International human rights lawyer Geoffrey Robertson will take the case of the death in custody of David Dungay to the United Nations, arguing that Australia violated his human rights and those of his family by denying them justice and accountability for his 2015 death in prison custody.
Robertson’s London-based Doughty Street Chambers will lodge the complaint on behalf of the Dungay family at the UN human rights committee in Geneva. In it they will say that Australia has failed to protect his right to life and failed to undertake investigations into anyone or any organisation responsible for his death.
They are asking the UN to recommend that “the Australian state and its institutions should investigate, and if sufficient evidence exists, to prosecute, try and, where appropriate, punish anyone or any organisation responsible for First Nations deaths in custody, to put an end to the ongoing impunity for deaths in custody to ensure that Australia complies with its international human rights obligations under the right to life.”
Doughty Street Chambers’ barrister Jennifer Robinson told Guardian Australia it is important that Australia is held to account internationally for its failure to implement the recommendations of the royal commission in 1991, and to face “the ongoing crisis of the disproportionate incarceration of Indigenous Australians and the unacceptably high rate of Indigenous deaths in custody”.
Robinson said the Dungay family will ask the UN to determine whether Australia has complied with its international human rights obligations in the case of his death in prison in 2015.
“But in raising David’s case we are raising the historic and systemic failures of the Australian government to implement the royal commission findings, and to take and to adopt the recommendations from various UN bodies over the past two decades,” Robinson said.
“We hope that with this complaint … the Australian government will take the measures that it needs to, to address this problem.”
David Dungay died in Long Bay prison hospital in 2015, after five guards rushed his cell and restrained him face down for refusing to stop eating a packet of biscuits. Guards dragged him to another cell, then held him face down again, and had him injected with a sedative. Dungay said 12 times that he could not breathe before losing consciousness and dying.
Four years later, the coroner found that none of the five guards who restrained Dungay should face disciplinary action and that their conduct was “limited by systemic inefficiencies in training.”
After reviewing the case, a leading criminal barrister, Phillip Boulten SC said the guards’ use of force was “illegal” and carried risks of serious harm, and advised the family that “a reasonable prospect of conviction exists”.
But the New South Wales director of public prosecutions said it could not pursue the matter because it had not been referred by the NSW police force or another statutory body with investigative or inquisitorial powers, such as the coroner’s court.
His mother Leetona Dungay said the family is taking to the international stage to “shame our government into action”.
“My son had a right to live. He had the right to be safe from harm,” she said. “And I have the right to demand accountability and justice for what happened to David. The government and the prison had a duty of care to keep David safe, with people who were trained properly to keep him alive. They failed, and David lost his life because of their failure.
“I want the world to know that Australia is failing to protect the rights of Indigenous people. So many Indigenous people have died in custody, but not one police officer or prison guard has been convicted for these deaths.”
At least 474 Aboriginal and Torres Strait Islander people have died in police and prison custody since the royal commission into Aboriginal deaths in custody handed down its final report in 1991.
Guardian Australia has spent the past three years tracking Indigenous and non-Indigenous deaths in custody for the Deaths Inside project.
The first time we published, in August 2018, an exclusive analysis of 10 years of coronial data found 407 Indigenous people had died in police or prison custody since the end of the royal commission in 1991. In 2019, that figure had increased to 424.
By April this year it had increased to 474. At least five of those deaths have happened since the beginning of March this year.
“Leetona Dungay should not have to go all the way to Geneva to seek justice,” the Dungay family’s lawyer George Newhouse said.
“The NSW government can still take action. The attorney general and the premier must establish an investigation, and they must listen to the 113,000 people who have signed the petition calling for justice and accountability. There must be a pathway for families of those who have died in custody to seek accountability.”