Deathscapes

“Incompatible with Survival”

Deathscapes

“Incompatible with Survival”: The Coronial Inquest Findings into the Aboriginal Death in Custody of David Dungay

Suvendrini Perera and Joseph Pugliese

 

Legal procedure is presented as the cornerstone in the fair and equitable administration of justice. It is what rigorously regulates the methods through which the legal process unfolds and what determines what will be admissible as legal evidence. This understanding of the value of legal procedure is, we contend, profoundly unsettled when situated in the context of coronial inquest findings into Aboriginal deaths in custody, specifically, with reference to the findings on the death in custody of David Dungay, a young Dunghutti man who was killed in the process of a cell transfer at Long Bay Hospital, Long Bay Correctional Centre. Following our close examination of the findings, we argue that legal procedure, as invoked and deployed in the context of the findings, serves to present the rational and orderly administration of legal process while, at the same time, obfuscating a range of violent racial relations of power that remain unspeakable in the text of the findings, even as they insistently inscribe and underpin the very letter of settler law.

David Dungay is described by his family as someone who was “happy-go-lucky and loving. He had a talent for writing poetry and an ability to convey enormous meaning with his poems. David was extremely loyal and dependable, willing to give up his own time for his siblings, and to always be there for them when they needed him.”[1] Yet David Dungay’s short life also traces an acutely painful trajectory marked by the early onset of chronic schizophrenia and a range of other health ailments, including diabetes and asthma. This trajectory, as it is outlined in the custodial history presented in the findings, is inscribed and largely overwritten by his entry into the settler carceral system, his struggle with serious episodes of untreated psychosis, and his shuttling through different prisons before his fatal entry into Long Bay Hospital at Long Bay Correctional Centre.

On the afternoon of the 29 December 2015, on his return from the prison exercise yard, David purchased a packet of biscuits and was locked in his cell. Two officers (identified as Officers E and F) then proceeded unsuccessfully to persuade David to relinquish his biscuits as they were apparently concerned about his blood sugar levels due to his diabetic condition. David became increasingly agitated and aggressive at this point, refusing to give up his biscuits. Officers E and F then decided to call in the Immediate Action Team (IAT) to forcibly remove David from his cell and move him to another cell with a camera so he could be monitored. This move was done on the pretext that both officers believed that the situation was tantamount to a “medical emergency.” Yet, as is evidenced throughout the course of the findings, at no point did the officers receive official confirmation from any of the Justice Health nurses working in the correctional hospital that David’s health situation constituted a “medical emergency.” At this point, the two officers had two crucial options that they could have deployed in order to de-escalate the situation: 1) they could have called on an Indigenous Liaison Officer, armed with appropriate cultural protocols, to calm David and get him to hand over the biscuits; and 2) they could have called on one of the psychiatric nurses in order to assist in defusing the situation. Rather than pursue these appropriate and available options, the two officers called in the most extreme of all options: the riot-clad IAT to forcibly extract David from his cell. Another available option included having the IAT secure David and simply remove the biscuits from his cell. This option was never considered.

Before entering the cell, the IAT officers issued David two proclamations demanding he “come to the door, place his hands through the door so that he could be handcuffed and then moved to another cell.”[2] For each proclamation, the IAT gave David 30 seconds to one minute to comply. The IAT in fact viewed their issuing of these two short proclamations as evidence of their use of a “de-escalation” technique, thereby completely effacing the fact that they were dealing with a mentally ill person actually housed in the mental health ward of a prison: “the proclamation given to David by the IAT to comply with their directions within one minute, prior to entering the [sic] David’s cell, amounted to negotiation and a risk management strategy.”[3] The disturbed state of David’s mental health is evidenced by the fact that he not only disregarded their proclamation, despite the threat issued from the IAT that “force may be used,” but that he then proceeded to pull “his shirt over his head and appeared to shadow box.”[4] Clearer evidence of David’s agitated mental state could not have been presented to the IAT officers.

On entry of the IAT into the cell, David collided with the riot shield of one of the officers, and he was then forcibly restrained and pinned down on his cell bed. It is from this point onwards that David begins to articulate what will become an increasingly urgent refrain: “I can’t breathe.” As the findings note: “He repeated those words on a number of occasions while he was in cell 71, while being transferred to Cell 77 and inside Cell 77”[5] – all, we underscore, to no effect. The violent practices that were inflicted upon David’s person by the IAT were captured on the officers’ body cameras and CCTV footage. Handcuffed and with his head pressed down, in the process of the cell transfer David begins to spit blood, drops to his knees and screams that he can’t breathe. The officers coolly reply that if he can speak, he can breathe and also “remonstrate with David to stand up and stop spitting blood.”[6] In the course of the inquest, the officers term David’s urgent cries that he can’t breathe as “diversionary tactics.”[7]

Once led into cell 77, David “was placed onto the bed face down and was again restrained by the IAT officers placing weight onto him,” while a Registered Nurse (RN) Xu “entered and administered an injection of midazolam into David’s right buttock” in order to sedate him: “David continued to scream that he could not breathe while RN Xu was in the cell.”[8] Continuing to disregard David’s screams, the “officers observed that David appeared to be breathing and said to him that as he was talking, he was breathing.”[9] Yet, “Approximately 60 to 90 seconds after the midazolam injection was administered, David became unresponsive and CSNSW officers described his body going limp.”[10] What followed where botched and wholly incompetent attempts to resuscitate David. David was “pronounced deceased at 3.42pm.”[11] In the space of less than an hour, a young Aboriginal man died at the hands of the authorities of the state.

One of the inquest’s key conclusions states that: “Ultimately, it was neither necessary nor appropriate for David to be moved.”[12] The Dungay Family solicitor, in the course of the inquest, “submitted that Officer F embarked on a ‘power play’ in response to David’s defiant behaviour, which can only be described as repugnant and reprehensible.” Magistrate Derek Lee, in his 13.16 Conclusion, dismisses this submission by stating that: “it could not be said that this is the only reasonable conclusion that could be drawn from Officer F’s decision to effect a cell transfer for David.”[13] Magistrate Lee’s 13.16 Conclusion stands in contradiction to his 14.12 Conclusion where he states that: “The evidence establishes that there was no proper basis for Officer F to request the attendance of the IAT in G Ward on 29 December 2015. None of the criteria … relating to the roles and responsibilities of the IAT provided for their involvement in a medical issue, as understood by Officer F. On this basis alone, it can be concluded that it was neither necessary nor appropriate to utilise the IAT to facilitate David’s cell transfer.”[14] Furthermore, in his 14.13 Conclusion, Magistrate Lee emphasises that it was unnecessary for Officer F to call in the IAT as “the evidence clearly establishes that David was secured within his cell, with no security issues present.”[15] If it was neither necessary nor appropriate to utilise the IAT forcibly to remove David from his cell, why then was not a power play at work?

In our critical reading of the events that transpired to kill David Dungay in the process of his forced cell transfer, we contend that not only was an asymmetrical power play at work, but that this unequal power play was always already racialised as it was a case of non-Indigenous correctional officers dealing with a Black prisoner whose power status was further eroded due the fact that he was suffering from chronic mental illness. In fact, nowhere in entirety of these coronial findings is the question of racism ever raised. It is the absolutely unspeakable fact. And yet it insistently underpins so many of the violent relations of power that were exercised by the settler carceral system and its agents in the killing of David Dungay.  For us, racism informs and scripts the failure to take into account David’s chronically agitated mental state prior to the entry of the IAT into his cell; by disregarding his mental illness, he is framed by the correctional officers as a violent troublemaker. Racism informs the failure to call in an Aboriginal Liaison Officer to de-escalate the situation. Racism, as a form of violent “power play,” drives the use of exorbitant force on David’s person: he is seen as an intrinsically recalcitrant subject who needs to be beaten into submission and punished through a forced cell extraction. Racism underpins the blithe dismissal by the correctional officers of David’s desperate cries that he can’t breathe: as a Black man, he is framed as a mere malingerer who is obviously “faking” it and who is trying to “play the system.” As one of the officer’s states: “he did not see anything from his observations to think that the complaints were genuine.”[16] We emphasise the word “genuine” as it brings into focus the racialised power dynamics that serially script the manner in which incarcerated Aboriginal women and men, who are suffering from medical conditions, are fatally denied the due medical care and attention that would otherwise be administered to sick prisoners. The catalogue of this racialised discrimination and failure to offer proper due medical care to Indigenous people in custodial settings includes Ms Dhu, Ms Tanya Day, Ms AT, Mr Nathan Reynolds, Mr Yeeda and Mr Wayne Fella Morrison. The Deaths Inside: Indigenous Australians Deaths in Custody database documents 72 cases of Indigenous people who have died in custody due unattended medical issues.[17]

Operative in the killing of David Dungay was an excess violence licensed by a form of racism that views Aboriginal prisoners as in need of inordinate form of control and restraint. In 16.18 Conclusion, for example, Magistrate Lee states that, “By Officer C’s own acknowledgement, David was adequately restrained on the bed in cell 77 when the knee ride continued to be applied. Consistent with the provisions of the OPM, the application of such additional force was not warranted in circumstances where satisfactory restraint had been achieved.”[18] Despite this acknowledgement of the unwarranted nature of the “additional force” that was used against David, none of the officers was held to account in line with the Dungay Family solicitor submitting that: “a referral ought to be made the NSW Director of Public Prosecutions pursuant to section 78(4) of the Act with respect to the conduct” of a number of the officers involved in the death of David. A number of the officers had, during the course of the inquest, stated that they would only give evidence if they were issued, as was the case, “with a certificate pursuant to section 61(5) preventing their evidence from being used against them (except in relation to criminal proceedings in relation to the falsity of their evidence).”[19] As the certificates of exemption had been issued, Magistrate Lee concludes that: “It would be procedurally unfair to now consider the submissions made by the solicitor for the Dungay Family regarding the possibility of the officers being “convicted for an indictable offence that is causally related to the death of the person who the inquest is concerned with.”[20] The issue of “procedural fairness” must be seen here as inscribed by an asymmetry of racialised power: justice cannot be served for David Dungay when the very officers who were responsible for his death cannot be convicted for any possible criminal actions due to the issuing of “certificates of exemption.”

The Dungay Family solicitor also “submitted that Officer A failed to cease restraint and address David’s complaints of difficulty breathing, that Officer C used excessive force in maintaining restraint, that Officer E failed to preserve evidence in cell 71 [which was cleaned of all evidence soon after David’s death], and that Officer F acted beyond power in deciding to move David from cell 71 to cell 77.”[21] To this catalogue of what one would assume were indictable offences that should be referred to the NSW Director of Public Prosecutions, Magistrate Lee replies that: “It has already been noted that the conduct of the IAT officers was limited by systemic deficiencies in training which had been provided to them…. On this basis, the submission is not accepted.”[22] Everything here pivots on driving home the responsibility for the killing of David not to the actions of the officers but to “systemic deficiencies in training.” What remains unnamed in the broaching of the settler-colonial prison-industrial complex’s “systemic deficiencies” is the foundational role that systemic racism plays in generating those very lethal “systemic deficiencies” that result in the death of Aboriginal people in custody.

We can perhaps best evidence this assertion by invoking the words of the medical specialist, Professor Brown, who was called to give evidence on the quality of the medical assistance that was given to David Dungay during the process of his cell extraction and transfer. After listing a catalogue of systemic failures to offer appropriate medical care to David, “In summary, Professor Brown noted that the medical treatment provided by Justice Health staff overall ‘was of a low standard’ and lacking in essential aspects,’ and that the lack of provision of continuous basic life support ‘rendered the resuscitation attempts by Justice Health doctors and nurses effectively without value, and was incompatible with survival.’”[23] In concluding, we would transpose the final phrase of Professor Brown’s summary – “incompatible with survival” – as acutely materialising the systemic racialised forces that worked in the killing of David Dungay. The settler system of racialised incarceration, punishment and elimination of Indigenous people in this nation is, essentially, incompatible with their survival once they enter the carceral complex. And the “procedural fairness” of settler law masks the structural, because racialised, asymmetries of power that underpin it, that ensure its smooth reproduction, its ongoing violent impact on Indigenous people, and its systemic failure to deliver justice to its Indigenous victims and their families. Since the establishment of the Royal Commission into Aboriginal Death in Custody, no correctional or police officer in Australia has ever been successfully indicted with regard to an Indigenous death in custody.

Notes

[1] Coroner’s Court of New South Wales, Inquest findings into the death of David Dungay, 22 November 2019, p. 5. Available from: http://www.coroners.justice.nsw.gov.au/Documents/DUNGAY%20David%20-%20Findings%20-%20v2.pdf.

[2] Ibid., p. 13.

[3] Ibid., p. 35.

[4] Ibid., p. 13.

[5] Ibid.

[6] Ibid.

[7] Ibid., p. 40.

[8] Ibid., p. 14.

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] Ibid., p. 27.

[13] Ibid.

[14] Ibid., p. 31.

[15] Ibid.

[16] Ibid., p. 41.

[17] Deaths Inside: Indigenous Australian Deaths in Custody 2019, The Guardian. Available from: https://www.theguardian.com/australia-news/ng-interactive/2018/aug/28/deaths-inside-indigenous-australian-deaths-in-custody.

[18] Coroner’s Court of New South Wales, Inquest findings into the death of David Dungay, 22 November 2019, p. 45. Available from: http://www.coroners.justice.nsw.gov.au/Documents/DUNGAY%20David%20-%20Findings%20-%20v2.pdf.

[19] Ibid., p. 46.

[20] Ibid.

[21] Ibid., p. 58.

[22] Ibid., p. 60.

[23] Ibid., p. 79.


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