黑料情报站

Complaints

Search

Inquest into the deaths of David Gurralpa and Robert Plasto-Lehner (2009)

Legal

CORONERS COURT OF OF THE NORTHERN TERRITORY


Inquest into the deaths of David Gurralpa and Robert Plasto-Lehner

Submissions by the 黑料情报站

4 April 2009

Download

1 Introduction

  1. The Northern Territory Coroner has conducted concurrent inquests into the
    death of Mr David Gurralpa on 1 January 2008 and the death of Mr Robert
    Plasto-Lehner on 28 December 2007. Mr Gurralpa was in custody at the time of his
    death and Mr Plasto-Lehner鈥檚 death was caused or contributed to by
    injuries sustained while being held in custody.


  2. These submissions by the 黑料情报站 focus on the
    human rights issues surrounding the deaths of Mr Gurralpa and Mr
    Plasto-Lehner.


  3. These human rights issues are relevant to the matters on which the Coroner
    shall report under s 26(1) of the Coroners Act 1993 (NT), as they relate
    to the care, supervision and treatment of the deceased persons while being held
    in custody. The human rights issues are also relevant to the recommendations
    that the Coroner may make under s 26(2) of the Coroners Act, as they
    relate to ways to prevent deaths from happening in similar circumstances in the
    future.


  4. The Commission recognises at the outset that decisions made by police in the
    field about the use of force can be very difficult ones. They are often made
    quickly, at times of high stress and require police to balance the protection of
    the community, themselves and the individual. The purpose of these submissions
    is to assist the Coroner to identify where mistakes may have been made, and
    where police training may have been inadequate, and to suggest practical reforms
    to police training and policies that could prevent future deaths and enhance the
    administration of justice.


  5. The Commission鈥檚 submissions are organised as follows:

 

Part 2: The death of Mr Gurralpa

Part
2.1: Police use of the prone restraint: the dangers and risk factors.

Part 2.2: The obligations imposed by the right to life (article 6 of
the ICCPR), including that by arresting and detaining individuals police take
responsibility to care for their life.

The Commission submits that:

  • the Northern Territory police members failed to properly care for
    Mr Gurralpa鈥檚 life during his detention (Part 2.3);


  • the Northern Territory police members must be trained in the
    dangers of the prone restraint and the risk factors that make certain persons
    more susceptible to death by positional asphyxia (Part 2.4); and


  • the Northern Territory police members must be trained to monitor
    the health of persons where practicable during the restraint, as well as
    immediately after the prone restraint (Part 2.5).

Part 3: The death of Mr Plasto-Lehner

Part 3.1 The human rights instruments and principles relevant to the treatment of Mr Plasto-Lehner.

Part 3.2 The prone restraint of Mr Plasto-Lehner at Royal Darwin Hospital.

Part 3.3 Transporting Mr Plasto-Lehner to Royal Darwin Hospital.

Part 3.4 The police investigation into the serious injury and death of Mr Plasto-Lehner.

The Commission submits that:

  • the decision to use force and the degree of force used against Mr
    Plasto-Lehner was not necessary or proportionate;


  • the decision to use force and the degree of force used was
    inconsistent with Mr Plasto-Lehner鈥檚 right to humane treatment as a
    detained person and as an involuntary patient suffering mental disturbance;


  • the Northern Territory police members failed to properly care for
    Mr Plasto-Lehner鈥檚 life during detention;


  • being transported to Royal Darwin Hospital via Darwin Police
    Station was inconsistent with his right as a detained person to be treated
    humanely and may have exacerbated his suffering;


  • Northern Territory police members must be trained to ensure they
    have the necessary skills and confidence to appropriately deal with mentally ill
    persons; and


  • the police investigation into the serious injury and death of Mr
    Plasto-Lehner was inconsistent with the obligation to provide an effective
    remedy in respect of Mr Plasto-Lehner鈥檚 right to life, as the police
    investigation failed to comply with the requirements of Part 10 of the Custody
    Manual 鈥 Deaths in Custody and Investigation of Serious and/or Fatal
    Incidents Resulting From Police Contact with the Public.

Schedule One: Recommendations the Coroner may make under s 26(2) of the Coroners Act

Schedule one sets out detailed, practical
recommendations that the Coroner may make relevant to the prevention of future
deaths in similar circumstances and the administration of justice. These
recommendations can be summarised as follows:

  1. The Northern Territory Police should ensure that all members are trained and
    re-trained using reality based techniques to ensure an understanding of
    positional asphyxia.


  2. The Northern Territory Police training on the risk factors associated with
    positional asphyxia should be extended.


  3. The Northern Territory Police should ensure that all members are trained and
    re-trained to monitor the health of persons where practicable during the use of
    the prone restraint, as well as immediately after the use of the prone
    restraint.


  4. 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.


  5. The Northern Territory Police should amend the General Order on Transport of
    Persons in Custody, and Part 6 of the Custody Manual 鈥 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.


  6. The Northern Territory Police should amend Part 10 of the Northern Territory
    Policy Custody Manual 鈥 Deaths in Custody and Investigation of Serious
    and/or Fatal Incidents Resulting from Police Contact with the
    Public.



2 The
death of Mr Gurralpa

  1. The Commission submits that the events leading to the death of Mr Gurralpa
    can be summarised as follows.


  2. There were some inconsistencies in the accounts given by witnesses at the
    inquest in relation to certain aspects of these events. There are a number of
    possible reasons for this including the length of time that has passed since the
    events, and the impact of stress, trauma and other highly emotional experiences
    on perception and memory.[1] Witness
    statements were taken by the police shortly following the incident; the accounts
    provided in these statements have been preferred to the extent of any
    inconsistency.


  3. Mr Gurralpa was a 39 year-old Aboriginal man. He was present at a New
    Year鈥檚 Day celebration at 18 Waterhouse Crescent on 1 January 2008. At
    4.46pm, Jessica Wilson made a 000 call from 18 Waterhouse Crescent to the police
    stating that 鈥榣ots of people are fighting and they are all
    intoxicated鈥, 鈥榯hey are throwing saucepans at each
    辞迟丑别谤鈥.[2]


  4. At 4.51pm, Constable Brendan Berlin and Constable Marcus Lees arrived at 18
    Waterhouse Crescent.[3] They were the
    first attending police members. Constables Berlin and Lees were not dispatched
    to the job, but they heard the call on the radio and 鈥榙ecided to attend as
    well to lend some
    补蝉蝉颈蝉迟补苍肠别鈥.[4]


  5. On arrival, Constable Berlin spoke to Peggy Rankin and she informed him that
    she was the lawful occupier of the property and there were two people there she
    wanted removed. Constable Berlin says that Peggy Rankin informed him that they
    had been causing trouble, drinking and that someone had hit her over the head
    with a saucepan. That person was Mr
    Gurralpa.[5]


  6. Constable Berlin asked Mr Gurralpa to leave. Mr Gurralpa agreed and began to
    walk towards the front of the property with Constable
    Lees.[6]


  7. By this time, two more police members had arrived, Constable Neil James and
    Constable Devrim Kanyilmaz. The members logged their arrival at
    4.57pm.[7] They were also not
    dispatched to the job, but they heard the call on the radio and decided to drive
    by to see if everything was
    okay.[8]


  8. For reasons that remain unknown, but probably because of something said by
    Peggy Rankin, as Mr Gurralpa was walking toward the front of the property he
    turned and lunged aggressively towards Peggy
    Rankin.[9] The members believed Mr
    Gurralpa was going to strike or attack Peggy
    Rankin.[10] Constable Berlin stepped
    between Mr Gurralpa and Peggy Rankin and grabbed Mr Gurralpa by the arm.
    Constable Lees grabbed him by the other arm. Mr Gurralpa began struggling.
    Constables Berlin, Lees and Kanyilmaz attempted unsuccessfully to restrain him
    against the side of a car. The members lost their hold a few times because he
    was resisting, he was sweaty and because they didn鈥檛 have a good grip. The
    members and Mr Gurralpa fell to the ground, at which time the three members
    commenced 鈥榞round
    蝉迟补产颈濒颈蝉补迟颈辞苍鈥.[11]


  9. Constable Berlin was on the right side of Mr Gurralpa, Lees was on his left
    and Kanyilmaz was at his feet. Mr Gurralpa continued struggling. Constables
    Berlin and Lees each pulled one of Mr Gurralpa鈥檚 arms out from underneath
    him and placed their knee on his scapula and applied pressure whilst Mr Gurralpa
    was face down. This is called the three point
    hold.[12] Constable Kanyilmaz
    attempted to control Mr Gurralpa鈥檚 legs, by placing them in a leg lock.
    The leg lock failed and Constable Kanyilmaz instead placed his knee on Mr
    Gurralpa鈥檚 left leg and held his right leg down with his
    hands.[13] Constables Lees and
    Kanyilmaz told Mr Gurralpa to 鈥榮ettle down鈥 and 鈥榮top
    谤别蝉颈蝉迟颈苍驳鈥.[14]


  10. The members were asked whether they considered they had any other options
    once they fell to the ground, including stepping back and attempting to
    deescalate the situation. All members said they did
    not.[15] Mr Gurralpa was initially
    compliant, and then the intensity of his struggle dramatically escalated. The
    intensity of the struggle was variously described by members as between seven
    and nine out of ten.[16] The members
    considered Mr Gurralpa to be a danger to themselves and others, including Peggy
    Rankin.


  11. During the struggle, Constable James stood between Mr Gurralpa and the
    crowd. He had a can of OC Spray in his hand and was telling the crowd to
    鈥榮tay back, stay back鈥. Constable James observed Lees lose his grip
    and he thought Mr Gurralpa was going to get up. Constable James lifted Mr
    Gurralpa鈥檚 head and sprayed him with OC Spray for one or two
    seconds.[17] The can was inverted at
    the time it was sprayed.[18] None of
    the other members were affected by the OC Spray, and it didn鈥檛 affect the
    intensity of Mr Gurralpa鈥檚
    struggle.[19] Constable Lees was the
    only member involved in the ground stabilisation who knew it had been sprayed.
    He could smell it and taste it, but it didn鈥檛 affect
    him.[20] Sergeant Hansen gave
    evidence that members are trained to hold the can vertically when spraying. He
    conducted tests on the impact of spraying when the can is inverted. He found
    that you release only the small amount of material in the tube, and then all of
    the nitrogen gas. The can is then
    useless.[21] It would appear that
    the use of OC Spray did not contribute to the cause of death.


  12. Constable James returned to monitor the crowd. The crowd were calling out
    warnings to the members including 鈥榟e has asthma鈥, 鈥榟e is a
    sick man鈥. Constables Lees, James and Kennedy heard these
    warnings.[22]


  13. Three more police members arrived whilst Mr Gurralpa was being restrained,
    Senior Constable David Wilson, Constable Melissa Kennedy and Constable Ben
    Parfitt. Constables Wilson and Parfitt assisted with crowd
    control[23] and Constable Kennedy
    was asked to get out her handcuffs. She did so and attempted to place them on Mr
    Gurralpa. It was difficult as his wrists were large. Another member assisted and
    Mr Gurralpa was handcuffed.[24] Mr
    Gurralpa was then lifted up and carried to the police van.


  14. All members reported that Mr Gurralpa stopped struggling once handcuffed.
    Constable Lees observed that Mr Gurralpa鈥檚 body went limp and he appeared
    to be unconscious at this time. Constable Lees didn鈥檛 mention this to
    anyone. He got up and turned to monitor the crowd. He stated in evidence that he
    didn鈥檛 turn his mind to the health of Mr Gurralpa. He was more concerned
    by the crowd who were 鈥榶elling and screaming at
    尘别鈥.[25]


  15. Constable Kennedy observed that Mr Gurralpa showed no signs of life as he
    was being carried to the police van. She said he appeared rigid, his eyes were
    closed and he wasn鈥檛 saying anything. She expressed her concerns and said
    the other members took note.[26] Constables Berlin, Parfitt and Kanyilmaz did not observe Mr Gurralpa to be
    unconscious until he was in the police van.


  16. Once in the police van, the members checked Mr Gurralpa鈥檚 vital signs,
    his handcuffs were removed and resuscitation commenced. Mr Gurralpa鈥檚
    heart had stopped at this time. At 5.01pm an ambulance was
    called.[27] The ambulance arrived at
    5.14pm.[28] Mr Gurralpa was not
    revived in the ambulance, nor was he revived on arrival at Royal Darwin
    Hospital.


  17. Post mortem and autopsy examination revealed that Mr Gurralpa was an obese
    man with significant (80%) coronary artery narrowing. Toxicology showed a blood
    alcohol level of 0.035. Dr Botterill expressed the cause of death
    as:[29]

    1a Coronary
    Artery Atheroma

    2 Restraint asphyxia; obesity; hypertensive heart disease; hepatic steatosis;
    alcohol intoxication

And Dr Botterill stated:

    My rational [sic] is that although each of these conditions may have resulted
    in a cardiac arrest, the underlying long standing coronary artery disease
    represented the most significant and thus likely cause of death... Nevertheless,
    one cannot ignore the temporal association with the restraint event, and it is
    difficult to completely exclude the potential contributions that the remaining
    conditions could have added to the risk of cardiac arrest from coronary artery
    disease.

  1. Dr Botterill stated in evidence that he considered the restraint event to be
    a material contributing factor to Mr Gurralpa鈥檚
    death.[30]

2.1 Police
use of the prone restraint: the dangers and risk factors

  1. Three police members held Mr Gurralpa in the prone restraint with pressure
    on his upper torso, handcuffing and leg restraint. Four members were involved in
    the restraint at the time of the handcuffing. The members say they did not
    deliberately force Mr Gurralpa to the ground; they fell to the ground during the
    struggle and then employed ground stabilisation techniques. The techniques the
    police employed, including the three point hold and the attempted leg lock, were
    in accordance with the techniques taught in training. Mr Gurralpa was struggling
    in the prone restraint for about one to two
    minutes.[31]


  2. Research has found that deaths from positional asphyxia can occur where an
    individual was held down or placed in the prone position and restricted in their
    movement 鈥 either because their hands were handcuffed behind them or
    because someone was on top of them, placing pressure on their
    back.[32]


  3. A number of factors may increase the risk of
    death from positional asphyxia, including:

    • Obesity, particularly 鈥榖ig bellies鈥: excessive body
      weight makes chest wall movement more difficult while prone and excessive
      abdominal fat limits diaphragmatic
      motion.[33]


    • Pre-existing heart
      disease      .[34]


    • Significant physical exertion before and/or during restraint: the
      risk is compounded when an individual is involved in a violent struggle with a
      police member(s).[35] Police members
      involved in the restraint often describe the persons as unusually strong and
      persistent in their struggle:

      The victims are generally
      described as being unusually aggressive. They do not respond appropriately to
      reasoning or commands and exhibit unusual
      strength.[36]

    Increased oxygen demand from physical activity could increase susceptibility
    to asphyxiation during restraint with pressure on the
    chest.[37]

    • Acute psychosis and agitation, potentially stimulant drug
      induced.[38]


  4. The Commission submits that an additional risk group not identified in the
    literature should be middle-aged Aboriginal men. This is because of the known
    health factors for that group, including a higher incidence of heart disease,
    respiratory disease and
    diabetes.[39] The Commission notes
    the evidence of Dr
    Botterill:[40]

    Is there
    a health profile that puts them [middle-aged Aboriginal men] at risk in terms of
    positional asphyxia? Certainly, I think obesity, previous lung disease
    associated with smoking, of those two factors alone and with those the increased
    risk of diabetes and heart disease all increase the potential risk compared to
    the general public.


  5. Relevantly for present purposes, case studies conducted of sudden death by
    positional asphyxia have found that it is not necessary for a person to be held
    in the prone restraint for a long period of time for death to occur. The case
    studies have indicated that sudden death has occurred after an individual has
    been held in the prone restraint for two
    minutes.[41]


  6. Moreover, case studies have indicated that despite prompt and extensive
    resuscitation attempts by police members and attending paramedics, in the
    majority of cases the individual was not able to be
    revived.[42]

2.2 The
obligations imposed by the right to life

  1. Article 6 of the International Covenant on Civil and Political Rights (ICCPR) provides, relevantly, that 鈥楨very human being has the inherent
    right to life. This right shall be protected by law. No one shall be arbitrarily
    deprived of his life鈥.


  2. It is well accepted that article 6 of the ICCPR requires the State not only
    to refrain from the intentional and unlawful taking of life, but also to take
    appropriate steps to safeguard the lives of those within its
    jurisdiction.[43] The Human Rights
    Committee has stated:[44]

    The right to life has been too often narrowly interpreted. The
    expression 鈥渋nherent right to life鈥 cannot properly be understood in
    a restrictive manner, and the protection of this right requires that States
    adopt positive measures.


  3. In particular, States have a positive duty to protect the life of people in
    custody. The Human Rights Committee has stated [emphasis
    added]:[45]

    The
    Committee affirms that it is incumbent on States to ensure the right of life of
    detainees, and not incumbent on the latter to request protection.

    ...the essential fact remains that the State party by arresting and
    detaining individuals takes the responsibility to care for their life    .


  4. For the reasons set out below, the Commission submits that the Northern
    Territory police failed to properly care for Mr Gurralpa鈥檚 life during his
    detention.


  5. Further, the Commission submits that in order to comply with the obligation
    to take appropriate steps to safeguard the lives of those within its
    jurisdiction, the Northern Territory police must train recruits and members:

    • 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;
      and


    • to monitor the health of persons where practicable during the restraint, as
      well as immediately after the use of the prone restraint.


  6. These are matters that properly fall within the scope of the present inquest
    as they are matters related to the care, supervision and treatment of the
    deceased while being held in custody and relate to ways to prevent deaths from
    happening in similar circumstances in the future.

2.3 Police
failure to care for Mr Gurralpa鈥檚 health and life

  1. It is an essential component of the right to
    life that police, by arresting and detaining individuals, take responsibility to
    care for their life.


  2. The Commission submits that the Northern Territory police failed to properly
    care for Mr Gurralpa鈥檚 life during his detention in the following
    respects:

    • the police members failed to heed warnings from Mr Gurralpa鈥檚 family
      in relation to his health; and


    • the police members failed to take immediate steps to provide Mr Gurralpa
      with medical assistance once it was observed he was unconscious.


  3. Whilst Mr Gurralpa was being held in the prone restraint, his family members
    were calling out warnings to the police including 鈥榟e has asthma鈥,
    鈥榟e is a sick man鈥. These warnings were heard by Constables Lees,
    James and Kennedy, as well as by a man in a neighbouring
    property.[46] These warnings were
    not heeded and police members continued with the restraint. There are a number
    of possible reasons for this including:

    • the members were focused on the intensity of their struggle and their aim,
      which was to restrain Mr
      Gurralpa;[47] and


    • the members were not aware that asthma and pre-existing medical conditions
      were risk factors that make persons more susceptible to death by positional
      asphyxia.


  4. In the Commission鈥檚 submission this demonstrates that attention must
    be paid in training to the dangers of the prone restraint and the associated
    risk factors. Moreover, in situations where the use of the prone restraint
    cannot be avoided, members must be trained to be mindful of the risks and alert
    to any signs or symptoms of positional
    asphyxia.[48]


  5. Additionally, the police members failed to take immediate steps to provide
    medical assistance to Mr Gurralpa once it was observed that he was unconscious.
    A member gave evidence that he noticed Mr Gurralpa鈥檚 body went limp and he
    appeared unconscious immediately after he was handcuffed. He did not mention
    this to anyone, and instead stood up to monitor the crowd. When asked 鈥楧id
    you even turn your mind to his health?鈥 He replied
    鈥楴辞鈥.[49] The member
    stated in evidence that he fell down in his training in this
    respect.[50]


  6. Whilst there was no evidence that the actions of this member contributed to
    Mr Gurralpa鈥檚 death, the failure to provide immediate medical assistance
    is of serious concern. In the Commission鈥檚 submission, it demonstrates
    that attention must be paid in training to the requirement that members monitor
    the condition of a person both during and immediately after the prone restraint,
    in conjunction with raising members鈥 awareness of the dangers of the prone
    restraint.

2.4 Police
training in the dangers of the prone restraint and the risk factors

  1. The Commission submits that Northern Territory police members must 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.


  2. The Northern Territory Police Operational Safety and Tactics Training Unit
    have developed the Defensive Tactics Manual
    2006.[51] The Defensive Tactics
    Manual is provided to Defensive Tactics instructors for training purposes. It is
    not available to recruits, police members or the public.


  3. 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:[52]

    Pre-existing
    physical conditions -     ...asthma

    Multiple Police - ... where several police are involved the pressure
    and restriction to the person鈥檚 respiration is increased...

    OC Spray 鈥 Members should bear in mind the effects of Oleoresin
    Capsicum Spray on a person鈥檚 respiratory system. This may increase the
    risk of a person succumbing to PAD [positional asphyxia death].


  4. 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 鈥榬ecognition of this
    pattern may enable police to alter the method in which they attempt to resolve
    the situation and avert a tragic
    辞耻迟肠辞尘别鈥:[53]

    Stage
    1 鈥 Development of the incident

    The individual exhibits irrational, violent behaviour with aggressive and/or
    paranoid features, resulting in hypoactivity and extreme physical exertion.

    Stage 2 鈥 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 鈥 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.


  5. 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.[54]


  6. Finally, the Manual details the following
    prevention strategies to reduce the likelihood of positional asphyxia death
    occurring:[55]

    Identify
    persons at risk

    Avoid prone restraint unless absolutely necessary

    Identify danger signs of asphyxia

    Constantly monitor the person

    Seek medical attention


  7. As part of recruit training, a one day Defensive Tactics theory package is
    presented to recruits. This includes, amongst other things, a
    鈥榩owerpoint鈥 presentation on positional asphyxia. The text of the
    positional asphyxia powerpoint presentation is taken from the Defensive Tactics
    Manual.[56]


  8. Members are also required to attend requalification training each year. This
    consists of two eight hour days, incorporating both practical and theoretical
    components. The theoretical component includes, amongst other things, positional
    asphyxia. Stephen Nalder, a Defence Tactics instructor, gave the following
    evidence:[57]

    When
    covering positional asphyxia I work from the manual and discuss the topic with
    participants as we go. In order to make members more aware of the risks involved
    in restraint tactics I have started to use these two unfortunate deaths as case
    histories in recruit training and will ensure that all instructors are aware of
    the issues raised in this inquiry. I have not used these cases for
    requalification training yet, because I do not want to compromise the coronial
    process...


  9. 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 incident with Mr
    Gurralpa 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.


  10. 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:[58]

    Given the
    training that you had about overweight people, did you 鈥 were you alert to
    the risk in relation to the deceased when he was brought to the ground? 鈥
    No, I didn鈥檛 classify him as obese. I didn鈥檛 think he was obese, so
    I wasn鈥檛 鈥 didn鈥檛 really come to mind what you鈥檙e
    asking, no.


  11. This evidence demonstrates that obesity is a risk factor that may be
    difficult to judge. In the Commission鈥檚 submission, it would be helpful to
    acknowledge this difficulty in training and inform members that having a
    鈥榖ig belly鈥, whether or not the person appears otherwise overweight,
    is a risk factor.


  12. Moreover, most of the members were not aware of other risk factors relevant
    to Mr Gurralpa鈥檚 death including physical exertion during restraint and a
    pre-existing medical condition such as asthma or heart
    disease.[59]


  13. 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. Relevantly, none of the members
    considered that Mr Gurralpa鈥檚 attempts to break free were because he was
    having difficulty breathing rather than because he was trying to continue
    resisting the police.[60] The
    Commission submits that this is likely to be what was happening with Mr
    Gurralpa, but the police failed to realise it.


  14. Finally, and perhaps most importantly, 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. Such awareness may have allowed the downward spiral to be
    averted at stage 2 (intervention).


  15. In the Commission鈥檚 submission, the evidence of the police members
    demonstrates that 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.


  16. 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.[61] These
    included:[62]

    • the methods of teaching the dangers of positional asphyxia (noting that
      reality based training was the most effective way of
      communicating);[63]


    • teaching on 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.


  17. Sergeant Hansen also identified an overarching issue that may be affecting
    the quality of member requalification training. That is, there is no quality
    assurance program in relation to the requalification or 鈥榠n service鈥
    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. Sergeant Hansen agreed that this was an issue that should be
    addressed.[64]

2.5 Police
training in monitoring the health of persons during and immediately after the
use of the prone restraint

  1. The Commission submits that in order to comply with the obligation to take
    appropriate steps to safeguard the lives of those within its jurisdiction,
    Northern Territory police members must be trained to monitor the health of
    persons where practicable during the restraint, as well as immediately after the
    use of the prone restraint.


  2. At present, the Defensive Tactics Manual provides only that police members
    are to monitor the condition of the person immediately after restraint. There is
    no requirement that members monitor the person during the restraint
    process.


  3. The reason it is crucial to monitor the person during the restraint process
    is because research into positional asphyxia suggests that loss of
    consciousness/death can occur extremely rapidly. Moreover, in most cases despite
    prompt and extensive resuscitation attempts by police members and attending
    paramedics the person was not able to be revived.


  4. Evidence was heard at the inquest that it may not be practical to monitor a
    person鈥檚 health during the course of a violent confrontation, especially
    in circumstances where there are only two members
    present.[65] The Commission
    acknowledges this practicality. However, in the case of Mr Gurralpa there were
    seven police members present; four restraining Mr Gurralpa and three monitoring
    the crowd. The Commission put to Sergeant Hansen that in a case such as Mr
    Gurralpa鈥檚 where seven members were present, one of the members could have
    been responsible for monitoring Mr Gurralpa鈥檚 condition during the
    restraint if so trained. Sergeant Hansen responded 鈥榯hat鈥檚 certainly
    something that I think we should look at,
    测别蝉鈥.[66]


  5. The Commission submits that 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.[67]

2.6 Recommendations
the Coroner may make under s 26(2) of the Coroners Act

  1. The recommendations which the Commission submits the Coroner should make in
    respect of the prevention of future deaths in similar circumstances are set out
    below at Schedule One.

 

3 The
death of Mr Plasto-Lehner

  1. The Commission submits that the events leading to the death of Mr
    Plasto-Lehner can be summarised as follows.


  2. Mr Plasto-Lehner was a 57 year-old man. He travelled to Darwin from Alice
    Springs on 19 December 2007 to spend Christmas with his sister鈥檚 family.


  3. Mr Plasto-Lehner鈥檚 sister, Mrs Dorothy Coleman, gave evidence that Mr
    Plasto-Lehner was in a very poor state of mental health when he arrived in
    Darwin. Although the Coleman family made several appointments on Mr
    Plasto-Lehner鈥檚 behalf for him to see a doctor between 19 December and 22
    December, Mr Plasto-Lehner was too afraid and confused to do so, refusing to
    attend each appointment.[68]


  4. Mr Plasto-Lehner was also a heavy smoker and overweight. He weighed 126
    kilograms, had a large abdomen, and suffered from a chronic obstructive airways
    disease, bronchiectasis.


  5. On Saturday 22 December 2007, Mr Plasto-Lehner left his room at the
    Mirambeena Hotel in central Darwin without telling his family where he was
    going. At 12:54pm, Louise Brennan of The Cavanagh Hotel in Darwin, rang the
    police to inform them that a male patron was behaving irrationally and was
    attempting to give away money to staff ($100) together with his ATM card. Ms
    Brennan noted that the man appeared unwell and was sweating profusely.


  6. Aboriginal Community Police Officer (ACPO) Jon Morrison and ACPO Vanessa
    Martin attended The Cavanagh Hotel and Mr Plasto-Lehner was identified as the
    person of interest, on the basis of the ATM card the staff were holding behind
    the bar on his behalf.


  7. ACPO Jon Morrison and ACPO Martin located Mr Plasto-Lehner nearby on Knuckey
    Street at approximately 3pm. Mr Plasto-Lehner was sweating and shaking and
    speaking in an incoherent
    manner.[69] ACPO Jon Morrison
    determined that Mr Plasto-Lehner needed urgent medical assistance due to his
    mental health state, and tried to convince Mr Plasto-Lehner to get into the back
    of the police caged vehicle, explaining to him that they wanted to take him to
    Royal Darwin Hospital. Mr Plasto-Lehner walked to the back of the vehicle with
    the two police members. ACPO Morrison said that when they reached the door of
    the cage, Mr Plasto-Lehner paused and said 鈥榡ust, just let me have a few
    minutes鈥 and sat on the back of the
    van.[70] ACPO Jon Morrison states
    that Mr Plasto-Lehner started speaking to himself again and then, suddenly,
    stood up, ran towards a tree on the footpath and bearhugged it, putting his
    whole body up against it. ACPO Jon Morrison said that he realised then that Mr
    Plasto-Lehner was strong and radioed for backup
    assistance.[71]


  8. Constables Adrian Kidney and Linda Sayers arrived to assist a short time
    later, approximately five to ten minutes. Constable Kidney approached Mr
    Plasto-Lehner while he was hugging the tree and had a conversation with him for
    about twenty minutes. Constable Kidney established a rapport with Mr
    Plasto-Lehner through being able to talk about AFL players that Mr Plasto-Lehner
    had mentioned. Constable Kidney said that Mr Plasto-Lehner would go very quiet
    and almost cry, saying 鈥業鈥檓 sorry, sorry to waste your
    ti尘别鈥.[72] Constable Kidney
    said that Mr Plasto-Lehner agreed to go to the hospital in the police vehicle
    with him, saying 鈥業鈥檒l go with you but I鈥檓 not gonna go with
    him鈥 pointing to ACPO Jon
    Morrison.[73] Constable Kidney said
    that as they approached the police vehicle, Mr Plasto-Lehner said
    鈥業鈥檓 not getting in the back cage, can I get in the
    产补肠办蝉别补迟鈥,[74] and that
    Constable Kidney explained to him that it was not appropriate. At this point,
    Constable Kidney said that Mr Plasto-Lehner took off his shirt and ran back to
    the tree and started hugging it
    again.[75]


  9. In the time that Constable Kidney was speaking with Mr Plasto-Lehner, three
    more police members arrived to assist, Acting Sergeant Bradley Fox, ACPO Eric
    Morrison and Constable Walter Todd. Acting Sergeant Fox was the Darwin Station
    Shift Supervisor for the evening shift on that day. Constable Kidney had
    received a call from his supervisor on his radio asking if everything was
    alright, and Constable Kidney had requested some extra male police members to
    help him put Mr Plasto-Lehner in the cage of the
    vehicle.[76]


  10. Constable Kidney approached Mr Plasto-Lehner again and convinced him to walk
    back towards the police vehicle. When Mr Plasto-Lehner was walking towards the
    police vehicle ACPO Jon Morrison and ACPO Eric Morrison each took one of Mr
    Plasto-Lehner鈥檚 arms and guided him into the back cage of Constable Kidney
    and Constable Sayer鈥檚 police vehicle.


  11. Acting Sergeant Fox told Constable Kidney to drive Mr Plasto-Lehner to
    Central Darwin Police Station for a changeover of staff before Mr Plasto-Lehner
    was taken to Royal Darwin Hospital. Mr Plasto-Lehner was kept in the locked
    caged section of the police vehicle outside the Darwin Police Station on
    Mitchell Street while the staff changeover occurred. On the best evidence, this
    changeover took 15-16
    minutes.[77]


  12. ACPO Eric Morrison and ACPO Nicolette Krepapas took over the police caged
    vehicle and drove Mr Plasto-Lehner to Royal Darwin Hospital. Acting Sergeant Fox
    and Constable Jackson followed behind in the shift supervisor鈥檚 vehicle.


  13. On the way to the hospital, Mr Plasto-Lehner was observed to be quite
    anxious and distressed, constantly shifting
    seats.[78]


  14. ACPO Morrison and ACPO Krepapas parked the police vehicle in the reserved
    police parking spot near the ambulance bay at Royal Darwin Hospital and walked
    Mr Plasto-Lehner through to the Emergency Department, accompanied by Acting
    Sergeant Fox and Constable Jackson.


  15. At 3:54pm the triage nurse, Theresa de Groot, assessed Mr Plasto-Lehner as
    Category 2, which meant that he was a high risk patient and should be attended
    to by a doctor within ten
    minutes.[79] Mr Plasto-Lehner was
    placed in the Oleander Room to wait for further medical attention. 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.


  16. There was another patient waiting for psychiatric assessment at this time,
    Ross Lenard. He was moved to the room opposite the Oleander Room when Mr
    Plasto-Lehner arrived. It was agreed that the two police members who were
    waiting with Mr Lenard could leave, and the two hospital guards, Mr Randall
    Edwards and Mr Francis Kondambu, would stay with Mr Lenard and the four police
    officers who arrived with Mr Plasto-Lehner would stay with him. Mr Edwards,
    however, developed a rapport with Mr Plasto-Lehner and Mr Edwards assisted with
    encouraging Mr Plasto-Lehner to return to the Oleander Room on the numerous
    times when he wanted to leave the room.


  17. At 4:18pm, the Registrar for the Emergency Department, Dr Elinor Cromarty,
    assessed Mr Plasto-Lehner. At 4:30pm Dr Cromarty signed a notice, pursuant to s
    34 of the Mental Health and Related Services Act (NT) which meant that Mr
    Plasto-Lehner became an involuntary patient of Royal Darwin
    Hospital.[80] Mr Plasto-Lehner
    continued to wait in the Oleander Room to see the Psychiatric Registrar, Dr
    Belinda Bautista.


  18. At some point when Mr Plasto-Lehner was in the Oleander Room he was given a
    cup of water, as well as two sandwiches which he ate. Also during that time he
    came out of the room several times to sit on the seats in the hallway outside
    the Oleander Room. Randall Edwards and some of the police members directed him
    back into the Oleander Room each time.


  19. At 4:55pm, Dr Cromarty gave Mr Plasto-Lehner 5mg of Olanzapine, an
    anti-psychotic medication.


  20. At 5:17pm, Dr Cromarty took blood samples from Mr Plasto-Lehner for the
    purpose of ruling out organic causes of his psychotic behaviour.


  21. At approximately 5:43pm, Mr Plasto-Lehner requested to go to the bathroom,
    and he was escorted by hospital security guard Mr Edwards and ACPO Eric Morrison
    to the bathroom in the fast-track area of the Accident & Emergency
    Department. Mr Edwards says that Mr Plasto-Lehner 鈥榮ort of jacked up and
    refused to go in鈥, saying that he was locked up once and that he
    can鈥檛 go in there.[81] Mr
    Edwards says that Mr Plasto-Lehner鈥檚 voice began to rise and he began to
    become agitated. After a few minutes, Mr Edwards and ACPO Eric Morrison walked
    Mr Plasto-Lehner back towards the Oleander Room. Mr Plasto-Lehner walked past
    the door of the Oleander Room and stood in the door frame of the two double
    doors which are the fire doors of the Accident & Emergency Department,
    looking outside through the ambulance bay doors. Mr Edwards says that he tried
    two or three times to get him back into the Oleander Room, gesturing him towards
    the door. Mr Edwards also says that Acting Sergeant Fox asked Mr Plasto-Lehner
    to go back into the Oleander Room. Mr Edwards says that Mr Plasto-Lehner started
    to raise his voice again and say that he wanted to go outside for some fresh air
    and to have a smoke. Mr Edwards notes that he had earlier told Mr Plasto-Lehner
    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.[82]


  22. Mr Edwards states that Mr Plasto-Lehner 鈥榳as sort of raising his
    补谤尘蝉鈥.[83] Nurse Rebecca Weir
    also gave evidence that Mr Plasto-Lehner throwing up his arms could be described
    as 鈥榳indmill鈥 arms,[84] something which is typical of psychiatric
    patients.[85]


  23. Mr Edwards states that Mr Plasto-Lehner pushed past Acting Sergeant Fox,
    taking a few steps into the foyer of the ambulance bay area, ignoring Acting
    Sergeant Fox鈥檚 instructions for him to return to the Oleander Room.
    Constable Jackson and ACPO Krepapas were standing in front of him, between him
    and the glass sliding doors of the ambulance
    bay.[86]


  24. Acting Sergeant Fox states that a few moments earlier he had read an A4
    sized piece of paper, like a hospital directive, stating that patients were not
    to be allowed outside into the ambulance bay to have a cigarette, because there
    was a risk that the person might go over the ledge at the end of the ambulance
    ramp.[87]


  25. When Mr Plasto-Lehner took a few steps into the foyer of the ambulance bay
    area, Acting Sergeant Fox grabbed Mr Plasto-Lehner by one arm and ACPO Eric
    Morrison took his other arm and Acting Sergeant Fox took Mr Plasto-Lehner down
    to the ground into a prone restraint position in the ambulance bay
    foyer.[88] This happened in the
    course of a few seconds.


  26. Once on the ground, Mr Plasto-Lehner struggled as he was held face down and
    weight was applied down on his body. Acting Sergeant Fox and ACPO Eric Morrison
    were assisted in restraining Mr Plasto-Lehner by Constable Jackson, ACPO
    Krepapas, Mr Edwards, and Patient Care Assistant (PCA) Peter Toogood. Mr
    Plasto-Lehner was restrained on the ground for approximately two
    minutes.[89]


  27. During this time, Acting Sergeant Fox and ACPO Eric Morrison applied
    significant weight to Mr Plasto-Lehner鈥檚 upper torso, trying to effect a
    鈥3 point hold鈥. Acting Sergeant Fox says that he was using all his
    physical strength and weight, trying to shift it onto Mr Plasto-Lehner鈥檚
    torso to prevent Mr Plasto-Lehner from pushing away from the
    ground,[90] and that his right knee
    was on Mr Plasto-Lehner鈥檚 left scapula. Acting Sergeant Fox says he also
    held Mr Plasto-Lehner鈥檚 head down with his left
    knee.[91] Acting Sergeant Fox said
    that he did this to prevent any fluids or blood being spat at him and to contain
    his head.[92]


  28. ACPO Eric Morrison states that he had his knee on Mr Plasto-Lehner鈥檚
    right scapula and held him in that
    position.[93]


  29. ACPO Krepapas was holding Mr Plasto-Lehner鈥檚 left arm, trying to pull
    it out from underneath him and sweep it round to his back so that he could be
    handcuffed.[94] Constable Jackson
    took hold of Mr Plasto-Lehner鈥檚 right arm and was struggling to get the
    handcuff on, as his wrists were
    large.[95]


  30. Also at this time, Mr Edwards held Mr Plasto-Lehner鈥檚 feet down,
    struggling to stop him moving.[96] PCA Toogood applied his body weight to hold his legs
    down.[97] It may be that the
    security guard Francis Kondambu was also restraining Mr Plasto-Lehner鈥檚
    legs.[98]


  31. Dr Cromarty states that she heard commotion from where she was on the
    鈥榝light deck鈥 and came down to see what was happening. She saw Mr
    Plasto-Lehner restrained face down on the floor with several police members
    lying across him and others restraining his arms and legs. Dr Cromarty says that
    when she arrived, the police members were struggling to get handcuffs on Mr
    Plasto-Lehner, and she asked if the handcuffs were really
    necessary.[99] She felt she had a
    good rapport with Mr Plasto-Lehner and she thought she might be able to help
    calm him down so that the police would release him from the restraint.


  32. Dr Cromarty says that as she tried to approach Mr Plasto-Lehner, one of the
    police members put his knee on Mr Plasto-Lehner鈥檚 head and Mr
    Plasto-Lehner鈥檚 head smacked into the
    floor.[100] At this point, Dr
    Cromarty was concerned as Mr Plasto-Lehner appeared to struggle less and his
    face was becoming quite red. Dr Cromarty states that

    I asked the
    policeman 鈥 um 鈥 I asked if they could just please ease up a little
    bit and was told 鈥 um 鈥 that they had to do this for their own
    safety and 鈥 and I should back off and I 鈥 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.[101]


  33. Dr Cromarty noticed some of her colleagues standing nearby, Dr Lai Heng
    Foong, Dr Oh and Natasha Roberts. Dr Foong also asked Acting Sergeant Fox to
    release Mr Plasto-Lehner, so that they could talk to
    him.[102] Dr Cromarty and Dr Foong
    knelt at Mr Plasto-Lehner鈥檚 head, trying to talk to him. Dr Cromarty said
    鈥榡ust try and 鈥 try and just really relax Robert, and then
    we鈥檒l 鈥 we鈥檒l get these guys off 鈥 off
    测辞耻...鈥.[103] Dr Cromarty
    says that Mr Plasto-Lehner really did seem to try to lift his head to us, and as
    he did so, she and Dr Foong could see that there was blood on the floor and a
    laceration on or near his
    eyebrow.[104] Dr Cromarty and Dr
    Foong observed that Mr Plasto-Lehner was starting to go blue in the face, and Dr
    Foong said 鈥榡ust let go of him, he鈥檚 getting
    产濒耻别鈥.[105] Dr Foong says
    that nothing happened when she said this, and that she had to say it again,
    鈥榞et off him, he鈥檚 going blue鈥 before anyone
    responded.[106]


  34. When the police members and hospital staff holding Mr Plasto-Lehner released
    him from the prone restraint hold and turned him over, he wasn鈥檛 breathing
    and he was still very
    blue.[107]


  35. Constable Jackson removed the handcuffs from Mr Plasto-Lehner and he was
    taken into the resuscitation room by Dr Foong and Dr Oh. Mr Plasto-Lehner was
    asystolic, that is no heart beat and no electric output from his
    heart.[108] PCA Hodge commenced
    CPR on Mr Plasto-Lehner.[109] Dr
    Oh intubated Mr Plasto-Lehner and he was administered
    adrenalin.[110] Mr Plasto-Lehner
    was moved shortly thereafter to the Intensive Care
    Unit.[111]


  36. The blood and fluids on the ground where Mr Plasto-Lehner had been
    restrained were temporarily covered up with a wheelchair and then were cleaned
    up by hospital staff.


  37. Mr Plasto-Lehner was later transferred into the Intensive Care Unit. He did
    not recover consciousness and died in the Intensive Care Unit on 28 December
    2007. Dr Sinton prepared the post mortem report and expressed his opinion that
    the cause of death was acute bronchopneumonia, compounded by concurrent acute
    cerebral hypoxia, acute renal failure secondary to rhabdomyolysis and chronic
    cardiomyopathy.


  38. Dr Botterill, a forensic pathologist, was requested by the Northern
    Territory Deputy Coroner to provide a review of the post mortem report, the
    circumstances of this death and the issue of restraint-associated deaths. Dr
    Botterill stated that he would have expressed the cause of death
    as:[112]

    1a Combined
    effects of restraint asphyxia, obesity-associated heart disease and chronic
    airways disease

    2 Bipolar depressive disorder.

And Dr Botterill stated:

My rationale is that it is most likely that ALL of conditions (restraint per
se, asphyxia associated with restraint, cardiac function compromise associated
with heart enlargement most probably due to obesity, heart muscle scarring most
probably due to obesity associated heart enlargement, obesity per se, chronic
airways disease) have contributed to the circumstances, additively increasing
the chance of a cardiac arrest, and that ANY of these conditions alone could
also have resulted in that cardiac arrest.

3.1 Human rights instruments and principles
relevant to the treatment of Mr Plasto-Lehner

  1. The following human rights instruments and principles are relevant to the
    treatment of Mr Plasto-Lehner.
(a) Rights to humane treatment
  1. Article 7 of the ICCPR provides that 鈥楴o one shall be subjected to
    torture or to cruel, inhuman or degrading treatment or
    辫耻苍颈蝉丑尘别苍迟鈥.[113] The aim of
    article 7 is to protect the dignity and the physical and mental integrity of the
    individual.[114]


  2. The prohibition in article 7 is complemented in the ICCPR by the positive
    requirements of article 10. Article 10(1) provides that 鈥榓ll persons
    deprived of their liberty shall be treated with humanity and with respect for
    the inherent dignity of the human
    辫别谤蝉辞苍鈥.[115] Article 10(1)
    of the ICCPR imposes this positive obligation on States because individuals who
    are deprived of their liberty are particularly vulnerable. Respect for the
    dignity of such persons must be guaranteed under the same conditions as for that
    of free persons.[116]


  3. The assessment of whether the treatment of a
    person is inconsistent with article 7 or 10 depends on all the circumstances of
    the case, such as the duration and manner of the treatment, its physical or
    mental effects as well as the sex, age and state of health of the victim.
    Accordingly, the assessment of whether the treatment is inconsistent with
    article 7 or 10 of the ICCPR is in part a subjective evaluation. Factors such as
    the victim鈥檚 age and mental health will aggravate the effect of certain
    treatment so as to bring that treatment within article 7 or
    10.[117]
(b) Right to life
  1. Article 6(1) of the ICCPR states that 鈥楨very human being has the
    inherent right to life. This right shall be protected by law. No one shall be
    arbitrarily deprived of his life鈥. It is an essential component of the
    right to life that police, by arresting and detaining individuals, take
    responsibility to care for their life.


  2. Where the actions of the state, including the actions of the police, may
    have contributed to a person鈥檚 death, state parties have a positive
    obligation to investigate the circumstances surrounding that death to determine
    whether it was an arbitrary deprivation of life, and to provide redress where a
    breach of the right to life has occurred.


  3. This obligation to investigate is a positive obligation arising from the
    right to life in article 6 of the ICCPR. Article 2(3) of the ICCPR also requires
    state parties to ensure that any persons whose rights have been violated shall
    have an effective remedy in respect of the violation of that
    right.
(c) Breaches of human rights
  1. For the reasons set out below, the Commission submits that the treatment of
    Mr Plasto-Lehner by the Northern Territory police was inconsistent with both
    article 10(1) of the ICCPR and the prohibition on inhuman and degrading
    treatment in article 7 of the ICCPR in the following respects:

    • the use of the prone restraint; and


    • the failure to convey Mr Plasto-Lehner directly to hospital, including his
      detention alone in a police vehicle for about 15 minutes.


  2. The Commission also submits that the Northern Territory police failed to
    properly care for Mr Gurralpa鈥檚 health and life during his detention.


  3. Finally, the Commission submits that the failure to properly investigate Mr
    Plasto-Lehner鈥檚 serious injury, and ultimate death, was inconsistent with
    the obligation to provide an effective remedy imposed by articles 2(3) and 6 of
    the ICCPR.

3.2 The prone restraint of Mr Plasto-Lehner at
Royal Darwin Hospital

  1. In the Commission鈥檚 submission, there are three issues of concern in
    respect of the use of force to restrain Mr Plasto-Lehner at Royal Darwin
    Hospital:

    • the decision to use force;


    • the degree of force used; and


    • the police failure to monitor Mr Plasto-Lehner while he was
      restrained.


  2. While some hospital staff were involved in the restraint of Mr
    Plasto-Lehner, the Commission considers that the police remained in control of
    the restraint of Mr Plasto-Lehner at all times. Accordingly, the Commission
    restricts its observations in respect of the use of force to the police members
    involved.
(a) The decision to use force
  1. The Commission submits that the decision to use force on Mr Plasto-Lehner
    was not necessary in the circumstances.


  2. When Mr Plasto-Lehner did not go back into the Oleander Room as he was being
    directed and walked a few steps towards the ambulance bay foyer, Acting Sergeant
    Fox decided to employ ground stabilisation techniques.


  3. In deciding how to respond to Mr Plasto-Lehner鈥檚 failure to comply
    with his directions, Acting Sergeant Fox was required to assess whether the use
    of force was necessary in the circumstances. Section 27 of the Criminal Code (NT) states that the use of force, not being such force likely to cause
    death or serious harm, will not be justified if 鈥榰nnecessary force鈥
    is used.


  4. These statutory requirements are re-stated, in part, in the Defensive
    Tactics Manual which
    states:[118]

    The basis
    of this legislation requires that force used must be proportionate to the
    objective and it must be necessary...

    It is important that members have a full knowledge of the Statutory Authority
    that allows members of the Police to use force during the performance of their
    duties.


  5. Relevantly, the Defensive Tactics Manual states that a 鈥楽afety
    First鈥 philosophy underpins the operating methods of police members. This
    philosophy promotes the avoidance of force where possible and the minimum use of
    force where it is
    unavoidable.[119]


  6. In assessing the range of options which were open to Acting Sergeant Fox and
    whether the use of force was necessary, it is relevant that there were a number
    of police members present to assist and contain the situation, as well as two
    security guards. In particular, ACPO Krepapas and Constable Jackson were
    situated between Mr Plasto-Lehner and the glass sliding doors to the ambulance
    bay. The Commission submits that other options were reasonably available to the
    police members:
    • trying to block Mr Plasto-Lehner鈥檚 access
      to the green button that activated the sliding doors or the sliding doors
      themselves;


    • seeking to persuade Mr
      Plasto-Lehner that he could go out another door for fresh air and a cigarette
      and offer to take him there; or


    • otherwise
      temporarily distracting him, using strategies for dealing with mentally ill
      persons.
  7. In the Commission鈥檚 submission, it was not necessary for Acting
    Sergeant Fox to use force in the circumstances. There were a range of options
    available to him that did not require the use of force, and a significant number
    of police members present to assist. Nor, as will be set out below, was the
    degree of force deployed proportionate to the circumstances.


  8. The Commission submits that the decision to use force on Mr Plasto-Lehner
    demonstrates that greater training is needed for Northern Territory police
    members in dealing with mentally ill persons. Recommendations for training are
    outlined below at paragraphs 140 - 142.
(b) The degree of force used in restraining Mr
Plasto-Lehner
  1. The Commission submits that the degree of force used by the police members
    was not proportionate to the circumstances.


  2. As set out above, when Mr Plasto-Lehner failed to comply with his
    directions, Acting Sergeant Fox employed ground stabilisation techniques, and in
    particular the prone restraint accompanied by the three point hold. He also used
    his knee to restrain Mr Plasto-Lehner鈥檚 head. Three other police members
    assisted with the prone restraint of Mr Plasto-Lehner.


  3. Mr Plasto-Lehner was a mentally ill person. He was distressed and anxious.
    He had been scheduled under the Mental Health and Related Services Act (NT) and was an involuntary patient of the hospital.


  4. Mr Plasto-Lehner had not committed or attempted to commit any offence. Aside
    from his failure to comply with Acting Sergeant Fox鈥檚 instructions for him
    to return to the Oleander Room, Mr Plasto-Lehner had been compliant with
    directions from the police members, security guards and the hospital staff.


  5. Mr Plasto-Lehner presented with a number of risk factors that made him more
    susceptible to death by positional asphyxia, including:

    • obesity, particularly a 鈥榖ig belly鈥;


    • pre-existing heart disease;


    • significant physical exertion during restraint; and


    • acute psychosis and agitation.


  6. Other visible factors which were relevant include the age of Mr
    Plasto-Lehner, and that he was a heavy smoker. In addition, the number of police
    members involved in the prone restraint of Mr Plasto-Lehner increased the
    intensity of the restraint, and it may be that the knee holding Mr
    Plasto-Lehner鈥檚 head to the ground also increased the risk of positional
    asphyxia. As described by Dr Foong:

    ...he must have been full weight
    because this guy couldn鈥檛 turn his ...head at all, and that鈥檚 when
    he started bleeding, and that鈥檚 when I got a bit worried, and said, you
    know, like 鈥 and I could see that he was struggling initially, not
    struggling any more and then he went from a pink colour to
    blue.[120]


  7. In the Commission鈥檚 submission the degree of force used by police
    members on Mr Plasto-Lehner was not a necessary and proportionate response to
    the situation. The police members failed to take account of the fact that Mr
    Plasto-Lehner was mentally ill, in a distressed and anxious state, and by and
    large had been compliant with police directions. Moreover, the decision to put
    Mr Plasto-Lehner in a prone restraint position, such that he was restrained by
    several people while being handcuffed, failed to properly take into account the
    risk factors of positional asphyxia relevant to Mr Plasto-Lehner.


  8. Additionally, Acting Sergeant Fox used his knee to restrain Mr
    Plasto-Lehner鈥檚 head in a manner inconsistent with any techniques taught
    to Northern Territory police
    members.[121]


  9. In the Commission鈥檚 submission, the force used on Mr Plasto-Lehner was
    excessive and was inconsistent with both the right of a detained person to be
    treated humanely in article 10(1) of the ICCPR and the prohibition on inhuman
    and degrading treatment in article 7 of the ICCPR. Moreover, the fact that Mr
    Plasto-Lehner was suffering an acute psychotic episode is likely to have
    aggravated the effect of the treatment. That is, it is likely that the degree of
    force used would have caused Mr Plasto-Lehner a very high level of distress and
    fear.
(c) The police failure to monitor Mr Plasto-Lehner
while he was restrained
  1. It is an essential part of the right to life that the State, by detaining
    individuals, takes responsibility to care for their life.


  2. These obligations are implemented, in part, in the Northern Territory Police
    Custody Manual, in Part One 鈥 Care and Safety of Persons in Custody (Care
    and Safety General Order) and in the Defensive Tactics Manual.


  3. The Care and Safety General Order requires police members to act with an
    active concern for the safety and welfare of
    detainees.[122] The Defensive
    Tactics Manual requires police members to monitor the condition of a person
    immediately after restraint in order to minimise a risk of positional
    asphyxia.


  4. As noted above at paragraphs 59 - 63, the Commission considers that the
    obligation to monitor a person immediately after use of the prone restraint is
    not sufficient to prevent a loss of life.


  5. When Mr Plasto-Lehner was being restrained there were clear signs that his
    situation was worsening, but he was not released from the prone restraint
    position in time to prevent his death. Mr Plasto-Lehner struggled for a
    prolonged period; his face went a dark red colour; and then his face went blue.
    The police members did not monitor his condition directly and failed to heed a
    number of warning calls from the doctors present and calls for them to
    鈥榞et off鈥.


  6. A number of police members say that the failure to heed warnings was because
    they did not hear them as a result of being so focused on restraining Mr
    Plasto-Lehner. For example, ACPO Krepapas says that 鈥業 didn鈥檛 hear
    anything they were saying, but I know that they were saying
    蝉辞尘别迟丑颈苍驳鈥.[123] Research
    has demonstrated that police members acting in a high stress situation have
    reduced sensory perception, such as 鈥榯unnel vision鈥 and diminished
    hearing.[124] This has
    implications for the training of police members in how to respond in high-stress
    situations, and the importance of having one police member designated to monitor
    the health and condition of the restrained person where there are multiple
    police members present. In respect of the training of police members, it has
    been suggested that in a high-stress situation, police members will revert to an
    experiential-thinking mode, which is thinking based on past experiences produced
    without conscious thought.[125] Accordingly, it is recommended that police members are not only trained in the
    skills to respond to warning signs of positional asphyxia but that these skills
    are tested through repetition under stress so that the trained response
    will take precedent over any previously learned or experienced
    behaviour.[126]


  7. The Commission submits that the Northern Territory police failed to properly
    care for Mr Plasto-Lehner鈥檚 life during his detention for the following
    reason:

    • the police members failed to respond sufficiently quickly to the directions
      of the doctors present that Mr Plasto-Lehner needed to be released immediately
      from the restraint position.


  8. The Commission submits that if the police members had been trained to
    monitor the condition and health of a person during restraint, and to be alert
    to the warning signs of the downward spiral of positional asphyxia, it is
    possible that Mr Plasto-Lehner鈥檚 death may have been avoided.
(d) Training of Northern Territory police members in
dealing with mentally ill persons
  1. The Commission submits that the use of force on Mr Plasto-Lehner discloses a
    significant shortcoming in police training for dealing with persons with a
    mental illness. While police members receive some training relevant to when they
    should exercise their powers of detention under the Mental Health and Related
    Services Act     (NT), it appears that members receive very little or no
    training in how best to manage people with mental illness and the sorts of
    issues that may arise when taking them into custody. In particular, for police
    involved in conveying people for assessment at Royal Darwin Hospital, there is
    apparently no training about when it is appropriate for police to seek to
    restrain a patient and when this role is more appropriate for hospital
    staff.


  2. Ms Bronwyn Hendry, Director of Mental Health, Department of Health and
    Families, gave evidence that her Department provided an hour and a half training
    to all new police recruits on recognising the signs and symptoms of mental
    illness, and that she was aware that they also received some legal training on
    the Mental Health and Related Services Act (NT), but that was the extent
    of the training that police members received regarding mental illness, to her
    knowledge.[127] In Ms
    Hendry鈥檚 view, the training of police in this regard was inadequate for
    them to develop the skills and confidence to deal effectively with mentally ill
    persons.[128] Ms Bronwyn Hendry
    explained the impact of this:

    Well, I think when people don鈥檛
    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?

    BRONWYN MARY HENDRY: Yes.[129]


  3. The Commission submits that Northern Territory police members should be
    comprehensively trained in how to deal appropriately with people with mental
    illness and practical guidelines should be developed. Such training should
    include an outline of the standards and principles that apply to mentally ill
    persons receiving medical attention, so that police members are aware that the
    use of force should be treated as a matter of last resort when a person is
    apprehended for the purposes of mental health assessment and treatment. The
    Commission submits that police members should be made aware of the United
    Nations Principles for the Protection of Persons with Mental Illness and for the
    Improvement of Mental Health
    Care    [130] (the 鈥楳ental
    Illness Principles鈥) as a reference point. The relevant principles
    include:

    • Principle 8(2): every patient is to be protected from harm, including
      unjustified medication abuse by other patients, staff or others or other acts
      causing mental distress or physical discomfort;


    • Principle 9(1): every patient shall have the right to be treated in the
      least restrictive environment...; and


    • Principle 11: physical restraint ... of a patient shall be employed ... only
      when it is the only means available to prevent immediate or imminent harm to the
      patient or others.

3.3 Transporting Mr Plasto-Lehner to Royal Darwin
Hospital

  1. The Commission submits that Mr Plasto-Lehner鈥檚 conveyance to Royal
    Darwin Hospital via Darwin Police Station was inconsistent with the right of a
    detained person to be treated humanely in article 10(1) of the ICCPR.


  2. The Commission is also concerned that Mr Plasto-Lehner was transported in a
    police caged vehicle to Royal Darwin Hospital. The Commission submits that being
    held in a locked caged vehicle can be a punitive and degrading experience for a
    person who is being transported for an urgent mental health assessment.


  3. It is Northern Territory police policy that:

    A person apparently
    suffering from mental illness should normally not be conveyed in a police
    vehicle, particularly a caged vehicle. Where immediate apprehension is effected
    this may be unavoidable and, wherever practicable, mental health or other
    medical professionals should be requested to transport mentally ill
    persons.[131]


  4. One of the reasons why a police caged vehicle is inappropriate for
    transporting people suffering from mental illness is outlined in clause 24.4 of
    the Northern Territory Police General Order on the Transport of Persons in
    Custody, which states that:

    Members need to be aware of the hazards
    involved in transporting a person in custody in the caged section of a police
    vehicle. These areas, by necessity, do not have:

    ....

    24.4 any means of communication.


  5. Where a person is suffering from mental illness it is critically important
    that the person is continually monitored. In the case of Mr Plasto-Lehner, being
    able to speak to someone and be reassured by that person helped to alleviate his
    state of anxiety and confusion.


  6. Persons detained by police for the purpose of a mental health assessment
    should be treated with humanity and dignity. When a person who is suffering from
    mental illness is detained and transported in a locked cage in a police vehicle,
    this can be a punitive and degrading experience to a vulnerable person and
    should be a measure of last resort.


  7. In the present case, the Commission submits that the use of a police caged
    vehicle was not a last resort. It was open to the police to request an ambulance
    to take Mr Plasto-Lehner to the hospital. It was also open to the police to
    convey Mr Plasto-Lehner in a marked or unmarked police sedan, without detaining
    him in a locked cage in a public space.


  8. It is also noted that no request was made by the police for assistance from
    Mental Health Services. If this request had been made, it may have been possible
    that Mr Plasto-Lehner could have been accompanied by a mental health
    professional.


  9. Additionally, and most importantly, the Commission submits that the decision
    to convey Mr Plasto-Lehner to Royal Darwin Hospital via Darwin Police Station
    was
    鈥榰苍补肠肠别辫迟补产濒别鈥.[132] The effect of this decision was to significantly increase the time that Mr
    Plasto-Lehner spent in the locked caged section of the police vehicle, an
    experience which appears to have contributed to his increasing distress and
    anxiety.


  10. The Commission further submits that the overall circumstances of Mr
    Plasto-Lehner鈥檚 transport to Royal Darwin Hospital constituted a breach of
    his right as a detained person to be treated with humanity and with respect for
    his inherent dignity. This human right is outlined in article 10(1) of the ICCPR
    and the Mental Illness Principles specifically recognise the application of the
    right to people with mental illness:

    All persons with a mental
    illness, or who are being treated as such persons, shall be treated with
    humanity and respect of the inherent dignity of the human
    person.[133]


  11. The Commission submits that, as discussed above at paragraph 106, for a person with a mental illness to be
    treated with humanity and with respect for his or her inherent dignity, the
    vulnerability and particular needs of that person must be taken into
    account.


  12. The Commission notes that when asked about the Memorandum of Understanding
    or what training they had had in respect of communicating and negotiating with
    mentally ill persons, many of the police members involved in the apprehension
    and conveyance of Mr Plasto-Lehner state that they had not received training on
    these matters.[134]


  13. The Commission also submits that there is insufficient written procedural
    guidance provided to police members on the transport of persons suffering mental
    illness, particularly those who are being transported solely for mental
    assessment. For example, Part 6 of the Northern Territory Police Custody Manual,
    which is dedicated to interactions between police members and mentally ill
    persons, could provide much clearer and concise guidance which explains,
    step-by-step, the considerations to be taken into account when exercising the
    power to immediately apprehend a person 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;


    • explaining 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 assessment for a person suffering mental
      disturbance;


    • identifying what would be the appropriate form of transport to take the
      person there, including whether an ambulance could be requested, or whether
      Mental Health Services could transport the person;


    • ensuring that the person is promptly taken to the most appropriate place of
      assessment by the most direct route;


    • outlining members鈥 responsibilities in respect of contacting 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.


  14. The Commission recommends that Part 6 of the Northern Territory Police
    Custody Manual should be revised accordingly. In addition, the General Order on
    Transport should be similarly revised.


  15. The Commission is also concerned that ACPO police members in particular may
    not receive essential training in respect of dealing with mentally ill persons
    and their obligations in respect of mentally ill persons. With respect to Mr
    Plasto-Lehner, ACPO Jon Morrison radioed twice for police backup within a period
    of approximately 20 minutes. In this time, ACPO Jon Morrison could have also
    requested an ambulance to attend Knuckey Street, which the Commission suggests
    would have been the most appropriate course of action.


  16. The Commission recommends that there be greater training on the terms of the
    Memorandum of Understanding for all police members as well as more in-depth
    training on dealing with mentally ill persons in the course of their duties.

3.4 The police investigation into the serious
injury and death of Mr Plasto-Lehner

  1. The Commission submits that the failure to comply with a number of the
    requirements of Part 10 of the Custody Manual 鈥 Deaths in Custody and
    Investigation of Serious And/Or Fatal Incidents Resulting From Police Contact
    with the Public (Deaths in Custody General Order) was inconsistent with the
    State鈥檚 obligation to provide an effective remedy in respect of Mr
    Plasto-Lehner鈥檚 right to life, as required by articles 2(3) and 6 of the
    ICCPR.


  2. The Commission is concerned that there was a failure to comply with a number
    of the requirements of Part 10 of the Custody Manual 鈥 Deaths in Custody
    and Investigation of Serious And/Or Fatal Incidents Resulting From Police
    Contact with the Public (Deaths in Custody General Order).


  3. The Deaths in Custody General Order requires that there be a police
    investigation into a serious or fatal incident resulting from police contact
    with the public. The Commission is concerned that a police investigation was not
    fully undertaken until Mr Plasto-Lehner鈥檚 death on 28 December 2007. This
    is despite the fact that a serious incident resulting from police contact with
    the public had occurred on 22 December 2007, namely that Mr
    Plasto-Lehner鈥檚 heart had stopped as a result of being held in a prone
    restraint position and handcuffed, with the weight of several persons on top of
    him.


  4. The Commission submits that this was in breach of the Deaths in Custody
    General Order and this breach compromised the investigation which was initiated
    after Mr Plasto-Lehner鈥檚 death. As discussed below, it appears that there
    was a failure to segregate the police members who were involved in the serious
    incident which led to the death of Mr Plasto-Lehner, there was a failure to
    prevent communication between these police witnesses, and there was a failure to
    establish a crime scene and preserve the evidence.


  5. As noted in the Deaths in Custody General Order, where serious injury or the
    death of an individual occurs as a result of police contact with the public,
    this can undermine the reputation of, and public confidence in, the police
    force.[135] It is essential that
    the police investigation into the serious injury or death is impartial, thorough
    and completed in an objective and timely
    manner.[136] Where this does not
    occur, it is a breach of the Deaths in Custody General Order. It also breaches
    the obligation to provide an 鈥榚ffective remedy鈥 in respect of an
    individual鈥檚 human rights, in this case the right to
    life.[137]
(a) Obligations of the senior police member arising
upon the report of an incident
  1. Clause 3.3 of the Deaths in Custody General Order states
    that:

    Where the death or serious incident was, or appears to have
    been, as a result of police contact with the public, the first senior member
    responding to the scene shall immediately advise the Duty Superintendent or
    where appropriate the Divisional Superintendent. The senior member will ensure
    that the scene is secured and only essential personnel involved in the
    preservation of life are allowed access. The senior member will also ensure that
    all witnesses to the incident are identified, that communication between such
    witnesses is prevented and arrangements are made for their immediate
    segregation, particularly any Police members directly involved in the
    incident.


  2. 鈥楽enior member鈥 is not defined in the Deaths in Custody General
    Order. It appears that Detective Sergeant Derek Maurice was that senior police
    member in the present case. Detective Sergeant Maurice was called to attend
    Royal Darwin Hospital on 22 December 2007. Detective Sergeant Maurice鈥檚
    notes from his notebook indicate that he arrived at Royal Darwin Hospital at
    6:50pm. Detective Sergeant Maurice states that by the time he arrived, the blood
    and bodily fluids had been cleaned up. He says he spoke with Kim Lavender and
    Doctor Surr at 7:30pm, and conducted the four interviews of the police members
    back at Darwin Police Station at the end of their shift.


  3. In the Commission鈥檚 view, on 22 December 2007 Detective Sergeant
    Maurice failed to (i) prevent communication between the witnesses; and (ii) to
    immediately segregate the witnesses, particularly those police members directly
    involved in the incident, as required by cl 3.3 of the Deaths in Custody General
    Order.
(b) Police member responsibilities under the Deaths
in Custody General Order
  1. Where a police member is involved in a serious or fatal incident, their
    obligations include being interviewed before the completion of their shift
    (cl 6.1.2). The Commission is concerned that there was only technical
    compliance with this obligation. Each of the officers declined to participate in
    the interview prior to the completion of their shift on the ground that they
    wished to seek legal advice. Clause 6.1.3 of Part 6 notes that police members
    are to be given the opportunity to seek legal advice. While this is appropriate,
    it should not be applied in such a way as to undermine the apparent purpose of
    the requirement in cl 6.1.2: namely, to ensure that the most contemporaneous
    statement possible is obtained.


  2. In the present matter, statements were not ultimately taken until 28
    December 2007. This is an unacceptable delay. The Commission notes that in the
    Gurralpa matter, Constables Lees and Berlin confirm that they received advice
    from Vince Kelly of the Northern Territory Police Association over the phone
    prior providing a statement on the day of the
    incident.[138] The Commission
    submits that the General Order should be amended to reflect that where advice is
    sought by a member who wishes to receive advice and it is not possible to do so
    before the end of the member鈥檚 shift, the member should be interviewed as
    soon as reasonably possible.

4 Recommendations

  1. The recommendations which the Commission submits that the Coroner should
    make in respect of the prevention of future deaths in similar circumstances and
    the administration of justice are set out below at Schedule One.

 

SCHEDULE ONE: RECOMMENDATIONS

The Commission submits that the Coroner should make the following
recommendations with respect to the prevention of future deaths in similar
circumstances and the administration of justice.

Prone restraint and positional asphyxia

  1. The Northern Territory Police should ensure that all members are trained and
    re-trained using reality based techniques to ensure an understanding of
    positional asphyxia which should include:

    1. the correlation between restraint positions and positional asphyxia;


    2. the risk factors;


    3. the signs and symptoms of positional asphyxia; and


    4. the prevention strategies to reduce the likelihood of positional asphyxia
      death, including identifying persons at risk and avoiding the prone restraint
      unless absolutely necessary.


  2. The Northern Territory Police training on the risk factors associated with
    positional asphyxia be extended to include:

    1. middle-aged Aboriginal men as a risk group; and


    2. the use of the term 鈥榖ig bellies鈥 as a risk factor, in
      recognition that obesity may be a factor that is difficult to
      judge.


  3. The Northern Territory Police should ensure that all members are trained and
    re-trained to monitor the health of persons where practicable during the use of
    the prone restraint, as well as immediately after the use of the prone
    restraint.

Treatment of mentally ill persons in custody

  1. 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. This could include retaining a mental
    health expert to provide training to police members on matters such
    as:

    1. communication strategies with mentally ill persons, including how to
      establish a rapport and calm down a distressed person;


    2. control tactics, including using distraction as a means of de-escalating an
      aggressive situation, verbal forms of restraint, containment strategies;
      and


    3. identifying symptoms and understanding changes in behaviour of mentally ill
      persons to be able to respond appropriately.

The training
should ensure that all members develop and retain the skills and confidence to
treat mentally ill persons appropriately and with respect.

  1. The Northern Territory Police should amend the General Order on Transport of
    Persons in Custody, and Part 6 of the Custody Manual 鈥 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:

    1. assessing whether each of the requirements of s 32A of the Mental Health Act
      have been met;


    2. communication strategies for dealing appropriately with a person suffering
      mental disturbance;


    3. calling Mental Health Services to see whether they could provide a field
      assessment at short notice or provide any assistance;


    4. locating the nearest place of treatment for a person suffering mental
      disturbance;


    5. identifying the appropriate form of transport, including whether an
      ambulance could be requested, or whether Mental Health Services could provide
      transport;


    6. ensuring that the person is promptly taken to the most appropriate place of
      assessment by the most direct route;


    7. outlining members鈥 responsibilities to contact the place of treatment
      to advise they are bringing a person in, and what their symptoms are;


    8. directing members to ensure that the appropriate forms are filled out and
      provided to the place of treatment; and


    9. providing guidance on when it is appropriate for police members to remain at
      the place of treatment and when they should
      leave.

Police investigations of serious or fatal
incidents resulting from police contact with the public

  1. The Northern Territory Police should make the following amendments to Part
    10 of the Northern Territory Policy Custody Manual 鈥 Deaths in Custody and
    Investigation of Serious and/or Fatal Incidents Resulting from Police Contact
    with the Public:

    1. Part 6 of the Order be amended to ensure that police members鈥
      responsibilities arise in respect of all incidents defined by the Order, not
      just in respect of fatal incidents.


    2. Clause 6.1.2 of the Order be amended to 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鈥檚 shift, the member should be interviewed as soon as
      reasonably practicable
      thereafter.

[1] Exhibit 24 鈥 A.Artwohl,
鈥Perceptual and Memory Distortion During Officer-Involved
厂丑辞辞迟颈苍驳蝉鈥.

[2] Exhibit
22 - Statement of Gerald Brendon Oliver dated 26 February, Annexure 1, p 1.
Evidence of Jessica Wilson on 26 February 2009, p 77 of the
transcript.

[3] Unit 036: Exhibit
22 - Statement of Gerald Brendon Oliver dated 26 February, Annexure 1, p
1.

[4] Statement of Brendan Berlin
dated 1 January 2008, p 2 at Folio C of the Police
Brief.

[5] Evidence of Brendan
Berlin on 2 March 2009, p 270 of the transcript. Evidence of Peggy Rankin on 27
February 2009, p 171 of the transcript. Exhibit 15 鈥 Notebook of Brendan
Berlin pp 26-29. See also, Evidence of Marcus Lees on 2 March 2009, p 327 of the
transcript.

[6] Evidence of
Brendan Berlin on 2 March 2009, p 271 of the transcript. Evidence of Marcus Lees
on 2 March 2009, p 328 of the
transcript.

[7] Exhibit 22 -
Statement of Gerald Brendon Oliver dated 26 February, Annexure 1, p
1.

[8] Evidence of Neil James on 27
February 2009, p 204 of the
transcript.

[9] Evidence of Brendan
Berlin on 2 March 2009, p 272 of the transcript. Evidence of Marcus Lees on 2
March 2009, p 328 of the transcript. Statement of Simeon Moscoa, dated 15
January 2008, pp 16, 18, Folio B of Police Brief. Statement of Jessica Wilson,
dated 15 January 2008, pp 6, 11-12, Folio B of Police Brief. Statement of
Genevieve Smith dated 2 January 2008, p 9, Folio B of Police
Brief.

[10] Evidence of Brendan
Berlin on 2 March 2009, p 288 of the transcript. Evidence of Neil James on 27
February 2009, p 205 of the
transcript.

[11] Evidence of
Brendan Berlin on 2 March 2009, p 274-5 of the transcript. Evidence of Marcus
Lees on 2 March 2009, p 324 of the transcript. Evidence of Devrim Kanyilmaz on 3
March 2009, p 393-4 of the
transcript.

[12] Evidence of
Marcus Lees on 2 March 2009, p 335-7 of the transcript. Evidence of Brendan
Berlin on 2 March 2009, p 278 of the
transcript.

[13] Evidence of
Devrim Kanyilmaz on 3 March 2009, p 394 of the
transcript.

[14] Evidence of
Marcus Lees on 2 March 2009, p 337 of the transcript. Evidence of Devrim
Kanyilmaz on 3 March 2009, p 394 of the
transcript.

[15] Evidence of
Brendan Berlin on 2 March 2009, p 287-9 of the transcript. Evidence of Marcus
Lees on 2 March 2009, p 356 of the transcript. Evidence of Devrim Kanyilmaz on 3
March 2009, p 401-2 of the transcript. See also evidence of Neil James on 2
March 2009, p 229 of the
transcript.

[16] Constable Berlin
described the struggle as nine out of ten, Constable Lees as seven out of ten,
Constable Kanyilmaz described the struggle as 鈥榲ery high up on the
scale鈥: Evidence of Brendan Berlin on 2 March 2009, p 277 of the
transcript. Evidence of Marcus Lees on 2 March 2009, p 339 of the transcript.
Evidence of Devrim Kanyilmaz on 3 March 2009, p 395 of the
transcript.

[17] Evidence of Neil
James on 27 February 2009, p 206-7 of the
transcript.

[18] Evidence of Neil
James on 2 March 2009, p 235 of the
transcript.

[19] Evidence of Neil
James on 27 February 2009, p 209 of the
transcript.

[20] Evidence of
Marcus Lees on 2 March 2009, p 338 of the
transcript.

[21] Evidence of
Sergeant Hansen on 10 March 2009, p 940 of the
transcript.

[22] Evidence of Neil
James on 27 February 2009, p 207 of the transcript. Evidence of Marcus Lees on 2
March 2009, p 339 of the transcript. Evidence of Melissa Kennedy on 3 March
2009, p 371 of the
transcript.

[23] Evidence of
David Wilson on 3 March 2009, p 445-7 of the transcript. Evidence of Ben Parfitt
on 3 March 2009, p 421 of the
transcript.

[24] Evidence of
Melissa Kennedy on 3 March 2009, p 369-70 of the
transcript.

[25] Evidence of
Marcus Lees on 2 March 2009, p 342-3 and 346 of the
transcript.

[26] Evidence of
Melissa Kennedy on 3 March 2009, p 373 of the
transcript.

[27] Exhibit 22 -
Statement of Gerald Brendon Oliver dated 26 February, Annexure 1, p
1.

[28] Statement of Nicole Bouma
dated 10 January 2008, p 5, Folio B of Police
Brief.

[29] Exhibit 6 鈥
Report of Dr Botterill dated 11 February
2009.

[30] Evidence of Dr
Botterill on 5 March 2009, p 661 of the transcript.

[31] This estimate is taken from
the times the members logged their arrival and the time the ambulance was
called: Exhibit 22 - Statement of Gerald Brendon Oliver dated 26 February,
Annexure 1, p 1.

[32] A.Leigh,
G.Johnson, A.Ingram, Deaths in Police Custody: Learning the Lessons, Police Research Series Paper 26, United Kingdom, 1998, p 48.

[33] R.L.O鈥橦alloran and
J.G.Frank, 鈥楢sphyxial Death During Prone Restraint Revisited: A Report of
21 Cases鈥, (2000) 21(1) The American Journal of Forensic Medicine and
Pathology 39, at Additional Documents Folio in Police Brief, Document 2, p
19. See also, evidence of Dr Botterill on 5 March 2009, p 654 of the
transcript.

[34] R.L.O鈥橦alloran and J.G.Frank, op cit, p
19.

[35] US Department of
Justice, 鈥楶ositional Asphyxia 鈥 Sudden Death鈥, National Law
Enforcement Technology Centre, June 1995, p
2.

[36] D.Robison, 鈥楽udden
In-Custody Death Syndrome鈥, (2005) 27 Topics in Emergency Medicine 36, 36.

[37] R.L.O鈥橦alloran and J.G.Frank, op cit, p
19.

[38] R.L.O鈥橦alloran and
J.G.Frank, op cit, p 1.

[39] Human Rights and Equal Opportunity Commission, Social Justice Report 2005, Chapter 2; B. Pink and P.Allbon, The Health and Welfare of
Australia鈥檚 Aboriginal and Torres Strait Islander Peoples, 2008, p 103
(see also Chapters 7 and 8 generally).

[40] Evidence of Dr Botterill on
5 March 2009, p 669 of the
transcript.

[41] R.L.O鈥橦alloran and J.G.Frank, op cit, p
14.

[42] R.L.O鈥橦alloran and
J.G.Frank, op cit, p 14.

[43] Osman v United Kingdom (1998) 29 European Human Rights Reporter 2452 at
[115]; Keenan v United Kingdom [2001] ECHR 242 (3 April 2001), within the
meaning of the equivalent provision in the Convention for the Protection of
Human Rights and Fundamental
Freedoms.

[44] Human Rights
Committee, General Comment No.6: The right to life (Art 6): 30/04/82, CCPR
General Comment No.6 at [5].

[45] Lantsov v Russian Federation, Human Rights Committee, Communication No.
763/1997: CCPR/C/74/D/763/1997 at
[9.2].

[46] Statement of Russell
Nichols dated 7 January 2008, pp 2, 3, at Folio B of the Police
Brief.

[47] See, for example,
evidence of Brendan Berlin on 2 March 2009, p 288-9 of the
transcript.

[48] Exhibit 17
(Confidential) - Northern Territory Police Operational Safety and Tactics
Training Unit, Defensive Tactics Manual, 2006, p
24.

[49] Evidence of Marcus Lees
on 2 March 2009, p 343 of the
transcript.

[50] Evidence of
Marcus Lees on 2 March 2009, p 346 of the
transcript.

[51] Exhibit 17
(Confidential) - Northern Territory Police Operational Safety and Tactics
Training Unit, Defensive Tactics Manual,
2006.

[52] Exhibit 17
(Confidential) 鈥 op cit, p
22.

[53] Exhibit 17
(Confidential) 鈥 op cit, p
23.

[54] Exhibit 17
(Confidential) 鈥 op cit, p
24.

[55] Exhibit 17
(Confidential) 鈥 op cit, p
25.

[56] Exhibit 18 in the
Plasto-Lehner inquest: Statement of Stephen Nalder dated 3 March 2009,
[4].

[57] Exhibit 18 in the
Plasto-Lehner inquest: Statement of Stephen Nalder dated 3 March 2009,
[7].

[58] Evidence of Devrim
Kanyilmaz on 3 March 2009, p 411 of the
transcript;

[59] Evidence of Neil
James on 2 March 2009, p 230 of the transcript; Evidence of Brendan Berlin on 2
March 2009, p 289 of the transcript; Evidence of Marcus Lees on 2 March 2009, pp
346, 354-5 of the transcript; Evidence of Melissa Kennedy on 3 March 2009, p 376
of the transcript.

[60] Evidence
of Neil James on 2 March 2009, p 228 of the transcript; Evidence of Melissa
Kennedy on 3 March 2009, p 377 of the transcript; Evidence of Devrim Kanyilmaz
on 3 March 2009, pp 404, 409 of the transcript; Evidence of David Wilson on 3
March 2009, p 456 of the
transcript.

[61] Evidence of
Sergeant Hansen on 10 March 2009, p 940-1 of the
transcript.

[62] Exhibit 19 in
the Plasto-Lehner inquest: Document prepared by Sergeant Hansen,
undated.

[63] Evidence of
Sergeant Hansen on 10 March 2009, p 941 of the
transcript.

[64] Evidence of
Sergeant Hansen on 10 March 2009, p 939 of the
transcript.

[65] Evidence of
Sergeant Hansen on 10 March 2009, p 959 of the
transcript.

[66] Evidence of
Sergeant Hansen on 10 March 2009, p 959-60 of the
transcript.

[67] Exhibit 17
(Confidential) 鈥 op cit, p
24.

[68] Evidence of Dorothy
Coleman on 10 March 2009, p 885 of the transcript. See also statement of Dorothy
Coleman dated 3 January 2008, p 7, Folio 3 of the Police
Brief.

[69] Statement of Jon
Morrison dated 28 December 2007, pp 3-4, Folio 1 of the Police
Brief.

[70] Statement of Jon
Morrison dated 28 December 2007, p 5, Folio 1 of the Police
Brief.

[71] Statement of Jon
Morrison dated 28 December 2007, p 5, Folio 1 of the Police
Brief.

[72] Evidence of Adrian
Kidney on 4 March 2009, p 475 of the
transcript.

[73] Statement of
Adrian Kidney dated 28 December 2007, p 7, Folio 1 of the Police
Brief.

[74] Statement of Adrian
Kidney dated 28 December 2007, p 7, Folio 1 of the Police
Brief.

[75] Evidence of Adrian
Kidney on 4 March 2009, p 476 of the
transcript.

[76] Evidence of
Adrian Kidney on 4 March 2009, p 476 of the
transcript.

[77] Evidence of
Bradley Fox on Monday 9 March 2009, p 808 of the
transcript.

[78] Evidence of Eric
Morrison on 5 March 2009, p 617 of the
transcript.

[79] Evidence of
Theresa De Groot on 4 March 2009, p 528 of the
transcript.

[80] Evidence of
Elinor Cromarty on 6 March 2009, p 776 of the
transcript.

[81] Statement of
Randall Edwards dated 8 January 2008, p 31, Folio 2 of the Police
Brief.

[82] Statement of Randall
Edwards dated 8 January 2008, p 17, Folio 2 of the Police
Brief.

[83] Statement of Randall
Edwards dated 8 January 2008, p 18, Folio 2 of the Police
Brief.

[84] Evidence of Rebecca
Weir on 6 March, p 720 of the
transcript.

[85] In a similar
coronial inquest, the Victorian Coroner accepted evidence that a mentally ill
person throwing his arms up in the air did not pose a threat to anyone and that
the police should have stepped back and considered other options, rather than
trying to apprehend him. See State Coroner of Victoria, Inquest of Gregory David
Couper, 7 June 2002, p
28.

[86]Evidence of Angela
Jackson on 4 March 2009, p 548 of the transcript; Statement of Nicolette
Krepapas dated 28 December 2007, p 5, Folio 1 of the Police
Brief.

[87] Evidence of Bradley
Fox on 9 March 2009, p 822 of the
transcript.

[88] Evidence of
Bradley Fox on 9 March 2009, p 820 of the
transcript.

[89] Philip
Strickland SC on Tuesday 10 March 2009, p 962 of the
transcript.

[90] Statement of
Bradley Fox dated 28 December 2007, p 5, Folio 1 of the Police
Brief.

[91] Evidence of Bradley
Fox on 9 March 2009, p 827 of the
transcript.

[92] Evidence of
Bradley Fox on 9 March 2009, p 828 of the
transcript.

[93] Evidence of Eric
Morrison on 6 March 2009, p 674 of the
transcript.

[94] Evidence of
Nicolette Krepapas on 4 March 2009, pp 513 鈥 515 of the
transcript.

[95] Evidence of
Nicolette Krepapas on 4 March 2009, p 516 of the transcript. Evidence of Angela
Jackson on 4 March 2009, p 550 of the
transcript.

[96] Evidence of
Randall Edwards on 6 March 2009, pp 737 鈥 738 of the
transcript.

[97] Statement of
Randall Edwards dated 8 January 2008, p 7, Folio 2 of the Police
Brief.

[98] The following four
eyewitnesses say that they saw both of the security guards restraining Mr
Plasto-Lehner: Evidence of Lai Heng Foong on 5 March 2009, p 625 of the
transcript; Statement of Elinor Cromarty dated 9 January 2008, p 8, Folio 2 of
the Police Brief; Evidence of Theresa De Groot on 4 March 2009, p 532 of the
transcript; and Evidence of Carissa Oh on 4 March 2009, p 556 of the
transcript.

[99] Statement of
Elinor Cromarty dated 9 January 2008, p 8, Folio 2 of the Police
Brief.

[100] Evidence of Elinor
Cromarty on 6 March 2009, p 778 of the transcript; Evidence of Carissa Oh on 4
March 2009, p 556 of the transcript; Evidence of Theresa De Groot on 4 March
2009, p 534 of the
transcript.

[101] Statement of
Elinor Cromarty dated 9 January 2008, p 9, Folio 2 of the Police
Brief.

[102] Statement of Lai
Heng Foong dated 8 January 2008, p 3, Folio 2 of the Police
Brief.

[103] Statement of
Elinor Cromarty dated 9 January 2008, p 9, Folio 2 of the Police
Brief.

[104] Statement of
Elinor Cromarty dated 9 January 2008, p 9, Folio 2 of the Police
Brief.

[105] Statement of Lai
Heng Foong dated 8 January 2008, p 3, Folio 2 of the Police
Brief.

[106] Evidence of Lai
Heng Foong on 5 March 2009, p 630 of the
transcript.

[107] Statement of
Elinor Cromarty dated 9 January 2008, p 10, Folio 2 of the Police
Brief.

[108] Statement of Lai
Heng Foong dated 8 January 2008, p 4, Folio 2 of the Police
Brief.

[109] Statement of Chris
Hodge dated 11 January 2008, p 6, Folio 2 of the Police
Brief.

[110] Statement of
Carissa Oh dated 9 January 2008, p 4; Folio 2 of the Police
Brief.

[111] Statement of Lai
Heng Foong dated 8 January 2008, p 16, Folio 2 of the Police
Brief.

[112] Exhibit 5 鈥
Report of Dr Botterill dated 10 February 2009, p
6.

[113] See also Principle 7
of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment: 鈥楴o person under any form of detention or
imprisonment shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment.

[114] Human Rights Committee, General Comment No. 20: Replaces general comment 7
concerning prohibition of torture and cruel treatment or punishment (Art 7):
10/03/92, CCPR General Comment No. 20 at [2] and
[5].

[115] See also Principle 1
of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment: 鈥楢ll persons under any form of detention or
imprisonment shall be treated in a humane manner and with respect for the
inherent dignity of the human person.鈥 And, Principle 1(2) of the Principles for the Protection of Persons with Mental Illness and the
Improvement of Mental Health Care: 鈥楢ll persons with a mental
illness...shall be treated with humanity and respect for the inherent dignity of
the human 辫别谤蝉辞苍鈥.

[116] Human Rights Committee, General Comment No.21: Replaces general comment 9
concerning humane treatment of persons deprived of liberty (Art 10): 10/04/92,
CCPR General Comment No.21 at
[3]-[4].

[117] Vuolanne v
Finland, Communication No. 265/1987: CCPR/C/35/D/265/1987 at [9.2]; Brough v Australia, Communication No. 1184/2003: CCPR/C/86/D/1184/2003 at
[9.4]. See also Keenan v United Kingdom [2001] ECHR 242 (3 April 2001),
with respect to the meaning of the equivalent provision in the Convention for
the Protection of Human Rights and Fundamental
Freedoms.

[118] Exhibit 17
(Confidential) - Northern Territory Police Operational Safety and Tactics
Training Unit, Defensive Tactics Manual 2006, cl 1.1.4, p
9.

[119] Exhibit 17
(Confidential) - Northern Territory Police Operational Safety and Tactics
Training Unit, Defensive Tactics Manual, 2006, cl 1.1.4, p
9.

[120] Statement of Lai Heng
Foong dated 8 January 2008, pp 9-10, Folio 2 of the Police
Brief.

[121] Evidence of
Gregory Hansen on 10 March 2009, pp 945 鈥 946 of the
transcript.

[122] Northern
Territory Police Custody Manual Part One - Care and Safety of Persons in
Custody, cl 23.1.

[123] Statement of Nicolette Krepapas dated 28 December 2007, p 6, Folio 1 of the
Police Brief.

[124] Exhibit 24
- A Artwohl, 鈥Perceptual and Memory Distortion During Officer-Involved
Shootings鈥.

[125] Exhibit 24 - A Artwohl, 鈥Perceptual and Memory Distortion During
Officer-Involved Shootings鈥, p
4.

[126] Exhibit 24 - A
Artwohl, 鈥Perceptual and Memory Distortion During Officer-Involved
Shootings鈥, p
4.

[127] Evidence of Bronwyn
Hendry on Friday 6 March 2009, p 759 of the
transcript.

[128] Evidence of
Bronwyn Hendry on Friday 6 March 2009, p 760 of the
transcript.

[129] Evidence of
Bronwyn Hendry on Friday 6 March 2009, p 760 of the
transcript.

[130] General
Assembly Resolution 46/119 of 17 December
1991.

[131] Northern Territory
Police Custody Manual Part Six - Mentally Ill Persons, cl 9.1. See also Memorandum of Understanding in Respect of Cooperative Arrangements in Mental
Health Response Situations, June 2002, cl
5.7.1.

[132] Philip Strickland
SC on Tuesday 10 March 2009, p 966 of the
transcript.

[133] United
Nations Principles for the Protection of Persons with Mental Illness and for the
Improvement of Mental Health Care, article
1(2).

[134] Evidence of Adrian
Kidney on 4 March 2009, p 485 of the transcript; Evidence of Linda Sayers on 4
March 2009, pp 496 - 497 of the transcript; Statement of Vanessa Martin dated 29
December 2007, p 5, Folio 1 of the Police Brief; Evidence of Nicolette
Krepapas on 4 March 2003, p 521 of the transcript; Evidence of Eric Morrison 6
March 2009, p 684 of the
transcript.

[135] Northern
Territory Police Custody Manual Part 10鈥 Deaths in Custody and
Investigation of Serious And/Or Fatal Incidents Resulting From Police Contact
with the Public, cl 1.3.

[136] Northern Territory Police Custody Manual Part 10鈥 Deaths in Custody and
Investigation of Serious And/Or Fatal Incidents Resulting From Police Contact
with the Public cls 1.4 and
4.1.

[137] Article 6(1) of the
ICCPR.

[138] Evidence of Marcus
Lees on 2 March 2009, p 344 of the transcript; Evidence of Brendan Berlin on 2
March 2009, p 307 of the transcript.

IN THE CORONERS COURT

OF THE NORTHERN TERRITORY

INQUEST INTO THE DEATHS OF

DAVID GURRALPA

ROBERT PLASTO-LEHNER


SUBMISSIONS BY THE AUSTRALIAN HUMAN RIGHTS
COMMISSION

 

1 Introduction

  1. The Northern Territory Coroner has conducted concurrent inquests into the
    death of Mr David Gurralpa on 1 January 2008 and the death of Mr Robert
    Plasto-Lehner on 28 December 2007. Mr Gurralpa was in custody at the time of his
    death and Mr Plasto-Lehner鈥檚 death was caused or contributed to by
    injuries sustained while being held in custody.


  2. These submissions by the 黑料情报站 focus on the
    human rights issues surrounding the deaths of Mr Gurralpa and Mr
    Plasto-Lehner.


  3. These human rights issues are relevant to the matters on which the Coroner
    shall report under s 26(1) of the Coroners Act 1993 (NT), as they relate
    to the care, supervision and treatment of the deceased persons while being held
    in custody. The human rights issues are also relevant to the recommendations
    that the Coroner may make under s 26(2) of the Coroners Act, as they
    relate to ways to prevent deaths from happening in similar circumstances in the
    future.


  4. The Commission recognises at the outset that decisions made by police in the
    field about the use of force can be very difficult ones. They are often made
    quickly, at times of high stress and require police to balance the protection of
    the community, themselves and the individual. The purpose of these submissions
    is to assist the Coroner to identify where mistakes may have been made, and
    where police training may have been inadequate, and to suggest practical reforms
    to police training and policies that could prevent future deaths and enhance the
    administration of justice.


  5. The Commission鈥檚 submissions are organised as follows:


    • Part 2: The death of Mr Gurralpa

      Part
      2.1      : Police use of the prone restraint: the dangers and risk factors.

      Part 2.2: The obligations imposed by the right to life (article 6 of
      the ICCPR), including that by arresting and detaining individuals police take
      responsibility to care for their life.

      The Commission submits that:

      • the Northern Territory police members failed to properly care for
        Mr Gurralpa鈥檚 life during his detention (Part 2.3);


      • the Northern Territory police members must be trained in the
        dangers of the prone restraint and the risk factors that make certain persons
        more susceptible to death by positional asphyxia (Part 2.4); and


      • the Northern Territory police members must be trained to monitor
        the health of persons where practicable during the restraint, as well as
        immediately after the prone restraint (Part 2.5).




      • Part 3: The death of Mr Plasto-Lehner

        Part 3.1 The
        human rights instruments and principles relevant to the treatment of Mr
        Plasto-Lehner.

        Part 3.2 The prone restraint of Mr Plasto-Lehner at Royal Darwin
        Hospital.

        Part 3.3 Transporting Mr Plasto-Lehner to Royal Darwin Hospital.

        Part 3.4 The police investigation into the serious injury and death of
        Mr Plasto-Lehner.

        The Commission submits that:

      • the decision to use force and the degree of force used against Mr
        Plasto-Lehner was not necessary or proportionate;

    • the decision to use force and the degree of force used was
      inconsistent with Mr Plasto-Lehner鈥檚 right to humane treatment as a
      detained person and as an involuntary patient suffering mental disturbance;

    • the Northern Territory police members failed to properly care for
      Mr Plasto-Lehner鈥檚 life during detention;

    • being transported to Royal Darwin Hospital via Darwin Police
      Station was inconsistent with his right as a detained person to be treated
      humanely and may have exacerbated his suffering;

    • Northern Territory police members must be trained to ensure they
      have the necessary skills and confidence to appropriately deal with mentally ill
      persons; and

    • the police investigation into the serious injury and death of Mr
      Plasto-Lehner was inconsistent with the obligation to provide an effective
      remedy in respect of Mr Plasto-Lehner鈥檚 right to life, as the police
      investigation failed to comply with the requirements of Part 10 of the Custody
      Manual 鈥 Deaths in Custody and Investigation of Serious and/or Fatal
      Incidents Resulting From Police Contact with the Public.

 

    • Schedule One: Recommendations the Coroner may make under s 26(2) of the Coroners Act

    Schedule one sets out detailed, practical
    recommendations that the Coroner may make relevant to the prevention of future
    deaths in similar circumstances and the administration of justice. These
    recommendations can be summarised as follows:

    1. The Northern Territory Police should ensure that all members are trained and
      re-trained using reality based techniques to ensure an understanding of
      positional asphyxia.


    2. The Northern Territory Police training on the risk factors associated with
      positional asphyxia should be extended.


    3. The Northern Territory Police should ensure that all members are trained and
      re-trained to monitor the health of persons where practicable during the use of
      the prone restraint, as well as immediately after the use of the prone
      restraint.


    4. 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.


    5. The Northern Territory Police should amend the General Order on Transport of
      Persons in Custody, and Part 6 of the Custody Manual 鈥 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.


    6. The Northern Territory Police should amend Part 10 of the Northern Territory
      Policy Custody Manual 鈥 Deaths in Custody and Investigation of Serious
      and/or Fatal Incidents Resulting from Police Contact with the
      Public.

 

2 The
death of Mr Gurralpa

  1. The Commission submits that the events leading to the death of Mr Gurralpa
    can be summarised as follows.


  2. There were some inconsistencies in the accounts given by witnesses at the
    inquest in relation to certain aspects of these events. There are a number of
    possible reasons for this including the length of time that has passed since the
    events, and the impact of stress, trauma and other highly emotional experiences
    on perception and memory.[1] Witness
    statements were taken by the police shortly following the incident; the accounts
    provided in these statements have been preferred to the extent of any
    inconsistency.


  3. Mr Gurralpa was a 39 year-old Aboriginal man. He was present at a New
    Year鈥檚 Day celebration at 18 Waterhouse Crescent on 1 January 2008. At
    4.46pm, Jessica Wilson made a 000 call from 18 Waterhouse Crescent to the police
    stating that 鈥榣ots of people are fighting and they are all
    intoxicated鈥, 鈥榯hey are throwing saucepans at each
    辞迟丑别谤鈥.[2]


  4. At 4.51pm, Constable Brendan Berlin and Constable Marcus Lees arrived at 18
    Waterhouse Crescent.[3] They were the
    first attending police members. Constables Berlin and Lees were not dispatched
    to the job, but they heard the call on the radio and 鈥榙ecided to attend as
    well to lend some
    补蝉蝉颈蝉迟补苍肠别鈥.[4]


  5. On arrival, Constable Berlin spoke to Peggy Rankin and she informed him that
    she was the lawful occupier of the property and there were two people there she
    wanted removed. Constable Berlin says that Peggy Rankin informed him that they
    had been causing trouble, drinking and that someone had hit her over the head
    with a saucepan. That person was Mr
    Gurralpa.[5]


  6. Constable Berlin asked Mr Gurralpa to leave. Mr Gurralpa agreed and began to
    walk towards the front of the property with Constable
    Lees.[6]


  7. By this time, two more police members had arrived, Constable Neil James and
    Constable Devrim Kanyilmaz. The members logged their arrival at
    4.57pm.[7] They were also not
    dispatched to the job, but they heard the call on the radio and decided to drive
    by to see if everything was
    okay.[8]


  8. For reasons that remain unknown, but probably because of something said by
    Peggy Rankin, as Mr Gurralpa was walking toward the front of the property he
    turned and lunged aggressively towards Peggy
    Rankin.[9] The members believed Mr
    Gurralpa was going to strike or attack Peggy
    Rankin.[10] Constable Berlin stepped
    between Mr Gurralpa and Peggy Rankin and grabbed Mr Gurralpa by the arm.
    Constable Lees grabbed him by the other arm. Mr Gurralpa began struggling.
    Constables Berlin, Lees and Kanyilmaz attempted unsuccessfully to restrain him
    against the side of a car. The members lost their hold a few times because he
    was resisting, he was sweaty and because they didn鈥檛 have a good grip. The
    members and Mr Gurralpa fell to the ground, at which time the three members
    commenced 鈥榞round
    蝉迟补产颈濒颈蝉补迟颈辞苍鈥.[11]


  9. Constable Berlin was on the right side of Mr Gurralpa, Lees was on his left
    and Kanyilmaz was at his feet. Mr Gurralpa continued struggling. Constables
    Berlin and Lees each pulled one of Mr Gurralpa鈥檚 arms out from underneath
    him and placed their knee on his scapula and applied pressure whilst Mr Gurralpa
    was face down. This is called the three point
    hold.[12] Constable Kanyilmaz
    attempted to control Mr Gurralpa鈥檚 legs, by placing them in a leg lock.
    The leg lock failed and Constable Kanyilmaz instead placed his knee on Mr
    Gurralpa鈥檚 left leg and held his right leg down with his
    hands.[13] Constables Lees and
    Kanyilmaz told Mr Gurralpa to 鈥榮ettle down鈥 and 鈥榮top
    谤别蝉颈蝉迟颈苍驳鈥.[14]


  10. The members were asked whether they considered they had any other options
    once they fell to the ground, including stepping back and attempting to
    deescalate the situation. All members said they did
    not.[15] Mr Gurralpa was initially
    compliant, and then the intensity of his struggle dramatically escalated. The
    intensity of the struggle was variously described by members as between seven
    and nine out of ten.[16] The members
    considered Mr Gurralpa to be a danger to themselves and others, including Peggy
    Rankin.


  11. During the struggle, Constable James stood between Mr Gurralpa and the
    crowd. He had a can of OC Spray in his hand and was telling the crowd to
    鈥榮tay back, stay back鈥. Constable James observed Lees lose his grip
    and he thought Mr Gurralpa was going to get up. Constable James lifted Mr
    Gurralpa鈥檚 head and sprayed him with OC Spray for one or two
    seconds.[17] The can was inverted at
    the time it was sprayed.[18] None of
    the other members were affected by the OC Spray, and it didn鈥檛 affect the
    intensity of Mr Gurralpa鈥檚
    struggle.[19] Constable Lees was the
    only member involved in the ground stabilisation who knew it had been sprayed.
    He could smell it and taste it, but it didn鈥檛 affect
    him.[20] Sergeant Hansen gave
    evidence that members are trained to hold the can vertically when spraying. He
    conducted tests on the impact of spraying when the can is inverted. He found
    that you release only the small amount of material in the tube, and then all of
    the nitrogen gas. The can is then
    useless.[21] It would appear that
    the use of OC Spray did not contribute to the cause of death.


  12. Constable James returned to monitor the crowd. The crowd were calling out
    warnings to the members including 鈥榟e has asthma鈥, 鈥榟e is a
    sick man鈥. Constables Lees, James and Kennedy heard these
    warnings.[22]


  13. Three more police members arrived whilst Mr Gurralpa was being restrained,
    Senior Constable David Wilson, Constable Melissa Kennedy and Constable Ben
    Parfitt. Constables Wilson and Parfitt assisted with crowd
    control[23] and Constable Kennedy
    was asked to get out her handcuffs. She did so and attempted to place them on Mr
    Gurralpa. It was difficult as his wrists were large. Another member assisted and
    Mr Gurralpa was handcuffed.[24] Mr
    Gurralpa was then lifted up and carried to the police van.


  14. All members reported that Mr Gurralpa stopped struggling once handcuffed.
    Constable Lees observed that Mr Gurralpa鈥檚 body went limp and he appeared
    to be unconscious at this time. Constable Lees didn鈥檛 mention this to
    anyone. He got up and turned to monitor the crowd. He stated in evidence that he
    didn鈥檛 turn his mind to the health of Mr Gurralpa. He was more concerned
    by the crowd who were 鈥榶elling and screaming at
    尘别鈥.[25]


  15. Constable Kennedy observed that Mr Gurralpa showed no signs of life as he
    was being carried to the police van. She said he appeared rigid, his eyes were
    closed and he wasn鈥檛 saying anything. She expressed her concerns and said
    the other members took note.[26] Constables Berlin, Parfitt and Kanyilmaz did not observe Mr Gurralpa to be
    unconscious until he was in the police van.


  16. Once in the police van, the members checked Mr Gurralpa鈥檚 vital signs,
    his handcuffs were removed and resuscitation commenced. Mr Gurralpa鈥檚
    heart had stopped at this time. At 5.01pm an ambulance was
    called.[27] The ambulance arrived at
    5.14pm.[28] Mr Gurralpa was not
    revived in the ambulance, nor was he revived on arrival at Royal Darwin
    Hospital.


  17. Post mortem and autopsy examination revealed that Mr Gurralpa was an obese
    man with significant (80%) coronary artery narrowing. Toxicology showed a blood
    alcohol level of 0.035. Dr Botterill expressed the cause of death
    as:[29]

    1a Coronary
    Artery Atheroma

    2 Restraint asphyxia; obesity; hypertensive heart disease; hepatic steatosis;
    alcohol intoxication

And Dr Botterill stated:

    My rational [sic] is that although each of these conditions may have resulted
    in a cardiac arrest, the underlying long standing coronary artery disease
    represented the most significant and thus likely cause of death... Nevertheless,
    one cannot ignore the temporal association with the restraint event, and it is
    difficult to completely exclude the potential contributions that the remaining
    conditions could have added to the risk of cardiac arrest from coronary artery
    disease.

  1. Dr Botterill stated in evidence that he considered the restraint event to be
    a material contributing factor to Mr Gurralpa鈥檚
    death.[30]

2.1 Police
use of the prone restraint: the dangers and risk factors

  1. Three police members held Mr Gurralpa in the prone restraint with pressure
    on his upper torso, handcuffing and leg restraint. Four members were involved in
    the restraint at the time of the handcuffing. The members say they did not
    deliberately force Mr Gurralpa to the ground; they fell to the ground during the
    struggle and then employed ground stabilisation techniques. The techniques the
    police employed, including the three point hold and the attempted leg lock, were
    in accordance with the techniques taught in training. Mr Gurralpa was struggling
    in the prone restraint for about one to two
    minutes.[31]


  2. Research has found that deaths from positional asphyxia can occur where an
    individual was held down or placed in the prone position and restricted in their
    movement 鈥 either because their hands were handcuffed behind them or
    because someone was on top of them, placing pressure on their
    back.[32]


  3. A number of factors may increase the risk of
    death from positional asphyxia, including:

    • Obesity, particularly 鈥榖ig bellies鈥: excessive body
      weight makes chest wall movement more difficult while prone and excessive
      abdominal fat limits diaphragmatic
      motion.[33]


    • Pre-existing heart
      disease      .[34]


    • Significant physical exertion before and/or during restraint: the
      risk is compounded when an individual is involved in a violent struggle with a
      police member(s).[35] Police members
      involved in the restraint often describe the persons as unusually strong and
      persistent in their struggle:

      The victims are generally
      described as being unusually aggressive. They do not respond appropriately to
      reasoning or commands and exhibit unusual
      strength.[36]

    Increased oxygen demand from physical activity could increase susceptibility
    to asphyxiation during restraint with pressure on the
    chest.[37]

    • Acute psychosis and agitation, potentially stimulant drug
      induced.[38]


  4. The Commission submits that an additional risk group not identified in the
    literature should be middle-aged Aboriginal men. This is because of the known
    health factors for that group, including a higher incidence of heart disease,
    respiratory disease and
    diabetes.[39] The Commission notes
    the evidence of Dr
    Botterill:[40]

    Is there
    a health profile that puts them [middle-aged Aboriginal men] at risk in terms of
    positional asphyxia? Certainly, I think obesity, previous lung disease
    associated with smoking, of those two factors alone and with those the increased
    risk of diabetes and heart disease all increase the potential risk compared to
    the general public.


  5. Relevantly for present purposes, case studies conducted of sudden death by
    positional asphyxia have found that it is not necessary for a person to be held
    in the prone restraint for a long period of time for death to occur. The case
    studies have indicated that sudden death has occurred after an individual has
    been held in the prone restraint for two
    minutes.[41]


  6. Moreover, case studies have indicated that despite prompt and extensive
    resuscitation attempts by police members and attending paramedics, in the
    majority of cases the individual was not able to be
    revived.[42]

2.2 The
obligations imposed by the right to life

  1. Article 6 of the International Covenant on Civil and Political Rights (ICCPR) provides, relevantly, that 鈥楨very human being has the inherent
    right to life. This right shall be protected by law. No one shall be arbitrarily
    deprived of his life鈥.


  2. It is well accepted that article 6 of the ICCPR requires the State not only
    to refrain from the intentional and unlawful taking of life, but also to take
    appropriate steps to safeguard the lives of those within its
    jurisdiction.[43] The Human Rights
    Committee has stated:[44]

    The right to life has been too often narrowly interpreted. The
    expression 鈥渋nherent right to life鈥 cannot properly be understood in
    a restrictive manner, and the protection of this right requires that States
    adopt positive measures.


  3. In particular, States have a positive duty to protect the life of people in
    custody. The Human Rights Committee has stated [emphasis
    added]:[45]

    The
    Committee affirms that it is incumbent on States to ensure the right of life of
    detainees, and not incumbent on the latter to request protection.

    ...the essential fact remains that the State party by arresting and
    detaining individuals takes the responsibility to care for their life    .


  4. For the reasons set out below, the Commission submits that the Northern
    Territory police failed to properly care for Mr Gurralpa鈥檚 life during his
    detention.


  5. Further, the Commission submits that in order to comply with the obligation
    to take appropriate steps to safeguard the lives of those within its
    jurisdiction, the Northern Territory police must train recruits and members:

    • 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;
      and


    • to monitor the health of persons where practicable during the restraint, as
      well as immediately after the use of the prone restraint.


  6. These are matters that properly fall within the scope of the present inquest
    as they are matters related to the care, supervision and treatment of the
    deceased while being held in custody and relate to ways to prevent deaths from
    happening in similar circumstances in the future.

2.3 Police
failure to care for Mr Gurralpa鈥檚 health and life

  1. It is an essential component of the right to
    life that police, by arresting and detaining individuals, take responsibility to
    care for their life.


  2. The Commission submits that the Northern Territory police failed to properly
    care for Mr Gurralpa鈥檚 life during his detention in the following
    respects:

    • the police members failed to heed warnings from Mr Gurralpa鈥檚 family
      in relation to his health; and


    • the police members failed to take immediate steps to provide Mr Gurralpa
      with medical assistance once it was observed he was unconscious.


  3. Whilst Mr Gurralpa was being held in the prone restraint, his family members
    were calling out warnings to the police including 鈥榟e has asthma鈥,
    鈥榟e is a sick man鈥. These warnings were heard by Constables Lees,
    James and Kennedy, as well as by a man in a neighbouring
    property.[46] These warnings were
    not heeded and police members continued with the restraint. There are a number
    of possible reasons for this including:

    • the members were focused on the intensity of their struggle and their aim,
      which was to restrain Mr
      Gurralpa;[47] and


    • the members were not aware that asthma and pre-existing medical conditions
      were risk factors that make persons more susceptible to death by positional
      asphyxia.


  4. In the Commission鈥檚 submission this demonstrates that attention must
    be paid in training to the dangers of the prone restraint and the associated
    risk factors. Moreover, in situations where the use of the prone restraint
    cannot be avoided, members must be trained to be mindful of the risks and alert
    to any signs or symptoms of positional
    asphyxia.[48]


  5. Additionally, the police members failed to take immediate steps to provide
    medical assistance to Mr Gurralpa once it was observed that he was unconscious.
    A member gave evidence that he noticed Mr Gurralpa鈥檚 body went limp and he
    appeared unconscious immediately after he was handcuffed. He did not mention
    this to anyone, and instead stood up to monitor the crowd. When asked 鈥楧id
    you even turn your mind to his health?鈥 He replied
    鈥楴辞鈥.[49] The member
    stated in evidence that he fell down in his training in this
    respect.[50]


  6. Whilst there was no evidence that the actions of this member contributed to
    Mr Gurralpa鈥檚 death, the failure to provide immediate medical assistance
    is of serious concern. In the Commission鈥檚 submission, it demonstrates
    that attention must be paid in training to the requirement that members monitor
    the condition of a person both during and immediately after the prone restraint,
    in conjunction with raising members鈥 awareness of the dangers of the prone
    restraint.

2.4 Police
training in the dangers of the prone restraint and the risk factors

  1. The Commission submits that Northern Territory police members must 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.


  2. The Northern Territory Police Operational Safety and Tactics Training Unit
    have developed the Defensive Tactics Manual
    2006.[51] The Defensive Tactics
    Manual is provided to Defensive Tactics instructors for training purposes. It is
    not available to recruits, police members or the public.


  3. 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:[52]

    Pre-existing
    physical conditions -     ...asthma

    Multiple Police - ... where several police are involved the pressure
    and restriction to the person鈥檚 respiration is increased...

    OC Spray 鈥 Members should bear in mind the effects of Oleoresin
    Capsicum Spray on a person鈥檚 respiratory system. This may increase the
    risk of a person succumbing to PAD [positional asphyxia death].


  4. 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 鈥榬ecognition of this
    pattern may enable police to alter the method in which they attempt to resolve
    the situation and avert a tragic
    辞耻迟肠辞尘别鈥:[53]

    Stage
    1 鈥 Development of the incident

    The individual exhibits irrational, violent behaviour with aggressive and/or
    paranoid features, resulting in hypoactivity and extreme physical exertion.

    Stage 2 鈥 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 鈥 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.


  5. 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.[54]


  6. Finally, the Manual details the following
    prevention strategies to reduce the likelihood of positional asphyxia death
    occurring:[55]

    Identify
    persons at risk

    Avoid prone restraint unless absolutely necessary

    Identify danger signs of asphyxia

    Constantly monitor the person

    Seek medical attention


  7. As part of recruit training, a one day Defensive Tactics theory package is
    presented to recruits. This includes, amongst other things, a
    鈥榩owerpoint鈥 presentation on positional asphyxia. The text of the
    positional asphyxia powerpoint presentation is taken from the Defensive Tactics
    Manual.[56]


  8. Members are also required to attend requalification training each year. This
    consists of two eight hour days, incorporating both practical and theoretical
    components. The theoretical component includes, amongst other things, positional
    asphyxia. Stephen Nalder, a Defence Tactics instructor, gave the following
    evidence:[57]

    When
    covering positional asphyxia I work from the manual and discuss the topic with
    participants as we go. In order to make members more aware of the risks involved
    in restraint tactics I have started to use these two unfortunate deaths as case
    histories in recruit training and will ensure that all instructors are aware of
    the issues raised in this inquiry. I have not used these cases for
    requalification training yet, because I do not want to compromise the coronial
    process...


  9. 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 incident with Mr
    Gurralpa 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.


  10. 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:[58]

    Given the
    training that you had about overweight people, did you 鈥 were you alert to
    the risk in relation to the deceased when he was brought to the ground? 鈥
    No, I didn鈥檛 classify him as obese. I didn鈥檛 think he was obese, so
    I wasn鈥檛 鈥 didn鈥檛 really come to mind what you鈥檙e
    asking, no.


  11. This evidence demonstrates that obesity is a risk factor that may be
    difficult to judge. In the Commission鈥檚 submission, it would be helpful to
    acknowledge this difficulty in training and inform members that having a
    鈥榖ig belly鈥, whether or not the person appears otherwise overweight,
    is a risk factor.


  12. Moreover, most of the members were not aware of other risk factors relevant
    to Mr Gurralpa鈥檚 death including physical exertion during restraint and a
    pre-existing medical condition such as asthma or heart
    disease.[59]


  13. 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. Relevantly, none of the members
    considered that Mr Gurralpa鈥檚 attempts to break free were because he was
    having difficulty breathing rather than because he was trying to continue
    resisting the police.[60] The
    Commission submits that this is likely to be what was happening with Mr
    Gurralpa, but the police failed to realise it.


  14. Finally, and perhaps most importantly, 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. Such awareness may have allowed the downward spiral to be
    averted at stage 2 (intervention).


  15. In the Commission鈥檚 submission, the evidence of the police members
    demonstrates that 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.


  16. 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.[61] These
    included:[62]

    • the methods of teaching the dangers of positional asphyxia (noting that
      reality based training was the most effective way of
      communicating);[63]


    • teaching on 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.


  17. Sergeant Hansen also identified an overarching issue that may be affecting
    the quality of member requalification training. That is, there is no quality
    assurance program in relation to the requalification or 鈥榠n service鈥
    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. Sergeant Hansen agreed that this was an issue that should be
    addressed.[64]

2.5 Police
training in monitoring the health of persons during and immediately after the
use of the prone restraint

  1. The Commission submits that in order to comply with the obligation to take
    appropriate steps to safeguard the lives of those within its jurisdiction,
    Northern Territory police members must be trained to monitor the health of
    persons where practicable during the restraint, as well as immediately after the
    use of the prone restraint.


  2. At present, the Defensive Tactics Manual provides only that police members
    are to monitor the condition of the person immediately after restraint. There is
    no requirement that members monitor the person during the restraint
    process.


  3. The reason it is crucial to monitor the person during the restraint process
    is because research into positional asphyxia suggests that loss of
    consciousness/death can occur extremely rapidly. Moreover, in most cases despite
    prompt and extensive resuscitation attempts by police members and attending
    paramedics the person was not able to be revived.


  4. Evidence was heard at the inquest that it may not be practical to monitor a
    person鈥檚 health during the course of a violent confrontation, especially
    in circumstances where there are only two members
    present.[65] The Commission
    acknowledges this practicality. However, in the case of Mr Gurralpa there were
    seven police members present; four restraining Mr Gurralpa and three monitoring
    the crowd. The Commission put to Sergeant Hansen that in a case such as Mr
    Gurralpa鈥檚 where seven members were present, one of the members could have
    been responsible for monitoring Mr Gurralpa鈥檚 condition during the
    restraint if so trained. Sergeant Hansen responded 鈥榯hat鈥檚 certainly
    something that I think we should look at,
    测别蝉鈥.[66]


  5. The Commission submits that 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.[67]

2.6 Recommendations
the Coroner may make under s 26(2) of the Coroners Act

  1. The recommendations which the Commission submits the Coroner should make in
    respect of the prevention of future deaths in similar circumstances are set out
    below at Schedule One.

 

3 The
death of Mr Plasto-Lehner

  1. The Commission submits that the events leading to the death of Mr
    Plasto-Lehner can be summarised as follows.


  2. Mr Plasto-Lehner was a 57 year-old man. He travelled to Darwin from Alice
    Springs on 19 December 2007 to spend Christmas with his sister鈥檚 family.


  3. Mr Plasto-Lehner鈥檚 sister, Mrs Dorothy Coleman, gave evidence that Mr
    Plasto-Lehner was in a very poor state of mental health when he arrived in
    Darwin. Although the Coleman family made several appointments on Mr
    Plasto-Lehner鈥檚 behalf for him to see a doctor between 19 December and 22
    December, Mr Plasto-Lehner was too afraid and confused to do so, refusing to
    attend each appointment.[68]


  4. Mr Plasto-Lehner was also a heavy smoker and overweight. He weighed 126
    kilograms, had a large abdomen, and suffered from a chronic obstructive airways
    disease, bronchiectasis.


  5. On Saturday 22 December 2007, Mr Plasto-Lehner left his room at the
    Mirambeena Hotel in central Darwin without telling his family where he was
    going. At 12:54pm, Louise Brennan of The Cavanagh Hotel in Darwin, rang the
    police to inform them that a male patron was behaving irrationally and was
    attempting to give away money to staff ($100) together with his ATM card. Ms
    Brennan noted that the man appeared unwell and was sweating profusely.


  6. Aboriginal Community Police Officer (ACPO) Jon Morrison and ACPO Vanessa
    Martin attended The Cavanagh Hotel and Mr Plasto-Lehner was identified as the
    person of interest, on the basis of the ATM card the staff were holding behind
    the bar on his behalf.


  7. ACPO Jon Morrison and ACPO Martin located Mr Plasto-Lehner nearby on Knuckey
    Street at approximately 3pm. Mr Plasto-Lehner was sweating and shaking and
    speaking in an incoherent
    manner.[69] ACPO Jon Morrison
    determined that Mr Plasto-Lehner needed urgent medical assistance due to his
    mental health state, and tried to convince Mr Plasto-Lehner to get into the back
    of the police caged vehicle, explaining to him that they wanted to take him to
    Royal Darwin Hospital. Mr Plasto-Lehner walked to the back of the vehicle with
    the two police members. ACPO Morrison said that when they reached the door of
    the cage, Mr Plasto-Lehner paused and said 鈥榡ust, just let me have a few
    minutes鈥 and sat on the back of the
    van.[70] ACPO Jon Morrison states
    that Mr Plasto-Lehner started speaking to himself again and then, suddenly,
    stood up, ran towards a tree on the footpath and bearhugged it, putting his
    whole body up against it. ACPO Jon Morrison said that he realised then that Mr
    Plasto-Lehner was strong and radioed for backup
    assistance.[71]


  8. Constables Adrian Kidney and Linda Sayers arrived to assist a short time
    later, approximately five to ten minutes. Constable Kidney approached Mr
    Plasto-Lehner while he was hugging the tree and had a conversation with him for
    about twenty minutes. Constable Kidney established a rapport with Mr
    Plasto-Lehner through being able to talk about AFL players that Mr Plasto-Lehner
    had mentioned. Constable Kidney said that Mr Plasto-Lehner would go very quiet
    and almost cry, saying 鈥業鈥檓 sorry, sorry to waste your
    ti尘别鈥.[72] Constable Kidney
    said that Mr Plasto-Lehner agreed to go to the hospital in the police vehicle
    with him, saying 鈥業鈥檒l go with you but I鈥檓 not gonna go with
    him鈥 pointing to ACPO Jon
    Morrison.[73] Constable Kidney said
    that as they approached the police vehicle, Mr Plasto-Lehner said
    鈥業鈥檓 not getting in the back cage, can I get in the
    产补肠办蝉别补迟鈥,[74] and that
    Constable Kidney explained to him that it was not appropriate. At this point,
    Constable Kidney said that Mr Plasto-Lehner took off his shirt and ran back to
    the tree and started hugging it
    again.[75]


  9. In the time that Constable Kidney was speaking with Mr Plasto-Lehner, three
    more police members arrived to assist, Acting Sergeant Bradley Fox, ACPO Eric
    Morrison and Constable Walter Todd. Acting Sergeant Fox was the Darwin Station
    Shift Supervisor for the evening shift on that day. Constable Kidney had
    received a call from his supervisor on his radio asking if everything was
    alright, and Constable Kidney had requested some extra male police members to
    help him put Mr Plasto-Lehner in the cage of the
    vehicle.[76]


  10. Constable Kidney approached Mr Plasto-Lehner again and convinced him to walk
    back towards the police vehicle. When Mr Plasto-Lehner was walking towards the
    police vehicle ACPO Jon Morrison and ACPO Eric Morrison each took one of Mr
    Plasto-Lehner鈥檚 arms and guided him into the back cage of Constable Kidney
    and Constable Sayer鈥檚 police vehicle.


  11. Acting Sergeant Fox told Constable Kidney to drive Mr Plasto-Lehner to
    Central Darwin Police Station for a changeover of staff before Mr Plasto-Lehner
    was taken to Royal Darwin Hospital. Mr Plasto-Lehner was kept in the locked
    caged section of the police vehicle outside the Darwin Police Station on
    Mitchell Street while the staff changeover occurred. On the best evidence, this
    changeover took 15-16
    minutes.[77]


  12. ACPO Eric Morrison and ACPO Nicolette Krepapas took over the police caged
    vehicle and drove Mr Plasto-Lehner to Royal Darwin Hospital. Acting Sergeant Fox
    and Constable Jackson followed behind in the shift supervisor鈥檚 vehicle.


  13. On the way to the hospital, Mr Plasto-Lehner was observed to be quite
    anxious and distressed, constantly shifting
    seats.[78]


  14. ACPO Morrison and ACPO Krepapas parked the police vehicle in the reserved
    police parking spot near the ambulance bay at Royal Darwin Hospital and walked
    Mr Plasto-Lehner through to the Emergency Department, accompanied by Acting
    Sergeant Fox and Constable Jackson.


  15. At 3:54pm the triage nurse, Theresa de Groot, assessed Mr Plasto-Lehner as
    Category 2, which meant that he was a high risk patient and should be attended
    to by a doctor within ten
    minutes.[79] Mr Plasto-Lehner was
    placed in the Oleander Room to wait for further medical attention. 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.


  16. There was another patient waiting for psychiatric assessment at this time,
    Ross Lenard. He was moved to the room opposite the Oleander Room when Mr
    Plasto-Lehner arrived. It was agreed that the two police members who were
    waiting with Mr Lenard could leave, and the two hospital guards, Mr Randall
    Edwards and Mr Francis Kondambu, would stay with Mr Lenard and the four police
    officers who arrived with Mr Plasto-Lehner would stay with him. Mr Edwards,
    however, developed a rapport with Mr Plasto-Lehner and Mr Edwards assisted with
    encouraging Mr Plasto-Lehner to return to the Oleander Room on the numerous
    times when he wanted to leave the room.


  17. At 4:18pm, the Registrar for the Emergency Department, Dr Elinor Cromarty,
    assessed Mr Plasto-Lehner. At 4:30pm Dr Cromarty signed a notice, pursuant to s
    34 of the Mental Health and Related Services Act (NT) which meant that Mr
    Plasto-Lehner became an involuntary patient of Royal Darwin
    Hospital.[80] Mr Plasto-Lehner
    continued to wait in the Oleander Room to see the Psychiatric Registrar, Dr
    Belinda Bautista.


  18. At some point when Mr Plasto-Lehner was in the Oleander Room he was given a
    cup of water, as well as two sandwiches which he ate. Also during that time he
    came out of the room several times to sit on the seats in the hallway outside
    the Oleander Room. Randall Edwards and some of the police members directed him
    back into the Oleander Room each time.


  19. At 4:55pm, Dr Cromarty gave Mr Plasto-Lehner 5mg of Olanzapine, an
    anti-psychotic medication.


  20. At 5:17pm, Dr Cromarty took blood samples from Mr Plasto-Lehner for the
    purpose of ruling out organic causes of his psychotic behaviour.


  21. At approximately 5:43pm, Mr Plasto-Lehner requested to go to the bathroom,
    and he was escorted by hospital security guard Mr Edwards and ACPO Eric Morrison
    to the bathroom in the fast-track area of the Accident & Emergency
    Department. Mr Edwards says that Mr Plasto-Lehner 鈥榮ort of jacked up and
    refused to go in鈥, saying that he was locked up once and that he
    can鈥檛 go in there.[81] Mr
    Edwards says that Mr Plasto-Lehner鈥檚 voice began to rise and he began to
    become agitated. After a few minutes, Mr Edwards and ACPO Eric Morrison walked
    Mr Plasto-Lehner back towards the Oleander Room. Mr Plasto-Lehner walked past
    the door of the Oleander Room and stood in the door frame of the two double
    doors which are the fire doors of the Accident & Emergency Department,
    looking outside through the ambulance bay doors. Mr Edwards says that he tried
    two or three times to get him back into the Oleander Room, gesturing him towards
    the door. Mr Edwards also says that Acting Sergeant Fox asked Mr Plasto-Lehner
    to go back into the Oleander Room. Mr Edwards says that Mr Plasto-Lehner started
    to raise his voice again and say that he wanted to go outside for some fresh air
    and to have a smoke. Mr Edwards notes that he had earlier told Mr Plasto-Lehner
    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.[82]


  22. Mr Edwards states that Mr Plasto-Lehner 鈥榳as sort of raising his
    补谤尘蝉鈥.[83] Nurse Rebecca Weir
    also gave evidence that Mr Plasto-Lehner throwing up his arms could be described
    as 鈥榳indmill鈥 arms,[84] something which is typical of psychiatric
    patients.[85]


  23. Mr Edwards states that Mr Plasto-Lehner pushed past Acting Sergeant Fox,
    taking a few steps into the foyer of the ambulance bay area, ignoring Acting
    Sergeant Fox鈥檚 instructions for him to return to the Oleander Room.
    Constable Jackson and ACPO Krepapas were standing in front of him, between him
    and the glass sliding doors of the ambulance
    bay.[86]


  24. Acting Sergeant Fox states that a few moments earlier he had read an A4
    sized piece of paper, like a hospital directive, stating that patients were not
    to be allowed outside into the ambulance bay to have a cigarette, because there
    was a risk that the person might go over the ledge at the end of the ambulance
    ramp.[87]


  25. When Mr Plasto-Lehner took a few steps into the foyer of the ambulance bay
    area, Acting Sergeant Fox grabbed Mr Plasto-Lehner by one arm and ACPO Eric
    Morrison took his other arm and Acting Sergeant Fox took Mr Plasto-Lehner down
    to the ground into a prone restraint position in the ambulance bay
    foyer.[88] This happened in the
    course of a few seconds.


  26. Once on the ground, Mr Plasto-Lehner struggled as he was held face down and
    weight was applied down on his body. Acting Sergeant Fox and ACPO Eric Morrison
    were assisted in restraining Mr Plasto-Lehner by Constable Jackson, ACPO
    Krepapas, Mr Edwards, and Patient Care Assistant (PCA) Peter Toogood. Mr
    Plasto-Lehner was restrained on the ground for approximately two
    minutes.[89]


  27. During this time, Acting Sergeant Fox and ACPO Eric Morrison applied
    significant weight to Mr Plasto-Lehner鈥檚 upper torso, trying to effect a
    鈥3 point hold鈥. Acting Sergeant Fox says that he was using all his
    physical strength and weight, trying to shift it onto Mr Plasto-Lehner鈥檚
    torso to prevent Mr Plasto-Lehner from pushing away from the
    ground,[90] and that his right knee
    was on Mr Plasto-Lehner鈥檚 left scapula. Acting Sergeant Fox says he also
    held Mr Plasto-Lehner鈥檚 head down with his left
    knee.[91] Acting Sergeant Fox said
    that he did this to prevent any fluids or blood being spat at him and to contain
    his head.[92]


  28. ACPO Eric Morrison states that he had his knee on Mr Plasto-Lehner鈥檚
    right scapula and held him in that
    position.[93]


  29. ACPO Krepapas was holding Mr Plasto-Lehner鈥檚 left arm, trying to pull
    it out from underneath him and sweep it round to his back so that he could be
    handcuffed.[94] Constable Jackson
    took hold of Mr Plasto-Lehner鈥檚 right arm and was struggling to get the
    handcuff on, as his wrists were
    large.[95]


  30. Also at this time, Mr Edwards held Mr Plasto-Lehner鈥檚 feet down,
    struggling to stop him moving.[96] PCA Toogood applied his body weight to hold his legs
    down.[97] It may be that the
    security guard Francis Kondambu was also restraining Mr Plasto-Lehner鈥檚
    legs.[98]


  31. Dr Cromarty states that she heard commotion from where she was on the
    鈥榝light deck鈥 and came down to see what was happening. She saw Mr
    Plasto-Lehner restrained face down on the floor with several police members
    lying across him and others restraining his arms and legs. Dr Cromarty says that
    when she arrived, the police members were struggling to get handcuffs on Mr
    Plasto-Lehner, and she asked if the handcuffs were really
    necessary.[99] She felt she had a
    good rapport with Mr Plasto-Lehner and she thought she might be able to help
    calm him down so that the police would release him from the restraint.


  32. Dr Cromarty says that as she tried to approach Mr Plasto-Lehner, one of the
    police members put his knee on Mr Plasto-Lehner鈥檚 head and Mr
    Plasto-Lehner鈥檚 head smacked into the
    floor.[100] At this point, Dr
    Cromarty was concerned as Mr Plasto-Lehner appeared to struggle less and his
    face was becoming quite red. Dr Cromarty states that

    I asked the
    policeman 鈥 um 鈥 I asked if they could just please ease up a little
    bit and was told 鈥 um 鈥 that they had to do this for their own
    safety and 鈥 and I should back off and I 鈥 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.[101]


  33. Dr Cromarty noticed some of her colleagues standing nearby, Dr Lai Heng
    Foong, Dr Oh and Natasha Roberts. Dr Foong also asked Acting Sergeant Fox to
    release Mr Plasto-Lehner, so that they could talk to
    him.[102] Dr Cromarty and Dr Foong
    knelt at Mr Plasto-Lehner鈥檚 head, trying to talk to him. Dr Cromarty said
    鈥榡ust try and 鈥 try and just really relax Robert, and then
    we鈥檒l 鈥 we鈥檒l get these guys off 鈥 off
    测辞耻...鈥.[103] Dr Cromarty
    says that Mr Plasto-Lehner really did seem to try to lift his head to us, and as
    he did so, she and Dr Foong could see that there was blood on the floor and a
    laceration on or near his
    eyebrow.[104] Dr Cromarty and Dr
    Foong observed that Mr Plasto-Lehner was starting to go blue in the face, and Dr
    Foong said 鈥榡ust let go of him, he鈥檚 getting
    产濒耻别鈥.[105] Dr Foong says
    that nothing happened when she said this, and that she had to say it again,
    鈥榞et off him, he鈥檚 going blue鈥 before anyone
    responded.[106]


  34. When the police members and hospital staff holding Mr Plasto-Lehner released
    him from the prone restraint hold and turned him over, he wasn鈥檛 breathing
    and he was still very
    blue.[107]


  35. Constable Jackson removed the handcuffs from Mr Plasto-Lehner and he was
    taken into the resuscitation room by Dr Foong and Dr Oh. Mr Plasto-Lehner was
    asystolic, that is no heart beat and no electric output from his
    heart.[108] PCA Hodge commenced
    CPR on Mr Plasto-Lehner.[109] Dr
    Oh intubated Mr Plasto-Lehner and he was administered
    adrenalin.[110] Mr Plasto-Lehner
    was moved shortly thereafter to the Intensive Care
    Unit.[111]


  36. The blood and fluids on the ground where Mr Plasto-Lehner had been
    restrained were temporarily covered up with a wheelchair and then were cleaned
    up by hospital staff.


  37. Mr Plasto-Lehner was later transferred into the Intensive Care Unit. He did
    not recover consciousness and died in the Intensive Care Unit on 28 December
    2007. Dr Sinton prepared the post mortem report and expressed his opinion that
    the cause of death was acute bronchopneumonia, compounded by concurrent acute
    cerebral hypoxia, acute renal failure secondary to rhabdomyolysis and chronic
    cardiomyopathy.


  38. Dr Botterill, a forensic pathologist, was requested by the Northern
    Territory Deputy Coroner to provide a review of the post mortem report, the
    circumstances of this death and the issue of restraint-associated deaths. Dr
    Botterill stated that he would have expressed the cause of death
    as:[112]

    1a Combined
    effects of restraint asphyxia, obesity-associated heart disease and chronic
    airways disease

    2 Bipolar depressive disorder.

And Dr Botterill stated:

My rationale is that it is most likely that ALL of conditions (restraint per
se, asphyxia associated with restraint, cardiac function compromise associated
with heart enlargement most probably due to obesity, heart muscle scarring most
probably due to obesity associated heart enlargement, obesity per se, chronic
airways disease) have contributed to the circumstances, additively increasing
the chance of a cardiac arrest, and that ANY of these conditions alone could
also have resulted in that cardiac arrest.

3.1 Human rights instruments and principles
relevant to the treatment of Mr Plasto-Lehner

  1. The following human rights instruments and principles are relevant to the
    treatment of Mr Plasto-Lehner.
(a) Rights to humane treatment
  1. Article 7 of the ICCPR provides that 鈥楴o one shall be subjected to
    torture or to cruel, inhuman or degrading treatment or
    辫耻苍颈蝉丑尘别苍迟鈥.[113] The aim of
    article 7 is to protect the dignity and the physical and mental integrity of the
    individual.[114]


  2. The prohibition in article 7 is complemented in the ICCPR by the positive
    requirements of article 10. Article 10(1) provides that 鈥榓ll persons
    deprived of their liberty shall be treated with humanity and with respect for
    the inherent dignity of the human
    辫别谤蝉辞苍鈥.[115] Article 10(1)
    of the ICCPR imposes this positive obligation on States because individuals who
    are deprived of their liberty are particularly vulnerable. Respect for the
    dignity of such persons must be guaranteed under the same conditions as for that
    of free persons.[116]


  3. The assessment of whether the treatment of a
    person is inconsistent with article 7 or 10 depends on all the circumstances of
    the case, such as the duration and manner of the treatment, its physical or
    mental effects as well as the sex, age and state of health of the victim.
    Accordingly, the assessment of whether the treatment is inconsistent with
    article 7 or 10 of the ICCPR is in part a subjective evaluation. Factors such as
    the victim鈥檚 age and mental health will aggravate the effect of certain
    treatment so as to bring that treatment within article 7 or
    10.[117]
(b) Right to life
  1. Article 6(1) of the ICCPR states that 鈥楨very human being has the
    inherent right to life. This right shall be protected by law. No one shall be
    arbitrarily deprived of his life鈥. It is an essential component of the
    right to life that police, by arresting and detaining individuals, take
    responsibility to care for their life.


  2. Where the actions of the state, including the actions of the police, may
    have contributed to a person鈥檚 death, state parties have a positive
    obligation to investigate the circumstances surrounding that death to determine
    whether it was an arbitrary deprivation of life, and to provide redress where a
    breach of the right to life has occurred.


  3. This obligation to investigate is a positive obligation arising from the
    right to life in article 6 of the ICCPR. Article 2(3) of the ICCPR also requires
    state parties to ensure that any persons whose rights have been violated shall
    have an effective remedy in respect of the violation of that
    right.
(c) Breaches of human rights
  1. For the reasons set out below, the Commission submits that the treatment of
    Mr Plasto-Lehner by the Northern Territory police was inconsistent with both
    article 10(1) of the ICCPR and the prohibition on inhuman and degrading
    treatment in article 7 of the ICCPR in the following respects:

    • the use of the prone restraint; and


    • the failure to convey Mr Plasto-Lehner directly to hospital, including his
      detention alone in a police vehicle for about 15 minutes.


  2. The Commission also submits that the Northern Territory police failed to
    properly care for Mr Gurralpa鈥檚 health and life during his detention.


  3. Finally, the Commission submits that the failure to properly investigate Mr
    Plasto-Lehner鈥檚 serious injury, and ultimate death, was inconsistent with
    the obligation to provide an effective remedy imposed by articles 2(3) and 6 of
    the ICCPR.

3.2 The prone restraint of Mr Plasto-Lehner at
Royal Darwin Hospital

  1. In the Commission鈥檚 submission, there are three issues of concern in
    respect of the use of force to restrain Mr Plasto-Lehner at Royal Darwin
    Hospital:

    • the decision to use force;


    • the degree of force used; and


    • the police failure to monitor Mr Plasto-Lehner while he was
      restrained.


  2. While some hospital staff were involved in the restraint of Mr
    Plasto-Lehner, the Commission considers that the police remained in control of
    the restraint of Mr Plasto-Lehner at all times. Accordingly, the Commission
    restricts its observations in respect of the use of force to the police members
    involved.
(a) The decision to use force
  1. The Commission submits that the decision to use force on Mr Plasto-Lehner
    was not necessary in the circumstances.


  2. When Mr Plasto-Lehner did not go back into the Oleander Room as he was being
    directed and walked a few steps towards the ambulance bay foyer, Acting Sergeant
    Fox decided to employ ground stabilisation techniques.


  3. In deciding how to respond to Mr Plasto-Lehner鈥檚 failure to comply
    with his directions, Acting Sergeant Fox was required to assess whether the use
    of force was necessary in the circumstances. Section 27 of the Criminal Code (NT) states that the use of force, not being such force likely to cause
    death or serious harm, will not be justified if 鈥榰nnecessary force鈥
    is used.


  4. These statutory requirements are re-stated, in part, in the Defensive
    Tactics Manual which
    states:[118]

    The basis
    of this legislation requires that force used must be proportionate to the
    objective and it must be necessary...

    It is important that members have a full knowledge of the Statutory Authority
    that allows members of the Police to use force during the performance of their
    duties.


  5. Relevantly, the Defensive Tactics Manual states that a 鈥楽afety
    First鈥 philosophy underpins the operating methods of police members. This
    philosophy promotes the avoidance of force where possible and the minimum use of
    force where it is
    unavoidable.[119]


  6. In assessing the range of options which were open to Acting Sergeant Fox and
    whether the use of force was necessary, it is relevant that there were a number
    of police members present to assist and contain the situation, as well as two
    security guards. In particular, ACPO Krepapas and Constable Jackson were
    situated between Mr Plasto-Lehner and the glass sliding doors to the ambulance
    bay. The Commission submits that other options were reasonably available to the
    police members:
    • trying to block Mr Plasto-Lehner鈥檚 access
      to the green button that activated the sliding doors or the sliding doors
      themselves;


    • seeking to persuade Mr
      Plasto-Lehner that he could go out another door for fresh air and a cigarette
      and offer to take him there; or


    • otherwise
      temporarily distracting him, using strategies for dealing with mentally ill
      persons.
  7. In the Commission鈥檚 submission, it was not necessary for Acting
    Sergeant Fox to use force in the circumstances. There were a range of options
    available to him that did not require the use of force, and a significant number
    of police members present to assist. Nor, as will be set out below, was the
    degree of force deployed proportionate to the circumstances.


  8. The Commission submits that the decision to use force on Mr Plasto-Lehner
    demonstrates that greater training is needed for Northern Territory police
    members in dealing with mentally ill persons. Recommendations for training are
    outlined below at paragraphs 140 - 142.
(b) The degree of force used in restraining Mr
Plasto-Lehner
  1. The Commission submits that the degree of force used by the police members
    was not proportionate to the circumstances.


  2. As set out above, when Mr Plasto-Lehner failed to comply with his
    directions, Acting Sergeant Fox employed ground stabilisation techniques, and in
    particular the prone restraint accompanied by the three point hold. He also used
    his knee to restrain Mr Plasto-Lehner鈥檚 head. Three other police members
    assisted with the prone restraint of Mr Plasto-Lehner.


  3. Mr Plasto-Lehner was a mentally ill person. He was distressed and anxious.
    He had been scheduled under the Mental Health and Related Services Act (NT) and was an involuntary patient of the hospital.


  4. Mr Plasto-Lehner had not committed or attempted to commit any offence. Aside
    from his failure to comply with Acting Sergeant Fox鈥檚 instructions for him
    to return to the Oleander Room, Mr Plasto-Lehner had been compliant with
    directions from the police members, security guards and the hospital staff.


  5. Mr Plasto-Lehner presented with a number of risk factors that made him more
    susceptible to death by positional asphyxia, including:

    • obesity, particularly a 鈥榖ig belly鈥;


    • pre-existing heart disease;


    • significant physical exertion during restraint; and


    • acute psychosis and agitation.


  6. Other visible factors which were relevant include the age of Mr
    Plasto-Lehner, and that he was a heavy smoker. In addition, the number of police
    members involved in the prone restraint of Mr Plasto-Lehner increased the
    intensity of the restraint, and it may be that the knee holding Mr
    Plasto-Lehner鈥檚 head to the ground also increased the risk of positional
    asphyxia. As described by Dr Foong:

    ...he must have been full weight
    because this guy couldn鈥檛 turn his ...head at all, and that鈥檚 when
    he started bleeding, and that鈥檚 when I got a bit worried, and said, you
    know, like 鈥 and I could see that he was struggling initially, not
    struggling any more and then he went from a pink colour to
    blue.[120]


  7. In the Commission鈥檚 submission the degree of force used by police
    members on Mr Plasto-Lehner was not a necessary and proportionate response to
    the situation. The police members failed to take account of the fact that Mr
    Plasto-Lehner was mentally ill, in a distressed and anxious state, and by and
    large had been compliant with police directions. Moreover, the decision to put
    Mr Plasto-Lehner in a prone restraint position, such that he was restrained by
    several people while being handcuffed, failed to properly take into account the
    risk factors of positional asphyxia relevant to Mr Plasto-Lehner.


  8. Additionally, Acting Sergeant Fox used his knee to restrain Mr
    Plasto-Lehner鈥檚 head in a manner inconsistent with any techniques taught
    to Northern Territory police
    members.[121]


  9. In the Commission鈥檚 submission, the force used on Mr Plasto-Lehner was
    excessive and was inconsistent with both the right of a detained person to be
    treated humanely in article 10(1) of the ICCPR and the prohibition on inhuman
    and degrading treatment in article 7 of the ICCPR. Moreover, the fact that Mr
    Plasto-Lehner was suffering an acute psychotic episode is likely to have
    aggravated the effect of the treatment. That is, it is likely that the degree of
    force used would have caused Mr Plasto-Lehner a very high level of distress and
    fear.
(c) The police failure to monitor Mr Plasto-Lehner
while he was restrained
  1. It is an essential part of the right to life that the State, by detaining
    individuals, takes responsibility to care for their life.


  2. These obligations are implemented, in part, in the Northern Territory Police
    Custody Manual, in Part One 鈥 Care and Safety of Persons in Custody (Care
    and Safety General Order) and in the Defensive Tactics Manual.


  3. The Care and Safety General Order requires police members to act with an
    active concern for the safety and welfare of
    detainees.[122] The Defensive
    Tactics Manual requires police members to monitor the condition of a person
    immediately after restraint in order to minimise a risk of positional
    asphyxia.


  4. As noted above at paragraphs 59 - 63, the Commission considers that the
    obligation to monitor a person immediately after use of the prone restraint is
    not sufficient to prevent a loss of life.


  5. When Mr Plasto-Lehner was being restrained there were clear signs that his
    situation was worsening, but he was not released from the prone restraint
    position in time to prevent his death. Mr Plasto-Lehner struggled for a
    prolonged period; his face went a dark red colour; and then his face went blue.
    The police members did not monitor his condition directly and failed to heed a
    number of warning calls from the doctors present and calls for them to
    鈥榞et off鈥.


  6. A number of police members say that the failure to heed warnings was because
    they did not hear them as a result of being so focused on restraining Mr
    Plasto-Lehner. For example, ACPO Krepapas says that 鈥業 didn鈥檛 hear
    anything they were saying, but I know that they were saying
    蝉辞尘别迟丑颈苍驳鈥.[123] Research
    has demonstrated that police members acting in a high stress situation have
    reduced sensory perception, such as 鈥榯unnel vision鈥 and diminished
    hearing.[124] This has
    implications for the training of police members in how to respond in high-stress
    situations, and the importance of having one police member designated to monitor
    the health and condition of the restrained person where there are multiple
    police members present. In respect of the training of police members, it has
    been suggested that in a high-stress situation, police members will revert to an
    experiential-thinking mode, which is thinking based on past experiences produced
    without conscious thought.[125] Accordingly, it is recommended that police members are not only trained in the
    skills to respond to warning signs of positional asphyxia but that these skills
    are tested through repetition under stress so that the trained response
    will take precedent over any previously learned or experienced
    behaviour.[126]


  7. The Commission submits that the Northern Territory police failed to properly
    care for Mr Plasto-Lehner鈥檚 life during his detention for the following
    reason:

    • the police members failed to respond sufficiently quickly to the directions
      of the doctors present that Mr Plasto-Lehner needed to be released immediately
      from the restraint position.


  8. The Commission submits that if the police members had been trained to
    monitor the condition and health of a person during restraint, and to be alert
    to the warning signs of the downward spiral of positional asphyxia, it is
    possible that Mr Plasto-Lehner鈥檚 death may have been avoided.
(d) Training of Northern Territory police members in
dealing with mentally ill persons
  1. The Commission submits that the use of force on Mr Plasto-Lehner discloses a
    significant shortcoming in police training for dealing with persons with a
    mental illness. While police members receive some training relevant to when they
    should exercise their powers of detention under the Mental Health and Related
    Services Act     (NT), it appears that members receive very little or no
    training in how best to manage people with mental illness and the sorts of
    issues that may arise when taking them into custody. In particular, for police
    involved in conveying people for assessment at Royal Darwin Hospital, there is
    apparently no training about when it is appropriate for police to seek to
    restrain a patient and when this role is more appropriate for hospital
    staff.


  2. Ms Bronwyn Hendry, Director of Mental Health, Department of Health and
    Families, gave evidence that her Department provided an hour and a half training
    to all new police recruits on recognising the signs and symptoms of mental
    illness, and that she was aware that they also received some legal training on
    the Mental Health and Related Services Act (NT), but that was the extent
    of the training that police members received regarding mental illness, to her
    knowledge.[127] In Ms
    Hendry鈥檚 view, the training of police in this regard was inadequate for
    them to develop the skills and confidence to deal effectively with mentally ill
    persons.[128] Ms Bronwyn Hendry
    explained the impact of this:

    Well, I think when people don鈥檛
    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?

    BRONWYN MARY HENDRY: Yes.[129]


  3. The Commission submits that Northern Territory police members should be
    comprehensively trained in how to deal appropriately with people with mental
    illness and practical guidelines should be developed. Such training should
    include an outline of the standards and principles that apply to mentally ill
    persons receiving medical attention, so that police members are aware that the
    use of force should be treated as a matter of last resort when a person is
    apprehended for the purposes of mental health assessment and treatment. The
    Commission submits that police members should be made aware of the United
    Nations Principles for the Protection of Persons with Mental Illness and for the
    Improvement of Mental Health
    Care    [130] (the 鈥楳ental
    Illness Principles鈥) as a reference point. The relevant principles
    include:

    • Principle 8(2): every patient is to be protected from harm, including
      unjustified medication abuse by other patients, staff or others or other acts
      causing mental distress or physical discomfort;


    • Principle 9(1): every patient shall have the right to be treated in the
      least restrictive environment...; and


    • Principle 11: physical restraint ... of a patient shall be employed ... only
      when it is the only means available to prevent immediate or imminent harm to the
      patient or others.

3.3 Transporting Mr Plasto-Lehner to Royal Darwin
Hospital

  1. The Commission submits that Mr Plasto-Lehner鈥檚 conveyance to Royal
    Darwin Hospital via Darwin Police Station was inconsistent with the right of a
    detained person to be treated humanely in article 10(1) of the ICCPR.


  2. The Commission is also concerned that Mr Plasto-Lehner was transported in a
    police caged vehicle to Royal Darwin Hospital. The Commission submits that being
    held in a locked caged vehicle can be a punitive and degrading experience for a
    person who is being transported for an urgent mental health assessment.


  3. It is Northern Territory police policy that:

    A person apparently
    suffering from mental illness should normally not be conveyed in a police
    vehicle, particularly a caged vehicle. Where immediate apprehension is effected
    this may be unavoidable and, wherever practicable, mental health or other
    medical professionals should be requested to transport mentally ill
    persons.[131]


  4. One of the reasons why a police caged vehicle is inappropriate for
    transporting people suffering from mental illness is outlined in clause 24.4 of
    the Northern Territory Police General Order on the Transport of Persons in
    Custody, which states that:

    Members need to be aware of the hazards
    involved in transporting a person in custody in the caged section of a police
    vehicle. These areas, by necessity, do not have:

    ....

    24.4 any means of communication.


  5. Where a person is suffering from mental illness it is critically important
    that the person is continually monitored. In the case of Mr Plasto-Lehner, being
    able to speak to someone and be reassured by that person helped to alleviate his
    state of anxiety and confusion.


  6. Persons detained by police for the purpose of a mental health assessment
    should be treated with humanity and dignity. When a person who is suffering from
    mental illness is detained and transported in a locked cage in a police vehicle,
    this can be a punitive and degrading experience to a vulnerable person and
    should be a measure of last resort.


  7. In the present case, the Commission submits that the use of a police caged
    vehicle was not a last resort. It was open to the police to request an ambulance
    to take Mr Plasto-Lehner to the hospital. It was also open to the police to
    convey Mr Plasto-Lehner in a marked or unmarked police sedan, without detaining
    him in a locked cage in a public space.


  8. It is also noted that no request was made by the police for assistance from
    Mental Health Services. If this request had been made, it may have been possible
    that Mr Plasto-Lehner could have been accompanied by a mental health
    professional.


  9. Additionally, and most importantly, the Commission submits that the decision
    to convey Mr Plasto-Lehner to Royal Darwin Hospital via Darwin Police Station
    was
    鈥榰苍补肠肠别辫迟补产濒别鈥.[132] The effect of this decision was to significantly increase the time that Mr
    Plasto-Lehner spent in the locked caged section of the police vehicle, an
    experience which appears to have contributed to his increasing distress and
    anxiety.


  10. The Commission further submits that the overall circumstances of Mr
    Plasto-Lehner鈥檚 transport to Royal Darwin Hospital constituted a breach of
    his right as a detained person to be treated with humanity and with respect for
    his inherent dignity. This human right is outlined in article 10(1) of the ICCPR
    and the Mental Illness Principles specifically recognise the application of the
    right to people with mental illness:

    All persons with a mental
    illness, or who are being treated as such persons, shall be treated with
    humanity and respect of the inherent dignity of the human
    person.[133]


  11. The Commission submits that, as discussed above at paragraph 106, for a person with a mental illness to be
    treated with humanity and with respect for his or her inherent dignity, the
    vulnerability and particular needs of that person must be taken into
    account.


  12. The Commission notes that when asked about the Memorandum of Understanding
    or what training they had had in respect of communicating and negotiating with
    mentally ill persons, many of the police members involved in the apprehension
    and conveyance of Mr Plasto-Lehner state that they had not received training on
    these matters.[134]


  13. The Commission also submits that there is insufficient written procedural
    guidance provided to police members on the transport of persons suffering mental
    illness, particularly those who are being transported solely for mental
    assessment. For example, Part 6 of the Northern Territory Police Custody Manual,
    which is dedicated to interactions between police members and mentally ill
    persons, could provide much clearer and concise guidance which explains,
    step-by-step, the considerations to be taken into account when exercising the
    power to immediately apprehend a person 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;


    • explaining 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 assessment for a person suffering mental
      disturbance;


    • identifying what would be the appropriate form of transport to take the
      person there, including whether an ambulance could be requested, or whether
      Mental Health Services could transport the person;


    • ensuring that the person is promptly taken to the most appropriate place of
      assessment by the most direct route;


    • outlining members鈥 responsibilities in respect of contacting 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.


  14. The Commission recommends that Part 6 of the Northern Territory Police
    Custody Manual should be revised accordingly. In addition, the General Order on
    Transport should be similarly revised.


  15. The Commission is also concerned that ACPO police members in particular may
    not receive essential training in respect of dealing with mentally ill persons
    and their obligations in respect of mentally ill persons. With respect to Mr
    Plasto-Lehner, ACPO Jon Morrison radioed twice for police backup within a period
    of approximately 20 minutes. In this time, ACPO Jon Morrison could have also
    requested an ambulance to attend Knuckey Street, which the Commission suggests
    would have been the most appropriate course of action.


  16. The Commission recommends that there be greater training on the terms of the
    Memorandum of Understanding for all police members as well as more in-depth
    training on dealing with mentally ill persons in the course of their duties.

3.4 The police investigation into the serious
injury and death of Mr Plasto-Lehner

  1. The Commission submits that the failure to comply with a number of the
    requirements of Part 10 of the Custody Manual 鈥 Deaths in Custody and
    Investigation of Serious And/Or Fatal Incidents Resulting From Police Contact
    with the Public (Deaths in Custody General Order) was inconsistent with the
    State鈥檚 obligation to provide an effective remedy in respect of Mr
    Plasto-Lehner鈥檚 right to life, as required by articles 2(3) and 6 of the
    ICCPR.


  2. The Commission is concerned that there was a failure to comply with a number
    of the requirements of Part 10 of the Custody Manual 鈥 Deaths in Custody
    and Investigation of Serious And/Or Fatal Incidents Resulting From Police
    Contact with the Public (Deaths in Custody General Order).


  3. The Deaths in Custody General Order requires that there be a police
    investigation into a serious or fatal incident resulting from police contact
    with the public. The Commission is concerned that a police investigation was not
    fully undertaken until Mr Plasto-Lehner鈥檚 death on 28 December 2007. This
    is despite the fact that a serious incident resulting from police contact with
    the public had occurred on 22 December 2007, namely that Mr
    Plasto-Lehner鈥檚 heart had stopped as a result of being held in a prone
    restraint position and handcuffed, with the weight of several persons on top of
    him.


  4. The Commission submits that this was in breach of the Deaths in Custody
    General Order and this breach compromised the investigation which was initiated
    after Mr Plasto-Lehner鈥檚 death. As discussed below, it appears that there
    was a failure to segregate the police members who were involved in the serious
    incident which led to the death of Mr Plasto-Lehner, there was a failure to
    prevent communication between these police witnesses, and there was a failure to
    establish a crime scene and preserve the evidence.


  5. As noted in the Deaths in Custody General Order, where serious injury or the
    death of an individual occurs as a result of police contact with the public,
    this can undermine the reputation of, and public confidence in, the police
    force.[135] It is essential that
    the police investigation into the serious injury or death is impartial, thorough
    and completed in an objective and timely
    manner.[136] Where this does not
    occur, it is a breach of the Deaths in Custody General Order. It also breaches
    the obligation to provide an 鈥榚ffective remedy鈥 in respect of an
    individual鈥檚 human rights, in this case the right to
    life.[137]
(a) Obligations of the senior police member arising
upon the report of an incident
  1. Clause 3.3 of the Deaths in Custody General Order states
    that:

    Where the death or serious incident was, or appears to have
    been, as a result of police contact with the public, the first senior member
    responding to the scene shall immediately advise the Duty Superintendent or
    where appropriate the Divisional Superintendent. The senior member will ensure
    that the scene is secured and only essential personnel involved in the
    preservation of life are allowed access. The senior member will also ensure that
    all witnesses to the incident are identified, that communication between such
    witnesses is prevented and arrangements are made for their immediate
    segregation, particularly any Police members directly involved in the
    incident.


  2. 鈥楽enior member鈥 is not defined in the Deaths in Custody General
    Order. It appears that Detective Sergeant Derek Maurice was that senior police
    member in the present case. Detective Sergeant Maurice was called to attend
    Royal Darwin Hospital on 22 December 2007. Detective Sergeant Maurice鈥檚
    notes from his notebook indicate that he arrived at Royal Darwin Hospital at
    6:50pm. Detective Sergeant Maurice states that by the time he arrived, the blood
    and bodily fluids had been cleaned up. He says he spoke with Kim Lavender and
    Doctor Surr at 7:30pm, and conducted the four interviews of the police members
    back at Darwin Police Station at the end of their shift.


  3. In the Commission鈥檚 view, on 22 December 2007 Detective Sergeant
    Maurice failed to (i) prevent communication between the witnesses; and (ii) to
    immediately segregate the witnesses, particularly those police members directly
    involved in the incident, as required by cl 3.3 of the Deaths in Custody General
    Order.
(b) Police member responsibilities under the Deaths
in Custody General Order
  1. Where a police member is involved in a serious or fatal incident, their
    obligations include being interviewed before the completion of their shift
    (cl 6.1.2). The Commission is concerned that there was only technical
    compliance with this obligation. Each of the officers declined to participate in
    the interview prior to the completion of their shift on the ground that they
    wished to seek legal advice. Clause 6.1.3 of Part 6 notes that police members
    are to be given the opportunity to seek legal advice. While this is appropriate,
    it should not be applied in such a way as to undermine the apparent purpose of
    the requirement in cl 6.1.2: namely, to ensure that the most contemporaneous
    statement possible is obtained.


  2. In the present matter, statements were not ultimately taken until 28
    December 2007. This is an unacceptable delay. The Commission notes that in the
    Gurralpa matter, Constables Lees and Berlin confirm that they received advice
    from Vince Kelly of the Northern Territory Police Association over the phone
    prior providing a statement on the day of the
    incident.[138] The Commission
    submits that the General Order should be amended to reflect that where advice is
    sought by a member who wishes to receive advice and it is not possible to do so
    before the end of the member鈥檚 shift, the member should be interviewed as
    soon as reasonably possible.

4 Recommendations

  1. The recommendations which the Commission submits that the Coroner should
    make in respect of the prevention of future deaths in similar circumstances and
    the administration of justice are set out below at Schedule One.

 

SCHEDULE ONE: RECOMMENDATIONS

The Commission submits that the Coroner should make the following
recommendations with respect to the prevention of future deaths in similar
circumstances and the administration of justice.

Prone restraint and positional asphyxia

  1. The Northern Territory Police should ensure that all members are trained and
    re-trained using reality based techniques to ensure an understanding of
    positional asphyxia which should include:

    1. the correlation between restraint positions and positional asphyxia;


    2. the risk factors;


    3. the signs and symptoms of positional asphyxia; and


    4. the prevention strategies to reduce the likelihood of positional asphyxia
      death, including identifying persons at risk and avoiding the prone restraint
      unless absolutely necessary.


  2. The Northern Territory Police training on the risk factors associated with
    positional asphyxia be extended to include:

    1. middle-aged Aboriginal men as a risk group; and


    2. the use of the term 鈥榖ig bellies鈥 as a risk factor, in
      recognition that obesity may be a factor that is difficult to
      judge.


  3. The Northern Territory Police should ensure that all members are trained and
    re-trained to monitor the health of persons where practicable during the use of
    the prone restraint, as well as immediately after the use of the prone
    restraint.

Treatment of mentally ill persons in custody

  1. 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. This could include retaining a mental
    health expert to provide training to police members on matters such
    as:

    1. communication strategies with mentally ill persons, including how to
      establish a rapport and calm down a distressed person;


    2. control tactics, including using distraction as a means of de-escalating an
      aggressive situation, verbal forms of restraint, containment strategies;
      and


    3. identifying symptoms and understanding changes in behaviour of mentally ill
      persons to be able to respond appropriately.

The training
should ensure that all members develop and retain the skills and confidence to
treat mentally ill persons appropriately and with respect.

  1. The Northern Territory Police should amend the General Order on Transport of
    Persons in Custody, and Part 6 of the Custody Manual 鈥 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:

    1. assessing whether each of the requirements of s 32A of the Mental Health Act
      have been met;


    2. communication strategies for dealing appropriately with a person suffering
      mental disturbance;


    3. calling Mental Health Services to see whether they could provide a field
      assessment at short notice or provide any assistance;


    4. locating the nearest place of treatment for a person suffering mental
      disturbance;


    5. identifying the appropriate form of transport, including whether an
      ambulance could be requested, or whether Mental Health Services could provide
      transport;


    6. ensuring that the person is promptly taken to the most appropriate place of
      assessment by the most direct route;


    7. outlining members鈥 responsibilities to contact the place of treatment
      to advise they are bringing a person in, and what their symptoms are;


    8. directing members to ensure that the appropriate forms are filled out and
      provided to the place of treatment; and


    9. providing guidance on when it is appropriate for police members to remain at
      the place of treatment and when they should
      leave.

Police investigations of serious or fatal
incidents resulting from police contact with the public

  1. The Northern Territory Police should make the following amendments to Part
    10 of the Northern Territory Policy Custody Manual 鈥 Deaths in Custody and
    Investigation of Serious and/or Fatal Incidents Resulting from Police Contact
    with the Public:

    1. Part 6 of the Order be amended to ensure that police members鈥
      responsibilities arise in respect of all incidents defined by the Order, not
      just in respect of fatal incidents.


    2. Clause 6.1.2 of the Order be amended to 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鈥檚 shift, the member should be interviewed as soon as
      reasonably practicable
      thereafter.

[1] Exhibit 24 鈥 A.Artwohl,
鈥Perceptual and Memory Distortion During Officer-Involved
厂丑辞辞迟颈苍驳蝉鈥.

[2] Exhibit
22 - Statement of Gerald Brendon Oliver dated 26 February, Annexure 1, p 1.
Evidence of Jessica Wilson on 26 February 2009, p 77 of the
transcript.

[3] Unit 036: Exhibit
22 - Statement of Gerald Brendon Oliver dated 26 February, Annexure 1, p
1.

[4] Statement of Brendan Berlin
dated 1 January 2008, p 2 at Folio C of the Police
Brief.

[5] Evidence of Brendan
Berlin on 2 March 2009, p 270 of the transcript. Evidence of Peggy Rankin on 27
February 2009, p 171 of the transcript. Exhibit 15 鈥 Notebook of Brendan
Berlin pp 26-29. See also, Evidence of Marcus Lees on 2 March 2009, p 327 of the
transcript.

[6] Evidence of
Brendan Berlin on 2 March 2009, p 271 of the transcript. Evidence of Marcus Lees
on 2 March 2009, p 328 of the
transcript.

[7] Exhibit 22 -
Statement of Gerald Brendon Oliver dated 26 February, Annexure 1, p
1.

[8] Evidence of Neil James on 27
February 2009, p 204 of the
transcript.

[9] Evidence of Brendan
Berlin on 2 March 2009, p 272 of the transcript. Evidence of Marcus Lees on 2
March 2009, p 328 of the transcript. Statement of Simeon Moscoa, dated 15
January 2008, pp 16, 18, Folio B of Police Brief. Statement of Jessica Wilson,
dated 15 January 2008, pp 6, 11-12, Folio B of Police Brief. Statement of
Genevieve Smith dated 2 January 2008, p 9, Folio B of Police
Brief.

[10] Evidence of Brendan
Berlin on 2 March 2009, p 288 of the transcript. Evidence of Neil James on 27
February 2009, p 205 of the
transcript.

[11] Evidence of
Brendan Berlin on 2 March 2009, p 274-5 of the transcript. Evidence of Marcus
Lees on 2 March 2009, p 324 of the transcript. Evidence of Devrim Kanyilmaz on 3
March 2009, p 393-4 of the
transcript.

[12] Evidence of
Marcus Lees on 2 March 2009, p 335-7 of the transcript. Evidence of Brendan
Berlin on 2 March 2009, p 278 of the
transcript.

[13] Evidence of
Devrim Kanyilmaz on 3 March 2009, p 394 of the
transcript.

[14] Evidence of
Marcus Lees on 2 March 2009, p 337 of the transcript. Evidence of Devrim
Kanyilmaz on 3 March 2009, p 394 of the
transcript.

[15] Evidence of
Brendan Berlin on 2 March 2009, p 287-9 of the transcript. Evidence of Marcus
Lees on 2 March 2009, p 356 of the transcript. Evidence of Devrim Kanyilmaz on 3
March 2009, p 401-2 of the transcript. See also evidence of Neil James on 2
March 2009, p 229 of the
transcript.

[16] Constable Berlin
described the struggle as nine out of ten, Constable Lees as seven out of ten,
Constable Kanyilmaz described the struggle as 鈥榲ery high up on the
scale鈥: Evidence of Brendan Berlin on 2 March 2009, p 277 of the
transcript. Evidence of Marcus Lees on 2 March 2009, p 339 of the transcript.
Evidence of Devrim Kanyilmaz on 3 March 2009, p 395 of the
transcript.

[17] Evidence of Neil
James on 27 February 2009, p 206-7 of the
transcript.

[18] Evidence of Neil
James on 2 March 2009, p 235 of the
transcript.

[19] Evidence of Neil
James on 27 February 2009, p 209 of the
transcript.

[20] Evidence of
Marcus Lees on 2 March 2009, p 338 of the
transcript.

[21] Evidence of
Sergeant Hansen on 10 March 2009, p 940 of the
transcript.

[22] Evidence of Neil
James on 27 February 2009, p 207 of the transcript. Evidence of Marcus Lees on 2
March 2009, p 339 of the transcript. Evidence of Melissa Kennedy on 3 March
2009, p 371 of the
transcript.

[23] Evidence of
David Wilson on 3 March 2009, p 445-7 of the transcript. Evidence of Ben Parfitt
on 3 March 2009, p 421 of the
transcript.

[24] Evidence of
Melissa Kennedy on 3 March 2009, p 369-70 of the
transcript.

[25] Evidence of
Marcus Lees on 2 March 2009, p 342-3 and 346 of the
transcript.

[26] Evidence of
Melissa Kennedy on 3 March 2009, p 373 of the
transcript.

[27] Exhibit 22 -
Statement of Gerald Brendon Oliver dated 26 February, Annexure 1, p
1.

[28] Statement of Nicole Bouma
dated 10 January 2008, p 5, Folio B of Police
Brief.

[29] Exhibit 6 鈥
Report of Dr Botterill dated 11 February
2009.

[30] Evidence of Dr
Botterill on 5 March 2009, p 661 of the transcript.

[31] This estimate is taken from
the times the members logged their arrival and the time the ambulance was
called: Exhibit 22 - Statement of Gerald Brendon Oliver dated 26 February,
Annexure 1, p 1.

[32] A.Leigh,
G.Johnson, A.Ingram, Deaths in Police Custody: Learning the Lessons, Police Research Series Paper 26, United Kingdom, 1998, p 48.

[33] R.L.O鈥橦alloran and
J.G.Frank, 鈥楢sphyxial Death During Prone Restraint Revisited: A Report of
21 Cases鈥, (2000) 21(1) The American Journal of Forensic Medicine and
Pathology 39, at Additional Documents Folio in Police Brief, Document 2, p
19. See also, evidence of Dr Botterill on 5 March 2009, p 654 of the
transcript.

[34] R.L.O鈥橦alloran and J.G.Frank, op cit, p
19.

[35] US Department of
Justice, 鈥楶ositional Asphyxia 鈥 Sudden Death鈥, National Law
Enforcement Technology Centre, June 1995, p
2.

[36] D.Robison, 鈥楽udden
In-Custody Death Syndrome鈥, (2005) 27 Topics in Emergency Medicine 36, 36.

[37] R.L.O鈥橦alloran and J.G.Frank, op cit, p
19.

[38] R.L.O鈥橦alloran and
J.G.Frank, op cit, p 1.

[39] Human Rights and Equal Opportunity Commission, Social Justice Report 2005, Chapter 2; B. Pink and P.Allbon, The Health and Welfare of
Australia鈥檚 Aboriginal and Torres Strait Islander Peoples, 2008, p 103
(see also Chapters 7 and 8 generally).

[40] Evidence of Dr Botterill on
5 March 2009, p 669 of the
transcript.

[41] R.L.O鈥橦alloran and J.G.Frank, op cit, p
14.

[42] R.L.O鈥橦alloran and
J.G.Frank, op cit, p 14.

[43] Osman v United Kingdom (1998) 29 European Human Rights Reporter 2452 at
[115]; Keenan v United Kingdom [2001] ECHR 242 (3 April 2001), within the
meaning of the equivalent provision in the Convention for the Protection of
Human Rights and Fundamental
Freedoms.

[44] Human Rights
Committee, General Comment No.6: The right to life (Art 6): 30/04/82, CCPR
General Comment No.6 at [5].

[45] Lantsov v Russian Federation, Human Rights Committee, Communication No.
763/1997: CCPR/C/74/D/763/1997 at
[9.2].

[46] Statement of Russell
Nichols dated 7 January 2008, pp 2, 3, at Folio B of the Police
Brief.

[47] See, for example,
evidence of Brendan Berlin on 2 March 2009, p 288-9 of the
transcript.

[48] Exhibit 17
(Confidential) - Northern Territory Police Operational Safety and Tactics
Training Unit, Defensive Tactics Manual, 2006, p
24.

[49] Evidence of Marcus Lees
on 2 March 2009, p 343 of the
transcript.

[50] Evidence of
Marcus Lees on 2 March 2009, p 346 of the
transcript.

[51] Exhibit 17
(Confidential) - Northern Territory Police Operational Safety and Tactics
Training Unit, Defensive Tactics Manual,
2006.

[52] Exhibit 17
(Confidential) 鈥 op cit, p
22.

[53] Exhibit 17
(Confidential) 鈥 op cit, p
23.

[54] Exhibit 17
(Confidential) 鈥 op cit, p
24.

[55] Exhibit 17
(Confidential) 鈥 op cit, p
25.

[56] Exhibit 18 in the
Plasto-Lehner inquest: Statement of Stephen Nalder dated 3 March 2009,
[4].

[57] Exhibit 18 in the
Plasto-Lehner inquest: Statement of Stephen Nalder dated 3 March 2009,
[7].

[58] Evidence of Devrim
Kanyilmaz on 3 March 2009, p 411 of the
transcript;

[59] Evidence of Neil
James on 2 March 2009, p 230 of the transcript; Evidence of Brendan Berlin on 2
March 2009, p 289 of the transcript; Evidence of Marcus Lees on 2 March 2009, pp
346, 354-5 of the transcript; Evidence of Melissa Kennedy on 3 March 2009, p 376
of the transcript.

[60] Evidence
of Neil James on 2 March 2009, p 228 of the transcript; Evidence of Melissa
Kennedy on 3 March 2009, p 377 of the transcript; Evidence of Devrim Kanyilmaz
on 3 March 2009, pp 404, 409 of the transcript; Evidence of David Wilson on 3
March 2009, p 456 of the
transcript.

[61] Evidence of
Sergeant Hansen on 10 March 2009, p 940-1 of the
transcript.

[62] Exhibit 19 in
the Plasto-Lehner inquest: Document prepared by Sergeant Hansen,
undated.

[63] Evidence of
Sergeant Hansen on 10 March 2009, p 941 of the
transcript.

[64] Evidence of
Sergeant Hansen on 10 March 2009, p 939 of the
transcript.

[65] Evidence of
Sergeant Hansen on 10 March 2009, p 959 of the
transcript.

[66] Evidence of
Sergeant Hansen on 10 March 2009, p 959-60 of the
transcript.

[67] Exhibit 17
(Confidential) 鈥 op cit, p
24.

[68] Evidence of Dorothy
Coleman on 10 March 2009, p 885 of the transcript. See also statement of Dorothy
Coleman dated 3 January 2008, p 7, Folio 3 of the Police
Brief.

[69] Statement of Jon
Morrison dated 28 December 2007, pp 3-4, Folio 1 of the Police
Brief.

[70] Statement of Jon
Morrison dated 28 December 2007, p 5, Folio 1 of the Police
Brief.

[71] Statement of Jon
Morrison dated 28 December 2007, p 5, Folio 1 of the Police
Brief.

[72] Evidence of Adrian
Kidney on 4 March 2009, p 475 of the
transcript.

[73] Statement of
Adrian Kidney dated 28 December 2007, p 7, Folio 1 of the Police
Brief.

[74] Statement of Adrian
Kidney dated 28 December 2007, p 7, Folio 1 of the Police
Brief.

[75] Evidence of Adrian
Kidney on 4 March 2009, p 476 of the
transcript.

[76] Evidence of
Adrian Kidney on 4 March 2009, p 476 of the
transcript.

[77] Evidence of
Bradley Fox on Monday 9 March 2009, p 808 of the
transcript.

[78] Evidence of Eric
Morrison on 5 March 2009, p 617 of the
transcript.

[79] Evidence of
Theresa De Groot on 4 March 2009, p 528 of the
transcript.

[80] Evidence of
Elinor Cromarty on 6 March 2009, p 776 of the
transcript.

[81] Statement of
Randall Edwards dated 8 January 2008, p 31, Folio 2 of the Police
Brief.

[82] Statement of Randall
Edwards dated 8 January 2008, p 17, Folio 2 of the Police
Brief.

[83] Statement of Randall
Edwards dated 8 January 2008, p 18, Folio 2 of the Police
Brief.

[84] Evidence of Rebecca
Weir on 6 March, p 720 of the
transcript.

[85] In a similar
coronial inquest, the Victorian Coroner accepted evidence that a mentally ill
person throwing his arms up in the air did not pose a threat to anyone and that
the police should have stepped back and considered other options, rather than
trying to apprehend him. See State Coroner of Victoria, Inquest of Gregory David
Couper, 7 June 2002, p
28.

[86]Evidence of Angela
Jackson on 4 March 2009, p 548 of the transcript; Statement of Nicolette
Krepapas dated 28 December 2007, p 5, Folio 1 of the Police
Brief.

[87] Evidence of Bradley
Fox on 9 March 2009, p 822 of the
transcript.

[88] Evidence of
Bradley Fox on 9 March 2009, p 820 of the
transcript.

[89] Philip
Strickland SC on Tuesday 10 March 2009, p 962 of the
transcript.

[90] Statement of
Bradley Fox dated 28 December 2007, p 5, Folio 1 of the Police
Brief.

[91] Evidence of Bradley
Fox on 9 March 2009, p 827 of the
transcript.

[92] Evidence of
Bradley Fox on 9 March 2009, p 828 of the
transcript.

[93] Evidence of Eric
Morrison on 6 March 2009, p 674 of the
transcript.

[94] Evidence of
Nicolette Krepapas on 4 March 2009, pp 513 鈥 515 of the
transcript.

[95] Evidence of
Nicolette Krepapas on 4 March 2009, p 516 of the transcript. Evidence of Angela
Jackson on 4 March 2009, p 550 of the
transcript.

[96] Evidence of
Randall Edwards on 6 March 2009, pp 737 鈥 738 of the
transcript.

[97] Statement of
Randall Edwards dated 8 January 2008, p 7, Folio 2 of the Police
Brief.

[98] The following four
eyewitnesses say that they saw both of the security guards restraining Mr
Plasto-Lehner: Evidence of Lai Heng Foong on 5 March 2009, p 625 of the
transcript; Statement of Elinor Cromarty dated 9 January 2008, p 8, Folio 2 of
the Police Brief; Evidence of Theresa De Groot on 4 March 2009, p 532 of the
transcript; and Evidence of Carissa Oh on 4 March 2009, p 556 of the
transcript.

[99] Statement of
Elinor Cromarty dated 9 January 2008, p 8, Folio 2 of the Police
Brief.

[100] Evidence of Elinor
Cromarty on 6 March 2009, p 778 of the transcript; Evidence of Carissa Oh on 4
March 2009, p 556 of the transcript; Evidence of Theresa De Groot on 4 March
2009, p 534 of the
transcript.

[101] Statement of
Elinor Cromarty dated 9 January 2008, p 9, Folio 2 of the Police
Brief.

[102] Statement of Lai
Heng Foong dated 8 January 2008, p 3, Folio 2 of the Police
Brief.

[103] Statement of
Elinor Cromarty dated 9 January 2008, p 9, Folio 2 of the Police
Brief.

[104] Statement of
Elinor Cromarty dated 9 January 2008, p 9, Folio 2 of the Police
Brief.

[105] Statement of Lai
Heng Foong dated 8 January 2008, p 3, Folio 2 of the Police
Brief.

[106] Evidence of Lai
Heng Foong on 5 March 2009, p 630 of the
transcript.

[107] Statement of
Elinor Cromarty dated 9 January 2008, p 10, Folio 2 of the Police
Brief.

[108] Statement of Lai
Heng Foong dated 8 January 2008, p 4, Folio 2 of the Police
Brief.

[109] Statement of Chris
Hodge dated 11 January 2008, p 6, Folio 2 of the Police
Brief.

[110] Statement of
Carissa Oh dated 9 January 2008, p 4; Folio 2 of the Police
Brief.

[111] Statement of Lai
Heng Foong dated 8 January 2008, p 16, Folio 2 of the Police
Brief.

[112] Exhibit 5 鈥
Report of Dr Botterill dated 10 February 2009, p
6.

[113] See also Principle 7
of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment: 鈥楴o person under any form of detention or
imprisonment shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment.

[114] Human Rights Committee, General Comment No. 20: Replaces general comment 7
concerning prohibition of torture and cruel treatment or punishment (Art 7):
10/03/92, CCPR General Comment No. 20 at [2] and
[5].

[115] See also Principle 1
of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment: 鈥楢ll persons under any form of detention or
imprisonment shall be treated in a humane manner and with respect for the
inherent dignity of the human person.鈥 And, Principle 1(2) of the Principles for the Protection of Persons with Mental Illness and the
Improvement of Mental Health Care: 鈥楢ll persons with a mental
illness...shall be treated with humanity and respect for the inherent dignity of
the human 辫别谤蝉辞苍鈥.

[116] Human Rights Committee, General Comment No.21: Replaces general comment 9
concerning humane treatment of persons deprived of liberty (Art 10): 10/04/92,
CCPR General Comment No.21 at
[3]-[4].

[117] Vuolanne v
Finland, Communication No. 265/1987: CCPR/C/35/D/265/1987 at [9.2]; Brough v Australia, Communication No. 1184/2003: CCPR/C/86/D/1184/2003 at
[9.4]. See also Keenan v United Kingdom [2001] ECHR 242 (3 April 2001),
with respect to the meaning of the equivalent provision in the Convention for
the Protection of Human Rights and Fundamental
Freedoms.

[118] Exhibit 17
(Confidential) - Northern Territory Police Operational Safety and Tactics
Training Unit, Defensive Tactics Manual 2006, cl 1.1.4, p
9.

[119] Exhibit 17
(Confidential) - Northern Territory Police Operational Safety and Tactics
Training Unit, Defensive Tactics Manual, 2006, cl 1.1.4, p
9.

[120] Statement of Lai Heng
Foong dated 8 January 2008, pp 9-10, Folio 2 of the Police
Brief.

[121] Evidence of
Gregory Hansen on 10 March 2009, pp 945 鈥 946 of the
transcript.

[122] Northern
Territory Police Custody Manual Part One - Care and Safety of Persons in
Custody, cl 23.1.

[123] Statement of Nicolette Krepapas dated 28 December 2007, p 6, Folio 1 of the
Police Brief.

[124] Exhibit 24
- A Artwohl, 鈥Perceptual and Memory Distortion During Officer-Involved
Shootings鈥.

[125] Exhibit 24 - A Artwohl, 鈥Perceptual and Memory Distortion During
Officer-Involved Shootings鈥, p
4.

[126] Exhibit 24 - A
Artwohl, 鈥Perceptual and Memory Distortion During Officer-Involved
Shootings鈥, p
4.

[127] Evidence of Bronwyn
Hendry on Friday 6 March 2009, p 759 of the
transcript.

[128] Evidence of
Bronwyn Hendry on Friday 6 March 2009, p 760 of the
transcript.

[129] Evidence of
Bronwyn Hendry on Friday 6 March 2009, p 760 of the
transcript.

[130] General
Assembly Resolution 46/119 of 17 December
1991.

[131] Northern Territory
Police Custody Manual Part Six - Mentally Ill Persons, cl 9.1. See also Memorandum of Understanding in Respect of Cooperative Arrangements in Mental
Health Response Situations, June 2002, cl
5.7.1.

[132] Philip Strickland
SC on Tuesday 10 March 2009, p 966 of the
transcript.

[133] United
Nations Principles for the Protection of Persons with Mental Illness and for the
Improvement of Mental Health Care, article
1(2).

[134] Evidence of Adrian
Kidney on 4 March 2009, p 485 of the transcript; Evidence of Linda Sayers on 4
March 2009, pp 496 - 497 of the transcript; Statement of Vanessa Martin dated 29
December 2007, p 5, Folio 1 of the Police Brief; Evidence of Nicolette
Krepapas on 4 March 2003, p 521 of the transcript; Evidence of Eric Morrison 6
March 2009, p 684 of the
transcript.

[135] Northern
Territory Police Custody Manual Part 10鈥 Deaths in Custody and
Investigation of Serious And/Or Fatal Incidents Resulting From Police Contact
with the Public, cl 1.3.

[136] Northern Territory Police Custody Manual Part 10鈥 Deaths in Custody and
Investigation of Serious And/Or Fatal Incidents Resulting From Police Contact
with the Public cls 1.4 and
4.1.

[137] Article 6(1) of the
ICCPR.

[138] Evidence of Marcus
Lees on 2 March 2009, p 344 of the transcript; Evidence of Brendan Berlin on 2
March 2009, p 307 of the transcript.