Dungay’s family calls for guards to be prosecuted after coroner finds their conduct was ‘not motivated by malicious intent’

This article is more than 9 months old

This article is more than 9 months old

The family of David Dungay say they will seek prosecution of the guards involved in his death in Long Bay Jail in 2015, after a coroner found none of the five guards should face disciplinary action.

Dungay, who had diabetes and schizophrenia, was in Long Bay jail hospital at the time of his death, aged 26, in November 2015. Guards stormed his cell after he refused to stop eating a packet of biscuits.

Dungay was dragged to another cell by guards, held face down and injected with a sedative by a Justice Health nurse. In harrowing footage shown to the court and partly released to the public, Dungay said 12 times that he couldn’t breathe, before losing consciousness and dying.

“We want the guards prosecuted,” Dungay’s mother Leetona said outside the coroner’s court.

Play Video 5:32 David Dungay's mother reads statement after coroner clears prison officers over death – video

“If Aboriginal men held down a white man until he was dead, where do you think those men would be? In jail for life.

“I’m his mother and I want justice. I am going to fight until I live in a country where black lives matter,” she said.

The National Justice Project, which is representing the Dungay family, is considering three options, including suing the immediate action team and Corrections NSW for wrongful death, seeking criminal prosecution of the officers involved, and seeking prosecution under Safe Work legislation.

“If David had been left in his cell, and there was no cell move, he would be alive today,” the National Justice project lawyer George Newhouse said outside the court.

“Obviously the family are disappointed but things won’t end here today.”

Announcing his findings to a crowded courtroom in Sydney on Friday, the NSW coroner, Derek Lee, said the professional conduct of the nurse who administered the sedative should be reviewed by the Board of Nursing.

David Dungay inquest: shocking video shows prison officers restraining inmate before death Read more

But Lee did not find that any of the five guards who restrained Dungay should face disciplinary action, saying the immediate action team’s “conduct was limited by systemic efficiencies in training” and was “not motivated by malicious intent” but “was a product of misunderstanding”.

Dungay’s family reacted with distress and anger at the findings.

Outside the court Dungay’s mother, Leetona Dungay, said justice had not been served.

“I am disgusted and deeply hurt by what passes for justice in Australia. He wasn’t a danger to anyone. He should have been in hospital not jail.”

Lee said he accepted that the nurse, Charles Xu, found the situation unfolding in the cell “confronting” but that, given Dungay was having trouble breathing, there was a clear “clinical basis to return to the cell and perform observations”.

Xu’s lawyers had argued there was a “difficult and complex situation in cell 77”, the coroner said, and that Xu had “taken training and was no longer a danger to the public” since the incident.

Lee said he acknowledged that the “coronial process is a confronting, arduous and distressing process” and expressed his condolences for the “immeasurable and tragic loss” of Dungay’s life.

Play Video 4:12 'I can't breathe': footage shows David Dungay's death in custody – video

The coroner had heard that medical staff at Sydney’s Long Bay jail failed for periods up of up to eight minutes to do basic CPR. They then forgot to remove the safety cap from resuscitation equipment, which came off in Dungay’s mouth.

Expert medical witness Prof Anthony Brown testified there were a number of points during the restraint when a medical professional could have intervened to prevent his death.

Brown said Dungay had little chance of survival once his heart had arrested but “whatever chance he had was lost” by the attempts at resuscitation.

The crowded inquest had legal teams representing six different parties, including the counsel assisting the coroner, the Dungay family, Corrective Services NSW, Justice Health and individual staff members.

Facebook Twitter Pinterest A photo of David Dungay as a boy, taken in his family home in Kempsey, NSW. Photograph: Carly Earl/The Guardian

Leetona Dungay said her family would not rest until justice was done.

“No mother should ever have to feel the pain of burying a son and watching him die begging to breathe,” Dungay told the court on the final day of hearings. “The whole world has seen the footage of David begging for his life and saying he can’t breathe, to his last gasp.

“One minute my beautiful son was alive and healthy, the next he was dead.”

The NSW Corrections commissioner Peter Severin issued an apology to the family, in a statement released after the findings were handed down.

“We recognise that his has deeply affected the family and that the pain they have experienced from his passing will continue well into the future.

“I also acknowledge the organisational failures at that time and note that we have made many changes to policy and training procedures as a direct result of Mr Dungay’s death,” Severin said.

Dungay’s death has been the subject of a Guardian Australia podcast, Breathless.