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Prison Issues

Prison Issues

Anticipation Coroner's decision. Next moves

Anticipation for Coroner’s Findings November 22nd 2019

Below is:

* what the family wants from the Coroner
* what is likely to happen
* next moves


David’s family’s recommendations to the Coroner

David Dungay’s family wants the prison officers and nurses who caused the death of their son will be held responsible.

Their lawyers were the specialist deaths in custody person from Legal Aid NSW David Evenden, with George Newhouse and Duncan Fine from the National Justice Project. Their submission after all the evidence was presented was, amongst other things, that:

1.1 Officer F

Officer F should be referred to the DPP for the indictable offence of manslaughter.

Officer F was in charge of the Immediate Action Team and did the following:

  1. He made the decision that David be moved to a camera cell, and determined that the IAT would be utilised.
  2. He knew that David was to likely be restrained face down by the IAT if he did not cooperate (17 July 2018 T144.7, 174.12).
  3. He knew there was a serious risk of harm to David by calling the IAT (17 July 2018 T154.33)
  4. He was the senior officer in G Ward at all relevant times (17 July 2018 T142.45- 143.9).
  5. He was present at the time of the proclamation, and aware that David intended to take on the IAT.
  6. He was present for the entire duration of the IAT intervention, up until the point that David became non-responsive.
  7. He heard David calling out that he was having difficulties breathing (17 July 2018, T135.29, 137.31, 138.7).
  8. He knew David was struggling to breathe in cell 71 (17 July 2018 T144.45-145.16)
  9. He knew David was having trouble breathing during the transfer and in cell 77 (17 July 2018 T139.10 – 140.18)
  10. He made no attempt to intervene, or to have the IAT cease the restraint for the total restraint time of 8.16 minutes. (17 July 2018 T140.20).
  11. He ordered the IAT to continue the restraint when advised there may be a further injection (IAT handheld video).

As a Corrective Services employee, Officer F owed a legal duty of care to David, who was an inmate for the purposes of the Crimes (Administration of Sentences) Act 1999 and its regulations.

It is submitted the above matters could be proved beyond reasonable doubt by the Crown in any criminal trial.

In terms of causation, it is evident had David been left in his cell, and there had been no cell move, he would be alive today. The medical evidence demonstrates that absent the restraint occurring at all, David would not have suffered a cardiac arrest (25 July 2018 T 60.45, CA subs para 231). The fact that he was on medication that could cause QT prolongation, together with having poorly-controlled diabetes and high-blood sugar levels, are matters that can be set aside, for the purposes of considering whether the restraint substantially or significantly contributed to David’s death. None of David’s pre-existing medical conditions that may have increased his risk of sudden death prevent a finding that restraint remained an operating and substantial cause of his death. It is therefore submitted that for the purposes of a criminal prosecution, there is a reasonable prospect that a jury would be satisfied beyond reasonable doubt in relation to the element of causation.

In relation to breaching his duty of care, it is submitted that both Officer F’s acts and omissions were negligent, in that Officer F failed to act as a reasonable person would have done in that situation.

Disciplinary Action

In the event that Officer F is not charged with manslaughter, it is submitted the Coroner would make a recommendation to Corrective Services that it consider disciplinary action in relation to Officer F for the reasons:

  • The decision to move David from one cell to another, using the IAT, contravened both clauses 129 and 131 of the Crimes (Administration of Sentences) Regulation 2014 as there was no medical or security emergency at the time, and no legitimate reason to place David in a camera cell.
  • David’s forceful cell extraction using the IAT involved more restriction or force than required for “safe custody and well-ordered community life” within the centre, contrary to clause 129. The use of force, as ordered and supervised by Officer F, was not justified.
  • Officer F’s actions contravened the Operations Procedures Manual dealing with the use of force on inmates. Specifically, force was not used as an option of last resort, and was applied before all other options had been exhausted. The force used was not reasonable and appropriate to the circumstances, and was significantly more than was necessary to manage the risk David posed. Furthermore, it was not applied in a way that minimised the risk of injury to David.

1.2 Officer A

It is submitted that Officer A should be referred to the DPP for the indictable offence of manslaughter, on the basis of his failure to cease the restraint of Mr Dungay once he began repeatedly screaming that he could not breathe.

For failing to cease the restraint, or to take adequate steps to address David’s complaint and his laboured breathing, it is submitted that the Coroner also make a recommendation to Corrective Services that it consider disciplinary action in relation to Officer A. Despite being in a difficult position as a result of being commanded to undertake the cell extraction by Officer F, Officer A needed to exercise his own judgement in this difficult situation.

Disciplinary Action

In the event Officer A is not charged of manslaughter, it is submitted the Coroner would make a recommendation to Corrective Services that it consider disciplinary action in relation to Officer A.

For failing to cease the restraint, or to take adequate steps to address David’s complaint and his laboured breathing, it is submitted that the Coroner would make a recommendation to Corrective Services that it consider disciplinary action in relation to Officer A. Despite being in a difficult position as a result of being commanded to undertake the cell extraction by Officer F, Officer A needed to exercise his own judgement in this difficult situation.

1.3 Officer C

For using excessive force, it is submitted that the Coroner would make a recommendation to Corrective Services that it consider disciplinary action in relation to Officer C.

It is submitted that Officer C used an unnecessary level of force to maintain David’s restraint in cell 77, by applying an excessive amount of force with his left knee on David’s back, in circumstances where David was already satisfactorily restrained. This was contrary to clause 131 (3) of the Crimes (Administration of Sentences) Regulation 2014. His actions were also contrary to the Operations Procedures Manual, which stipulated the limits of force, and stated that once an inmate was satisfactorily restrain, additional force must not be applied. Furthermore, if force was no longer necessary, an officer had to stop applying it.

Whilst it may be that Officer C believed his actions were necessary to restrain David, and that he knew nothing about the dangers of positional asphyxia. However, it is submitted that an objective review of the evidence shows he used excessive force, which was unnecessary to maintain the restraint.

1.4 Nurse Xu

It is submitted that the Coroner would make a referral to the Health Care Complaints

Commission in relation to Nurse Xu for failing to make any assessment of David’s airway, breathing and circulation of the time of administering the injection.

Counsel Assisting’s proposed recommendation in this respect is supported. Whilst it is conceded Nurse Xu was in a difficult situation, he had significant experience working in such environments. David was firmly restrained and there was ample opportunity to make these important medical observations to ensure his safety, and address his laboured breathing and complaints that he could not breathe.

1.5 Dr Ma

It is submitted that the Coroner would make a referral to the Health Care Complaints

Commission in relation to Dr Ma for the following matters:

  1. Failing to attend G Ward immediately on being informed of Mr Dungay’s aggression, knowing that enforced medication was to be administered, involving both use of the IAT and a transfer to a camera cell.
  2. Failing to take proper steps to prevent Mr Dungay’s transfer by Corrective Services to a camera cell, in circumstances where it was not clinically indicated.
  3. Approving a second injection of Haloperidol, in circumstances where it was not clinically indicated.
  4. Failing to provide adequate resuscitation to Mr Dungay, and in particular, providing external cardiac massage that was completely inadequate.

It is submitted that none of the evidence given by Dr Ma justified his failure to attend G Ward, and his decision to approve a second injection.

1.6 G Ward and Long Bay Hospital Working Group

That a joint statement by Corrective Services and Justice Health be made that forensic patients and mentally unwell prisoners who are being involuntarily treated, be placed in health facilities in line with the RANZCP strong recommendation.

That prisoner representatives be on that Working Group. Inmate Development Committees exist at each correctional centre to support the right of inmates to discuss and resolve issues affecting their imprisonment with senior management. Aboriginal inmates are represented on the committee, which must include the appointed Aboriginal Inmate Delegate (see COPP 9.8 Inmate https://www.correctiveservices.justice.nsw.gov.au/Documents/copp/inmate- development-committees.pdf).

 

2.  The Likely Coronial Outcome

It is likely the Coroner will find the obvious facts, such as David Dungay’s physical cause of death by asphyxiation.

However our lawyers’ research shows that no prison officer has ever been charged with killing a prisoner, ever in the history of NSW, since the beginning of the penal colony. For 240 years the state has never held its agents in the prisons responsible.

The Coroner will need to decide whether the actions taken by the Corrective Services and IAT members were reasonable and in line with their duty of care. The Coroner will consider a revision of guidelines and procedures and consider the individual liability of officers and staff and the charges available.

It is likely that the Coroner may avoid referring the responsible persons to the DPP, including limiting the individual liability of the IAT officers involved. The Coroner may instead focus on the health support, especially Nurse Xu to take the sole blame of the death.

 

3.  Next Moves

The lawyers of the National Justice Project said they would continue to fight for David Dungay’s right to justice. There are three ways to take it on, all of which could happen at the same time.

3.1 Wrongful death

The right to sue members of the IAT and CSNSW for wrongful death exists when a person dies due to the legal fault of another person. In this case, if David had been left in his cell, and there was no cell move, he would be alive today.

Wrongful death lawsuits sometimes come after a criminal trial, using similar evidence, but are held to the lower standard of proof of the balance of probabilities. In the celebrated case of OJ Simpson in the US, he was found not guilty of murder but successfully sued by his wife’s family. To successfully bring a wrongful cause of death action the Dungay family will need to prove the death of their son was caused by negligence by the guards or medical staff involved.

https://en.wikipedia.org/wiki/Wrongful_death_claim

https://hirealawyer.findlaw.com/choosing-the-right-lawyer/wrongful-death-plaintiff.html

http://classic.austlii.edu.au/au/journals/PrecedentAULA/2007/64.pdf

 
3.2 Director of Public Prosecutions DPP

Under the Director of Public Prosecutions Act 1990, the function of the Office of the Director of Public Prosecutions (DPP) is to conduct prosecutions. The lawyers on behalf of the family could ask that the DPP consider prosecuting the prison officers.

 
3.3 SafeWork NSW

The lawyers on behalf of the family could ask that SafeWork NSW to review evidence from this inquest and consider proceeding with a prosecution of Corrective Services NSW and/or its officers under the Work Health and Safety Act 2010.

National Coroners' Recommendations Database

Brief Overview

  • In 2015, David Dungay Jr was killed by law enforcement whilst in police custody. He died from positional asphyxiation, after being placed in a prone position and entering asystole arrest (i.e. irreversible cardiac arrest). This project seeks to explore whether the NSW Coroner’s recommendations from the inquest into David’s death have been received on a national level and whether reforms have been made to implement these recommendations.
  • Justice Action is interested in this project as the demonstrated indifference to David’s death proves a failure of the authorities, and continued inaction would only lead to further preventable deaths.
  • Following our research into the issue, and the subsequent communication with national coroners, NCIS, Governor of NSW, and AIC, it has become clear current structure is lacking, and major reforms into the reporting and dissemination of key information for the prevention of future deaths in custody.

Overall Goals

  • Spread awareness of the cause of David’s death and ensure adequate action is being taken by the relevant authorities to prevent a death of this kind reoccurring.
  • Initiate and achieve the establishment of a national database through which coroners share their findings, and publish responses; minimising any chance for further deaths in custody.

Current Working Aims

  • Research current mechanisms for the national dissemination of coroner recommendations to relevant authorities
  • Gage the awareness and prevalence of positional asphyxiation within coroner recommendations more widely
  • Gage the accessibility of coroners recommendations to the public
  • Establish correspondence with coroners and govt /judicial departments responsible
  • Compiled proposal for a national database for coroners/policy
  • Continue correspondence with coroners and governors, work on winning support, and the establishment of a national database. (WIP)

Essential documents

Privatisation in the International Context

The Argument for Privatisation
Conventional arguments for privatisation of prisons generally canvas the same issues. These characterise privatisation as a response to increasing inmate populations and exploding costs, claiming the potential for private involvement in public services to generate “sustainable value” by bringing public and private interests closer together, and generating the capacity to innovate by identifying and pursuing new opportunities for service provision, which may, in turn, generate positive sectoral spill-over effects.

Despite this, there is an obvious and basic conflict between the interests of society in ultimately minimising the number of people confined in prisons, and the financial interests of private prison operators in maximising the number of prisons, prisoners, and sentence lengths.

Additionally, there is no international measure of prison performance against which private prisons can be effectively adjudged. This is compounded by the fact that a number of private corporations - such as Serco, G4S and GEO - enjoy a monopoly over private prison management in countries including Australia, USA, The UK, New Zealand, South Africa and Israel. 

Read more

Social Impact Bonds Critique 2016

prison fence 219264 960 720

The recent announcement by the NSW Government that the National Australia Bank (NAB) and the Australian Community Support Organisation (ACSO) have signed up as investors to their recent ‘social impact investment’ scheme must be met with further scrutiny.

Justice Action is concerned that attempts by the NSW government to distance itself from the direct implementation of criminal justice programs reduces their accountability as elected officials in providing effective services for its citizens. Seen in conjunction with recent efforts to privatise the prison system in its entirety, there is legitimate cause for further examination.

Justice Actions is also concerned at the inclusion of ACSO, a Melbourne based organisation. Motivated by a return on investment may potentially lead to the watering down of benchmarks regarding recidivism rates and the successful re-integration of prisoners. We believe that their advocacy role could be compromised as an investor in this scheme. The decision by the NSW Government not to publicly reveal the exact investment amounts and the potential returns for investors’ further obscures the relationships at the heart of this scheme.

As a criminal justice advocacy organisation, Justice Action is primarily concerned with ensuring that the rights and needs of those in Australian prisons and locked hospitals are met. Justice Action is not against attempts to innovate and provide better quality of services to these people. However, the absence of a truly independent authority assessing the success of these programs does not bode well for transparency and accountability within government programs.

Justice Action would like to see greater transparency within the program. The relationship between investors and the Government must be more clearly defined in the public sphere. The relevant expectations and obligations of both groups must also be clearly outlined. Importantly, considering the alarming statistics surrounding the criminal justice system in NSW, accountability for failure, and success, must be made clearer.

Justice Action is pleased that the NSW Government is taking prison reform seriously. However, as with any essential government service, due caution must be taken to ensure that the relevant parties are not adversely affected.

See the Sydney Morning Herald Article here 

Recent Responses to our Online Counselling Proposal

On the 23rd November 2015, Justice Action presented a proposal regarding the provision of online counselling to prisoners at the NSW Legislative Inquiry. It was a proposal to initiate a three-month trial of online counselling in cells at no cost to the government. The proposal is supported by victims group ‘Enough is Enough’ and ‘Prisoner’s Aid of NSW’.

Justice Action asked for support from Minister Elliott and Premier Baird on the 14th December 2015. We received a letter on their behalf from the Commissioner of Corrective Services, Luke Grant, which stated the department “considers an online counselling service [to] not be appropriate without adequate support or engagement with mental health staff”.

We responded with a letter that highlighted the need to implement a different system that will provide effective rehabilitation services. Despite the State Plan to reduce recidivism by 5%, the rate of adult reoffending has actually increased. The NSW Auditor-General’s Report to Parliament 2015 revealed 45.8% of released prisoners returned within two years of release.

Despite contacting Minister Elliott again on the 2nd February 2016, the proposal for online counselling has been ignored.

 

Privatisation of Prisons: Analysis

21032016PrivatisationClick here to download the analysis. 

With NSW prisons overcrowding at a record high, the debate about the privatisation of prisons has resurfaced. NSW Prison population numbers have reached over 11 300 and NSW prisons are not equipped to deal with numbers this high.  As of March 2014, there were eight privately run prisons in Australia, two of which are in New South Wales (Green et. al 2014). These centres are Junee and Parklea Correctional Centres. In 2009, the NSW government announced that the GEO Group Inc. would take over Parklea Correctional Centre. Some advocate that privatization aids in solving prison overcrowding and results in a more cost efficient management of prisons (Martha & Frank , 2012).

See the Inspector’s Report on “Full House – the growth of the inmate populations in NSW” here.

Reasons Against Privatisation
The privatisation of Parklea Correctional Centre was opposed in 2009 and our stance has not changed. Drawing upon the experience across Australia, as well as in the United States, England, New Zealand we see an abundance of reasons to strongly oppose privatization.

Read more

Education for prisoners

“Knowledge is power.  Information is liberating.  Education is the premise of progress."

- Kofi Annan

LATEST NEWS

 

Overview

Education is a basic human right. It opens doors for individuals to lead better lives and for the incarcerated, presents a priceless opportunity for a fresh start. Yet, we find that their ability to receive a quality education has become increasingly compromised. From technological changes in educational systems limiting access to the privatisation of prisons reducing the number of quality education providers, these barriers to education continue to prevail in the criminal justice system.

Providing education to people in prisons is vital to reducing recidivism. A recent study found that inmates that participated in educational programs while in prison were 28% less likely to commit another serious offence than those that didn't participate. Therefore, providing education to prisoners is vital not only for the safety of the community, but also for the furthering of people in prisons. Providing prisoners with access to educational services through computers in cells is a cheap and effective way to achieve this.

We have the opportunity now to make a real and lasting impact. With enough voices, we can motivate government and prison authorities to review their policies. As you read this on your computer screens, think about how we continue to deny this right to those who need it the most. Let’s change their lives for the better. 

See our Report on the United Nation's Investigation into Education in Detention.
See also the Community Justice Coalition Forum on Education in Prison 2016 and our discussion paper.

The Benefits of Education
Education in cells improves mental and physical well being, reduction of substance abuse, increasing chances of post-release employment, rehabilitation, personal development and autonomy.

Many studies regarding education in custody have shown such improvements. A RAND Corporation study outlined that American “inmates participating in correctional education programs had a 43% lower recidivism rate than those who did not”. In addition, each dollar spent funding prison education decreased incarceration costs by four to five dollars.

The Right to Education
The UN Report on Education in Detention states that globally, many prisoners and detainees have faced “institutional and situational barriers” during their studies. This is particularly attributable to “the personal whims of prison administrators and officers… the absence of libraries… and educational material” (Munoz, 2009, 11). Australia, as a signatory of UNICESCR, has formally recognised that access to education is a basic human right, further enshrined in the UN Standard Minimum Rules for the Treatment of Prisoners (1995). It is therefore imperative that such arbitrary restrictions are prevented in corrective and mental health services. New processes such as retraining officers, hiring educational administrators and inclusion of prison libraries are necessary to increase accessibility to education programs.

Access to Education
Computers in Cells
Computer access in cells can maximise productivity in a safe manner allowing access to online education, counselling, and legal services. Empirical data has demonstrated that computer-aided education has a highly beneficial effect on reducing recidivism compared to restricted access.

Online Services
Online services are paramount in giving inmates the ability to utilise education schemes, research databases and outlets.

Books
A traditional literature system is essential, as many prisons do not have the finances to hire teachers or provide computers with Internet access in cells. Access to books allows inmates in custody to learn about subjects of interest, to self-development and improve productivity.

Psychiatric hospitals
See index page. In almost all locked wards there is no access to education, even for young people who are required to attend school. Health Departments regards consumers as having only a mental health dimension, disregarding their rights as people to develop as they want. 

Barriers to Education
Lack of technology is a main barrier within prisons and prevents access to knowledge. It is unreasonable to expect a course to be completed without long-term access to computers and the Internet.

The successful case of Jeffrey McKane:

Prior to incarceration, Jeffrey McKane was embarking on a law degree at the University of New England. At Goulburn Correctional Centre, the NSWSC Commissioner repeatedly denied Mr McKane the ability to continue his studies citing inadequate resources and limited staffing. Furthermore, Mr McKane was denied his application to the Supreme Court seeking orders for CSNSW to grant him access to his studies.

This education block was highly disappointing but through Justice Action’s intervention, Mr McKane has gained access to study a law course at Southern Cross University (SCU). JA accessed online lecture materials on his behalf, took responsibility for his student email and administrative matters and provided a retired teacher to supervise Mr McKane’s examinations.

Education Providers
BSI Learning has been contracted as the education provider in NSW prisons by Corrective Services NSW, replacing university-qualified educational officers with Certificate IV in Training and Assessment trainers who are not qualified to work in schools in the mainstream education framework. The result has been devastating for prisoners trying to use their time constructively to prepare for release.

The effect of NSW Privatisation NSW Teachers Federation Report
Effects of Privatisation Paper. This is a careful analysis of what happened after sacking 136 university trained teachers some with twenty years prisoner teacher experience.
Assessing the Quality of Education Paper. This analysis became necessary as the NSW Government insisted that their "new privatised model" would deliver better results using less qualified teachers and less personalised support, as well as ending distance education.

Additional training

Limited Certificate courses are currently provided by NSW Prisons in Construction, Education, Engineering, First Aid, Workplace Health and Safety, Health Support Services and Transport using TAFE teachers attending.  BSI Learning provides accredited learning courses in Hospitality, Kitchen Operations, Construction, Cleaning operations and Language, Literacy and Numeracy.

Higher Education
Some universities and private companies offer modified higher education programs taking into account the little or no access to online courses available to prisoners. The University of Southern Queensland, the leading and largest national provider for incarcerated higher education students operate in Queensland, WA, Tasmania and South Australia. NSW will not cooperate with them despite talking for some years.

Community Justice Coalition (CJC) Forums

Prisoner Education Forum 2016

Prison privatisation has resulted in reduced education quality and has raised significant ethical problems. Prisoner’s autonomy has been limited based on the decisions of private corporations, which are disinterested in prisoner rehabilitation.

Privatisation of prisons has been seen, for example, in the 2016 “Better Prisons” initiative replacing 130 qualified teaching positions in NSW prisoners with administrative clerks. The government described the initiative as a program to lift performance and improve the efficiency of the prison education system. However, profit and efficiency became the long-term aim. 

Prisoner Education Forum 2018

The primary focus of the 2018 Community Justice Coalition forum was the compromised quality of tailored education brought about by privatisation. It was evaluated that this system is a significant demarcation of the poor standards of teaching in prisons.

The 2018 Prisoner Education Forum (PEF) passed two motions resolving that professional teachers be provided throughout NSW prisons with a focus on reducing recidivism and supporting reintegration into society. PEF also resolved that computers in cells should be provided to prisoners as an educational tool.


 

Prisoner Public Education Attacked

Long Bay Rally

In May 2016 the Minister for Corrections, David Elliott, and the Commissioner of Corrective Services NSW, Peter Severin, announced the 'Better Prisons' initiative, which would remove over 130 qualified teaching positions in NSW prisons. The proposal would see administrative clerks replace the senior education/education officers and outsource the provision of education to private providers. 

The proposal to privatise prison education highlights significant issues such as prisoners' dependency on private corporations whose main objective is to maximise profits, as well as the problematic outlook that education is merely a means of production.  Thus, implementation of the proposal would compromise rehabilitative environments for inmates in the prison system. For a summary of the issues, please refer to the Summary Paper here.

Click Here for the Letter from May Butler (an inmate) (2nd June 2016)
Click Here for 'Three Quarters of Teachers to be Sacked from NSW Prisons' (SMH 10th May 2016) 

Read more

 

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