If you don’t call the doctor when someone is dying of a drug overdose, is that murder, manslaughter or ‘failing to provide the necessaries of life’? According to police, it’s not even a crime.

I’m sick of writing about jai Davis and how he died. I wrote to the Health and Disability Commissioner about the appalling medical treatment he received in Otago prison.  I wrote to the IPCA about the woeful police investigation.  I wrote to the IPCA a second time arguing that the police had a double standard when the victim of poor treatment was a prisoner. I wrote a third time alleging they had misinterpreted the so-called evidential test for prosecution.

David CrerarI’ve written to the media and I’ve done numerous blogs about Jai Davis. In one of them I argued there were at least 20 different staff members at the Otago prison who could have been prosecuted.  The coroner, David Crerar (left), also criticised the Corrections Department and labeled the police investigation into Davis’ death in 2011 as flawed.

Personally I didn’t think any of these people would be charged with murder or manslaughter. But I thought, at the very least, one or more of them would be charged with failing to provide the necessaries of life. Afterall, if you sit around and watch someone die when you’ve been told that person is suspected of ‘internally concealing’ drugs;  if you do nothing when it becomes totally obvious this person is sick and actually under the influence of drugs, all of which is documented in the coroners findings; if you don’t call the doctor or the ambulance and then the person dies, surely that’s a crime of some sort.

Not according to the police. When they finished their investigation, which took four years, the police decided no crime had been committed. Even after the coroner went through all the evidence in a lengthy inquest, and criticised prison managers, officers and nurses, the police stuck to their guns. No one would be prosecuted for anything.

As far as I was concerned, there wasn’t much more I could do. I’d written to everyone I could think of but as far as I could see, justice had not been done. I was about to give up.

The Police emails

But unbeknown to me, an intrepid TV3 journalist, Thomas Mead, had written to the police asking for copies of all emails between Detective Inspector Colin Blackie, who was in charge of the investigation, and his boss, Stephen McGregor.  It took the police six months to respond. But when they did, those emails were a revelation.

It turns out that after conducting a wide-ranging investigation and interviewing over 60 current and former Corrections employees, Colin Blackie (below) ran out of steam. He was supposed to write a comprehensive report on the case to help the police lawyer decide what charges should be laid. Instead, he went on leave and delegated the task to another police officer – who seems to have been totally incompetent.

BlackieSo incompetent that in one of the emails, Stephen McGregor said he was ‘gobsmacked’ by the inadequacies of the report which he described as ‘substandard’ and ‘significantly short of all the necessary documentation.’  In another email he said:

“The report is lacking on a variety of fronts and is structured as a bullet point repeat of what witnesses have said with no clear link back to the key issues or in any form of clear chronology… There is no reference to the legal issues that are on the table, (or) a focus of those issues back to the evidence established from the investigation.”

“The report should follow the chronology, from the first Intel around the intercepted phone conversation through to Davis’s death, with reference to the various Corrections and nursing staff along the way as to what they said and did (or didn’t do) and what the evidence supports… Currently there is no clear path in the reporting so this would need to be rectified.”

Anna TuttonStephen McGregor told Inspector Blackie he needed to ‘redo’ the entire report. But Blackie remained on leave and never got around to it. Making matters worse, the report was supposed to be reviewed by an experienced police lawyer, Anna Tutton, (left) who was familiar with the case. But she went on leave as well and delegated the job to a contracted lawyer who was entirely unfamiliar with it. Not surprisingly, the new lawyer struggled to understand the nuances of the case. Stephen McGregor wrote:

“The legal advisor beavered away trying to work through it and from time to time had to call on (name redacted) to provide further documentation or follow-up on an issue. As the weeks have gone by, more problems arose to the point where I got a call from (name redacted) frustrated at the lack of appropriate support from (name redacted).”

Davis was already dead

Apparently this contract lawyer was unable to figure out from the report who did or didn’t do what; the emails indicate the only charge she even considered was the possibility of manslaughter against one prison officer, Fred Matenga. He was on night duty the day Davis died and started his shift at 11.00pm. But Davis’ last bodily movement on the videotape recording was an hour earlier, at 10.01 pm.  In other words, by the time Fred Matenga came on duty, Davis was already dead so there is no way he could be charged with anything. The police explanation for this was that the evidential test (for manslaughter) had not been met. In fact there is no evidential test, but that’s another story.

Failing to provide the necessaries of life’ is a less serious charge than manslaughter with a lower ‘evidential test’.  How come the police lawyer didn’t consider charging any of the nurses or prison managers with that?  The answer, it seems, is that the police report was so substandard and so much information was missing that the lawyer couldn’t figure out what had happened. She failed to realise that the nurses and managers who refused to call the doctor for two whole days were committing a crime. Instead, she thought that was part of a ‘systemic issue’ within the prison for which no one was responsible.

So was a crime committed? Not according to the police. We’ll see what the IPCA has to say about that. Damn! I guess I’ll have to write another letter.

20 Corrections staff who could have been prosecuted over the death of Jai Davis

David CrerarWhat’s wrong with the police? For the second time, they have announced they will not be charging anyone over the death of Jai Davis in Otago prison. Davis died two days after he smuggled drugs into the prison by ‘internal concealment’ in February, 2011.

At the coroner’s inquest in November last year, Detective Inspector Steve McGregor said charges against Corrections officers had been considered – for manslaughter and criminal nuisance – but eventually claimed the evidence didn’t meet the threshold for a successful prosecution.

In reality, there is no threshold – the Solicitor General just made that up. But after the inquest, Inspector McGregor announced police would reconsider their decision not prosecute. Today, two months later, the coroner, David Crerar (right), announced the police have advised that no charges will be laid afterall. It seems the evidence still doesn’t meet the non-existent ‘threshold’.

The prison protocol

How is this possible? The Corrections Department has a written protocol called: “Management of prisoners suspected of internally concealing unauthorised items”. It says that the prisoner should be placed in a ‘dry’ cell – one without a toilet. When the prisoner needs to ‘go’, they give him a cardboard potty. Officers then examine the contents so they can retrieve the drugs and charge the prisoner with bringing in the ‘unauthorised item’. The policy also says that “a Medical Officer must be informed”. The reason is obvious – a prisoner with drugs inside might die. He needs to be examined and, if necessary, sent to hospital for an x-ray.

The Customs Service has a similar protocol and they advise that “no person has ever died while being detained by Customs” when following this policy.

Three prison managers involved

In Davis’ case, there were at least 20 employees at the Otago prison who ignored the protocol. Three of them were prison managers. The most senior was acting prison manager, Chris Gisler, who had been with Corrections for 21 years. Believing that Davis would be concealing drugs when he arrived, Gisler gave the order to segregate him in a dry cell ‘for the purpose of security, good order, or safety of the prison’ under section 58 of the Corrections Act. He probably could have saved Davis’s life by using section 60 of the Act – ‘segregation for the purpose of medical oversight’.  But he didn’t think of that.

Gisler was off duty when Davis was brought in so he delegated the task to Operations Manager Ann Matenga and Security Manager Michael Fitzgerald. On Friday 11th February, 2011 when Mr Davis arrived at the prison, Ann Matenga signed the segregation order stating:

“I will notify the Medical Officer of the prison of this segregation within the applicable timeframe after the above named prisoner is placed in a cell…”

The applicable timeframe was three hours. Ms Matenga was on duty all weekend but never called the doctor. At the inquest she claimed she didn’t know that ‘medical officer’ meant ‘doctor’.

Michael Fitzgerald was the Security Manager. He briefed the security team that Davis was coming in with drugs on board. One of his team then went to the prison health centre and advised the nurses on duty of the situation. The reality was that Gisler and Fitzgerald were totally focussed on security issues – preventing Davis passing the drugs to other prisoners – so they didn’t even think about calling the Medical Officer. Nor did they check with Ann Matenga to see if she had done so. Not one of these three managers thought it necessary to advise the prison doctor that a man was being brought in who was at risk of dying from a drug overdose. It wasn’t even discussed.

Six prison nurses involved

Six different nurses were on duty over the weekend – three of them on the day Davis died. They all knew Davis was in the dry cell because he was suspected of concealing drugs internally.
None of them called the doctor – not even on the Sunday morning when the prison officers on duty noticed Davis had deteriorated and looked seriously unwell. So unwell, that one said:

“He looked like a corpse. His eyes were sunken and he had the cold sweats. .. his breath smelt like faeces… and he had slurred speech as well. He looked as though he should have been in hospital.”

Because the officers were concerned, nurses checked on Davis three times that morning but did nothing. One of them, Gayle Catt, told Corrections Inspector David Morrison, that…

“(Davis) seemed to slightly deteriorate from 7-30 to 8-30am. My concern was that he would go unconscious but officers would think he was asleep.”

Three years later at the inquest, she’d forgotten she said this and claimed: “He was well; he was absolutely well every time I saw him. I had no concerns about his physical safety whatsoever.”

Then there’s Janice Horne, the last nurse to see Davis alive. She was on the afternoon shift on Sunday and only went to see Davis once in her eight-hour shift – at about 4 p.m. Even then, she didn’t go into his cell to examine him. She spoke to him though a small flap in the cell door. Afterwards, she made an observation in his Medical notes that he appeared to be under the influence of drugs…

“because of the slow movements that he was making… she had a conversation with the unit officer where she stated to the officer, Mr Davis ‘looks stoned’.”

Nurse Horne didn’t seem to realise how serious the situation was. She carried on with her other duties, knocked off work at 8 p.m. and went home. Davis appears to have died two hours later. His last recorded movement on the CCTV tape occurred at 10.01pm. A few months after Davis died, Janice Horne resigned and went to live in Australia.

The health centre manager

Despite the risk posed by internally concealing drugs, not one of the six nurses on duty over the weekend called the prison doctor. Not one of them even bothered to consult with the health centre manager, Jill Thompson, who was the head nurse. If they had, Ms Thompson could possibly have saved Davis’ life. When she was interviewed after his death, she said:

“As there was clear knowledge that this person was concealing drugs, why did he come here in the first place? The prison is 45 minutes away from a hospital. If drugs had exploded in a prisoner’s gut, we would not be able to get (him) to the hospital in time…”

That’s her clinical opinion on what should have happened. But it didn’t happen – because Jill Thompson wasn’t at work on the Friday afternoon when Davis was brought in. She wasn’t away at a managerial seminar. She wasn’t sick. Three years later when asked by lawyers at the inquest where she was on that Friday, Ms Thompson claimed she didn’t remember.

The police didn’t seem to realise the significance of Jill Thompson’s unauthorised absence. In the course of a three year investigation, they never even asked her where she was that day. Perhaps she went shopping. The point is she abandoned her legal duties and Mr Davis died. That’s called negligence and it’s potentially a criminal offence. But Ms Thompson was never prosecuted. She didn’t lose her job. She wasn’t reprimanded by Corrections. She wasn’t even questioned by police.

Ten prison officers involved

At least ten Corrections officers were also aware that Davis had drugs on board – and could have called the doctor. Five of them escorted Davis from the prison gate to the At Risk Unit. One of them, Chris Dalton, wrote on Mr Davis’s At Risk management plan “information received from operational intelligence unit that prisoner is concealing drugs on person.” He told police it was his role to ensure the safety of both staff and prisoners and “if anything needs to be done when there is no manager, it falls upon me to action that request.” There was no manager, at least no health centre manager. But Dalton didn’t call the doctor either.

Another officer, James Neill testified that he was briefed by security manager Michael Fitzgerald. He said he then went over to the prison health centre and advised two nurses that “a prisoner was coming in suspected of concealing drugs”. Mr Fitzgerald showed one of the nurses a document titled “Advice to Prisoner Suspected of Concealing” and said “a medical officer is required to sign it.” But the medical officer wasn’t there. Mr Fitzgerald took the form away – so no one signed it. (The medical officer was hardly ever there. See Prison deaths linked to Corrections refusal to employ sufficient doctors.)

There were also half a dozen other prison officers on duty in the At Risk Unit on the day Davis died. Two or three of them were concerned that Davis had deteriorated and should have been taken to hospital. But none of them made the call – they all thought it was the nurses’ job.

The police have a job too – to prosecute those responsible when their negligence contributes to someone’s death.   At the inquest, Senior Sgt Colin Blackie who conducted the police investigation, gave the impression that, at the very least, he would have prosecuted some of the nurses. But he was taken off the case. The harsh reality is that no one in the Corrections Department has ever been prosecuted over a so-called ‘unnatural death’ in prison.

Detective who wanted to prosecute prison staff taken off case

BlackieNo one in the Corrections Department has ever been prosecuted over an ‘unnatural death’ in prison. In what could have been the first case, Detective Senior Sergeant Colin Blackie (right), who conducted the police investigation into the death of Jai Davis, wanted to prosecute prison staff who allowed Davis to die from a drug overdose. Despite a wealth of evidence showing prison managers, officers and nurses all failed in their duty of care, Mr Blackie was taken off the case and no one was prosecuted.

Davis died in Otago prison in February 2011 after smuggling in drugs – internally.  At the coroner’s inquest in November last year, Sergeant Blackie blamed dysfunctional relationships within the prison between management, officers and nurses.  He made it very clear he thought individual staff at Corrections should have been charged.  He told the coroner:

“There were clearly some nurses who either by their own admission or by statements of others, were not affording Mr Davis the care that he should have got… that he could not access of his own accord… (He) should not have died in that prison.”

Taken off the case

Towards the end of his investigation, Mr Blackie went on leave for two months.  When he returned, he was taken off the case. He told the inquest:

“I was informed that I shouldn’t have anything to do with this investigation”.

Steve McgregorHis place was taken by Detective Inspector, Steve McGregor, (left) who up till then had had almost no involvement. Mr McGregor appears to have taken over the job of preparing the police report and recommendations on the Davis case which went to the police prosecutor – who then decided not to charge anyone with anything.

The police could have consulted the Solicitor General for a Crown opinion on the case. They didn’t bother. It seems they didn’t want to prosecute anyone and justified this by claiming the evidence didn’t meet the threshold in the so-called evidential test.  In reality there is no evidential test – it seems police simply didn’t want to prosecute because, inadvertently, they also contributed to his death and their own behaviour could have been called into question.

Testimony of Neil Jones-Sexton

Corrections ‘intel’ (from prison phone monitoring) revealed Davis was going to turn himself in to Dunedin police on an outstanding arrest warrant – and smuggle drugs into Otago prison by concealing them in his rectum. This information was passed on to police by Corrections Intelligence Officer, Neil Jones-Sexton – by phone and by email.  When the police finally got around to interviewing him two years later, Jones-Sexton told Colin Blackie’s investigating team:

“I felt the information was of such importance that police needed to know immediately and consequently phoned the Dunedin Police…  At some stage I spoke to Sergeant Ritchie, Detective Sergeant Hedges, Detective Trevor Thompson and Police Liaison Officer Judy Powell and possibly other Police Intel staff over the relevant time periods.”

On 9 February, at 3.59pm, Jones-Sexton also sent an email disclosing all the relevant details to the head of the Police Intelligence unit in Dunedin, Sergeant Tony Ritchie. Sergeant Ritchie said he knocked off at 2.00pm and never got the email. At the coroner’s inquest, Jones-Sexton said that after sending the e-mail, he also phoned police again to let them know he had just sent them the disclosure.  He repeatedly told the coroner that he was ‘100% certain’ that he passed on the information prior to formal disclosure by e-mail.

What police knew

Despite Jones-Sexton’s confident assertions, all these police officers denied any prior knowledge that Davis was about to turn himself in with drugs on board.

But there’s definitive evidence that they knew. First, Jones-Sexton’s testimony was corroborated by police intelligence officer, Rennae Flockton who worked under Sergeant Ritchie. There were six police Intelligence Officers in Dunedin and Jones Sexton had daily phone contact with them. Rennae Flockton testified that they all knew that Davis would be turning himself in with concealed drugs. When he turned up at the police station on Thursday 10 February, she and some other intelligence officers went down “to look at him through the mirrored glass” where they speculated about how he might be concealing the drugs.

Second, Jones-Sexton was very thorough. He not only gave the information to police intelligence, he also conveyed it to police escort staff who took Davis to court the next day. He told them to keep Davis away from another prisoner, Dylan Hill, who was also appearing in court on 11 February to prevent Davis from giving the drugs to Hill.  The inquest heard that police at court followed these instructions to the letter.

What police should have done

Senior Sergeant Blackie said that when Davis turned himself in, the Police should have arrested him under the Misuse of Drugs Act which gives police authority to conduct a medical examination and an x-ray. If Davis had refused to co-operate, when he appeared in court the next day, police should have told the Judge that Davis was suspected of internally concealing drugs. Blackie said if they had done that, the judge would have remanded him in police custody – not Corrections custody.

That would almost certainly have saved Davis’ life – because police have a more effective protocol for monitoring drug mules than Corrections; they require four officers to watch the prisoner constantly. Their protocol says:

“The detainee is to be monitored for every second of every minute of every day of the detention. He/she is never to be left unsupervised…  The detainee is to be constantly monitored while asleep.”  

Corrections, on the other hand, only conducted observations of Davis every 15 minutes. The 15 minutes gaps allowed Davis to remove the drugs from the bottle in his rectum and swallow them – to get rid of the evidence. At the inquest, it was suggested he may have done this on three separate occasions before all the pills were gone.

Conclusion

The Police had Davis in their custody for 24 hours before they took him out to the Otago prison and there is no doubt they knew he had drugs on board. Despite this knowledge, no one did anything to help. Numerous Police officers made exactly the same mistake as numerous Corrections officers (and nurses) – they neglected their statutory duty to call a doctor to have Davis examined. What this means is that if police had done their job properly, Davis would never have been sent to Otago prison at all and would, in all probability, still be alive.

Senior Sergeant Colin Blackie wanted to prosecute prison staff. But a public hearing of Corrections ineptitude in court would have exposed similar misconduct by the police.  No wonder he was taken off the case – and no one was prosecuted.

Ombudsman colludes with Corrections to cover up responsibility for ‘unnatural’ prison deaths

The death of Jai Davis in 2011 has highlighted critical deficiencies in the management and nursing culture at the Otago prison. Now there’s an even wider concern. Documentation has come to light showing the Ombudsman colluded with Corrections, albeit unintentionally, to cover up the circumstances surrounding his death which implicate management and nurses at the prison.

This is how it happened. When a prisoner dies suddenly from an unexpected death, this leads to at least three different investigations – one by the Corrections Inspectorate, which is monitored by the Ombudsman; one by the Police, which may be monitored by the IPCA (if there’s a complaint); and finally one by the Coroner. Each investigation has a different focus.  The role of the Inspectorate is to determine whether any Corrections procedures or protocols were breached, and whether any prison officers should be disciplined. The Inspector also makes recommendations to the chief executive to prevent it happening again.

David MorrisonCorrections Inspector David Morrison’s report 

Responsibility for investigating Jai Davis’ death on behalf of the Corrections Inspectorate was given to David Morrison (right).  While interviewing prison staff about the circumstances, he was accompanied by a representative from the Ombudsman’s office. The Ombudsman’s role was twofold: to ensure Mr Morrison did his job properly, and to ascertain whether Mr Davis received appropriate medical care and had been treated humanely while in prison. In other words, the Ombudsman was supposed to ensure the Inspector got to the bottom of what Corrections did right – and what they did wrong.

Mr Morrison never got to the bottom of anything. (Here’s the executive summary of his report.) He was well aware that Acting prison manager, Ann Matenga, had statutory responsibility to advise the Medical Officer that a prisoner had been admitted suspected of having drugs on board – but never held her to account for not doing so. Mr Morrison also failed to make any findings against the nurses, even though they clearly failed to provide Mr Davis with adequate medical treatment.  The only staff he made findings against were two officers who made fictitious observations that Mr Davis was snoring in the early hours of Monday morning – by which time he was already dead.

David Morrison’s recommendations

Mr Morrison refused to point the finger at anyone further up the chain of command. His key recommendation was that:

“The Department of Corrections considers establishing a protocol with the Ministry of Health to facilitate the x-ray of a prisoner where it is suspected a prisoner is internally concealing an unauthorised item that in the opinion of the Medical Officer may place the prisoner’s health at risk.”

Corrections already had a protocol in place to manage that situation. It said that when a prisoner is suspected of internal concealment, the Medical Officer is to be advised. The problem is that since the nurses and prison managers ignored the existing protocol, they could just as easily ignore any new protocol. So that wouldn’t be much help. To address that difficulty, Mr Morrison’s second recommendation was:

“All key prison staff and health service personnel are trained and adhere to the requirements under the Prison Service Operating Manual (PSOM)…”

Great – except that Corrections staff are already trained in the PSOM – it’s like the prison officers’ Bible. All they have to do is look it up to see what to do in any given situation.

The nursing culture at Otago prison

The reality is that Mr Davis’ death had nothing to do with a lack of training.  It had to do with a lack of compassion and personal responsibility. The nurses who ‘treated’ Mr Davis, but refused to call the prison doctor, were all trained health professionals. They have two Bibles of their own – the Nurses Code of Ethics and the Code of Conduct. These describe the ethical and legal responsibilities that nurses have to their patients, irrespective of Corrections Department protocols. The problem was they ignored their ethics and the Code of Conduct because of a culture of incompetence and indifference that operated in the Otago prison health centre.

The only way to change that culture is for the nurses who are guilty of professional misconduct to face a Departmental employment investigation and be brought before the appropriate disciplinary bodies – which would include the Nursing Council and the Heath & Disability Commission. If the police did their job properly, and prosecuted nurses who were guilty of gross neglect, some of them would also be brought before the Court.

But Mr Morrison made no such recommendation.  His 44 page report does not hold anyone to account for their failure to call the prison doctor – despite the fact that this was the most significant act of negligence in a succession of negligent acts culminating in Mr Davis’ death.  In other words, Mr Morrison’s report was a whitewash.

Bev WakemThe Ombudsman’s response

Here’s the crunch. Despite the report’s obvious deficiencies, in September 2011 only six months after Davis died, the Chief Ombudsman, Dame Beverly Wakem (left) wrote to the Chief Executive of Corrections praising the Inspector’s conclusions. She said:

“My investigator monitored the investigation throughout. I have been provided with the Inspector’s final report and… I am of the opinion that the report is fully satisfactory and that the recommendations made by the Inspector are reasonable.”

In hindsight, that endorsement looks increasingly bizarre. At the time it was written, the police had barely begun their investigation.  Who knows what crimes they might uncover? Once the police finally finished (three years later), coroner David Crerar, was able to get on with his inquiry.  After hearing from 58 witnesses, the shortcomings in Mr Morrison’s investigation were disturbingly obvious and led to heated cross-examination at the inquest.

The inquest also highlighted the inadequacies of the police investigation (which led to three complaints to the IPCA), as well as the shoddy treatment provided to Mr Davis by the nurses and prison managers. The coroner was so concerned at the multitude of mistakes by those responsible, he said he intended to make adverse comments about everyone involved including: “Jai Davis, his associates, the police and certain police officers, Corrections management, certain Corrections staff and certain health centre staff.”  

Even the police began to realise they might have got it wrong. On the last day of the inquest, they announced they would review their decision not to lay charges against those involved.

The Ombudsman’s role

Given what we now know about this case, it is hard to understand why the Ombudsman would so quickly, and naively, jump to the conclusion that the report by Corrections Inspector David Morrison was ‘fully satisfactory’.  The Ombudsman’s role is to look after citizens’ interests in their dealings with government agencies – which includes ensuring that prisoners are not subject to cruel or inhuman treatment. But if Dame Beverley’s monitoring of Corrections is so superficial that all she does is send a representative to keep the Inspector company and then endorse his report, she’s not doing her job.  The Ombudsman is supposed to be the citizens’ watchdog. The message this case sends is that the watchdog is little more than a lapdog – one with no teeth.

The reality is that David Morrison’s recommendations completely missed the mark. That could be due to incompetence.  A more likely explanation is that Mr Morrison was trying to protect the reputation and careers of prison management and nurses by minimising the extent of their involvement in Davis’ death.  Why? Because Corrections Inspectors are not independent of those they investigate.  Mr Morrison is part of prison management; he’s hardly going to find fault with his own team.

How independent is the Ombudsman?

But the Ombudsman is independent, theoretically.  She doesn’t work for Corrections – or does she? I’m not so sure anymore. Dame Beverley has endorsed Mr Morrison’s flawed report that makes no findings against prison management. Maybe she doesn’t work for them, but she’s clearly supporting their team.  Here’s a bigger question. Is the lack of independent oversight by the Ombudsman in this case typical of oversight into the Best-Sleeping-Dog-Wallpaper-HD-0007other 90 unnatural deaths which have occurred in prison in the last ten years?

The answer is – nobody knows, because the prisoners are all dead. And they’re not really in a position to lay a complaint. Even if they were – that wouldn’t help much if the watchdog just sniffs around the Corrections Inspector’s feet, and then goes back to sleep.

Solicitor General and police use fabricated evidential test to avoid prosecuting prison officers

Mike HeronThe Solicitor-General, Michael Heron (left) has manufactured an erroneous Evidential Test which the police then use to avoid prosecuting selected offenders. The test is ambiguous, misleading and based on an entirely false premise. It seems to completely confuse the police who then use it to undermine the role of the jury.

The police used this flawed test in their decision not to prosecute any of the Corrections staff who left Jai Davis to die from ‘internally concealed’ drugs in the Otago prison in 2011. As a result, the police never gave a jury the chance to hear the evidence – let alone decide whether any prison officers or nurses were guilty of negligence or manslaughter.

Because they’d been monitoring prisoners’ phone calls, management at Corrections believed Davis had drugs inside him when he was brought to prison on Friday, 11 February 2011; so they placed him in a special observation cell, one with a camera on 24/7. After two days, his condition deteriorated dramatically, but none of the numerous nurses or prison officers responsible for looking after him called a doctor or an ambulance. Steve McgregorAfter a drawn out investigation which took three years, police announced they would not lay charges against anyone involved.  Detective Inspector Steve McGregor (right) claimed the evidence did not ‘meet the threshold required to proceed’.

The evidential test for prosecution

So what is the so-called ‘threshold’ for prosecution? In criminal investigations, police use the Solicitor-General’s Prosecution Guidelines to assist them. But the guidelines are confused and contradictory. For instance, paragraph 5 states:

“The Test for Prosecution is met if the evidence which can be adduced in Court is sufficient to provide a reasonable prospect of conviction – the Evidential Test.  What is required by the evidential test is that there is an objectively reasonable prospect of a conviction on the evidence. The apparent cogency and creditability of evidence is not a mathematical science, but rather a matter of judgment for the prosecutor.”

Talk about confusing.  One sentence uses the word ‘objectively’ as if there was a scientific test which produces a factual, clear-cut result. The next sentence acknowledges that there is no such test and whether to lay charges is entirely subject to the prosecutor’s experience and personal assessment of the evidence.

The confusion in the Guidelines doesn’t stop there. Section 2.3 says:

“They reflect the aspirations and practices of prosecutors who adhere to the United Nations Guidelines on the Role of the Prosecutor (1990) and the International Association of Prosecutors Standards (IAPS) 1999.”

No they don’t. The IAP Standards state:

“In the institution of criminal proceedings, (prosecutors) will proceed only when a case is well-founded upon evidence reasonably believed to be reliable and admissible, and will not continue with a prosecution in the absence of such evidence”.

The focus here is on evidence that is ‘well-founded’ and ‘reliable’.  The IAP Standards don’t even mention an ‘evidential test’, let alone the need for a reasonable prospect for conviction. Neither do the United Nations Guidelines. In regard to criminal proceedings, they state:

“Prosecutors shall not initiate or continue prosecution, or shall make every effort to stay proceedings, when an impartial investigation shows the charge to be unfounded.”

An unfounded charge is one in which the investigation establishes that no crime has been committed. This is an entirely different matter from the Solicitor General’s requirement that, where a crime has been committed, there should also be a reasonable prospect of conviction.

In other words the New Zealand Guidelines are confused and misleading on at least two separate points. In regard to criminal prosecutions, they are not based on the International Standards. And they suggest there is an objective evidential test for prosecution when clearly there is not. This means the Solicitor General’s requirement that a prosecution should only proceed if there is an objectively reasonable prospect of conviction is a judicial aberration – one that enables police to completely undercut the role of the jury.

Usurping the role of the juryDavid Crerar

That’s what happened in the Jai Davis case. Fortunately, once the police washed their hands of it, the coroner was able to take a look at the evidence. The inquest in November 2014, held by David Crerar (right), turned out to be the longest and most intensive hearing into the death of a prisoner ever conducted in New Zealand.  It uncovered a wealth of well-founded and reliable evidence much of which has been documented in the media. In essence, the coroner heard that at least ten officers, six nurses and three prison managers all believed Davis was internally concealing drugs – but not one of them called the prison doctor or called an ambulance.

The evidence was so compelling that at the end of the inquest, police announced they would reconsider whether to prosecute. Presumably the potential charges are ‘failing to provide the necessaries of life’, ‘gross neglect of duties’ and possibly ‘manslaughter’.

The Police need to do their job and prosecute those involved. If they don’t – because they might not get a conviction – they let the perpetrators go free without even allowing a jury to look at the evidence. In effect, the police appoint themselves as judge and jury.  That’s not how the system is supposed to work. The role of the police is to present well-founded, reliable evidence that a crime has been committed.  It’s up to the jury to decide whether that evidence is sufficient for a conviction to be reached beyond reasonable doubt.

Police double standard

It’s not just the Solicitor-General’s Guidelines that are problematic. The police also have a well-established double standard  when it comes to prosecuting crimes of negligence. They frequently charge offenders in the community for negligence or failing to provide the necessaries of life to vulnerable family members – but never charge anyone at Corrections when a vulnerable prisoner dies.  The reality is that Jai Davis is just another dead prisoner in a long line of prisoners where a jury never got to hear the evidence.

That’s not justice. That’s corruption – and it’s been going on for years. One could even argue that by consistently refusing to prosecute and hold prison staff to account, this amounts to a conspiracy to pervert the course of justice by agencies of the State – namely the Solicitor-General, the Police and Corrections. Perverting the course of justice carries a possible penalty of seven years in prison.  But I can’t see anyone being prosecuted for that. It wouldn’t meet the evidential test, would it?  Of course not.

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For a more detailed critique of the evidential test, see this letter to the IPCA about the police failure to prosecute anyone over the death of Jai Davis.

For a more detailed analysis of police double standards, see this letter to the IPCA comparing police prosecutions in the community with those against prison staff.

Police excuse for prisoner’s death – we didn’t read our emails!

Jai Davis died in Otago Correctional Facility (OCF) three years ago after internally concealing drugs in his rectum. In a previous post, it was revealed that prison management’s reluctance to pay $300 to call out a doctor on the weekend was a factor contributing his death. This wasn’t the only factor.  At the coroner’s inquest yesterday, the Police also came under attack – for not reading emails which could have saved Davis’ life.

Corrections had been monitoring phone calls to Davis by gang members in prison. The calls revealed that Davis was about to turn himself into police (on domestic assault charges) and was told to bring in ‘candy’ – code for prescription drugs.

Corrections warnings to police

Corrections intelligence officer Neil Jones-Sexton told the coroner’s inquiry on Monday that this information was of such significance, he immediately warned the police. He made numerous phone calls to a variety of police personnel advising them that Davis was going to present himself at the Dunedin police station to be arrested – and would be internally concealing drugs. He also sent at least two emails to police along with a synopsis of the calls recorded by Corrections.

The evidence given by Mr Jones-Sexton was corroborated by police intelligence analyst, Rennae Flockton who also testified yesterday. She said there were six or seven staff in the Dunedin intelligence office. There was a warrant out for Davis’ arrest and the analysts were all aware and even discussed the possibility that he might turn up at the police station. When he appeared the next day, she and “other Intel staff members” went and “looked at him through the mirrored glass” and “were commenting as to how he may have the drugs hidden on him to take into OCF.”

The Misuse of Drugs Act

Under Section 13 of the Misuse of Drugs Act, the police have the power to detain on belief of internal concealment. Under Section 13C, they have to call a doctor to conduct an internal examination of a detained person which may include an x-ray.  Police detained Davis and held him in police cells overnight. The next day, they took him to court and then out to the Otago prison. During all this time, they never bothered to call a doctor.  They were lucky he didn’t die in the police cells.

Last year I wrote to the IPCA pointing out that the police were well aware that Mr Davis was suspected of internally concealing drugs when he turned himself in. I asked the IPCA to investigate the failure of the police to use their powers under the Misuse of Drugs Act – which could have saved Mr Davis’ life.  On behalf of the IPCA, Inspector Geoff Jago, made a superficial investigation of the police conduct and decided the police were unaware that Davis had drugs on board.

What the IPCA missed

Jago said that Jones-Sexton only sent two emails about the matter – both on Wednesday 9 February (the day before Davis turned himself in). The first email went to Police Detective Sergeant John Hedges who was head of the Organised Crime Squad in Dunedin. Sent at 9.38am, it read: “We are working on a disclosure on the MM (Mongrel Mob) where they are looking to introduce drugs”.  Further on, the email mentions Davis by name.  At the inquiry yesterday, Sergeant Hedges said he never read this email and wouldn’t have done anything about it, even if he had – because he was too busy.

Jones-Sexton sent the second email at 4.00pm that afternoon to Sergeant Tony Ritchie who was head of the Police Intelligence Unit in Dunedin (where Rennae Flockton worked). Apparently, Sergeant Ritchie knocked off work at 2.00pm and claimed he never read the email till he got back to work a few days later – long after Davis had died. Even if this is true, Rennae Flockton said everyone in the police Intel office already knew what was going on – because Jones-Sexton had told them on the phone.

Excuses by Corrections & Police

There’s absolutely no doubt the police knew Davis was carrying drugs when he turned himself in. They displayed the same callous attitude as Corrections – they never called a doctor to conduct an examination. Corrections excuse was they didn’t want to spend $300 to call out the doctor on the weekend. The Police excuse, backed up by the IPCA, is that they didn’t read their emails.

The reality is that Davis died because staff at both Police and Corrections failed to do their jobs properly. When members of the public fail to take care of vulnerable people in their care, they often get charged with manslaughter. Police took three years to finish their investigation into Jai Davis’ death. In the end, they never charged anyone.

 

Prisoner dies because Corrections reluctant to pay $300 for doctor on weekend

Jai Davis died from a drug overdose two days after being remanded to Otago prison in February 2011. The inquest into his death starts in Dunedin next week – on Monday 24 November, 2014. The hearing is likely to last two weeks and will expose numerous failings by prison management, prison nurses and prison officers who all knew Davis was ‘internally concealing’ drugs but never bothered to call a doctor or an ambulance.

InternalHere’s the background. Knowing he was going to be arrested, Davis tried to smuggle in codeine and benzodiazepines for some other prisoners. Corrections knew he had drugs inside him because they’d been monitoring phone calls from these prisoners asking Davis to bring in some ‘candy’ when he turned himself in.

The police also knew Davis had drugs on board because Corrections told them.  They asked police to keep him away from other prisoners when he appeared in court – in case he tried to pass the drugs on.

Once he was taken to prison, Corrections put Davis in a special ‘dry’ cell for ‘At Risk’ prisoners. These cells don’t have toilets. When the inmate wants to ‘go’, he is given a cardboard potty and is watched while he defecates. Once he’s done, prison officers look though the faeces to see what came out.  Corrections put Davis in one of these observation cells so they could catch him with the drugs and charge him with smuggling in contraband.

Prison manager failed to call doctor

The manager at Otago Correctional facility is Jack Harrison (below). OCFThroughout the two days that Davis was in prison, his team (managers, nurses and prison officers) broke all their own rules.  One of those rules is: “The Management of Prisoners Suspected of Internally Concealing Unauthorised Items”.  It clearly states that prison management is required to “inform a medical officer (a doctor) that the prisoner is being confined to a dry cell”.  The prison manager, Ann Matenga, who was on duty when Davis was admitted signed a form stating she would advise the doctor of the situation. She never did.

On the Sunday morning, two days after he was admitted, Davis was clearly not well. One of the prison officers who was monitoring him subsequently told police:

“The nurse was assessing Davis.  I stood at the cell door while she did this.  Jai (Davis) looked like a corpse, he was grey coloured and was scratching badly – his arms were real red.  His eyes were sunken and he had the cold sweats.  He was definitely not his usual self and he had slurred speech as well.  To my mind, he was showing all the signs of someone being on drugs.  What’s more his breath smelt like faeces.  I could smell it from where I was when he was talking to the nurse.  The nurse said he was fine and that was that.  I thought to myself, I am glad that’s your call, because to me, he looked as though he should have been in hospital.”

Another nurse who was on duty later that afternoon, Janice Horne, also thought Davis was under the influence of drugs. Corrections investigator, David Morrison, wrote: “Her assessment of Mr Davis at this time was that he was under the influence of some drug because of the slow movements that he was making”.   Janice Horne knocked off work at 8.00pm that evening and subsequently told Mr Morrison (and the police) that she saw no reason to call a doctor. She thought Mr Davis was fine, even though he was clearly under the influence of drugs. Davis died two hours later.  There was a camera in the cell recording every movement he made and the last one, the ‘death shake’, was at 10.01pm, two hours after Ms Horne went home. By the time prison officers realised he was dead – at about 5.00am the next morning –  his body was already stiff from rigor mortis.

Life is cheap in Otago prison

Davis was seen by five different nurses over the course of the weekend. They all knew he was in the ‘dry’ cell suspected of internally concealing drugs. Not one of them called the doctor. They didn’t even call the health centre manager. Nurses have a Code of Conduct which requires them, among many other obligations, to “Act promptly if a health consumer’s safety is compromised.” All five nurses responsible for Mr Davis’ health care over the weekend abandoned their ethics and ignored the Code of Conduct.

When the nurses were subsequently interviewed by the police and asked why they didn’t call the doctor, two of them said that cost was a factor. They said that calling the doctor out on the weekend was discouraged because the prison is 45 minutes’ drive from Dunedin where the prison doctor lived and a callout cost $300.  Life is cheap in Otago prison.

Despite so many Corrections staff failing to perform their duties in this case, not one Corrections manager, officer or nurse was charged with a crime. Why? Because the police also knew Davis was internally concealing drugs; with that knowledge, they held him in the police cells overnight and took him to court and then to Otago prison the next day. But they couldn’t be bothered calling a doctor either.  They just chucked Davis in prison. My guess is that the police didn’t want a judge, or the public, to find out that they also contributed to his death.

See also:

Police excuse for prisoner’s death – we didn’t read our emails! 

Severe neglect leads to prison sentence – except when the victim is a prisoner

Prison deaths linked to Corrections refusal to employ sufficient doctors