Report on Inquest Last Day 8 March 2019

NSW Coronial Inquest into David Dungay      
Day Five (last day)   08/03/19

Key Points:

–       Problems in Corrective Services NSW, for responsible officer was unable to demonstrate ‘best practice’ in training and operations regarding de-esculation, and the safe management of inmates. The officer failed to locate in the NSW current manual a prior Queensland Coroner’s recommendations that no prone restraint be conducted on prisoners. There did not appear to be substantial progress in relation to some/all working guards obtaining specific training that was related to issues pertaining to Dungay’s death.

Poor progress was apparent regarding the training and delivery via an Operations Update on Corrective Services training of working staff on certain relevant issues: de-esculation not being an in practice priority; use of alternative equipment to riot helmets (to protect guards from spit); the failure to include Queensland Coronial Inquiry recommendations that relate to Dungay’s circumstances of death (but over a year prior to his death), advising that prone restraint technique NOT be used at all; the delivery of alternatives to prone restraint or of the risks of prone asphyxia to some/all staff, especially in Long Bay IAT; the use of ‘knee-ride’ pressure to an inmate’s back (that compresses the upper back) by officers/IAT.

–       The discussion and Coroner’s decision to not rescind a ‘Non-publication Order’ for the release to the public of the video that showed the failures of resuscitation that occurred after Dungay became ‘non-responsive’. This was despite requests by the Leetona Dungay Family and The Guardian newspaper, and options like the pixilation of faces.

–       During the court proceedings the Coroner provided time for each of the parent’s of David Dungay’s family to make separate ‘Family Statement’s.

–       Coroner Lee notified of the Time Frames for Submissions, and adjourned for the findings to be delivered at Lidcombe Coroner’s Court on 9am, 23 August, 2019

–       The inquiry ended with crowded public attendance in the public gallery, and with several major media present.

–       Post this inquiry, there was an emotional delivery to the media outside the court’s foyer of the Leetona Dungay Family’s ‘Family Statement’ (delivered directly by Leetona and her niece), and of the Hill Family (delivered on behalf of the family) ‘Family Statement’.

Below is a summary of the evidence given by witnesses, orders, family statements, and Inquiry submission & delivery of findings timetable.

Witness Statement 1 – ‘Officer U’ representing the Corrective Services Officers, IAT (Immediate Action Team) :

Dungay family’s lawyer, Mr Duncan Fire cross-examined Officer U about the Working Committee that was formed between Justice Health and Corrective Services in response to the issues of the Coronial Inquiry’s first two weeks of the Dungay case, raised post July 2018. (It was noted that Shaun Baggley is a member of the Working Committee – not cross-examined to date). The morning session focussed on the IAT obligation with ill persons to undertake a de-escalation strategies, to train ‘best practice’ including safety of staff and inmates, and regarding inmate safety the need and urgency in which alternatives like prone restraint practices are trained and implemented operationally.

Officer U was questioned as to whether the IAT recognised an obligation with mentally ill persons to undertake a de-escalation strategy, and, if there should be investigations into alternatives to prone restraint?   He answered that officers are trained to use the most effective restraints for staff, not to avoid prone restraint. There is a training package regarding the dangers of certain restraints, but not all staff are required to take this as a pre-requisite to work at IAT.

Mr Fire stated that Corrective Services’ ‘best practice’ should include the Queensland Coroner Court Mr Baggley’s recommendations that came out of the earlier death of Vaggs, which stated that prone restraints was not to be used in any situation by Corrective Services Officers. He asked Officer U if he could locate Baggley’s advice – that was to not use prone restraint – within the IAT officer section of the operations manual, and he replied ‘No, I cannot’. Officer U said the IAT & Corrective Services Officers were not trained to ‘not avoid prone restraint’, and it was ‘common in IAT to be used with enforced medication, but not so much outside of the Long Bay area’.

Asphyxia training is offered pre-placement in IOT officer role and during via online work yet is not required to start work. Training packages on asphyxia address statements like “ I cant breathe” as viewed as valid complaints of duress. One of the IAT Officers had used such knee pressure on Dungay’s back, but this was not taught within the training package.

Officer U’s reply regarding the operational use of prone restraint was that the IAT used to ‘not avoid prone restraint’, and it was ‘common’ in IAT’s to use enforced medication, but not outside the Long Bay area. Mr Fire questioned what alternatives existed to the use of riot helmets the IAT used, including whether face-masks were a viable option.   On the issue of equipment available to guards, for example, to stop being spat on, Officer U stated that officers especially in the IAT, while they used (riot) helmets, did have access to alternate equipment to protect staff’s face and eyes them such as gas masks   Asked, had anything changed since the Queensland Coroner’s Baggley Report, Officer U stated ‘No, not additionally’.

Regarding developing in future restraint alternatives for security operations, Officer U indicated that ‘eventually’ the number of restraints taught will change, but that the ‘IAT training package was not specific to prone restraint but to positional asphyxia’. It was acknowledged that any inmate reference to inability to breathe is recognised as a valid complaint of duress in asphyxia training. Officer U stated that Stage Two training is when staff are made aware of the signs of positional asphyxia, and added that claims of difficulty breathing can be misinterpreted by Corrective Services guards as non-compliance by an inmate. Officer U stated that every 2 years, online completion of training on positional asphyxia is to be done by IAT staff, and added, ‘Yes, a person could be rostered on without positional asphyxia training’. Officer U acknowledged that he had not had the training.

In relation to any proposal of increasing awareness on prone restraint, Officer U anticipated that ‘within the next 3 months training will be underway regarding prone asphyxia.   [Note: It is apparent that the formation of the Working Committee was not post Dungay’s death in 2015, but followed his Coronial Inquiry in July 2018, and that although Dungay died in 2015, and despite the working group, no additional operational changes have as yet been implemented.]

When asked about the IAT training package 2 in relation to the dangers of placing a knee on the back – ‘knee ride’, to which the C U referred to the large turnover of IAT staff.

Application to the Coroner to rescind a ‘Non-publication order’

On behalf of the Leetona Dungay family, Mr Fire sought for Coroner Lee to rescind the non-publication order for the video footage post Dungay’s non-responsive period. Extensive discussion about the capacity to change the order, the potential for public interest in showing the video, and particularly, that Mr Hill had conveyed to the Counsel to the Coroner that he was not wanting his part of the family to see this footage.

Questions referred to how this video may be in the public interest or to serve justice, and if anything had changed since the order was made that may influence the decision to change this order.   The inquiry is about material becoming open to the public, and an order for non-publication exists for exceptional circumstances, such as that which would render justice impracticable or not serve in the public interest.

Mr Windsor on behalf of Corrective Services listed 6 points about such orders: beginning with the necessity for open justice; including the interest of the Hill family; and concluded with Justice Johnson case where the deceased deserves ‘dignity and respect, even in death’. Family members and others in the public gallery reacted to this statement, and a family member responded “How dare you!” and left the court room, while others responded to him, “hear hear”

Mr Dawson, the representative for the medical doctors proposed an alternative to address concerns: that all faces including Dungay be pixilated.  

Mr Fire’s arguments to allow publication of the whole video were: it is important evidence; whilst it is distressing, the Hill family can take steps can be taken to avoid seeing it; and it would serve the public interest.

The Counsel for the Coroner argument included that there was ‘no basis’ and concerns that it would broaden the base of public interest concerns. After asking ‘What had changed since the order was made?’, Coroner Lee refused to rescind of the order, under Section 74 (1).

Family statements presented to Court:

Ms Leetona Dungay who has been leading the legal actions to investigate the death of her son – David Dungay – and attending all of the Coroner’s Inquiry, introduced herself and thanked the Coroner for allowing her to speak in court. With family members around her, and at times teary, she read from a prewritten script1 that offered personal, family remembrances: of how David made it to Year 10 certificate and got a job after leaving school, how he managed his diabetes, and that he was enjoyable family member. Cynthia read a poem about her deceased brother, as did his nephew who read a poem David had written while in jail about how he was languishing in prison.

Counsel read the statements from Dungay’s father, Mr. Hill, and one of David’s brothers, Jack

The Coroner banned news media from recording family statements.

Time frame for submissions (before 5pm) was announced by Coroner Lee as:

17 May              Counsel Assisting the Coroner

7 June                Mr Fire, Dungay Family lawyer

21 June             Other submissions

5 July                 Responses by Counsel Assisting the Coroner

The case was adjourned, with findings to be delivered at Lidcombe Coroner’s Court:

Friday 23 August, 2019 9am

Post Court Family Statement read to the Media:

Leetona Dungay script presented to Coroner Lee and after court, to the media: 

Following the closure of court proceedings Leetona Family gave a media presentation of their Family Statement they had earlier presented in court time, read out be a family member while outside of the foyer of the court.

The lawyer for Hill family read out a letter written by father and son of David Dungay.

1 Leetona Dungay script presented to Coroner Lee and after court, to the media: Https://

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