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:
- He made the decision that David be moved to a camera cell, and determined that the IAT would be utilised.
- 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).
- He knew there was a serious risk of harm to David by calling the IAT (17 July 2018 T154.33)
- He was the senior officer in G Ward at all relevant times (17 July 2018 T142.45- 143.9).
- He was present at the time of the proclamation, and aware that David intended to take on the IAT.
- He was present for the entire duration of the IAT intervention, up until the point that David became non-responsive.
- He heard David calling out that he was having difficulties breathing (17 July 2018, T135.29, 137.31, 138.7).
- He knew David was struggling to breathe in cell 71 (17 July 2018 T144.45-145.16)
- He knew David was having trouble breathing during the transfer and in cell 77 (17 July 2018 T139.10 – 140.18)
- 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).
- 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.
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.
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:
- 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.
- 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.
- Approving a second injection of Haloperidol, in circumstances where it was not clinically indicated.
- 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.
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.