the fire in unit 3.[57]
[57] ts 347 - White.
Officer Murphy stated that the eastern response group had returned to central control by the time he and the other members of the western response group had evacuated unit 5 and returned.[58] He stated that prisoners managed to break part of the windows in the arch roof over central control shortly after his group returned. Objects were thrown at officers through the broken windows.[59]
[58] Office Murphy estimated that he and other prison officers evacuated out of the unit 5 office at about 21:30.
[59] ts 258 - 259 - Murphy.
According to officer Murphy, at approximately 22:00 officers were notified that there was a significant smoke problem in unit 1. He and officer Day went to the unit and reassured prisoners about their safety. They returned to central control at about 22:15 and found that the area had been evacuated; officers had retreated to the gatehouse.[60]
[60] ts 259 - 60.
I accept officer Murphy's evidence about what occurred at central control. It was consistent with the evidence given by officer Day.

Evacuation from unit 1 to the oval

Officers Murphy and Day gave evidence that conditions in unit 1 were difficult for prisoners to endure as the unit had filled with smoke from the fire in unit 3. It was decided to evacuate the prisoners from the unit onto the oval at the south-west corner of the Prison. The prisoners were secured with flexicuffs.[61]
[61] ts 214 - Patten.
Mr Quartermaine gave evidence about the conditions in unit 1 after he was relocated to the unit once the riot in unit 2 had commenced. He said he was escorted from unit 1 to the oval at about 23:00. There were prisoners on the roof of the Prison overlooking the oval; he thought about 11 prisoners. Mr Flanagan was one of the prisoners on the roof.[62] That was consistent with the evidence given by officer Day that Mr Flanagan was one of about 12 prisoners who had been on the roof of the prison and who had surrendered in the early hours of 25 July.[63]
[62] ts 317 ‑ 319 - Quartermaine.
[63] ts 332 - Day.
Officer Brick stated that he observed a fire on the roof of what he thought was the medical centre. He saw the fire after prisoners had been evacuated onto the oval. He could see six to eight prisoners on the roof of the medical centre or unit 1. A prisoner bent down and something was poured onto the roof. The fluid ran down corrugations in the roof and a prisoner set fire to the fluid.[64] Mr Flanagan admitted that he was one of the prisoners on the roof at the time that the fire observed by officer Brick was lit.

CCTV film and the fires

[64] ts 684 - Brick.

It was not in issue that several fires were lit during the riot. Prison officers gave evidence about various fires that they observed but the most reliable evidence about the location and time of the fires was provided by the CCTV film. What follows is a summary of the relevant film. The summary primarily deals with the fires that were lit during the riot but some other events are also noted.
Officer Murphy gave evidence about what was depicted in the CCTV film taken by cameras 23, 25 and 42. His evidence was not controversial.
A summary of what was shown on the CCTV film taken by camera 23, supplemented by officer Murphy's evidence follows. I make findings in terms of the matters stated in the summary:
(a)At about 17:20:13, flames could be seen at the north‑east corner of the main prison complex and to the rear of unit 3. Officer Murphy identified the fire as being 'adjacent to unit 3, out the front of the - a paved area, on the eastern side at the back, and bridges the door to the offices'.[65] As the camera zoomed in, it could be seen that the fire was burning immediately in front of the Colorbond fence that formed part of the unit 4 fences. The fire died quickly and as it did so, it could be seen that it had been lit, as officer Murphy observed, on a paved area. Accordingly, it must have been lit using an accelerant.
(b)At about 17:40:05, a plume of smoke could be seen coming from a position similar to where the fire had been lit at about 17:20. The smoke dissipated quickly. Officer Murphy was not taken to that part of the CCTV film.
(c)At about 17:43:13, a plume of smoke could be seen coming from behind the Colorbond fence. The plume of smoke came from an area close to but further east from the area where the previous plume of smoke could be observed. Again, the smoke dissipated quickly.
(d)At 17:45:18, a prisoner could be seen approaching two fruit trees located near the east end of the Colorbond fence and on the unit 3 side of the fence. He was carrying a red container. He threw fluid from the container onto the second tree and at 17:45:40, the tree caught fire. The prisoner could be seen lighting the tree. The fire quickly burnt itself out. Officer Day stated that the fire died as the tree was green.[66]
(e)At 17:47:25, flames could be seen close to the rear of unit 3 and near the unit 3 shade house (that is, at a point close to but further south from the fruit tree that had been previously set alight). The flames appeared to be generated from a 'spot' fire.
(f)At about 18:24, the camera panned across from the eastern side of the Prison to the long (northern) wing of unit 3. Flames could be seen coming from behind the unit. Subsequent footage indicated that the flames were from a fire in the unit 4 courtyard.
(g)At about 18:34, the camera panned back to the east side of the Prison and focused on an area close to the Colorbond fence - to the unit 3 side of the fence and close to the fruit trees near the fence. It could be seen that a tree was on fire. At about 18:57, prisoners could be seen coming through a hole in the Colorbond fence towards the fire. Officer Murphy was unable to identify the prisoners.[67] The fire continued to burn for some time.
(h)A second clip of CCTV film taken from camera 25 was said by the prosecutor to commence at 20:24:27.[68] At about 20:18 into the clip, prisoners can be seen moving around on the roof of the Prison near to the arch roof over the control centre. At about 2:01:20 into the clip, the camera was focused on the eastern side of the Prison and unit 4. A fire could be seen and clouds of black smoke. Officer Murphy stated that the smoke was coming from a fire in unit 3. Wind was pushing the smoke toward unit 1.[69] The source of the smoke could be more clearly seen as the camera panned around to focus on the eastern long wing. The camera later captured the prisoners who were on the roof of unit 1.
[65] ts 277.
[66] ts 408 - Day.
[67] ts 281.
[68] ts 282.
[69] ts 283.
Officer Murphy also gave similar evidence about the CCTV film taken by camera 23. Again, I make findings from what was shown in the film according to the following summary:
(a)At 17:20:30, a plume of black smoke could be seen coming from the north‑east corner of the Prison at the rear of unit 3. The smoke quickly dissipated. I infer that the smoke came from the fire that was captured by camera 23 at about the same time.
(b)At 17:31, four prisoners could be seen in the unit 4 courtyard collecting rocks and debris and placing them in a green plastic rubbish bin. The prisoners were not identified.
(c)At 17:36:47, the camera zoomed in on the path between the unit 4 fences. Three prisoners could be seen along with two green metal jerry cans that had been placed on the path.
(d)At 17:44, the camera returned to the path between the unit 4 fences. The two jerry cans were still on the path and one prisoner was holding a red plastic container. The prisoners were not identified. The prisoner with the red container disappeared out of the camera frame behind the eastern side of the rear of unit 3. About a minute later, a prisoner picked up one of the metal jerry cans that had been standing on the path. That prisoner also disappeared around the back of the eastern side of unit 3.
(d)At about 17:50, a prisoner could be seen throwing fluid from a red plastic container onto a tree in the unit 4 courtyard. The CCTV film between approximately 17:50 and 18:00 showed that another three fires were lit in the unit 4 courtyard. The CCTV film taken by camera 23 indicated that fires continued to burn in the unit 4 courtyard for the next few hours.
(e)At 22:00, the camera was directed east along the roof of the long (northern) wing of unit 3. Two prisoners could be seen on the roof. There were prisoners on the path between the unit 4 fences. They gathered what officer Murphy identified as concrete blocks and pavers from the path. The prisoners loaded the blocks and pavers into a rubbish bin which was then hauled up onto the roof of unit 3. That process was repeated three times.[70]
[70] ts 287 - Murphy.
Reference was made above to a prisoner holding a red plastic container. The prisoner was wearing a white mask over his face; the type of mask that might be used for work where fumes or dust are generated. He was bare chested and wearing long trousers. It is clear from images of Mr Flanagan identified in the course of the evidence and from his appearance in the dock, that the prisoner was not Mr Flanagan (and the images taken by camera 24 showed Mr Flanagan wearing shorts and a T-shirt; it was not suggested that he had changed his clothes during the riot).
It was also earlier noted that camera 25 recorded a prisoner carrying a red container set fire to a fruit tree at about 17:45. Based on the film taken by cameras 23 and 25, I find that Mr Flanagan was not the prisoner who used fuel to set fire to the fruit tree at around 17:45.
Camera 25 also captured a prisoner picking up one of the metal jerry cans that had been on the path between the unit 4 fences at about that time. The possibility that the prisoner was Mr Flanagan cannot be excluded on a review of the CCTV but a finding to that effect could not be made beyond a reasonable doubt.
Officer Murphy also gave evidence about the CCTV film taken from camera 42. Again, I make findings in terms of the matters stated in the following summary of what was shown in the CCTV film to which officer Murphy was taken:[71]
(a)At about 23:40 (approximately 3 hours and 9 minutes into the film clip), camera 24 was directed in a north-east direction toward the southern end of the arched roof over central control. A window is built into the arch. Smoke could be seen in the background of the image which officer Murphy stated was probably coming from the unit 3 fire. About a minute later, a prisoner could be seen walking on a roof which officer Murphy believed was the roof to unit 3.
(b)In the following minutes, camera 42 panned across to the oval where a number of prisoners could be seen standing.
(c)At approximately 00:09 (3 hours 39 minutes into the clip), the camera panned towards the roof of the rear of unit 1 and the medical centre. Two prisoners could be seen emerging onto the roof. Other prisoners could be seen subsequently joining the first two prisoners and after about a minute, a prisoner raised his arms into the air. Officer Murphy identified the prisoner as Mr Flanagan.[72]
(d)At about 00:20, a prisoner could be seen with a container. In approximately the next minute, the container was tipped up and fluid poured down the roof. Another prisoner set the fluid on fire; the flames track the path of the fluid down the corrugations in the roofing tin.
[71] The State did not add a digital clock to the CCTV film taken by camera 42. The times given in the summary were calculated by the prosecutor. The time calculations were not disputed by Mr Flanagan and did not affect the findings that have been made.
[72] ts 290 - Murphy.
Mr Flanagan admitted that towards the end of the riot he climbed onto the roof of the Prison. He walked across to the roof above unit 1. He remained on the roof for about an hour and a half before he and the other prisoners came down and were taken through to unit 2 by prison officers.[73] He was on the roof when Tremayne Comeagain poured fuel down the roof of the medical centre near unit 1 and set the fuel alight.[74]
[73] ts 470 ‑ 471 - Flanagan.
[74] ts 483.
Mr Flanagan's written closing contained submissions on what Mr Flanagan did while he was on the roof. I do not know whether those submissions are accepted by the State.

The wheelie bin fire

The State alleged that Mr Flanagan set fire to a wheelie bin during the riot. Mr Flanagan denied that allegation.
Officer Murphy stated that he did not see Mr Flanagan set fire to or pour petrol onto a wheelie bin.[75] Officer Higgins also stated that he did not see Mr Flanagan set fire to a wheelie bin.[76]
[75] ts 311 - Murphy.
[76] ts 442 - Higgins.
Officer Day said that he saw Mr Flanagan on a few occasions while he was on the eastern side of the Prison. He stated:[77]
The main one was a bit later in the evening, when the fire had been lit. On the outside of that fence line there was a - fire lit and some - one of the trees was set alight as well. I can't honestly say who lit the fires, but I did see Mr Flanagan with a fire extinguisher, putting - or trying to put a fire out.
And when you saw this, where were you? - - - I was down near the two facility sheds and the shade houses at the gardens - on the garden side there.
Now, you've got a map behind, on the whiteboard? - - - Yes. Yes.
Can you point out to his Honour where you were? - - - Excuse my back. Basically, in this area here.
And where did you see Mr Flanagan? - - - Flanagan was down here.
So for the transcript, the witness indicated that he was standing on the eastern side of the prison, next to the grey building, which is the facilities area, and indicated that Mr Flanagan was on the northern side of that pathway close to the fence between unit 3 and unit 4. Now Mr Day, you said that you saw Mr Flanagan attempt to put out the fire. Where - what was on fire? - - - At that stage he was attempting to put out what I believed to be at the time a wheelie bin.
[77] ts 328 - Day.
Mr Flanagan stated in his evidence that he did not attempt to extinguish the fire in the wheelie bin. However, he gave evidence that he attempted to put out the fire in the unit 3 office. That evidence is considered later.
Officer Bruce White stated that the eastern response group were becoming concerned as night set in:[78]
It had got dark, so we actually couldn't see a lot, so we were actually getting a bit concerned, because we were obviously in an open area where they could come around - come around us, so we were getting concerned. You could see there was fires in unit 4, in the middle centre, and above unit 3 there appeared to be fires, and during that time, where the Colourbond fence was, just in front of it, a fire erupted. It appeared that a wheelie bin (indistinct) a wheelie bin had [been] set on fire, and then we could suddenly see, again, all the prisoners around the area, which we lost vision to.
Did you see how the wheelie bin was brought around and set on fire? - - - No. It was just too dark at that time. Suddenly, there were just flames.
And I gather by that answer you can't identify who did it? - - - No.
[78] ts 345 ‑ 346.
In answer to a question whether he had seen Mr Flanagan while he was on the eastern side of the Prison, officer White stated:[79]
Yes, sir, at some point it worked out - as it was getting dark - it was just after dusk - a group of prisoners, I don't know how many, set light to a dust bin - a wheelie bin. We were then tasked - and we saw them - I saw them pour what I presume was petrol into the wheelie bin. I couldn't say if it was or not. I can't identify that as being Mr Flanagan, however, shortly after the fire was lit, we were tasked to move up the road, primarily to check unit 3 and see where the fire was in unit 3 and what was going on there.
[79] ts 397 ‑ Bruce White.
Officer Brick was part of the eastern response team. He stated that during the evening he observed two fires at the rear of unit 3 - one in a wheelie bin and the other when a fruit tree was set alight. He said that the wheelie bin was the first fire. The bin was directly behind unit 3, approximately 3 m or 4 m from a gap in the unit 4 fences His evidence continued:[80]
And did you see how it was then lit on fire? - - -Yes. It appeared that a prisoner poured something, I think - well, from memory, it was nearly dusk, but they - you could see a pouring action into the wheelie bin, and - and some movement, and then a short time later flames erupted from the top of the wheelie bin.
[80] ts 382 ‑ Brick.
Officer Brick stated that he then saw a prisoner apparently pour something onto a fruit tree which was 'a fair distance to the east end of the wheelie bin'. Shortly after, the fruit tree caught on fire. Officer Brick was unable to identify the prisoner who had set fire to the wheelie bin or to the fruit tree.[81]
[81] ts 382 - 383.
It is to be noted that officer Brick stated that he saw the wheelie bin on fire when 'it was nearly dusk' whereas officer Bruce White said it was dark. Officer Brick said that the wheelie bin and the fruit tree fires were close in time. That was consistent with officer Day's evidence. Officer Brick's evidence on the fruit tree fire was also consistent with what was captured by camera 25 at about 17:45. That would indicate that the wheelie bin was set alight shortly prior to 17:45.
I prefer officer Brick's evidence on the timing of the wheelie bin fire to that given by officer Bruce White and make findings according to officer Brick's evidence on when the wheelie bin fire occurred.
Officer Foster was also deployed to the eastern side of the Prison. Mr Flanagan was one of a group of prisoners on the eastern side. Officer Foster stated:
Well, he [Mr Flanagan] was actually outside of the unit, so he had breached unit 3, and he was in the vicinity where fires were lit. There was a wheelie bin that was lit on fire. He was within that vicinity.
That summary of the evidence indicates that no prison officer saw Mr Flanagan set fire to the wheelie bin. Apart from the evidence of officer Day, the evidence of the prison officers, at most, placed Mr Flanagan near the wheelie bin when it was observed to be on fire. There was no CCTV film showing the bin catching alight. Accordingly, I find that the State has not proven that Mr Flanagan set fire to the bin. However, I further find that he was in the vicinity of the bin when it caught fire.
Mr Flanagan stated that he did not attempt to extinguish the fire in the wheelie bin, contrary to the evidence given by officer Day. It was against Mr Flanagan's interests to give that evidence and I find officer Day was mistaken in what he thought he had seen about Mr Flanagan endeavouring to extinguish the fire.

Did Mr Flanagan carry a jerry can and pour fuel on fruit trees?

Mr Flanagan denied that he took a jerry can of fuel and poured it on to a fruit tree or trees.[82] In cross‑examination, Mr Flanagan agreed that prisoners had gained access to the garden shed located in the unit 4 compound and had removed fuel from the shed. He stated that he did not know who was responsible for breaking into the shed and taking the fuel.[83]
[82] ts 473 - Flanagan.
[83] ts 509 - Flanagan.

Jerry cans and fuel were kept in the garden shed/storage area in the south east corner of the Prison and in the garden shed located in the unit 4 compound.[84] As previously mentioned, officer Bruce White stated that he was advised that prisoners had obtained jerry cans and fuel from the garden shed/storage at about the time that the eastern response group were directed to go to the eastern side of the Prison. They could see prisoners fleeing north towards the unit 4 fences when they arrived at the garden shed/storage area. The maintenance shed, which was ordinarily locked, was open and it appeared that items had been taken or disturbed.[85]
[84] ts 305 - Murphy (unit 4 garden shed); ts 340 - B White (garden shed/storage).
[85] ts 340 - 341 - Bruce White.
Officer Brick stated that the eastern response group were initially directed to go to security grilles either side of the industrial area. He said that while he was in that area he saw at least three prisoners running towards the garden office and garden shed/storage. He then saw at least one prisoner carrying a jerry can.[86] He stated that when the eastern response group moved to around the garden shed/storage and gardens office area they found that the fuel store had been breached, although two jerry cans of petrol were still in position.[87]
[86] ts 379 - Brick.
[87] ts 380 - Brick.
Officer Bruce White stated that at 'an unknown time' he observed Mr Flanagan appear through the unit 4 fences with another one or two prisoners. The prisoners 'walked out with a jerry can of fuel' which officer White believed was being carried by Mr Flanagan. He walked to a fruit tree adjacent to the unit 4 fences and officer White said he observed a 'pouring motion' and within seconds the tree caught alight. On being further questioned, officer White said that it was still daylight when this occurred.[88]
[88] ts 343 - Bruce White.
Officer Cook formed part of a group of prison officers who were directed under the supervision of senior officer Wilton to go to the Centrak on the eastern side of the Prison to resecure the gate in the inner perimeter fence.[89] By the time they arrived at the gate, panels had been removed or kicked out from the Colourbond fence that formed part of the unit 4 fences. There were prisoners moving in the area of the unit 4 fence, including Mr Flanagan.
[89] ts 404 ‑ 405 - Cook.
Officer Cook recalled Mr Flanagan being in that area because he and another prison officer assisted Superintendent Illich to approach the fences to speak to Mr Flanagan. According to officer Cook, Superintendent Illich asked whether he and Mr Flanagan could talk but a 'few seconds later, there was a barrage of abuse'. Superintendent Illich then retreated with the escorting prison officers.[90]
[90] ts 406 ‑ 408.
Officer Cook stated that his group held their position until the light started to fade. He then saw Mr Flanagan 'come out with a jerry can and light two fruit trees up adjacent to the Colourbond fence'. Two trees were close to the fence. He recalled the jerry can that Mr Flanagan used to be a green, 20 litre steel can. The trees were lit but flames died out after a short time because the trees were green.[91]
[91] ts 408.
Superintendent Illich went to the eastern Centrak sometime after the prisoners had escaped. He thought the time 'would have to be somewhere around about, I would say, twenty to six, twenty past six, something like that, but I'm not quite sure on that one'. It was dark by this time but the courtyard lights on unit 4 and the back of unit 3 were on and so the lighting conditions were 'quite good'.[92] Superintendent Illich's purpose in going to the Centrak was to ensure that the gate in the inner perimeter fence had been resecured after the lock had been cut by the prisoners who escaped. Superintendent Illich then walked further north along the Centrak to a point that was approximately in line with the unit 4 fences. There were prisoners on the path between the unit 4 fences or in the vicinity of the fences. Mr Flanagan was one of the prisoners in the area. He was with another prisoner and according to Superintendent Illich:[93]
From my vantage point over there, I call out, "Carl" to get his attention and I saw Carl actually look my way and then at that point the other person that was between Carl and I - the other prisoner that I couldn't make out who it was - he actually engaged in a conversation with me. And then Carl turned and walked off, walked in a westerly direction.
Alright. And what sort of conversation did the other prisoner engaged in? - - - Abusive towards me. It was along the lines of, you know, like "we told you this was going to happen. You didn't listen to us, you know, so we will burn the place down now" and just a whole lot of ramblings.
How far away was Mr Flanagan at this point? - - - I would say probably 50, 60 metres from where I was.
And how far away from the other prisoner was Mr Flanagan? - - - He would have been 15 metres to the east.
And you said that Mr Flanagan turned? - - - Yes, he turned his head and looked at me.
After that, was there any further interaction between you and Mr Flanagan? - - - No. As I said, Carl looked at me. The other person interjected, and Carl turned and walked away in a westerly direction.
And did the other person do anything? - - - No. The other person then had some accelerant with him. I believe it was some sort of fuel. He threw that fuel onto a fruit tree which is about here, that was to sort of reinforce his threat that "we'll burn the place down now” And he actually set fire to that fruit tree.
[92] ts 451.
[93] ts 454 ‑ 455.
I am not satisfied beyond a reasonable doubt that the State has proven that Mr Flanagan carried a jerry can and set fire to a fruit tree or trees during the riot:
(a)I have found that Mr Flanagan did not set the fruit tree on fire at about 17:45.
(b)I have further found that I could not be satisfied that it was Mr Flanagan who picked up one of the jerry cans on the path between the unit 4 fences at about 17:46.
(c)Officer Bruce White said it was still light when he saw Mr Flanagan set fire to a fruit tree. The most likely inference is that officer White was referring to the fruit tree that was set on fire at about 17:45. It was still light at that time, although the light was fading.
(d)The incident described by officer Cook was obviously the same incident about which Superintendent Illich gave evidence. However, there was a conflict in their evidence about who set fire to the fruit tree.
(e)The evidence did not establish the identity of the prisoner(s) responsible for the fires that could be seen in the CCTV film captured by camera 25 from about 18:34 onwards.

Other matters

The salt container and the baton

Mr Flanagan denied putting petrol into the salt container or preparing the contained to be used as a Molotov cocktail.[94] He also gave evidence as to how his DNA came to be on the baton. The parties may make further submissions on the State's allegations about Mr Flanagan's evidence on those matters.

The unit 3 fire

[94] ts 473.

Mr Flanagan stated that he was in unit 4 when he first saw the fire in unit 3. He went to unit 3. He was asked if anyone else was about and he replied:[95]
Not really until about - about a minute later, another prisoner, Matty Brockman, come running out to see what was going on and I told him, you know, one of our boy lit the fire. And so I ran back to unit 4 to get the fire hose out of - out of self‑care. Then I jumped - jumped through the window - the window was broken. I jumped through the window to take the hose over to unit 3 but it couldn't - it couldn't reach.
[95] ts 480.
Mr Flanagan said he then went to the garden shed in unit 4 and got two hoses which he took back to the unit 3 office. He connected the hoses to a tap and he and Mr Brockman attempted to put out the fire. He said he was concerned that the fire would spread throughout the Prison and endanger other prisoners still locked in cells. He stayed putting out the fire for approximately an hour and then went back to unit 4.[96]
[96] ts 481 ‑ 483.
The State accepts that Mr Flanagan attempted to extinguish the fire in the unit 3 office. I make a finding to that effect.
However, the State disputes Mr Flanagan's evidence on the reasons why he attempted to put out the fire. The parties may address this issue in further submissions on sentencing.

The State's submission about the effect of Mr Flanagan's association with other rioters

In the State's submissions in closing, Mr Flanagan's alleged involvement in setting fire to the wheelie bin and in walking around with a jerry can pouring petrol on fruit trees was put this way.
The state contends that based on the entirety of the evidence of the prison officers and the CCTV the court can find that the fires and the throwing of projectiles was part of a combined action to deter the prison officers from advancing. It is therefore submitted that Flanagan was involved (i.e. a party pursuant to Criminal Code s 7) in the group of prisoners who were using a number of techniques to repel the prison officers from advancing on unit 4. Flanagan is as culpable as the prisoners who lit the fires if he did not light the fires.
Flanagan asserts that he tried to extinguish the fire in unit 3. There is some circumstantial evidence that supports Flanagan's contention. It is submitted that the Court should not find that Flanagan's motive for attempting to extinguish the fire in unit 3 office was mitigatory. It is submitted that considering Flanagan's earlier and subsequent involvement in the riot there was a strategic motive for extinguishing the fire. The evidence is that Flanagan was a party to a group of prisoners who had used fire, verbal threats and projectiles to repel the advancing prison officers. The combined actions of this group of prisoners caused the prison officers to retreat. The rioters continued to use fire as part of the rioting process. The fire on the path at unit 4 continued to burn until well after camera 23 was disabled. The reason that the fire in unit 3 was started is not known. An explanation is that it was just part of the riotous conduct, that was, the destruction of prison property in a blatant display of rebellion. The fire in unit 3 office became a very significant fire. Flanagan said he put the fire out to save the prisoners from being burned to death and to stop the prison from being completely consumed in fire. The point is that the use of fire during the riot had produced this danger which was an obvious consequence of lighting the fire in the first place. Therefore, subsequent conduct which prevents the foreseeable catastrophe cannot be mitigatory when the risk of catastrophe was a core risk of the primary conduct and was conduct that had been adopted by the offender.
With respect, I am not certain I understand the reference to s 7 of the Criminal Code in that submission. Mr Flanagan has been convicted of a single offence of riotously assembling with others. He admitted the circumstance of aggravation. As has been explained, his participation in the riot extended over a period of approximately 12 hours. Obviously, he and others with whom he riotously assembled did many things in the course of that period. Mr Flanagan's acts or omissions during the riot are relevant to the assessment of the seriousness of his offending. A finding that he did some acts in association with other prisoners would form part of the context within which that assessment is to be undertaken - for example, the finding might establish that Mr Flanagan had joined with others to cause a particular result during the riot or it might cast a light on his motives for participating in the riot. However, I am unable to see how Mr Flanagan could be made criminally responsible for the acts of other prisoners by the application of s 7 of the Code. Moreover, Mr Flanagan has not yet responded to the substance of the State's submission.
I have invited further submissions from the parties on this aspect of the State's written closing.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Associate to the Honourable Justice Corboy
30 JULY 2020