Deaths in custody: David Dungay's mother tells NSW parliament 'the system is broken'

The mother of David Dungay, an Aboriginal man who died after being held face down by five Sydney prison guards, said it was a “slap in the face” that the public prosecutor would not investigate whether criminal offences might have been committed by the officers involved.

David Dungay, a 26-year-old Dunghutti man who had diabetes and schizophrenia, was in Long Bay jail hospital in November 2015 when guards stormed his cell after he refused to stop eating a packet of biscuits. Dungay said 12 times that he couldn’t breathe before losing consciousness and dying.

“No one showed my son any compassion,” Leetona Dungay told a New South Wales upper house inquiry into the state’s high Aboriginal incarceration rates. Dungay had to stop on several occasions to gather her breath and composure before she could continue reading her statement on Monday.

“The system is broken and parliament has the power to fix it – change the law so there is a pathway so the DPP can investigate my son’s death,” she said.

Related: David Dungay: manslaughter or assault charges over death in custody are 'viable', barrister says

“The one strong, burning desire I have, and my family has, that has kept us going through the ongoing trauma, is we want to see justice for David’s death. Someone or some organisation must be held accountable. Stop black deaths in custody.”

In November 2019, the coroner found that none of the five guards who restrained Dungay should face disciplinary action. Their conduct was “limited by systemic inefficiencies in training”. But in advice provided to the family, a leading criminal barrister, Phillip Boulten SC, said “a reasonable prospect of conviction exists”. He argued the guards’ “application of force was illegal” and “carried with it grave risks of serious harm”.

The NSW director of public prosecutions has said it cannot investigate the death.

“Our involvement in a matter commences following a referral from an investigatory agency, such as the NSW police force, or another statutory body with investigative or inquisitorial powers, such as the coroner’s court,” a spokesperson for the DPP told the Guardian in August. “There has been no such referral in this matter.”

Earlier, the parliamentary inquiry heard that homelessness and domestic violence were behind the growing number of Aboriginal women entering NSW prisons, leading to the breakup of families and children being taken into out of home care.

Representatives of women’s legal services said one in three women in NSW jails was Aboriginal, many of them mothers.

Aboriginal women who are fleeing domestic violence and find themselves homeless are reluctant to access support services for fear of losing their children to the foster care system, they said.

“It’s harder for women to get support these days,” the Women’s Legal Service’s First Nations community officer, Gail Thorne, said.

“The clients that I come across are ending up in the system because they’re not getting the right support at the right time. So they are getting their kids removed, then they have to jump through this hoop, then have to do this. It’s like they take one step forward and 10 steps back. To me, it seems they are getting pulled into that system.

Related: The story of David Dungay and an Indigenous death in custody

“There are not enough services to support First Nations people. Kids are getting removed too easy, there’s not enough family support, there’s not enough working with the whole family instead of separating them.”

The Redfern Legal Centre lawyer Samantha Lee said it was common for Aboriginal women who call the police to report domestic violence to end up in custody themselves.

“They have rung police because of a DV dispute, they have called triple zero, police have come to their place, and the woman is obviously afraid,” Lee said.

“The police then go to speak to the husband and they form the view that they are going to take the husband’s story and put that ahead of the woman’s story, and what they do is end up arresting the person who has called triple zero and place them into custody.

“One of the problems is [police] are quick to judge and usually they are very quick to judge First Nations people and women.”

The parliamentary inquiry has been set up to look into “the unacceptably high level” of Aboriginal people in custody, the suitability of the organisations that investigate deaths, and how they could be improved.