The Office of the Director of Public Prosecutions (ODPP) NSW announced on 10 August that it was applying to the NSW Supreme Court to have a charge laid against a Corrective Services NSW (CSNSW) officer, who shot a Wiradjuri man in the back, upgraded from manslaughter to murder.
To charge a prison guard with the murder of a First Nations detainee is unprecedented in Australia. Indeed, charging the prison guard with manslaughter in relation to the death in February last year was already a first in itself.
The unidentified prison officer shot at 43-year-old Dwayne Johnstone three times on 15 March 2019, as the handcuffed and shackled remandee ran from him and a colleague in an attempt to escape out the front of Lismore Base Hospital. The third shot hit Johnstone in the back and proved fatal.
As per death in custody protocol, a coronial inquiry into the killing followed. And in another ground-breaking move, NSW state coroner Teresa O’Sullivan called a halt to the inquest mid-way in October 2020 and referred the matter to the DPP to consider whether criminal charges should be laid.
In response to the recent development, the union representing prison officers, the Public Services Association, announced more than 5,000 guards would be holding a 24-hour strike last Friday.
However, First Nations death in custody reform advocates have praised the move to upgrade the charge as a positive step in seeing officers accountable for their deadly actions.
A significant shift
“This development means that there’s substantial evidence that the corrective officer involved had the intent to murder,” said Paul Silva, whose been campaigning for reform around Aboriginal deaths in custody since his uncle died at Long Bay Gaol in 2015.
“It’s a substantial step to upgrade a charge from manslaughter to murder,” the Dunghutti man told Sydney Criminal Lawyers. “The DPP has found evidence to upgrade the charge.”
In its statement to the press, the ODPP outlined that the available evidence that it’s been reviewing for the upcoming trial, includes “newly subpoenaed material”, and based on what it has, the director “has determined that the appropriate charge is one of murder”.
Silva asserts that the decision to upgrade the charge in this manner marks a significant shift in the way the ODPP has been responding to cases of Aboriginal custodial deaths, and he maintained that the actions of the state coroner also showed a marked change in how it responds to such cases.
“It’s one thing to upgrade the charge though and another to actually find him guilty and prosecute him, so the family gets justice and some answers from this,” he added.
Silva knows all too well what it’s like to be relying on the NSW system to serve justice and for the coronial process to bring some substantial closure, only to find this doesn’t eventuate, as his uncle, 26-year-old David Dungay Junior, lost his life in a cell in the hospital ward of Long Bay Gaol.
The Dunghutti man was seized by a group of specialist guards on 29 December 2015. And wrestled face down onto a bed over his eating a packet of biscuits whilst being a diabetic, Dungay had five officers press down on his back, as he repeatedly called out that he couldn’t breathe, until he died.
The 2019 inquest into David’s death resulted in no recommendations that the DPP consider charges, in fact no disciplinary action in relation to the guards whatsoever was suggested.
Instead, then Corrective Services NSW commissioner Peter Severin simply issued an apology, citing “organisational failures at the time”.
Yet, the Dungays have continued to pursue justice. This has seen multiple requests to the DPP and SafeWork NSW to criminally investigate the matter, with the support of advice from NSW barrister Phillip Boulten SC and a petition signed by over 114,000 people. But these calls have been denied.
In the face of such injustice, the Dungays have taken the matter to the UN Human Rights Commission, with renowned Australian barristers Geoffrey Robertson and Jennifer Robinson providing counsel. Silva advises that the matter is now progressing through the UN system.
In the lead up to the prison guard strike, Public Services Association general secretary Steward Little told the Herald that CSNSW officers are provided with firearms in expectation that escapes may occur, and “if they are not to use weapons, they should not be deployed with them”.
In a 12 August statement, prisoner advocacy group Justice Action asserted that the PSA strike “demonstrates their lack of respect for the law and police powers when it applies to them”, adding that they were “trying to use their industrial power to pervert the course of justice”.
According to Silva, the response was appalling. “I can’t imagine how the family actually feels to have 5,000 of his colleagues condemn the act of upgrading the charge”. And he added that the NSW corrective services minister ought to have intervened.
DPP inquiry should be standard
The count being kept by the NSW Council for Civil Liberties (NSWCCL) puts the number of First Nations deaths in the custody of either police or corrections officers at 498 since the handing down of the 339 recommendations of the Royal Commission into Aboriginal Deaths in Custody in 1991.
The eleventh recommendation, which has been implemented, stipulates that “all deaths in custody be required by law to be the subject of a coronial inquiry which culminates in a formal inquest conducted by a coroner into the circumstances of the death”.
However, Silva states that the Johnstone case and that of his uncle reveal that the coronial process is not enough, as the overwhelming majority of deaths investigated by the coroner aren’t resulting in any recommendation that criminal charges be laid, or any reforms implemented for that matter.
The First Nations rights advocate suggests that what is needed right now, is for people to take to the streets again, as they did in 2020, to demand that the DPP steps in initially to conduct an investigation from the moment an Aboriginal death in custody takes place.
“As I’ve said for numerous years now, it would give the families reassurance that it is being investigated for criminal conduct and breaches of law. It is a simple ask,” Silva said in conclusion.
“If the DPP steps in, investigates, and follows through with charges, and the courts follow through and find these people guilty of those crimes due to the substantial evidence, that would be a massive step.”