On December 29 2015, David Dungay Jr died in Sydney’s Long Bay Prison Hospital after being violently manouvered by corrective service officers, held face down and sedated because he refused to stop eating a rice cracker.
Today, the coroner’s findings and Recommendations into the death of David were revealed. Outside the NSW State Coroner’s Court at Lidcombe stood the 26-year-old Dungatti man’s family members and supporters who shouted “You say accident, we say murder” as they waited for NSW deputy coroner Derek Lee to present the state’s findings on his death. By 10am, Courtroom 1 overflowed with David’s family members, legal personnel alongside Greens MP David Shoebridge and NSW Corrective Services Commissioner Peter Severin. Next door, Courtroom 2 held various media personnel set to report the Coronial inquest and the Dungay family’s supporters.
A mandatory inquest into the findings of David Dungay Jr’s death was held as David was in lawful custody at the time of his death. The NSW Coroner’s Court stated that the purpose of this inquest was not to penalise or punish any individual but rather to reflect and seek opportunities for improvement.
During the two hour inquest, the cause and manner of David’s death was discussed in detail and several recommendations were made. A major recommendation to highlight is alternative methods to the negotiation progress. Specifically, seeking the involvement of an Aboriginal inmate delegate or welfare officer within Long Bay hospital for Aboriginal or Torres Strait Islander inmates where required to reduce any likely use of force and consequent risk of injury.
Nonetheless, the submissions made by David’s family that the officers involved in David’s death should be charged were refused. The reason for this refusal according to the coroner, comes from the fact the officer’s evidence was given willingly in exchange for protection from self-incrimination. As such, officers were provided with certificates to protect themselves from being charged an indictable offence, which would mean any criminal charges to follow would be unfair. Coroner Derek Lee also noted that it was unlikely that the officers’ behaviours were motivated by “malicious intent,” but rather “a product of confusion annd misunderstood information.”
Families and supporters exited the courtroom in disbelief and enraged, demanding justice for David Dungay Jr. David’s nephew, Paul Silva, cried for his uncle’s death to not be swept under the rug since Aboriginal deaths in custody will only continue until someone is held responsible and the system changes.
Commissioner Peter Severin was confronted in his car as he was about the leave by Dungay’s family members along with allies who demanded to know “how can you sleep at night when one of your staff killed our family member?” and chanted “justice today for David Dungay.”
“When you close your eyes I hope you remember this face, because me and my family do,” said Mr Silva.
Although the coronial inquest has concluded, this is only the first step toward justice for David Dungay Jr and other black deaths in custody which Justice Action continues to support. As David’s mother, Leetona said “I’m going to fight until I live in a country where black lives matter.”
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.
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.
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. 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.