Anticipation for Coroner’s Findings November 22nd 2019
* 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:
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.
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:
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.
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:
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.
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.
A delegation of six Chinese prison bureaucrats from the Hangzhou Municipal Justice Bureau, visited Justice Action on the 15th November. The delegates from the Zhejiang province, China were led by Deputy Director Mr Zhang Liansheng. They wanted to know about our operations, how we represent prisoners’ interests and improve the social and mental health of prisoners. They also wanted to exchange information and ideas, as well as to set up a friendly relationship.
JA described its unique position in being the voice for prisoners and forensic patients. Specific emphasis is placed on restorative justice as an alternative to prison, lessening isolation during imprisonment for prisoners through Computers in Cells and improving relationships with victims.
The Women’s Justice Network (WJN) joined us where the president, Kat Armstrong presented her work in improving the lives of women affected by the criminal justice system through mentoring. Kat statistically presented the rates of incarcerated females being 15 times the rate of males, and the WJN revealed a 7% recidivism rate for women, whereas the typical recidivism rate in the criminal justice system is 51% per year.
JA explained how it is independent and not government funded, instead supported by the social enterprise Breakout Media Communications. Restorative Justice was mentioned as an alternative to prison and aids resettlement back into the community. Mr Zhang understood the implementation of mediation (tiaojie) as means of reconciliation between all involved parties. Secondly, the concept of lessening isolation during imprisonment ultimately reduces recidivism and makes reintegration into society easier. This is achievable through Computers in Cells which provides the opportunity of communication between prisoners and their families, as well as making online counselling more accessible. Finally by offering ‘shelter, safety, social support and positive activity’ post-release it provides help for inmates to become positive contributors to society.
To assist the work of Justice Action in the local community of Australia, and to promote criminal justice worldwide, we study also the prison conditions in other jurisdictions outside Australia. Recent work includes a meeting with Chinese Prison Delegation and an International Survey on youth access of computers in cells.
JA presented to the top 24 bureaucrats from the Bureau of Prison Administration of the People’s Republic of China on the 10th of August 2017. Earlier they visited Long Bay and Silverwater prisons, as well as a briefing from Corrective Services NSW.
We were asked to present prisoners’ views on resettlement and how our experiences could help them. We invited the Women’s Justice Network to join us. Two flyers including Chinese translations were distributed to the officials.
Released on the 31st of January 2017, the Report on Government Services demonstrates the failure of the NSW corrections system. Firstly, NSW has the most time in cells of all Australian jurisdictions, where prisoners spend 17.5 hours inside their cell per day for secure facilities where most prisoners are held (Table 8A.12 on p.475). Remand prisoners are held for 18.5 hours a day in cells according to the Full House Report by the Inspector General s4.56. It has got worse each year as you can see from that Commonwealth Report on Government Services.
Furthermore, NSW has the worse recidivism of all states and is getting worse. Defined as returning to prison under sentence within two years, last years recidivism rate stood at 50.7%, up from 48.1% the year before and 45.8 in 2014 (See Table C.5 on p.23). This is a total failure compared to the State Plan. NSW State priority in the State Plan:
Minister for Corrections David Elliott admits failure-
Gaols are not for sale!
The concerning issue of the privatisation of prisons in Australia in New Zealand is at an all time high. The New South Wales Government in Australia is allowing a private operator to bid to run a gaol in Sydney’s North West- The John Morony Correctional Centre. The SMH released an article on March 21 2016 reporting the significant pressure about to be placed on public prisons in that they must meet their performance aims or risk being run by the private sector. In response, the Public Service Association understand the privatisation of prisons as “another short sighted cash grab” through the obvious lack of liability and pellucidity.
The current regulation of Mt Eden’s Prison in Auckland New Zealand by Serco is being investigated for their incompetent efforts of management of the prison as the profit they have accumulated have been put elsewhere than in the public service as assured. This is just one example of the failure of privatisation of prisons. The Article states; “We are demanding a full, independent investigation into Serco’s involvement in Mt Eden Prison. One with the integrity and scope that the New Zealand public deserves. But that’s not all. We are also demanding a moratorium on the consideration of Serco for any further public sector contracts. Because we can’t afford to let them fail again in Children’s Services, Mental Health or State Housing.” – Say no to Serco in Aotearoa, Action Station.
Serco have also failed to stop fight clubs, drinking and drug use….
The campaign for the computers in cells project has officially been launched. All Members of Parliament, Judges and Magistrates have been sent letters requesting their support for the computers in cells campaign. For more details about the campaign, click here.
We need your help to ensure that this campaign lifts and gains momentum. Every donation will assist in giving people inside access to life-changing counselling, legal and educational services through computers in cells. Finally it is starting to move.
The proceeds raised will fund the campaign coordination, as well as aiding in the research and implementation of the computers in cells project. We ask that you help us provide detainees whether in prison, locked hospitals or juvenile justice centres with much needed access to computers, by donating to our GoFundMe page. We aim to raise $230,000 to ensure this task runs to completion.
Everyone is entitled to justice, and to fair treatment before the law. This especially includes people in prison who are totally dependent on state control and the most vulnerable, subject to the harshest punishment available. However prisoners are often unable to exercise those legal rights, isolated from support, in cells without resources, but with time and incentive to defend themselves.
People in prisons must have the ability to access resources that assist preparing their defence, and exercising their right to a fair trial. This is why it is essential for people in prisons to have access to computers, as a tool to access evidence, a source of legal knowledge and the ability to present information to help themselves. That right is supported by many cases. The courts can adjourn and release to bail.