When six immediate action team (IAT) officers stormed the Long Bay Prison hospital ward cell occupied by David Dungay Junior on 29 December 2015, the 26-year-old Dunghutti had served his time and was about to return home to his family within weeks.
David was a diabetic. And he was eating a packet of rice crackers alone in his cell. Some nurses became concerned about his blood sugar levels. On being alerted, prison guards told the young man to stop eating the biscuits. And when he refused, the IAT were called in.
The shocking footage of what happened next has impacted globally. The specially trained IAT officers entered the cell, hauled David out, dragged him down the hall, took him into another cell and held him face down on a bed in the potentially fatal prone position, kneeling on his back until he died.
On 8 December, the Dungay family issued an open letter to NSW premier Gladys Berejiklian and state attorney general Mark Speakman calling on them to exercise their powers to ensure that the death of David is “properly investigated and prosecuted”.
Undersigned by 250 professionals, the families of death in custody victims and civil society organisations, the letter appeared in the Sydney Morning Herald, taking up a full page of the newspaper.
“I can’t breathe”
As the letter notes, Dungay called out that he couldn’t breathe twelve times whilst the officers struggled with him. One went as far as to tell him that if he was speaking, then he could breath. The officers then had a nurse inject him with a powerful sedative, and soon afterwards he was lifeless.
The prone position has proven lethal on numerous occasions. Minneapolis police officers held George Floyd down in the position until he died, while South Australian prison guards secured Wiradjuri, Kookatha, Wirangu man Wayne Fella Morrison in the position when his life was taken.
Tabling its report in November last year, the NSW Coroner found Dungay’s death was neither necessary or appropriate. However, no recommendation was made that the NSW Director of Public Prosecutions should consider pressing charges.
Criminal barrister Phillip Boulten SC has stated there is ample evidence for the DPP to consider prosecutions. Workplace health and safety barristers Kylie Nomchong SC and Linda Barnes have outlined that there are grounds for SafeWork NSW to prosecute.
And the Dungay family are now asking for the NSW government to step in and ensure justice is brought.
An independent investigator
The letter has been undersigned by the likes of Senator Lidia Thorpe, the National Justice Project, former Chief Justice of the Family Court Elizabeth Evatt, UNSW Professor Eileen Baldry and Amnesty International.
It was delivered on the final day of hearings held by the NSW parliamentary inquiry into deaths in custody and First Nations overincarceration, which was instigated by Greens MLC David Shoebridge.
The Dungay family is also calling on the “NSW government to establish an independent, First Nations-led body to investigate First Nations deaths in custody”. There have been over 440 such deaths since 1991.