Sarah Goodall

Manager Investigations & Reviews

Independent Police Conduct Authority

24 May 2014

Re: The Police decision not to prosecute Corrections personnel involved in the
death of Jai Davis at Otago Correctional Facility in February 2011.
Dear Ms Goodall,
As noted, my original complaint to the Authority in March 2013 was in relation to three aspects of
Police conduct, namely:
1)
2)
3)

Alleged failure by Police to ensure Mr Davis safety despite being aware that he was suspected
of internally concealing drugs
Alleged failure to adequately investigate Mr Davis death
The time taken to commence an investigation

In my email to you dated 19 May, I noted that the police have now decided not to charge anyone in
relation to the death of Jai Davis. My email raised concerns that when children or other vulnerable
individuals in the community die because those responsible for them neglect or fail to provide the
necessaries of life, the police have no hesitation laying charges against those deemed to be
responsible. But it seems the police seldom, if ever, charge anyone when a prisoner dies in similar
circumstances. The police appear to have a double standard in deciding whether or not to lay
charges.
This letter is a formal request that the IPCA now investigates whether or not the police have taken a
different standard in deciding not to prosecute prison staff involved in the death of Jai Davis compared with the standard they apply to similar cases in the community.
Prosecutions in the community
A number of cases of neglect or failing to supply the necessaries have been reported in the media in
the last two or three years.
In 2010 police charged a mother with murder when her 13-month-old son drowned in the bath after
being left unattended for about 15 minutes.1 The mother (who has name suppression) was
subsequently found guilty of manslaughter and sentenced to prison. In a similar case, a jury found a
Wellington mother not guilty of manslaughter in October 2013 after her baby also drowned in the
bath while she made a phone call which lasted 6 minutes.2 The woman admitted: I got distracted
and he died.

1
2

Baby in bath mum guilty of manslaughter, NZ Herald 23 August 2010.

Mother not guilty of manslaughter over son's bath death, Stuff, 31 October 2013.

In 2013 24-year-old Terri Pickering was sentenced to two years and three months in prison after
being charged with neglect of her four year old child by failing to get her medical treatment for a
serious leg injury.3 The child did not die but required a number of operations and now has one leg
shorter than the other. Pickerings partner, Ashley Elley, was also charged and received a sentence
of home detention and community work. The sentencing judge accepted he had a secondary role in
the neglect.
In 2014 police had no hesitation charging 51-year-old Jo-Ann Quinn, for failing to provide the
necessaries of life to her 82-year-old mother Maureen.4 Maureen Quinn died of pneumonia six
weeks after being found with maggot infested leg injuries lying on the couch. Her daughter was
sentenced to two and a half years prison.
Unnatural deaths in prison
However, when prisoners in the care of the Corrections Department die, it seems the police never
prosecute anyone. Lets examine this in more detail. The following chart is taken from the
Corrections Department Annual Report for 2006. It describes unnatural deaths in prison and shows
that over a five-year period, the rate of unnatural deaths was around 0.11 per 100 prisoners.5 With
an average prison population of 8, 500 this represents about nine unnatural deaths a year.

These figures mean that in the last 10 years, approximately 90 people have died unnatural deaths
in prison. This should be a matter of considerable concern. It certainly was to the Auditor General
who in 2012 reported that the rate of unnatural deaths for remand prisoners was 147% above
standard.6
Most of these deaths are suicides. The suicide rate in prison varies from year to year but averages
around 0.07 per 100 prisoners.7 Compare that with the suicide rate in the community which in 2011

3
4
5
6
7

Partner of jailed mother gets home detention, Dominion post, 15 November 2013
Woman jailed over mum's neglect, Stuff, 16 May 2014.
Outcomes - Achievements in 2005/2006, Corrections Department Annual Report, 2005-06.
Briefing to the Law and Order Committee 2011/12, Office of the Auditor-General, p13.
Outcomes - Achievements in 2005/2006, Corrections Department Annual Report, 2005-06.

was 0.012 per 100.8 In other words the suicide rate in prison is approximately seven times higher
than in the community. In 2011 when 11 prisoners committed suicide, it was 11 times higher.
Despite the fact that most unnatural deaths in prison are described as suicides - neglect or failure to
provide adequate medical treatment or care by prison staff is often a factor in these so-called
suicides. Over the years, concerns about the isolation and inadequate treatment of suicidal at risk
prisoners have been raised by the Ombudsman and various other agencies. The Ombudsman notes
that prisoners are afraid of going into so-called at risk cells because The units are focussed on
custody rather than treatment.9
In 2010 Dr Michael Roguski (on behalf of the National Health Committee) found that prisoners
perceived the at risk cells as a form of punishment and that, as a result, prisoners learn to keep
quiet about their suicidal feelings. Dr Roguski wrote: "More disturbing were participants who were
experiencing depression and suicidal ideation deciding not to seek intervention for fear of being
placed in the at risk unit".10 This means the way Corrections treats vulnerable at risk prisoners may
actually increase their risk of suicide.
Lets look at some specific cases. The Ombudsmans investigation into prison deaths in 2001
concluded that when Dallas Lloydon committed suicide in Paparua (now Christchurch prison) he had
not received psychological help, counselling, or even routine checks on his well-being, even though
he was known to be at risk.11
Thirteen years have passed since then and little has changed. In 2009 Antonie Dixon committed
suicide in Auckland prison. He had significant mental health problems and was held in an at risk cell.
Dixon had made numerous suicide attempts and, at one point, had been illegally restrained with a
waist belt for over 30 hours to prevent further attempts. Prison managers admitted they knew the
restraint was illegal but allowed prison staff to use one.12
At the inquest, Dixon was described as being on the cusp of an evolving psychosis. It was also
revealed that he had covered the security camera in his cell with toilet tissue prior to his death and
this went unnoticed for five hours during which time it seems he was busy ripping up his suicide
proof gown to make a noose. Once an officer walking past his cell saw Dixon with the noose round
his neck, it took another ten minutes before his cell door was unlocked to give him medical
treatment - by which time he was dead.13 The prison manager was not charged with allowing the use
of an illegal restraint and none of the officers responsible for looking after him were prosecuted.
Compare this with the case of the mother who left her baby unattended for fifteen minutes and was
charged with murder; and the mother who left her baby unattended for six minutes and was
charged with manslaughter. Dixon was a vulnerable prisoner with suicidal ideation and needed
constant monitoring just like babies do. If these two mothers were charged, the prison manager
8
9
10

11
12
13

New Zealand suicide rate 2007 2011, The Jackal website.

Monitoring Places of Detention, OPCAT Annual Report, June 2011, p 16.
The Effects of Imprisonment on Inmates and their Families Health and Wellbeing, prepared for the
National Health Committee by Dr Michael Roguski and Fleur Chauvel., p 13.
Human Rights in New Zealand Today, Chapter 11, Human Rights Commission website.
Prison manager admits Dixon was illegally restrained, Radio NZ, 29 August 2012.
Dead Antonie Dixon had meth in blood, inquest hears, TVNZ, August 27, 2012

and officers who were responsible for a looking after Mr Dixon should also have been charged.
Ignoring a suicidal, psychotic prisoner for five hours suggests their crimes of neglect were
manifestly more callous and deliberate than that of the two mothers - who simply became
distracted for a few minutes.
Heres another case. Richard Barriball committed suicide in Otago prison in 2010 after one week on
remand. Mr Barriball had recently had three operations on his arm and was in severe pain. He was
admitted to prison on four different pain medications prescribed by specialists at the pain clinic in
Dunedin. The prison doctors never bothered to consult the pain clinic and withdrew two of the
medications on his first day in prison. They withdrew a third medication four days later. Mr Barriball
hung himself three days after that. The coroner subsequently said prison staff failed to provide
delivery of prescribed pain relief and concluded that Mr Barriball committed suicide after receiving
sub optimal medical care.
Heres another one. Kerry Joll committed suicide in Rimutaka in 2011. Mr Joll was an alcoholic and
had a history of depression and previous suicide attempts. In his report, the coroner effectively
blamed the Corrections Department and wrote: I would have expected that the prison authorities
would have obtained a more extensive medical report from his general practitioner and any other
medical professionals involved so that they would be enabled to have a better understanding as to
how to manage a prisoner such as Mr Joll.
Following his death, the coroner recommended that prisoners who had made previous suicide
attempts should be red flagged on their computer file. The Department responded to this by saying:
Improving our current information systems is regarded as not worth the benefits it would bring
because of cost, complexity and the proportionally few incidents it would benefit.'' Considering the
high suicide rate in prison, this is an extraordinarily callous response. Given the common bond
between prison officers and police officers, it would not be surprising if this kind of indifference is
also experienced by some police officers required to investigate prison suicides.
Not all unnatural deaths in prison are suicides. Anna Kingi died in Auckland womens prison in
2008 at the age of 41. She had a heart condition and was the mother of seven children. She became
distressed one evening and pressed the emergency button in her cell. Her calls for help were ignored
by guards and she was found dead over an hour later. In 2014, five years later, the Corrections
Department apologised unreservedly and made a confidential payment to Ms Kingis seven
children.14 Even though Corrections admitted it failed to provide appropriate care, the police still
didnt charge any of the officers who failed to respond.
When comparing these individual cases, one cannot help but come to the conclusion that a different
prosecuting standard is applied to prisoners. Despite criticisms by coroners and admissions of
culpability by Corrections, no one was charged with anything in any of these cases. To my
knowledge, not a single prison manager, prison officer, prison doctor or prison nurse has ever been
prosecuted over their involvement in any of the 90 (or so) prison deaths in the last 10 years.
14

Apology, payout over prisoner's death, Dominion Post, 23 April, 2014.

Possible factors in police failure to prosecute anyone in the Corrections Department

In the case of Mr Davis there are a number of possible reasons why no one was charged.
1) According to Radio New Zealand, police claimed there was ultimately not enough evidence to
meet the threshold required to run a successful criminal prosecution.15 This suggests that police
expect all prosecutions to be successful which is totally unrealistic. Whether the threshold is
met is largely a matter of perception - one which can best be determined by a jury. But in Mr
Davis case, the police never gave a jury a chance. By way of comparison, a charge of
manslaughter was laid against the mother whose baby drowned in the bath after six minutes.
The jury found her not guilty - but that did not stop the police from prosecuting her.
2) Another possible reason is that Mr Davis swallowed the drugs which ultimately killed him. The
police may have taken the view that this was just another suicide and that Mr Davis was
responsible for his own death. The problem with that perspective is that the prison
management had been monitoring phone calls to Mr Davis and suspected him of internally
concealing drugs when he first arrived at the prison. Despite an ethical and legal obligation to
do so, they failed to have him examined by a doctor. On the day he died, Corrections officers
and nurses observed, and documented the fact that Mr Davis appeared to be under the
influence of drugs - but did nothing about it. Failing to act is such circumstances surely meets
the threshold for a criminal prosecution.
3) A third possibility is that a number of people were involved in observing Mr Davis over the
weekend and no one Corrections officer or nurse was ultimately responsible. Thats easily
solved. Bring charges against everyone and let the jury decide. This is exactly what the police
did in the neglect case involving Terri Pickering and her partner, Ashley Elley. Two adults were
involved and police charged both of them. They were both found guilty. Ms Pickering was sent
to prison while Mr Elley received Home Detention.
4) A fourth possibility is that police did not charge Mr Davis because he was just a prisoner,
perceived by the public as a second-class citizen and prisoners deserve what they get.
Presumably thats why the police took two years to even begin their investigation - and only did
so after my original complaint to the IPCA. Having investigated so reluctantly, police may be
equally reluctant to bring a prosecution against one of their own bearing in mind that
Corrections officers and Police officers have a common bond against criminals.
5) There is also the possibility that police were reluctant to press charges because it might have
been suggested at trial that they contributed to Mr Daviss death as well by taking him to
prison when they should have taken him directly to hospital. When she was asked about Mr
Davis death, the prison health centre manager (who was not on duty the weekend that Mr
Davis died) said:

15

Jail death result held until inquest, Radio New Zealand, 9 April 2014

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 the
prisoners gut, we would not be able to get (him) to the hospital in time. If there were serious
concerns that this man had drugs on board, he should have been held in hospital under guard
where he could be treated quickly if things went wrong (Inspectors report para 195).
6) Finally, there may have been political interference. Anne Tolley is both Minister of Police and of
Corrections. I have been advised by Mr Davis's mother, Victoria Davis that Ms Tolley and Police
Commissioner Peter Marshall took a keen interest in the case and were kept informed of
developments by Dunedin Inspector Greg Sparrow who was in charge. Anne Tolley was aware of
Mr Daviss situation at least as far back as September 2013.16
Inspector Sparrow also kept Mr Daviss mother, Victoria Davis, informed and Victoria thought
that someone at Corrections would eventually be charged. But once the investigation was
complete Ms Davis was told that Inspector Greg Sparrow had suddenly gone on leave. He was
replaced by Detective Inspector Steve McGregor who seems to be higher up the police chain of
command. Anne Tolley is at the top of that chain and the last thing she would want just before
an election is an embarrassing public trial involving criminal offending by staff in one of her
portfolios.
Final comment
Over the last ten years the ombudsman, the auditor general, a multitude of coroners and numerous
other individuals and public entities have expressed concern about the poor treatment of vulnerable
prisoners, especially those with mental health problems. All these agencies can do is write reports
and make recommendations. But the evidence suggests that this has not lead to any significant
change. If the police then fail to charge anyone after a prisoner dies, there is little incentive for
prison officers or management to change their ways. So business goes on as usual.
A prosecution would do two things. It would give a jury a chance to look at the evidence for the first
time. If the prosecution proved to be unsuccessful, it would still send a warning shot across the bow
of the Department. It would remind prison staff that they need to take more responsibility in the
way they care for and treat vulnerable prisoners - who, in the absence of appropriate treatment,
frequently end up committing suicide.
I am therefore asking the IPCA to investigate whether or not the police have a double standard when
it comes to such cases and whether this double standard came into play when the police decided not
to prosecute any Corrections Department staff involved in the death of Jai Davis.

Roger Brooking,
PO Box 29075,
Ngaio, Wellington
16

Prisoner deaths investigated, Stuff, 24 September 2013.