Inquest into the death of Robert Plasto-Lehner and David Gurralpa aka Moscow
[2009] NTMC 14
•10 June 2009
[2009] NTMC 014
TITLE OF COURT: Coroner’s Court
JURISDICTION: Darwin
FILE NO(s): D0228/2007 and D0002/2008
DELIVERED ON: 10 June 2009
DELIVERED AT: Darwin
HEARING DATE(s): 25 February – 10 March 2009
FINDING OF: Mr Greg Cavanagh SM
CATCHWORDS:
Death in Custody and care, restraint by police, positional asphyxia, police training in relation thereto, report of crime committed.
REPRESENTATION:
Counsel:
Assisting: Philip Strickland
Police: David Farquhar
Dept. of Health: Kelvin Currie
Human Rights & Equal
Opportunities Commission: Ms O’Brien & Ms Redmond
Family of David Gurralpa: Patrick McIntyre
Judgment category classification: A
Judgement ID number: [2009] NTMC 014
Number of paragraphs: 199
Number of pages: 66
IN THE CORONERS COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. D0228/2007 and D0002/2008
In the matter of an Inquest into the death of
ROBERT PLASTO-LEHNER ON 1 JANUARY 2008 and DAVID GURRALPA aka MOSCOW ON 28 DECEMBER 2007
FINDINGS
Mr Greg Cavanagh SM:
INTRODUCTION
1. These Inquests were held into the deaths of David Burumila Gurralpa aka Moscow and Robert Plasto-Lehner. Both deaths are “reportable deaths” under section 14(2) of the Coroner’s Act (“the Act”). The Coroner was obliged to hold an inquest under section 15(1) of the Act into David Gurralpa because he was held in custody by the police immediately before his death. Similarly I held an inquest into the death of Robert Plasto Lehner pursuant to section 15(1a) of the Act because he was a person who was held in care at the time of his death, as he was detained in a hospital pursuant to the Mental Health and Related Services Act.
2. The circumstances of the deaths were investigated at the one inquest because of common factors and an overlap of issues. Both deaths were at least contributed to by injuries sustained after the police used force involving restraining the men in a prone position. Both men were large men who suffered from pre-existing heart conditions. An issue arises in both cases as to whether the deaths were caused by ‘positional asphyxia’
3. The scope of the inquest is governed by the provisions of sections 26, 27, 34 and 35 of the Act:
26 Report on additional matters by coroner
(1) Where a coroner holds an inquest into the death of a person held in custody or caused or contributed to by injuries sustained while being held in custody, the coroner -
(a) shall investigate and report on the care, supervision and treatment of the person while being held in custody or caused or contributed to by injuries sustained while being held in custody; and
(b) may investigate and report on a matter connected with public health or safety or the administration of justice that is relevant to the death.
(2) A coroner who holds an inquest into the death of a person held in custody or caused or contributed to by injuries sustained while being held in custody shall make such recommendations with respect to the prevention of future deaths in similar circumstances as the coroner considers to be relevant.
27. Coroner to send report etc. to Attorney-General
(1) The coroner shall cause a copy of each report and recommendation made in pursuance of section 26 to be sent without delay to the Attorney-General.
34. Coroners' findings and comments
(1) A coroner investigating -
(a) a death shall, if possible, find -
(i) the identity of the Deceased person;
(ii) the time and place of death;
(iii) the cause of death;
(iv) the particulars needed to register the death under the Births, Deaths and Marriages Registration Act ; and
(v) any relevant circumstances concerning the death; or
(b) a disaster shall, if possible, find -
(i) the cause and origin of the disaster; and
(ii) the circumstances in which the disaster occurred.
(2) A coroner may comment on a matter, including public health or safety or the administration of justice, connected with the death or disaster being investigated.
(3) A coroner shall not, in an investigation, include in a finding or comment a statement that a person is or may be guilty of an offence.
(4) A coroner shall ensure that the particulars referred to in subsection (1)(a)(iv) are provided to the Registrar, within the meaning of the Births, Deaths and Marriages Registration Act .
35. Coroners' reports
(1) A coroner may report to the Attorney-General on a death or disaster investigated by the coroner.
(2) A coroner may make recommendations to the Attorney-General on a matter, including public health or safety or the administration of justice connected with a death or disaster investigated by the coroner.
(3) A coroner shall report to the Commissioner of Police and the Director of Public Prosecutions appointed under the Director of Public Prosecutions Act if the coroner believes that a crime may have been committed in connection with a death or disaster investigated by the coroner.
4. The public inquest into the deaths was heard in Darwin from 25 February 2009 to 10 March 2009. Mr Strickland SC appeared as counsel assisting the Coroner. Mr McIntyre appeared for the Gurralpa family, Mr Farquhar appeared for the Commissioner of Police, Mr Currie appeared for the Department of Health and Families and Ms O’Brien and Ms Redmond appeared for the Human Rights and Equal Opportunities Commission. I have read and considered the written final submissions filed by all parties.
5. I request the legal representatives of the Gurralpa family, that is the North Australian Aboriginal Justice Agency, advise the family of the content of these findings and, where necessary, translate them into their first language viz Djambarrpunya.
RELEVANT CIRUMSTANCES INVOLVING DEATH OF DAVID GURRALPA
6. I find the evidence establishes that David Gurralpa was 39 years old at the time he died. He spent most of his life at the Ramingining community but often left to go and work on various Outstations for employment. From 1994 to 2004 he worked at cleaning job at Wulkabirri Outstation. The Deceased was in a band called ‘Black Iron’ and travelled to various places playing with his band. He was well loved as a singer.
7. He married his wife Rhonda Malibirr at the Tanks Outstation and they later moved to Wulkabirri Outstation. They had 4 children; Evanthia (16), Arnold (14), Hilston (12) and Tiffany (6).
8. Shortly before his death, he and his wife arrived in Darwin to stay with his wife’s sister, Anita Pascoe at Malak. They stayed there for about 2 weeks before moving to 18 Waterhouse Crescent, Driver, which was a property leased to Terry Moscoa, Peggy Rankine and Haggi Moscoa. They stayed there for 1 week before his death.
9. On 1 January 2008, a number of Aboriginal people gathered at 18 Waterhouse Crescent, Driver to celebrate the New Year. The celebration degenerated during the afternoon as people became progressively more intoxicated. Neighbours vividly describe hearing the sound of glass or bottles breaking, yelling and screaming from inside the premises and someone being thrown against a door or wall. An Aboriginal man was thrown out onto the road and cried out in distress and pain.
10. An argument took place between Peggy Rankine and the Deceased about whether he had stolen or taken any alcohol. The Deceased took umbrage at that suggestion and threw one or more items including a saucepan at Peggy Rankine in her front yard. It did not hit her. The Aboriginal witnesses describe the Deceased as being very angry or ‘wild’ at Peggy Rankine.
11. At 4.46pm on 1 January 2008, Jessica Wilson (one of those present at the house) called 000 from 18 Waterhouse Crescent. She told the service that lots of people were fighting over alcohol and were intoxicated. She said: “they are throwing saucepans at each other”. She gave evidence at the inquest that she was frightened when she made the 000 call.
12. At 4.48 pm, Unit 418, a Police caged vehicle with Constables Melissa Kennedy and Ben Parfitt was dispatched to 18 Waterhouse Crescent Driver. However at 4.51pm, the first police vehicle to book off, that is to arrive, at 18 Waterhouse Crescent was Unit 36 with Constables Brendan Berlin and Marcus Lees. Unit 36 requested assistance for other units to attend the premises.
13. When Constables Berlin and Lees arrived, an ambulance was at the premises treating an Aboriginal man in the driveway. They approached the ambulance, which left shortly thereafter. They then spoke to a group of people at the front of the premises. Lees noticed one Aboriginal man yelling at another Aboriginal man outside the premises neither of whom were the Deceased. Berlin and Lees then saw a disturbance going on in the yard. Berlin closely followed by Lees walked inside the yard and spoke to Peggy Rankine.
14. Peggy Rankine told Berlin that she was the lawful occupier of the house and she didn’t want these people to stay any longer in the house. Berlin says “Who do you want removed”. She pointed to the Deceased. Rankine told the police that the Deceased had thrown a saucepan at her and showed them her slightly swelling hand. She pointed out the Deceased to the police, who was standing at the back of the house, and told Berlin and Lees that she wanted the Deceased and his wife, Rhonda Malabirr removed from her premises. In her statutory declaration, Peggy Rankine told police that she wanted the Deceased taken to a “sobering centre”. Simeon Moscow, in his statutory declaration told police that he heard Peggy Rankine tell police to take them to “spin dry”
15. At 4.57pm, as a result of hearing some chatter on radio channel 6 and the request from unit 36, Constables 1/Class Neil James and Kanyilmaz in unit 420 arrived and “booked off” at 18 Waterhouse Crescent. Once James went into the yard, he saw the Deceased in between Berlin and Lees and Berlin called out to James: “This one’s going [referring to the Deceased]. There’s another drunk out the front”.
16. Constable Berlin walked up to the Deceased and asked what he was doing there and he said he had had an argument with Peggy and he threw a saucepan, which narrowly missed her. Berlin asked the Deceased if he had been drinking that day and he said ‘yes’. Berlin told the Deceased he was not welcome to stay and he’d like him to leave the premises. The Deceased was bare-chested. Lees asked the Deceased to get his shirt and the Deceased agreed and asked his wife to get his shirt. The Deceased agreed to leave the premises and began to walk with Berlin and Lees towards the front gate. He was being co-operative.
17. Berlin and Lees walked out into the front yard with the Deceased. As they were moving towards the front gate of the house, Peggy Rankine said something to the Deceased in language. Janet Gunimirriwuay, sister of the Deceased, told the police in her statutory declaration that Peggy said to the Deceased: “You have to go to gaol, going to go to the paddy wagon”. Rankine said she told the Deceased: “You’ve got to go to sobering centre. We’ll pick you tomorrow morning.” She said that the Deceased replied to her: “I’ll come back tomorrow and hit you”
18. Whatever Rankine said to the Deceased, it triggered a tragic chain of events. The Deceased lunged towards Peggy Rankine with his right arm raised as if he was going to do something to her. In his interview with police on 15 January 2008, Simeon Moscoa made this observation:
“He [the Deceased] tried to hit Peggy, two Policemen came in to stop him. They knew he was really getting wild. Peggy just told them to take him to the spin dryer. He was trying to hit [her] but the Police just rushed him, coming towards him”.
19. Genevieve Smith told the police during her interview that Peggy said something to the Deceased “and she make him wild. He was going to hit her again”.
20. Berlin stepped between the Deceased and Peggy Rankine and grabbed the Deceased by his right arm. Lees grabbed the Deceased’s left arm. The Deceased began to struggle, and both police officers pushed the Deceased against the side of the Jackaroo vehicle, which was parked in the driveway. Lees said to the Deceased “Settle down. Settle down. You know we’ve got to leave.” Lees told the investigating police that when the police grabbed the Deceased’s arms, the Deceased’s whole personality and demeanour changed. He became very aggressive.
21. Berlin and Lees were joined by Kanyilmaz, who tried to control the Deceased’s left arm. The police did not at any point try to force the Deceased to the ground, or in police terminology; ground stabilise him. They tried to force his arms behind his back whilst the Deceased was standing up next to the Jackaroo car. However, the police were unable to do that because the Deceased was thrashing and swinging his arms about and kept breaking free from their grip. The Deceased’s shirtless upper body was sweaty and slippery. The Deceased was a strong, muscular man, who weighed about 88 kilograms.
22. Berlin, Lees and the Deceased lost their balance in the struggle and fell on the bitumen driveway. There was no deliberate take down. The Deceased ended up face down on the ground. The majority of witnesses said that the struggle continued whilst the Deceased was face-down either on a grassy area just next to the side of the house or on the adjoining bitumen which was a drainage area. The struggle escalated. The police involved described the intensity of the struggle as between a seven and nine out of ten or as “very high up the scale”.
23. Acting in accordance with their training, Berlin and Lees applied a three point hold on the Deceased placing their knees on his right and left scapula. They attempted to get the Deceased’s arms from under his body to behind his back so that they could apply handcuffs. Kanyilmaz attempted to control the Deceased’s legs by applying a figure four lock. This did not work because the Deceased was kicking out and hitting Kanyilmaz with his legs. Kanyilmaz placed his knee on the Deceased’s left leg and with great difficulty held the Deceased’s right leg down with both his hands. The Deceased continued to struggle. Lees and Kanyilmaz were repeatedly yelling at the Deceased to stop resisting.
24. During the struggle, Constable James stood between the Deceased and the crowd and told the crowd to stay back. He had a Mach 9 canister of OC spray in his hand. James observed Lees appear to lose his grip and he thought the Deceased was turning over to try to get up. James lifted the Deceased’s head, told the police: “I’m going to spray him” and then sprayed the Deceased to the face with the OC spray for 1-2 seconds from about ½ metres away. When James used the OC spray, he had twisted his wrist so that the OC canister was close to a horizontal position. Lees was the only member involved in the struggle who knew that the OC spray had been used because he could smell and taste it, but it did not affect him. None of the members were affected by the OC spray and some did not know it had been used. The Deceased did not appear to be affected by the use of the OC spray.
25. Forensic tests were conducted on the Mach 9 canister used by James, which revealed that only a small amount of the spray had been used. Sergeant Hansen conducted a test on the canister pressing the trigger at approximately the angle held by James on 1 January 2008. He discovered that all that happened was the nitrogen gas in the canister was released, and nothing else.
26. In short, there is no evidence that the use of the OC spray in any way contributed to the death of the Deceased.
27. After using the OC spray, James returned to monitoring the crowd. Three more police officers arrived in two different units during the struggle. Constables Melissa Kennedy and Ben Parfitt arrived in Unit 418. Their arrival is not recorded until 5.05pm. The evidence is that they arrived before that time but Kennedy did not book off as soon as they arrived, so it is not clear exactly what time they arrived. The shift supervisor at Palmerston police station, Acting Sgt Wilson attended at the premises. He did not advise Communications of his arrival until 5.06pm because the radio operators were busy and upon arrival he immediately attended to maintaining crowd control.
28. Immediately after Kennedy entered the yard of 18 Waterhouse Crescent, she saw the Deceased on the ground with the police officers crouched around him attempting to restrain him. She heard one of the officers yelling at her to get her handcuffs out. She did so and one of the Deceased’s arms was put behind his back and the handcuff was applied to it with some difficulty due to the size of the Deceased’s wrist. The handcuffs were then applied to the Deceased’s other wrist. Kennedy estimated that by the time she arrived (which was clearly after the struggle on the ground had commenced) the struggle continued for no more than one minute.
29. During the whole struggle on the ground, the crowd were calling out warnings to the police including: ‘he is a sick man’, ‘he has asthma’, ‘leave him alone’ and ‘do not touch him, leave him because he’s a sick person’. The warnings were yelled loud enough so that the neighbours heard them. Constables Lees, James and Kennedy heard those shouted warnings. A couple of Aboriginal witnesses heard the Deceased cry out in pain and heard him say: ‘let me go. I need to breathe.’ No police officer said they heard the Deceased say he could not breathe.
30. After the police handcuffed the Deceased, he suddenly stopped struggling. A number of witnesses in close proximity to the Deceased described how all of a sudden, the Deceased stopped moving. Shawn Morris said that after the handcuffs were put on, all the police officers stood up and were standing. He said: “the Deceased. I couldn’t see him move again”. Simon Pascoe described the Deceased struggling violently, and then all of a sudden, he could not move anymore, he states “then suddenly he couldn’t breathe, he stopped breathing and I could see him.” Stella Smith said: “Last minute I could see him move and then suddenly he stopped it”. Agnes Warambala, who was the Deceased’s niece, described how, during the struggle, she had darted in and out trying to tell the police “leave him [the Deceased] alone. He’s too fat and short, something might happen to him.” She said that when the struggle had finished, she saw the Deceased on the ground. “I seen my uncle wasn’t moving and then I spoke up and I said ‘that’s it, he’s finished, you killed him.” Some witnesses observed the Deceased was bleeding through his nostrils.
31. These accounts are supported by evidence from the police. Constable Lees told the investigating police that after the Deceased was handcuffed, he noticed that the Deceased went ‘limp’ and appeared to be unconscious. At the inquest, he confirmed the truth of that statement. Lees said at the inquest that he saw the Deceased’s eyes were shut and he was not moving.
32. After the Deceased was handcuffed, he was lifted onto his knees, and then onto his feet. It appears that the Deceased could momentarily take some of his own weight and stood for a moment. However immediately after he stood up, the Deceased slumped unable to take the weight on his own legs. He had to be carried by three police to the police van – Parfitt and Berlin held the Deceased by his arms and Kanyilmaz took his legs. Kanyilmaz said that the Deceased was still moving his feet whilst he was carrying him to the police vehicle. He had no concerns about the Deceased’s health and assumed that the Deceased was simply being co-operative. He went round to the side of the police van to clean up. Berlin was talking to the Deceased continuously after he was handcuffed asking him if he was okay. Berlin said that he noticed something was wrong with the Deceased after the Deceased got to his feet and he slumped, unable to bear his own weight. Parfitt noticed as he was taking the Deceased to the van that his neck was strained as if it had gone rigid, his eyes were closed and his face “looked like he was holding his breath”. Parfitt also observed that blood was smeared on the Deceased and that some of the blood had got on himself. Acting Sergeant David Wilson also noticed that the Deceased was not moving when they picked him up, apart from the fact that the Deceased appeared to throw his feet out. Wilson thought that the reason the Deceased needed to be dragged to the police van was because he was intoxicated.
33. Half way down the driveway, Kennedy was concerned how the Deceased looked. She noticed how the Deceased appeared rigid, his eyes were closed, his legs had not come down and he was saying and doing nothing. She said to the other police, “I don’t think he’s OK”. She said the other officers ‘took note’ and then hurriedly took him to the back of the police van.
34. The Deceased was then placed in the police van with his handcuffs still on behind his back. Constable Parfitt then closed the police van’s door because he was concerned that the Deceased was possibly going to struggle. He gave the following evidence (p.423):
“MR STRICKLAND: So you’ve arrived then at the van?---That's right. And we sat him on the sill on the back of the van. Sit him in as much as we can and then we swung his legs into the van. At that point the door was closed. I can’t remember who closed it, but it was closed for only a matter of seconds because he then sort of slid sideways and lay on the floor of the van. And it was obvious at that point that something was wrong.
When the doors – did someone shut the door?---Yes.
And what was the sound that made?---The caged doors are very loud when they close. It’s metal on metal, there’s no rubber or anything like that, so it’s pretty loud.
Why did someone close the door, do you know?---Well, because at that time we believed that there was still possibly someone who was – well, the Deceased was possibly going to struggle and that’s what I was told to do, just close the door.
You closed the door did you?---I don’t know if it was me or someone else, I can’t remember who closed the door. But I know that I opened it almost straight away.
And why did you open it almost straight away?---Because I could see that he’d slipped over.
So slipped over?---He was sat with his hands cuffed behind him and his back was on the seat and he’s obviously slipped over to the left hand side and laying on his side on his shoulder.
And you saw that happen?---I did.
And you opened the door then?---Yeah.”
35. Parfitt saw the Deceased sitting on the bench in the police cage and slip over straight away. Parfitt opened the door immediately, checked for the Deceased’s pulse on his neck but could not find it. The Deceased’s handcuffs were removed and resuscitation was commenced. The Deceased’s heart had stopped.
36. James entered the vehicle and checked the Deceased’s pulse in his carotid artery and found he had a pulse. James called an ambulance, records show the call was made at 5:01 pm. That call was played during the inquest. James told the 000 operator that the Deceased has “still got vitals.” After that call, James continually checked the Deceased’s pulse and was not getting any pulse at all. Other police members then checked the Deceased’s pulse and could not find one. Police officers attempted to call for an ambulance several times. The ambulance arrived at 5.14pm. It appears that the delay was caused because it was assumed that there was already an ambulance at the premises, in fact, the ambulance that had been at the premises when Constables Berlin and Lees arrived had already left.
37. Monitoring and resuscitation by ambulance officers commenced at 5.15pm. The ambulance left the premises at 5.22pm and headed directly to Royal Darwin hospital. The Deceased’s heart beat, breathing and pulse were regularly monitored by ambulance officers in the ambulance. The cardiac monitor showed that the Deceased had no heart beat. The Deceased exhibited no signs of life whilst in the ambulance.
38. The Deceased arrived at the Emergency Department of Royal Darwin hospital at 5.37pm. He was not able to be revived in the ambulance, nor was he revived at the Royal Darwin Hospital. Kanyilmaz went to the Royal Darwin Hospital and spoke to Dr Didier Palmer, who told him at 5.52pm that the Deceased was dead.
39. The struggle involving the Deceased and the police commenced very shortly after 4.57pm when Kanyilmaz and James arrived. It must have concluded before the ambulance was called at 5.01pm. In my opinion, considering those outer time limits and all the evidence from the eyewitnesses, it is probable that the duration of the struggle whilst the Deceased was on the ground in the prone position was between one and two minutes.
CAUSE OF DEATH
40. In August 2002 at Ramingining health clinic, the Deceased was diagnosed as suffering from hypertension, obesity and high cholesterol. He smoked about 20 cigarettes a day and drank kava. In February 2004, he again attended that clinic and provided blood for screening. He had high Albumin levels consistent with kidney disease. Throughout 2004 and 2005, he did not comply with various medical recommendations concerning medication he should take to deal with those medical conditions. The Deceased’s health condition as at 1 January 2008 was very serious. Tragically, this profile represents a fairly typical profile for a significant proportion of Aboriginal men in the NT community.
41. The Deceased also had a past history of hepatitis B infection and Syphilis. His wife Rhonda Malibirr said he had problems with his kidneys and had asthma but he never mentioned the latter condition to her or to the doctors. She knew he had problems with shortness of breath. She said that the Deceased was given medication for his health conditions but often did not take that medication. There was no evidence in the Hospital or medical records, or from the autopsy that the Deceased suffered from asthma. However, there is considerable evidence from members of the Deceased’s family, including his wife, that he was chronically short of breath, probably due to his general ill health and the fact that he smoked approximately twenty cigarettes per day. Dr Paul Botterill, a highly experienced Forensic Pathologist, examined the autopsy report of Dr Sinton (the forensic pathologist who conducted the autopsy), the Deceased’s medical files and a number of witness statements. Dr Botterill concluded that the Deceased’s underlying long standing coronary artery disease represented the most significant and most likely cause of death. Dr Botterill also listed other factors which contributed to the Deceased’s death; the restraint by the Police and asphyxia associated with that, the Deceased’s obesity, the enlargement of his heart, his high blood pressure in the past, the fact that he had significant fatty liver and the fact that he was intoxicated with alcohol at the time. He said that the “restraining event” was probably a material contributing factor to the Deceased’s death. Dr Botterill concluded that the severity of the Deceased’s heart disease was such that the Deceased was at “extreme risk of sudden cardiac event”. Accordingly, Dr Botterill’s opinion was that confronting agitative events such as the struggle and the restraint and the stress of the complex situation could be enough to trigger a cardiac event. Dr Botterill also observed that people in restraint situations struggle because they themselves perceive they are having difficulty breathing. Having reviewed the material he thought this probably occurred in the Deceased’s case.
42. Dr Terence Sinton, the Director of RDH Forensic Pathology Unit, carried out an autopsy at 9am on 3 January 2008. His significant findings were:
“(a) Superficial abrasions to the left shoulder, right arm, both legs, and the back of the trunk;
(b) Clinically severe coronary artery disease. The coronary arteries were blocked up to 80% in the worst affected areas;
(c) Extensive damage to the heart as a consequence of at least one previous heart attack;
(d) Abnormal enlargement of the heart, probably a consequence of (c) above;
(e) Fluid accumulation in the lungs, consistent with acute heart failure;
(f) Severe fatty damage to the liver, likely as a consequence of chronic alcohol toxicity.”
43. Samples of blood taken on his admission to Hospital indicated an alcohol concentration of 0.035%. Dr Sinton concluded
“given the history and autopsy findings, he died as a result of long standing coronary artery and heart disease.
1(a) Condition leading directly to death
1(b) Coronary Atherosclerosis (clinically severe coronary artery disease).
2 Other significant conditions contributing to death but not related to the condition causing death: myocardial infarction (heart attack).
Hepatosteatsis.”
44. I cannot be satisfied that the Deceased died from suffocation or asphyxia as a result of any direct interference with the Deceased’s respiration. I do accept that as a result of the intense restraint and struggle, the Deceased had difficulty breathing, and that this difficulty was accentuated because he had longstanding breathing difficulties (as described by his family) and a large belly which restricted the movement of his diaphragm when he was in the prone restraint position, which in turn affected the amount of air getting into his lungs. This difficulty in breathing may have been one of the factors that led to the cardiac event.
45. I find that the Deceased died from a long standing coronary artery disease and that the immediate cause of his death was a sudden heart attack. The struggle between the Deceased and the police both whilst standing up and particularly whilst the police were restraining the Deceased on the ground during the struggle was a material contributing factor to his death.
COMMENTS ON POLICE CONDUCT
46. The action the police took in restraining the Deceased from attacking Ms Rankine, whilst she was holding her baby, was rapid and appropriate. I accept that once the Deceased was restrained, he became highly aggressive.
47. The police acted properly and in accordance with their training in seeking to force the Deceased’s hands behind his back whilst up against the vehicle in the driveway. They did not try to force the Deceased to the ground. In the midst of the intense struggle, they fell to the ground. The police then acted appropriately and in accordance with police training in trying to restrain the Deceased with the three point hold and the leg lock. They had no real alternative to restrain him in the way they did. They properly feared that if they let the Deceased go whilst he was on the ground, he could have presented as a continuing danger to Ms Rankine or other persons present. I accept the evidence from Kanyilmaz that the “incident went from nothing to 100 miles an hour very quickly.”
48. The police did not punch the Deceased, stomp or stand on him. There was no gratuitous violence or use of force. I do not accept the evidence of some witnesses that the police dragged the Deceased some distance from the bitumen to the grass. The Aboriginal witnesses described the restraint as involving considerable violence or force by the police. The significant level of force used by police during the restraint was proportionate to the intensity of the struggle by the Deceased.
49. It is highly probable that the Deceased experienced difficulty breathing at some point whilst he was being restrained. I accept that if the Deceased did say he was having difficulty breathing, the police did not hear it. It did not occur to the police that the Deceased’s struggle could be related to any difficulty he had in breathing.
50. The one matter that gives rise to some concern is the slowness of the police to realise that once they had applied the handcuffs, and the Deceased stopped struggling, the Deceased was himself in grave risk of death or serious illness. Both police and Aboriginal witnesses noticed that the Deceased had stopped moving altogether whilst he was on the ground. Lees noticed that he had gone limp and unconscious, but he did not turn his mind to the Deceased’s health. He gave the following evidence (p.342),
MR STRICKLAND: “Was another feature of your conclusion that he appeared to be unconscious was that his body went limp?---Yes. Well, Yeah.
Did you immediately say to anybody that he appeared to your observation to be unconscious?---No.
Why not?---Because I, as soon as the handcuffs went off him, went on him I got off him. Because he was restrained and I turned towards the crowd.
But if you observed at that particular point in time that he appeared to be unconscious?---Mm.
Why wouldn’t you tell any other police officer that fact?---I had no, I have no answer for you.
THE CORONER: Do you agree that when someone is unconscious, they’re not well, I mean there’s something wrong with them?---Yes, your Worship.
Next question, please.
MR STRICKLAND: Did you at any stage say to anybody that his handcuffs should be taken off?---No.
And at (p.346)
“Didn’t you receive any training that if you noticed something was wrong, like he appeared to be unconscious, you should immediately notify someone or do something about it? Wasn’t that - - -?---Yes.
- - -an essential part of the retraining?---Yes.
In hindsight do you think you fell down in not following that part of the training?
---Yes.
And can you explain why?---Because I’d observed the gentleman to, you know, when he stopped resisting and went limp and he appeared to go unconscious I got off him an did nothing about it.
I accept that and I accept your candour in saying that, but do you have an explanation to the court as to why that part of your training you did not appear to comply with?---I was more, to be honest, I was more worried with the other people who were yelling and screaming at me.”
51. Kennedy had warned her police colleagues that something was wrong with the Deceased when they were carrying or dragging the Deceased towards the van. Berlin knew that something was wrong with the Deceased. Neither Kennedy, nor Berlin nor any other officer knew that the Deceased was moments away from death. They did not even know he was critically ill. However, the fact remains that the Deceased was placed in the back of a caged police van with his handcuffs still on behind his back and the doors of that van were then closed even though the Deceased had exhibited signs of serious ill health after a violent struggle. The back of the police van was smeared with the Deceased’s blood.
52. The police failed to give the Deceased urgent medical attention as soon as it was observed that the Deceased had gone limp. This highlights a serious deficiency in police training which requires urgent attention.
53. As soon as a person in police custody who has been involved in a violent struggle exhibits any warning signs of ill health (such as going limp, becoming rigid or completely still), the police cannot assume that this change of behaviour represents a sudden desire to co-operate with police or that it is a result of intoxication. Applying their Safety First principles, police must be trained and informed of those warning signs and what medical attention must be provided before an ambulance or trained medical help can be obtained.
54. However, there is no evidence that this failure by police contributed to the Deceased’s death. The Deceased had suffered a major cardiac event whilst on the ground and there is no evidence to indicate that even the most urgent medical assistance could have saved him.
55. I also accept that as soon as the police saw the Deceased had slumped in the back of the police van, they immediately opened the caged door and did everything they could to revive him and save his life.
THE POLICE INVESTIGATION INTO THE DEATH OF MR GURRALPA
56. The investigation by Donna Cayley was a thorough, detailed and transparent examination of the circumstances of Mr Gurralpa’s death.
RELEVANT CIRCUMSTANCES LEADING TO DEATH OF ROBERT PLASTO-LEHNER
57. The Deceased was fifty seven years old at the time of his death. He spent his childhood in mining communities and moved to the Northern Territory in 1966. He began a cadetship with the ABC in Darwin. He had an accomplished career in radio, television and as a film producer. The Deceased suffered from long term bipolar depressive illness. The Deceased was also a heavy smoker and over- weight. He weighed 126kgs. He suffered from chronic obstructive airway disease (Bronchiectasis).
58. The Deceased had two children, Georgina and Jacqueline from his first marriage to Kathy Howard and had two children, Rune and Tyge from his second marriage to Josephine Richardson.
59. The Deceased was in close contact with his sister, Dorothy Coleman and her family who lived in Darwin. On 19 December 2007, the Deceased travelled from Alice Springs to spend Christmas with Dorothy and her family. He was collected at the airport by his nephew, Justin Coleman, who checked the Deceased in at the Mirambeenba Resort. During the time he was in Darwin, Dorothy and Justin made several appointments for the Deceased to see a doctor because Dorothy could see that the Deceased’s mental illness was the worst she had ever seen. It was obvious to her that the Deceased was not taking Lithium and Stelazine, the medication he had been prescribed to combat his illness.
60. On 22 December 2007 the Deceased left his room at the Mirambeena hotel without telling his family. At 1.01pm on that day, Louise Brennan from the Cavenagh hotel in Cavenagh Street called 000 to report that she had witnessed a man – the Deceased – whom she described to the 000 operator as “completely delusional”. He was ranting and raving, giving away $100 bills, talking irrationally, shaking and sweating profusely. She said that one of her customers had dealt with people like this before and he “thinks he might be a suicide case because he’s giving stuff away.”
61. At 2.35pm, unit 443 with Senior ACPO John Morrison (7217) and ACPO Vanessa Martin (7193) was dispatched to attend to a “mentally ill person” at Cavenagh Street .They went to the Cavenagh Hotel and spoke with Louise Brennan. At 2.59pm, both officers reported to the Communications Centre that they had seen and spoken to the Deceased at Knuckey St and they called for backup. Morrison stated that the Deceased was shaking and sweating and speaking incoherently. Morrison believed that the Deceased needed urgent medical assistance due to his mental state. He tried to convince the Deceased to get into the back of the police caged vehicle. The Deceased walked back to the police van, but before he got into the van, he said he wanted to have a few minutes and he ran towards a tree and bear hugged it with his full body weight. The Deceased said to Morrison, “I trust you guys.....because you saved my life”. He then said that he trusted Morison because he trusted ‘brown people’.
62. At 3.03pm, Constables Adrian Kidney and Linda Sayers arrived from Darwin police station to assist. When they arrived at Knuckey Street, they saw the Deceased hugging a tree and being spoken to by ACPO John Morrison. Kidney observed the Deceased behaving irrationally and showing abnormal behaviour. He said he made the decision to convey him to Royal Darwin Hospital for a mental assessment due to his behaviour. Kidney established a rapport with the Deceased. They shared a common interest in Australian Football. Kidney spoke to the Deceased for 20 minutes seeking to persuade him to enter the police van. Significantly, Kidney had been a prison officer for 10 years before he joined the police force and, in that job, he had dealt with mentally ill people nearly every day, and had developed fairly good communication skills in dealing with persons with mental illness.
63. The Deceased approached Kidney’s police van, but said he did not want to go in the caged area. He wanted to go into the back seat. However, Kidney told the Deceased that he could not go in the back seat. He told the inquest that he thought it was risky to have him in the back of the police van due to his behaviour. The Deceased then took off his shirt and ran back to the tree and started hugging it again.
64. At 3.11pm, Kidney received a call from his supervisor, Sergeant Campbell over the radio. He told Campbell that he was at Knuckey Street with a large male who needed to be conveyed to Royal Darwin Hospital for a mental assessment, and that he needed a couple of extra police to help him into the cage. After that call, Kidney persisted with the Deceased. Constable Sayers heard Kidney say to the Deceased, “look mate. We’d like to take you to the hospital and get you like mentally checked out”. The Deceased said, “Yeah, I want to go. I want to go”. Kidney coaxed the Deceased back into the vehicle with the help of ACPO John and ACPO Eric Morrison. Sayers observed that the Deceased was compliant; he resisted at no time, but he did things at his own pace. Sayers said that he “looked as strong as an ox, a big boy, but he seemed to be a gentle sort of guy.” She said at no time did she fear for her safety or feel threatened by him.
65. Kidney understood that he was apprehending the Deceased under section 163 of the Mental Health and Related Services Act. Section 163 (which was repealed and substituted by section 32A on 17 May 2007) provides that a Police Officer may apprehend a person and take a person to a medical practitioner, an authorised psychiatric practitioner or designated mental health practitioner for an assessment under section 33 if the Police Officer believes, on reasonable grounds, that:
(a) The person may be mentally ill or mentally disturbed;
(b) The person has within the immediately preceding forty eight hours, attempted to commit suicide or to harm himself or herself or another person, or who is about to attempt to commit suicide or to harm himself or herself or another person; and
(c) It is necessary to immediately apprehend the person; or it is not practicable to seek the assistance of a medical practitioner etc.
66. Kidney believed he had the power to apprehend the Deceased without warrant under section 163 because he believed that he was displaying signs of mental illness. He was not aware of the other preconditions in section 163. Kidney’s evidence was that he did not think the Deceased was going to kill or harm himself or harm anyone else. However, Acting Sergeant Fox gave evidence that Kidney had told him certain things that led him to believe that the Deceased might harm himself.
67. Very shortly after 3.11pm, Acting Sgt Fox and ACPO Eric Morrison were in attendance at Knuckey Street. Fox did not speak to the Deceased. He saw the Deceased in the caged vehicle and described him as “seeming to be very disturbed at being apprehended and in police care at the time”. Fox saw the Deceased continually swapping seats in the caged vehicle.
68. Fox gave evidence that he was aware at the time of his powers to apprehend the Deceased, and remembered this from his recruit training. He said that based upon what Kidney told him, he believed on reasonable grounds that the Deceased was mentally ill or mentally disturbed. Fox also said that he had reason to believe that it was necessary to immediately apprehend the Deceased because of his condition.
69. Fox told Kidney to drive the Deceased to Central Darwin police station for a changeover of staff before the Deceased was taken to Royal Darwin Hospital. The police officers involved in the change-over estimated that it took 4-6 minutes. However, that estimation was incorrect. The communication records and the records of police swipe-cards, which record the times when police officers access the police station, established that the Deceased remained alone in the stationary vehicle for about 16 minutes – from 3.21pm to 3.37pm whilst Sgt Fox attended to other duties and arranged for 2 other police officers – ACPO Krepapas and ACPO Eric Morrison - to take him to Royal Darwin Hospital.
70. At 3.55pm, the police arrived with the Deceased at Royal Darwin Hospital. A hospital orderly pressed the green button which allowed them entrance via the ambulance bay doors. The ambulance bay doors do not open automatically, rather someone has to press the green button from inside the Emergency Department to exit from the ambulance bay doors.
71. At 4.03pm, the Deceased was seen by the triage nurse, Ms De Groot. His condition was categorised by De Groot as a Triage Category 2 on the basis of his “severe agitation”. Under the triage scale, he should have been assessed within 10 minutes. The Deceased was placed in the Oleander Room, the psychiatric room of the Emergency Department, to wait for further medical attention. The Oleander room is used to assess patients waiting for a mental assessment. The door to the Oleander Room was kept open, with ACPO Eric Morrison and ACPO Krepapas sitting outside, and Acting Sergeant Fox and Constable Jackson also sitting nearby.
72. There was another patient waiting for psychiatric assessment at this time, a Mr L. He was moved to the room opposite the Oleander Room when Mr Plasto-Lehner arrived. It was agreed that the two police members (Constable Sayers and Mullins) who were waiting with Mr L could leave, and the two hospital guards, Mr Randall Edwards and Mr Francis Kondambu, would stay with Mr L and the four police officers who arrived with Mr Plasto-Lehner would stay with him.
73. At 4.18pm, the Deceased was assessed by Dr Cromarty in the Oleander room. The hospital notes detail her examination and the bizarre and irrational statements made by the Deceased during that examination. The notes record he was “pleasant and cooperative.” He was sweaty. She recorded “no insight into current state but does say he will do whatever I think he needs to get better”. Those notes are consistent with the evidence that until immediately before the use of force incident, he was co-operative and not aggressive to anyone.
74. At 4.30pm, at the conclusion of her examination, Dr Cromarty sectioned the Deceased under section 34 (1) of the Act, the effect of which was that a recommendation had been made that the Deceased be psychiatrically examined. That section 34 notice authorised the Deceased to be held at the Royal Darwin Hospital until either he was taken to Cowdy Ward or he was assessed by the psychiatric registrar and released. He was no longer in the custody of the police, but was an involuntary patient in the care and control of the hospital.
75. Section 34(3) of the Act authorises the practitioner, an ambulance officer or anyone else specified in the recommendation to do one of a number of things including (a) to control the person and bring the person to an approved treatment facility for assessment and (b) if the person cannot be brought immediately to an approved treatment facility – to hold the person at hospital until it becomes practicable to do so. Section 34(4) provides that the recommendation may authorise a police officer to exercise, or to assist someone else in exercising, the powers under subsection (3)(a) if the practitioner considers there is no other alternative in the circumstances. Significantly, the power under s 34(4) does not extend to a police officer exercising a power under s 34(3)(b) to hold the person at hospital until it becomes practicable to bring him to an approved treatment facility. Section 34(8) provides that the practitioner, ambulance officer or anyone specified in the recommendation may use reasonable force and assistance.
76. The section 34 certificate signed by Dr Cromarty did not specify anyone as being authorised to do any of the things specified in s 34(3). Accordingly, the police had no power under the Act to force the Deceased to remain at the hospital or to restrain him from leaving the hospital if he chose to do so.
77. Dr Cromarty told Nurse Rebecca Weir that the Deceased was “acutely psychotic and he needed psych reg [psychiatric registrar] assessment”. Dr Cromarty said she spoke to a police officer (Fox) shortly after 4.30pm and told him that she had sectioned the Deceased. She also told him that she was concerned that the Deceased was psychotic. The NT police have submitted that Dr Cromarty may not have sectioned the Deceased at 4.30pm. However her evidence that she sectioned him at 4.30pm was unchallenged during the hearing, as was her evidence that she told Fox that she had sectioned him at that time and he would be awaiting psychiatric assessment. Dr Cromarty told Fox that the deceased would probably have to go to Cowdy Ward but only after he had been assessed by “the psych registrar”. Fox told her that the police had been tasked to guard another person, at the Emergency Department and he would wait around. This was Mr L. Fox said he was not aware that the Deceased was sectioned. I accept that Fox believed that the Deceased was still in police custody. He had never been trained or informed about what his powers were in relation to a person who had been apprehended under s 163 after that person had been brought to RDH, or about the very limited powers the police had under section 34 of the Mental Health and Related Services Act.
78. Dr Cromarty said that she asked the psychiatric registrar, Dr Belinda Bautista, if she could see the Deceased. Dr Cromarty said that she saw Dr Bautista arrive in the Emergency Department to see somebody else (Mr L.) and Dr Bautista told Dr Cromarty she would see the Deceased next because he sounded like a priority.
79. Dr Bautista gave evidence that it was not until shortly before 5.45pm that she received a call on her mobile phone from Dr Cromarty about the need to assess the Deceased. She then immediately had a conversation about the Deceased with Dr Cromarty at the flight deck and could see the Deceased from there. She had no knowledge of the Deceased until that call. She said that she was intending to assess the Deceased within a few minutes of the use of force incident.
80. In any event, the Deceased continued to wait in the Oleander Room to see the Psychiatric Registrar. At some point he was given a cup of water and two sandwiches which he ate. The Deceased often talked to himself. The people who heard him speak could not make sense of what the Deceased was saying. He was highly agitated. He was standing up, sitting down and walking in and out of the Oleander room. He sat on the seats in the hallway outside the Oleander Room. The Deceased was informed that he could not stay in that narrow hallway where staff and patients were walking up and down. Randall Edwards and, occasionally, some of the police officers directed him back into the Oleander Room each time. Edwards, whom the Deceased gravitated towards, said that he believed he had struck up a rapport with the Deceased through a common interest in Australian Football. He also smiled a lot at the Deceased and used passive gestures towards him. Edwards said that seemed to work and the Deceased complied with Edwards’ requests to return to the Oleander room. The Deceased, who was a chain smoker, repeatedly asked the other security guard, Frances Kondambu, for a smoke. Edwards said that he had told the Deceased that he would take him outside for a cigarette if the doctors agreed, but that he would need to wait to see the doctors first. The longer the Deceased was waiting at the hospital, the more agitated he became.
81. At about 4.55pm, Dr Cromarty gave the Deceased 5 mg of Olanzpeine (anti- psychotic medication). At about 5.18pm, Dr Cromarty took some blood samples from the Deceased in order to conduct tests for the purposes of ruling out the organic causes of psychotic behaviour. Dr Cromarty said that the Deceased was always very cooperative with her.
82. CCTV footage played at the inquest showed that at about 5.43pm, the Deceased requested to go to the bathroom, and he was escorted by Edwards and ACPO Eric Morrison to the toilet which was in the fast track area of the Emergency Department. The security camera only captured the movements of the Deceased in the corridor of the emergency department. There was no security camera in the ambulance bay foyer.
83. Edwards told the investigating police that he opened the toilet door, but the Deceased did not want to go into the toilet. The CCTV footage shows the Deceased sitting down and Edwards speaking to the Deceased. Edwards stated to investigating police:
“[the Deceased] sort of jacked up and then did not want to go in saying that he was locked up once and he can’t go in there and he refused to go into the toilet”.
84. After a few minutes, the Deceased abruptly got up from his seat, brushed past Edwards, almost knocking him off his feet and started walking down the hallway towards the foyer area of Emergency Department. Edwards noticed that the Deceased’s face and mannerisms changed at that point.
85. The Deceased walked past the door of the Oleander Room and stopped near the door frame of the two double doors which are the fire doors of the Emergency Department, looking outside through the ambulance bay doors. Mr Edwards, who had positioned himself in front of the Oleander room, tried two or three times to get the Deceased back into the Oleander Room, gesturing him towards the door. Acting Sergeant Fox also asked the Deceased to go back into the Oleander Room. Edwards told the investigating police that the Deceased
“raised his arms. He said he wanted to go outside for some fresh air and to have a smoke, and he’s sort of pushed past the police officers and gone towards the ambulance ramp doors”
86. Dr Cromarty, who was further up the hallway, heard the Deceased say something about wanting to go for a cigarette and the police tell him to wait to see the doctor. Rebecca Weir heard the Deceased say at this point in time on two occasions: “I want to go and get some air”. Frances Kondambu heard the Deceased say at least twice: “I want to have fresh air.” These witnesses all heard the Deceased saying those words loudly and clearly and more than once. All of the witnesses were in a position to hear what they say they heard. They were reliable witnesses. They were further away from the Deceased than the police witnesses, and yet none of the four police officers say they heard anything like this being said by the Deceased. Jackson heard the Deceased continually say: “I want to go outside. I want to go outside.”
87. Edwards was trying to coax the Deceased back into the Oleander room saying: “Come on mate, come on, come on back in”. Rebecca Weir thought that Edwards was doing quite well and that it looked like the Deceased was going to go back into the Oleander room because he paused and made a step back as if he was about to return to the Oleander room. She then heard Fox, with a bit more of an abrupt tone saying to the Deceased: “Get back in the room” and saw him gesture towards the Oleander room with his arm. Each of the police present heard Fox say to the Deceased something along the lines of: “You’re not free to go just yet. You’re going to have to wait a little bit longer”.
88. The Deceased ignored Fox’s verbal instructions and his gestures and continued to walk into the foyer towards the glass sliding doors, which had a sign stating: “NO PUBLIC EXIT. AMBULANCE AND EMERGENCY STAFF ONLY”. The sliding glass doors could only be opened from the inside by pushing a green emergency button located to the left of the sliding doors.
89. Fox was between the Deceased and the glass doors and Morrison was just to the right of the Deceased. Fox then took hold of the Deceased’s left arm. The Deceased tried to shake off Fox’s grip on his left arm and began waving his right arm up and down. Morrison then grabbed his right arm. Rebecca Weir described the Deceased wheeling around his arms like a windmill.
90. Fox forced the Deceased down to the ground into a prone restraint position in the ambulance bay foyer. This happened in the course of a few seconds. Fox gave the following evidence of what happened (p.818):
“Okay. What happened then?---Then I could see that the Deceased wasn’t listening or you know complying with the directions of the security guard so I intervened. I jumped, I ran out sort of into the opening of the, well, from that corridor of the Oleander Room to the opening where the ambulance door is and I gestured to the Deceased to go back that way as in towards the room or the confined area and placed my hand not on him but to the rear of him just to you know contain him, he kept on moving.
Yes?---And that’s where I initiated a, the takedown.”
91. Fox also said that before he initiated the ‘takedown’, he directed the Deceased to head back into the Oleander room, be seated and wait for the doctors. Very shortly, six or seven men including all four police officers became involved in the restraint of the Deceased.
92. Whilst on the ground, Fox and ACPO Eric Morrison applied significant weight to the Deceased’s upper torso. At one point, Fox was using his pectoral area to lie forward on the Deceased’s left shoulder. At some stage, Fox’s right knee was also used to push down the Deceased’s left scapula trying to effect a ‘3 point hold’. The Deceased was resisting and pushing up with his right hand. Acting Sergeant Fox says that he was using all his physical strength and weight. He described the intensity of the struggle as a ten out of ten. He said it was possibly the hardest apprehension in that manner he had ever undertaken. ACPO Morrison was putting his left knee on the Deceased’s right pectoral. Fox also held the Deceased’s head down with his left knee. He says he did this to prevent any of the Deceased’s fluids or blood being spat at him and to contain his head.
93. ACPO Eric Morrison states that he had his knee on the Deceased’s right scapula and held him in that position. He heard Fox telling the Deceased to stop resisting. Morrison helped Jackson handcuff the Deceased’s right wrist.
94. ACPO Krepapas was holding the Deceased’s left arm, trying to pull it out from underneath him and sweep it round to his back so that he could be handcuffed. Krepapas said that it took about 20-30 seconds to get the Deceased’s wrist around to Jackson, and another 5-6 seconds to actually apply the handcuffs.
95. Constable Jackson took hold of the Deceased’s right arm and was struggling to get the handcuff on because he was resisting and his wrists were large. She told the Deceased to relax and bring his arm around his back. She said it took 10 to 20 seconds to apply the handcuff on his right wrist.
96. Randall Edwards held the Deceased’s feet down, struggling to stop him moving. Edwards described the Deceased yelling and struggling whilst he was in the restraint position. A Patient Care Assistant applied his body weight to hold his legs down.
97. Patient Care Assistant Chris Hodge was not involved in the restraint. He heard a commotion in the ambulance bay and rushed in there and observed two police officers on the Deceased. He then went to close the five sets of doors in case the situation escalated. That took Hodge about 1 ½ to 2 minutes. When Hodge returned to the scene, he saw the Deceased still belly down on the ground yelling. He heard the Deceased yell that he was having difficulty breathing and had chest pain.
98. A number of doctors and nurses heard or saw a commotion and rushed to the foyer area. Nurse Rebecca Weir saw the police attempt to restrain the Deceased and immediately informed Dr Cromarty that “your patient is becoming violent and you need to come down here and sort this out”. She asked Dr Cromarty if she wanted midazolam. She went up to the flight deck of the ward, unlocked the cupboard and got midazolam out. She said that task took about 50 seconds. When she returned to the ambulance bay area, the Deceased was still prone on the ground, but his handcuffs were on behind his back.
99. Dr Cromarty states that she heard commotion from where she was on the ‘flight deck’ and came down to see what was happening. She saw the Deceased restrained face down on the floor with several police members lying across him and others restraining his arms and legs. Dr Cromarty told the investigating police on 15 January 2008 that when she arrived, the police members were struggling to get handcuffs on the Deceased, and she asked if the handcuffs were really necessary. She felt she had a good rapport with the Deceased and she thought she might be able to help calm him down so that the police would release him from the restraint. Dr Cromarty says that as she tried to approach the Deceased, Fox put his knee on the Deceased’s head, and she heard the head smack onto the floor. She and Dr Lai Heng Foong leant down and clustered around the Deceased’s head and told the Deceased to relax, and that she would try to get the police off him. Dr Cromarty was concerned as the Deceased appeared to struggle less and his face was becoming quite red. Dr Cromarty told the investigating police:
“I asked the policeman[Fox] – um – I asked if they could just please ease up a little bit and was told – um – that they had to do this for their own safety and – and I should back off and I – he put his hand in towards my face to tell me to back off, which I did because someone put their hand in my face”
164. Pursuant to section 35(3) of the Coroners Act NT, I report to the Commissioner of Police and the Director of Public Prosecutions that on 22 December 2007 at Royal Darwin hospital a crime under section 188(2) of the Criminal Code may have been committed against Mr Robert Plasto Lehner whereby he was assaulted and suffered harm and was unable because of his situation to defend himself or retaliate.
POLICE TRAINING
165. Bearing in mind the common and overlapping issues, it is convenient to deal with police training as it pertains to the investigation of both deaths. In relation to the training on the dangers of the prone restraint, I found the submissions from the Human Rights and Equal Opportunities Commission on this aspect of the inquest particularly helpful.
TRAINING ON THE DANGERS OF THE PRONE RESTRAINT AND RISK FACTORS
166. The Inquest has highlighted the need for all Northern Territory police members to be properly trained in the dangers of the use of the prone restraint and the risk factors that make certain persons more susceptible to death from positional asphyxia.
167. The Northern Territory Police Operational Safety and Tactics Training Unit have developed the Defensive Tactics Manual 2006. The Defensive Tactics Manual is provided to Defensive Tactics instructors for training purposes. It is not available to recruits, police members or the public.
168. The Defensive Tactics Manual deals with the correlation between restraint positions and sudden deaths due to positional asphyxia. The Manual identifies each of the risk factors for positional asphyxia outlined above, and includes the following additional risk factors:
Obesity- particularly a large bulbous abdomen or beer belly
Psychosis
Pre-existing physical conditions – heart disease, asthma, bronchitis, chronic pulmonary disease
Respiratory Muscle Fatigue – This may follow violent muscular activity (such as fighting or running away), and results in hypoxia (a deficiency of oxygen reaching the tissues).
Multiple Police - … where several police are involved the pressure and restriction to the person’s respiration is increased…
OC Spray – Members should bear in mind the effects of Oleoresin Capsicum Spray on a person’s respiratory system. This may increase the risk of a person succumbing to PAD [positional asphyxia death].
169. The Manual describes the process described above as insidious, because a person might not exhibit any clear symptoms before they simply stop breathing. Generally, it takes several minutes for significant hypoxia to occur, but it can happen more quickly if the subject has been violently active and is already out of breath.
170. This description is particularly apt in the case of both the Deceased, who were struggling violently and then all of sudden stopped moving. If the police had been properly trained or had properly heeded the training they had been given, this would have been a clear warning sign that something was gravely wrong. However, such warning signs, particularly in the case of Mr Gurralpa, were ignored.
171. The Manual describes the typical combination of behaviour by the person and responding police members that may lead to a positional asphyxia death. This is referred to as the downward spiral. The Manual states ‘recognition of this pattern may enable police to alter the method in which they attempt to resolve the situation and avert a tragic outcome’:
“STAGE 1- DEVELOPMENT OF THE INCIDENT
The individual exhibits irrational, violent behaviour with aggressive and/or paranoid features, resulting in hyperactivity and extreme physical exertion.
STAGE 2 – INTERVENTION
…a struggle ensues…The individual may be out-numbered and will probably be placed in a prone restraint, often with one or more persons sitting on his or her chest. Regardless of the mental state of the person this level of restraint is likely to cause restricted breathing and discomfort. Facing suffocation and pain the person may fight even harder in an attempt to get relief. If the person continues to struggle the interveners will apply more force.
STAGE 3 - EXHAUSTION
In panic, madness or desperation the individual persists in forceful attempts to breathe and escape restraint. Interveners see this as a continued threat of harm to themselves and others. Interveners will perceive it to be necessary to apply even more force to restrain the person... While in a prone position the individual will continue to expend what energy they have left, just trying to breathe. Rapidly, the individual becomes lethally exhausted.”
172. The Manual goes on to outline the signs and symptoms of which members should be aware, and take immediate action to remedy. These include gasping sounds, cyanosis, panic/prolonged resistance and sudden tranquillity.
173. Finally, the Manual details the following prevention strategies to reduce the likelihood of positional asphyxia death occurring:
“Identify persons at risk
Avoid prone restraint unless absolutely necessary
Identify danger signs of asphyxia
Constantly monitor the person
Seek medical attention”
174. Despite the information contained in the Defence Tactics Manual that is provided to instructors, and the training and requalification sessions for recruits and police members, the members involved in the incidents involving both Deceased recalled very little as to the dangers of positional asphyxia and the associated risk factors. The members appeared to recall what little information they had retained from recruit training, rather than requalification training.
175. All of the members were aware in very general terms of the phenomenon of positional asphyxia. However, very few of the members were aware of the risk factors that may make certain persons more susceptible to death from positional asphyxia. Obesity was the risk factor most commonly recalled. However, of interest was the evidence given by Constable Kanyilmaz:
“Given the training that you had about overweight people, did you – were you alert to the risk in relation to the Deceased when he was brought to the ground? –
No, I didn’t classify him as obese. I didn’t think he was obese, so I wasn’t – didn’t really come to mind what you’re asking, no.”
176. This evidence demonstrates that obesity is a risk factor that may be difficult to judge. It would be helpful to acknowledge this difficulty in training and informing members that having a ‘big belly’, whether or not the person appears otherwise overweight, is a risk factor.
177. Most of the police were not aware of other risk factors relevant to either of the Deceased’s death including physical exertion during restraint and a pre-existing medical condition such as asthma or heart disease.
178. None of the members recalled being trained in the downward spiral, which is the typical combination of behaviour by the person and responding police members that may lead to a positional asphyxia death.
179. None of the members considered that the struggle involving both Deceased whilst prone on the ground could have been because they were having difficulty breathing rather than because they were trying to continue resisting the police.
180. Finally, none of the members were aware of the prevention strategies to reduce the likelihood of positional asphyxia death, including identifying persons at risk and avoiding the prone restraint unless absolutely necessary.
181. There is a significant gap between the information contained in the Defensive Tactics Manual that is available to the Defensive Tactics instructors and the information that operational members recall in the performance of their duties. This issue must be addressed by the Northern Territory police by improved training of recruits and retraining of members.
182. Mr Hansen, the Sergeant attached to the Northern Territory Police Operational Safety and Tactics Training Unit accepted that Northern Territory police training in positional asphyxia required improvement. Sergeant Hansen listened to the evidence of the members during the coronial inquiries and said that hearing the evidence assisted his understanding of the areas that required improvement in the training of police members and recruits. These included:
“the methods of teaching the dangers of positional asphyxia (noting that reality based training was the most effective way of communicating);
teaching concerning at risk population groups, including adding additional risk groups such as middle aged Aboriginal men;
seeking medical advice on how to teach about pre-existing health issues;
elaboration of teaching on the downward spiral; and
elaboration of teaching on prevention strategies to reduce the likelihood of death by positional asphyxia.”
183. The Northern Territory police should be trained to monitor the health of persons where practicable during the restraint, as well as immediately after the use of the prone restraint. The monitoring process could include watching for the signs and symptoms of positional asphyxia. These include listening to what the person may be saying, gurgling/gasping sounds, cyanosis, panic/prolonged resistance and sudden tranquillity.
184. The research into positional asphyxia tendered at the inquest (part of which is reflected in the Defensive Tactics Manual) establishes that loss of consciousness/death can occur extremely rapidly. In most cases despite prompt and extensive resuscitation attempts by police members and attending paramedics the person was not able to be revived.
185. In many cases, it may not be practical to monitor a person’s health during the course of a violent confrontation, especially in circumstances where there are only two members present. However, in both cases, there were sufficient police members or security guards present for one of the police officers to be allocated the task of monitoring the person being restrained.
186. Sergeant Hansen identified an overarching issue that may be affecting the quality of member requalification training. There is no quality assurance program in relation to the requalification of ‘in-service’ trainers and accordingly it is difficult to control what they teach. The in-service trainers are different to the recruit trainers who are permanently attached to the Police Training College. The in service trainers are provided with a package of information from which they teach, but it is not possible to ensure they appreciate the seriousness of certain issues and include it in their training.
187. Stephen Nalder, the officer in charge of the Operational Safety and Tactics Training Unit gave evidence that he had started to use these two deaths as case histories in recruit training and he undertook to ensure that all instructors became aware of the issues raised in this inquest.
TRAINING ON DEALING WITH A MENTALLY ILL PATIENT
188. The training received by operational police about dealing with the mentally ill was clearly inadequate. Sergeant Hansen, who has had extensive experience over many years in training Northern Territory police, acknowledged that the NT police were not given any specific training on negotiation or ‘tactical disengagement’ or communications with mentally ill people. His experience was that without specific training, the conduct of the mentally ill could be misinterpreted by police.
189. Bronwyn Hendry, the Director of Mental Health in the NT, gave evidence of the training received by NT police and security guards in relation to mentally ill people. She regarded that training as inadequate. She said (p.759-760)
“And you regard the training they do receive, that is the training police receive on dealing with mentally ill patients is inadequate, is that correct?---I think it’s inadequate for them to develop the skills and the confidence to deal effectively with mentally ill people, yes.
And can you elaborate on that answer? Why do you regard it as inadequate?---Well, I think when people don’t have sufficient knowledge and feel they have skills and are confident, then they are fearful of people with mental illness and fearful of the unpredictability of their behaviour. And I think that applies to the public or everyone, not just police officers. And I think when you respond from a position of fear, then you respond in a much different way than if you are comfortable in that situation and you feel you can manage that.
THE CORONER: You're more likely to be unsubtle in your reactions, aren't you?
………………………
---Yes.
I know that the training that mental health staff receive, for instance, is very focused on de-escalation and offensive tactics and restraint is a very last resort and there’s a lot of attention paid to how restrain safely.
...............................
what I’d really like to see is police trained in other forms of response and also better understanding about mental illness and how people with a mental illness may behave. And not just people with a mental illness, but people who may be confused and delirious to a trauma or due to an organic illness. I think there needs to be training around responding to those types of presentations.”
CORONER’S FORMAL FINDINGS INTO DEATH OF DAVID GURRALPA
190. Pursuant to section 34 of the Act, I find as a result of evidence adduced at the Inquest as follows:
(i) The identity of the Deceased person was David Gurralpa born 18 January 1969 at Ngangalala (Rings) Outstation.
(ii) The place of death was at Royal Darwin Hospital.
(iii) The date of death was 1 January 2008 and the time of death was between 5.00pm and 5.52pm.
(iv) The cause of death was a sudden heart attack.
(v) Particulars required to register the death:
1. The Deceased was a male.
2. The Deceased’s name was David Gurralpa.
3. The Deceased was of Aboriginal Australian origin.
4. The cause of death was reported to the Coroner.
5. The cause of death was a sudden heart attack.
6. The pathologist was Dr Terry Sinton.
7. The Deceased’s mother was Marawur Bangadijan Ganalbingu and his father was Manbarara Gamarang Jinang.
8. The Deceased was unemployed at the time of death.
9. The Deceased was born on 18 January 1969.
CORONER’S FORMAL FINDINGS INTO DEATH OF ROBERT PLASTO-LEHNER
191. Pursuant to section 34 of the Act, I find as a result of evidence adduced at the Inquest as follows:
(i) The identity of the Deceased person was Robert William Plasto-Lehner born 4 November 1950 at Geraldton, Western Australia.
(ii) The place of death was at Royal Darwin Hospital.
(iii) The date of death was 28 December 2007 at 8.17am.
(iv) The cause of death was the combined effects of restraint asphyxia, obesity associated heart disease and chronic airways disease
(v) Particulars required to register the death:
1. The Deceased was a male.
2. The Deceased’s name was Robert Plasto-Lehner.
2. The Deceased was of Australian origin.
4. The cause of death was reported to the Coroner.
5. The cause of death was the combined effects of restraint asphyxia, obesity associated heart disease and chronic airways disease
6. The pathologist was Dr Terry Sinton.
7. The Deceased’s mother was Dorothy Louise Lehner and his father Joseph William Plasto.
8. The Deceased was self employed at the time of death.
9. The Deceased was born on 4 November 1950.
RECOMMENDATIONS
192. I make the following recommendations pursuant to my powers under s 34(2) of the Coroners Act.
193. The NT Police Custody Manual be amended to provide that members must take any apparently mentally ill or disturbed person apprehended under s 163 of the Mental Health and Related Services Act by the most direct practical route and as quickly as possible to a hospital or doctor for the purposes of an assessment.
194. The NT Police Custody Manual, the Police General Orders and the Memorandum of Understanding dated June 2002 offer no clear guidance to operational police in relation to the handover of patients by police to hospital. They should be revised accordingly.
195. That Northern Territory Police ensure operational police are trained and retrained using reality based training techniques to a sufficient degree to ensure a proper understanding of the dangers of sudden cardiac arrest and positional restraint asphyxia in relation to:
“to the use of the prone restraint;
risk factors; warning signs of a rapid onset of serious injury or death which can potentially occur in connection with certain restraint positions when subjects are in the prone position;
prevention strategies;
the monitoring of a subject person’s health if practical during and certainly immediately after the subjects are in the restraint positions. For example, taking pulse rates, listen to breathing, being aware of signs, symptoms and statements about breathing difficulties or heart problems or general distress.”
196. The Northern Territory Police should ensure that all members are trained and re-trained in strategies to deal with mentally ill persons both in custody and generally in the course of their duties in relation to:
“communication strategies with mentally ill persons, including how to establish a rapport and calm down a distressed person;
control tactics, including using distraction as a means of de-escalating an aggressive situation, verbal forms of restraint, containment strategies; and
identifying symptoms and understanding changes in behaviour of mentally ill persons to be able to respond appropriately.”
197. The Northern Territory Police should amend the General Order on Transport of Persons in Custody, and Part 6 of the Custody Manual – Mentally Ill Persons to include step-by-step instructions for police members on exercising the power of immediate apprehension for the purposes of a mental health assessment, including:
“assessing whether each of the requirements of s 32A of the Mental Health Act have been met;
communication strategies for dealing appropriately with a person suffering mental disturbance;
calling Mental Health Services to see whether they could provide a field assessment at short notice or provide any assistance;
locating the nearest place of treatment for a person suffering mental disturbance;
identifying the appropriate form of transport, including whether an ambulance could be requested, or whether Mental Health Services could provide transport;
ensuring that the person is promptly taken to the most appropriate place of assessment by the most direct route;
outlining members’ responsibilities to contact the place of treatment to advise they are bringing a person in, and what their symptoms are;
directing members to ensure that the appropriate forms are filled out and provided to the place of treatment; and
providing guidance on when it is appropriate for police members to remain at the place of treatment and when they should leave.”
198. The Northern Territory Police should amend clause 6.1.2 of the Police Custody Manual – Deaths in Custody and Investigation of Serious and/or Fatal Incidents Resulting from Police Contact with the Public so that Clause reflect that where legal advice is sought by a member and it is not possible to obtain that advice before the end of the member’s shift, the member should be interviewed as soon as reasonably practicable thereafter.
199. That the legislature consider amending section 34 of the Mental Health and Related Services Act to clarify police powers and responsibilities after a section 34 recommendation has been made.
Dated this 10th day of June 2009
_________________________
GREG CAVANAGH
TERRITORY CORONER
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