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 Australian Human Rights Commission

4 April 2009

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1 Introduction

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’s death was caused or contributed to by
injuries sustained while being held in custody.

These submissions by the Australian Human Rights Commission focus on the
human rights issues surrounding the deaths of Mr Gurralpa and Mr
Plasto-Lehner.

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.

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.

The Commission’s 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’s 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’s 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’s 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’s right to life, as the police
investigation failed to comply with the requirements of Part 10 of the Custody
Manual – 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:

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.

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

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.

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.

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

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

2 The
death of Mr Gurralpa

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

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.

Mr Gurralpa was a 39 year-old Aboriginal man. He was present at a New
Year’s 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 ‘lots of people are fighting and they are all
intoxicated’, ‘they are throwing saucepans at each
other’.^[2]

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 ‘decided to attend as
well to lend some
assistance’.^[4]

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]

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

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]

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’t have a good grip. The
members and Mr Gurralpa fell to the ground, at which time the three members
commenced ‘ground
stabilisation’.^[11]

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’s 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’s legs, by placing them in a leg lock.
The leg lock failed and Constable Kanyilmaz instead placed his knee on Mr
Gurralpa’s left leg and held his right leg down with his
hands.^[13] Constables Lees and
Kanyilmaz told Mr Gurralpa to ‘settle down’ and ‘stop
resisting’.^[14]

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.

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
‘stay back, stay back’. Constable James observed Lees lose his grip
and he thought Mr Gurralpa was going to get up. Constable James lifted Mr
Gurralpa’s 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’t affect the
intensity of Mr Gurralpa’s
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’t 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.

Constable James returned to monitor the crowd. The crowd were calling out
warnings to the members including ‘he has asthma’, ‘he is a
sick man’. Constables Lees, James and Kennedy heard these
warnings.^[22]

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.

All members reported that Mr Gurralpa stopped struggling once handcuffed.
Constable Lees observed that Mr Gurralpa’s body went limp and he appeared
to be unconscious at this time. Constable Lees didn’t mention this to
anyone. He got up and turned to monitor the crowd. He stated in evidence that he
didn’t turn his mind to the health of Mr Gurralpa. He was more concerned
by the crowd who were ‘yelling and screaming at
me’.^[25]

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’t 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.

Once in the police van, the members checked Mr Gurralpa’s vital signs,
his handcuffs were removed and resuscitation commenced. Mr Gurralpa’s
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.

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.

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

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

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]

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 – either because their hands were handcuffed behind them or
because someone was on top of them, placing pressure on their
back.^[32]

A number of factors may increase the risk of
death from positional asphyxia, including:
- Obesity, particularly ‘big bellies’: 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]

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.

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]

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

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

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 “inherent right to life” cannot properly be understood in
a restrictive manner, and the protection of this right requires that States
adopt positive measures.

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.

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

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.

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’s health and life

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

The Commission submits that the Northern Territory police failed to properly
care for Mr Gurralpa’s life during his detention in the following
respects:
- the police members failed to heed warnings from Mr Gurralpa’s 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.

Whilst Mr Gurralpa was being held in the prone restraint, his family members
were calling out warnings to the police including ‘he has asthma’,
‘he is a sick man’. 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.

In the Commission’s 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]

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’s 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 ‘Did
you even turn your mind to his health?’ He replied
‘No’.^[49] The member
stated in evidence that he fell down in his training in this
respect.^[50]

Whilst there was no evidence that the actions of this member contributed to
Mr Gurralpa’s death, the failure to provide immediate medical assistance
is of serious concern. In the Commission’s 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’ awareness of the dangers of the prone
restraint.

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

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.

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.

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’s respiration is increased...

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

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 ‘recognition of this
pattern may enable police to alter the method in which they attempt to resolve
the situation and avert a tragic
outcome’:^[53]

Stage
1 – 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 – 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 – 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.

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]

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

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

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...

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.

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 – were you alert to
the risk in relation to the deceased when he was brought to the ground? –
No, I didn’t classify him as obese. I didn’t think he was obese, so
I wasn’t – didn’t really come to mind what you’re
asking, no.

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

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

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’s 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.

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).

In the Commission’s 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.

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.

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 ‘in service’
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

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.

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.

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.

Evidence was heard at the inquest that it may not be practical to monitor a
person’s 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’s where seven members were present, one of the members could have
been responsible for monitoring Mr Gurralpa’s condition during the
restraint if so trained. Sergeant Hansen responded ‘that’s certainly
something that I think we should look at,
yes’.^[66]

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

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

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

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’s family.

Mr Plasto-Lehner’s 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’s 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]

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.

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.

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.

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 ‘just, just let me have a few
minutes’ 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]

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 ‘I’m sorry, sorry to waste your
time’.^[72] Constable Kidney
said that Mr Plasto-Lehner agreed to go to the hospital in the police vehicle
with him, saying ‘I’ll go with you but I’m not gonna go with
him’ pointing to ACPO Jon
Morrison.^[73] Constable Kidney said
that as they approached the police vehicle, Mr Plasto-Lehner said
‘I’m not getting in the back cage, can I get in the
backseat’,^[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]

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]

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’s arms and guided him into the back cage of Constable Kidney
and Constable Sayer’s police vehicle.

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]

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’s vehicle.

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

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.

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.

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.

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.

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.

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

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

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 ‘sort of jacked up and
refused to go in’, saying that he was locked up once and that he
can’t go in there.^[81] Mr
Edwards says that Mr Plasto-Lehner’s 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]

Mr Edwards states that Mr Plasto-Lehner ‘was sort of raising his
arms’.^[83] Nurse Rebecca Weir
also gave evidence that Mr Plasto-Lehner throwing up his arms could be described
as ‘windmill’ arms,^[84] something which is typical of psychiatric
patients.^[85]

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’s 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]

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]

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.

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]

During this time, Acting Sergeant Fox and ACPO Eric Morrison applied
significant weight to Mr Plasto-Lehner’s upper torso, trying to effect a
‘3 point hold’. Acting Sergeant Fox says that he was using all his
physical strength and weight, trying to shift it onto Mr Plasto-Lehner’s
torso to prevent Mr Plasto-Lehner from pushing away from the
ground,^[90] and that his right knee
was on Mr Plasto-Lehner’s left scapula. Acting Sergeant Fox says he also
held Mr Plasto-Lehner’s 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]

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

ACPO Krepapas was holding Mr Plasto-Lehner’s 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’s right arm and was struggling to get the
handcuff on, as his wrists were
large.^[95]

Also at this time, Mr Edwards held Mr Plasto-Lehner’s 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’s
legs.^[98]

Dr Cromarty states that she heard commotion from where she was on the
‘flight deck’ 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.

Dr Cromarty says that as she tried to approach Mr Plasto-Lehner, one of the
police members put his knee on Mr Plasto-Lehner’s head and Mr
Plasto-Lehner’s 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 – um – I asked if they could just please ease up a little
bit and was told – um – that they had to do this for their own
safety and – and I should back off and I – 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]

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’s head, trying to talk to him. Dr Cromarty said
‘just try and – try and just really relax Robert, and then
we’ll – we’ll get these guys off – off
you...’.^[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 ‘just let go of him, he’s getting
blue’.^[105] Dr Foong says
that nothing happened when she said this, and that she had to say it again,
‘get off him, he’s going blue’ before anyone
responded.^[106]

When the police members and hospital staff holding Mr Plasto-Lehner released
him from the prone restraint hold and turned him over, he wasn’t breathing
and he was still very
blue.^[107]

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]

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.

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.

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

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

(a) Rights to humane treatment

Article 7 of the ICCPR provides that ‘No one shall be subjected to
torture or to cruel, inhuman or degrading treatment or
punishment’.^[113] The aim of
article 7 is to protect the dignity and the physical and mental integrity of the
individual.^[114]

The prohibition in article 7 is complemented in the ICCPR by the positive
requirements of article 10. Article 10(1) provides that ‘all persons
deprived of their liberty shall be treated with humanity and with respect for
the inherent dignity of the human
person’.^[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]

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’s 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

Article 6(1) of the ICCPR states that ‘Every human being has the
inherent right to life. This right shall be protected by law. No one shall be
arbitrarily deprived of his life’. It is an essential component of the
right to life that police, by arresting and detaining individuals, take
responsibility to care for their life.

Where the actions of the state, including the actions of the police, may
have contributed to a person’s 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.

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

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.

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

Finally, the Commission submits that the failure to properly investigate Mr
Plasto-Lehner’s 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

In the Commission’s 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.

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

The Commission submits that the decision to use force on Mr Plasto-Lehner
was not necessary in the circumstances.

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.

In deciding how to respond to Mr Plasto-Lehner’s 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 ‘unnecessary force’
is used.

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.

Relevantly, the Defensive Tactics Manual states that a ‘Safety
First’ 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]

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’s 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.

In the Commission’s 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.

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

The Commission submits that the degree of force used by the police members
was not proportionate to the circumstances.

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’s head. Three other police members
assisted with the prone restraint of Mr Plasto-Lehner.

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.

Mr Plasto-Lehner had not committed or attempted to commit any offence. Aside
from his failure to comply with Acting Sergeant Fox’s 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.

Mr Plasto-Lehner presented with a number of risk factors that made him more
susceptible to death by positional asphyxia, including:
- obesity, particularly a ‘big belly’;
- pre-existing heart disease;
- significant physical exertion during restraint; and
- acute psychosis and agitation.

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’s 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’t turn his ...head at all, and that’s when
he started bleeding, and that’s when I got a bit worried, and said, you
know, like – and I could see that he was struggling initially, not
struggling any more and then he went from a pink colour to
blue.^[120]

In the Commission’s 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.

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

In the Commission’s 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

It is an essential part of the right to life that the State, by detaining
individuals, takes responsibility to care for their life.

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

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.

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.

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
‘get off’.

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 ‘I didn’t hear
anything they were saying, but I know that they were saying
something’.^[123] Research
has demonstrated that police members acting in a high stress situation have
reduced sensory perception, such as ‘tunnel vision’ 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]

The Commission submits that the Northern Territory police failed to properly
care for Mr Plasto-Lehner’s 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.

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’s death may have been avoided.

(d) Training of Northern Territory police members in
dealing with mentally ill persons

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.

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’s 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’t
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]

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 ‘Mental
Illness Principles’) 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

The Commission submits that Mr Plasto-Lehner’s 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.

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.

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]

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.

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.

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.

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.

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.

Additionally, and most importantly, the Commission submits that the decision
to convey Mr Plasto-Lehner to Royal Darwin Hospital via Darwin Police Station
was
‘unacceptable’.^[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.

The Commission further submits that the overall circumstances of Mr
Plasto-Lehner’s 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]

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.

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]

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’ 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.

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.

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.

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

The Commission submits that the failure to comply with a number of the
requirements of Part 10 of the Custody Manual – 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’s obligation to provide an effective remedy in respect of Mr
Plasto-Lehner’s right to life, as required by articles 2(3) and 6 of the
ICCPR.

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

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’s 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’s 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.

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’s 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.

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 ‘effective remedy’ in respect of an
individual’s human rights, in this case the right to
life.^[137]

(a) Obligations of the senior police member arising
upon the report of an incident

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.

‘Senior member’ 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’s
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.

In the Commission’s 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

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.

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’s shift, the member should be interviewed as
soon as reasonably possible.

4 Recommendations

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

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.

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 ‘big bellies’ as a risk factor, in
  recognition that obesity may be a factor that is difficult to
  judge.

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

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.

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

The Northern Territory Police should make the following amendments to Part
10 of the Northern Territory Policy Custody Manual – 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’
  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’s shift, the member should be interviewed as soon as
  reasonably practicable
  thereafter.

^[1] Exhibit 24 – A.Artwohl,
‘Perceptual and Memory Distortion During Officer-Involved
Shootings’.

^[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 – 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 ‘very high up on the
scale’: 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 –
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’Halloran and
J.G.Frank, ‘Asphyxial Death During Prone Restraint Revisited: A Report of
21 Cases’, (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’Halloran and J.G.Frank, op cit, p
19.

^[35] US Department of
Justice, ‘Positional Asphyxia – Sudden Death’, National Law
Enforcement Technology Centre, June 1995, p
2.

^[36] D.Robison, ‘Sudden
In-Custody Death Syndrome’, (2005) 27 Topics in Emergency Medicine 36, 36.

^[37] R.L.O’Halloran and J.G.Frank, op cit, p
19.

^[38] R.L.O’Halloran 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’s 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’Halloran and J.G.Frank, op cit, p
14.

^[42] R.L.O’Halloran 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) – op cit, p
22.

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

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

^[55] Exhibit 17
(Confidential) – 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) – 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 – 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 – 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 –
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: ‘No 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: ‘All 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.’ And, Principle 1(2) of the Principles for the Protection of Persons with Mental Illness and the
Improvement of Mental Health Care: ‘All persons with a mental
illness...shall be treated with humanity and respect for the inherent dignity of
the human person’.

^[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 – 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, ‘Perceptual and Memory Distortion During Officer-Involved
Shootings’.

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

^[126] Exhibit 24 - A
Artwohl, ‘Perceptual and Memory Distortion During Officer-Involved
Shootings’, 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– 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– 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

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’s death was caused or contributed to by
injuries sustained while being held in custody.

These submissions by the Australian Human Rights Commission focus on the
human rights issues surrounding the deaths of Mr Gurralpa and Mr
Plasto-Lehner.

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.

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.

The Commission’s 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’s 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

the decision to use force and the degree of force used was
inconsistent with Mr Plasto-Lehner’s 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’s 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’s right to life, as the police
investigation failed to comply with the requirements of Part 10 of the Custody
Manual – 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:

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.

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

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.

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.

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

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

2 The
death of Mr Gurralpa

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

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.

Mr Gurralpa was a 39 year-old Aboriginal man. He was present at a New
Year’s 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 ‘lots of people are fighting and they are all
intoxicated’, ‘they are throwing saucepans at each
other’.^[2]

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 ‘decided to attend as
well to lend some
assistance’.^[4]

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]

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

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]

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’t have a good grip. The
members and Mr Gurralpa fell to the ground, at which time the three members
commenced ‘ground
stabilisation’.^[11]

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’s 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’s legs, by placing them in a leg lock.
The leg lock failed and Constable Kanyilmaz instead placed his knee on Mr
Gurralpa’s left leg and held his right leg down with his
hands.^[13] Constables Lees and
Kanyilmaz told Mr Gurralpa to ‘settle down’ and ‘stop
resisting’.^[14]

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.

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
‘stay back, stay back’. Constable James observed Lees lose his grip
and he thought Mr Gurralpa was going to get up. Constable James lifted Mr
Gurralpa’s 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’t affect the
intensity of Mr Gurralpa’s
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’t 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.

Constable James returned to monitor the crowd. The crowd were calling out
warnings to the members including ‘he has asthma’, ‘he is a
sick man’. Constables Lees, James and Kennedy heard these
warnings.^[22]

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.

All members reported that Mr Gurralpa stopped struggling once handcuffed.
Constable Lees observed that Mr Gurralpa’s body went limp and he appeared
to be unconscious at this time. Constable Lees didn’t mention this to
anyone. He got up and turned to monitor the crowd. He stated in evidence that he
didn’t turn his mind to the health of Mr Gurralpa. He was more concerned
by the crowd who were ‘yelling and screaming at
me’.^[25]

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’t 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.

Once in the police van, the members checked Mr Gurralpa’s vital signs,
his handcuffs were removed and resuscitation commenced. Mr Gurralpa’s
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.

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.

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

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

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]

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 – either because their hands were handcuffed behind them or
because someone was on top of them, placing pressure on their
back.^[32]

A number of factors may increase the risk of
death from positional asphyxia, including:
- Obesity, particularly ‘big bellies’: 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]

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.

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]

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

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

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 “inherent right to life” cannot properly be understood in
a restrictive manner, and the protection of this right requires that States
adopt positive measures.

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.

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

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.

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’s health and life

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

The Commission submits that the Northern Territory police failed to properly
care for Mr Gurralpa’s life during his detention in the following
respects:
- the police members failed to heed warnings from Mr Gurralpa’s 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.

Whilst Mr Gurralpa was being held in the prone restraint, his family members
were calling out warnings to the police including ‘he has asthma’,
‘he is a sick man’. 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.

In the Commission’s 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]

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’s 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 ‘Did
you even turn your mind to his health?’ He replied
‘No’.^[49] The member
stated in evidence that he fell down in his training in this
respect.^[50]

Whilst there was no evidence that the actions of this member contributed to
Mr Gurralpa’s death, the failure to provide immediate medical assistance
is of serious concern. In the Commission’s 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’ awareness of the dangers of the prone
restraint.

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

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.

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.

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’s respiration is increased...

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

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 ‘recognition of this
pattern may enable police to alter the method in which they attempt to resolve
the situation and avert a tragic
outcome’:^[53]

Stage
1 – 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 – 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 – 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.

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]

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

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

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...

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.

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 – were you alert to
the risk in relation to the deceased when he was brought to the ground? –
No, I didn’t classify him as obese. I didn’t think he was obese, so
I wasn’t – didn’t really come to mind what you’re
asking, no.

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

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

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’s 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.

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).

In the Commission’s 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.

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.

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 ‘in service’
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

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.

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.

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.

Evidence was heard at the inquest that it may not be practical to monitor a
person’s 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’s where seven members were present, one of the members could have
been responsible for monitoring Mr Gurralpa’s condition during the
restraint if so trained. Sergeant Hansen responded ‘that’s certainly
something that I think we should look at,
yes’.^[66]

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

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

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

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’s family.

Mr Plasto-Lehner’s 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’s 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]

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.

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.

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.

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 ‘just, just let me have a few
minutes’ 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]

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 ‘I’m sorry, sorry to waste your
time’.^[72] Constable Kidney
said that Mr Plasto-Lehner agreed to go to the hospital in the police vehicle
with him, saying ‘I’ll go with you but I’m not gonna go with
him’ pointing to ACPO Jon
Morrison.^[73] Constable Kidney said
that as they approached the police vehicle, Mr Plasto-Lehner said
‘I’m not getting in the back cage, can I get in the
backseat’,^[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]

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]

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’s arms and guided him into the back cage of Constable Kidney
and Constable Sayer’s police vehicle.

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]

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’s vehicle.

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

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.

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.

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.

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.

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.

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

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

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 ‘sort of jacked up and
refused to go in’, saying that he was locked up once and that he
can’t go in there.^[81] Mr
Edwards says that Mr Plasto-Lehner’s 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]

Mr Edwards states that Mr Plasto-Lehner ‘was sort of raising his
arms’.^[83] Nurse Rebecca Weir
also gave evidence that Mr Plasto-Lehner throwing up his arms could be described
as ‘windmill’ arms,^[84] something which is typical of psychiatric
patients.^[85]

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’s 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]

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]

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.

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]

During this time, Acting Sergeant Fox and ACPO Eric Morrison applied
significant weight to Mr Plasto-Lehner’s upper torso, trying to effect a
‘3 point hold’. Acting Sergeant Fox says that he was using all his
physical strength and weight, trying to shift it onto Mr Plasto-Lehner’s
torso to prevent Mr Plasto-Lehner from pushing away from the
ground,^[90] and that his right knee
was on Mr Plasto-Lehner’s left scapula. Acting Sergeant Fox says he also
held Mr Plasto-Lehner’s 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]

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

ACPO Krepapas was holding Mr Plasto-Lehner’s 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’s right arm and was struggling to get the
handcuff on, as his wrists were
large.^[95]

Also at this time, Mr Edwards held Mr Plasto-Lehner’s 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’s
legs.^[98]

Dr Cromarty states that she heard commotion from where she was on the
‘flight deck’ 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.

Dr Cromarty says that as she tried to approach Mr Plasto-Lehner, one of the
police members put his knee on Mr Plasto-Lehner’s head and Mr
Plasto-Lehner’s 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 – um – I asked if they could just please ease up a little
bit and was told – um – that they had to do this for their own
safety and – and I should back off and I – 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]

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’s head, trying to talk to him. Dr Cromarty said
‘just try and – try and just really relax Robert, and then
we’ll – we’ll get these guys off – off
you...’.^[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 ‘just let go of him, he’s getting
blue’.^[105] Dr Foong says
that nothing happened when she said this, and that she had to say it again,
‘get off him, he’s going blue’ before anyone
responded.^[106]

When the police members and hospital staff holding Mr Plasto-Lehner released
him from the prone restraint hold and turned him over, he wasn’t breathing
and he was still very
blue.^[107]

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]

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.

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.

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

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

(a) Rights to humane treatment

Article 7 of the ICCPR provides that ‘No one shall be subjected to
torture or to cruel, inhuman or degrading treatment or
punishment’.^[113] The aim of
article 7 is to protect the dignity and the physical and mental integrity of the
individual.^[114]

The prohibition in article 7 is complemented in the ICCPR by the positive
requirements of article 10. Article 10(1) provides that ‘all persons
deprived of their liberty shall be treated with humanity and with respect for
the inherent dignity of the human
person’.^[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]

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’s 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

Article 6(1) of the ICCPR states that ‘Every human being has the
inherent right to life. This right shall be protected by law. No one shall be
arbitrarily deprived of his life’. It is an essential component of the
right to life that police, by arresting and detaining individuals, take
responsibility to care for their life.

Where the actions of the state, including the actions of the police, may
have contributed to a person’s 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.

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

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.

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

Finally, the Commission submits that the failure to properly investigate Mr
Plasto-Lehner’s 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

In the Commission’s 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.

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

The Commission submits that the decision to use force on Mr Plasto-Lehner
was not necessary in the circumstances.

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.

In deciding how to respond to Mr Plasto-Lehner’s 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 ‘unnecessary force’
is used.

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.

Relevantly, the Defensive Tactics Manual states that a ‘Safety
First’ 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]

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’s 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.

In the Commission’s 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.

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

The Commission submits that the degree of force used by the police members
was not proportionate to the circumstances.

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’s head. Three other police members
assisted with the prone restraint of Mr Plasto-Lehner.

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.

Mr Plasto-Lehner had not committed or attempted to commit any offence. Aside
from his failure to comply with Acting Sergeant Fox’s 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.

Mr Plasto-Lehner presented with a number of risk factors that made him more
susceptible to death by positional asphyxia, including:
- obesity, particularly a ‘big belly’;
- pre-existing heart disease;
- significant physical exertion during restraint; and
- acute psychosis and agitation.

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’s 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’t turn his ...head at all, and that’s when
he started bleeding, and that’s when I got a bit worried, and said, you
know, like – and I could see that he was struggling initially, not
struggling any more and then he went from a pink colour to
blue.^[120]

In the Commission’s 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.

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

In the Commission’s 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

It is an essential part of the right to life that the State, by detaining
individuals, takes responsibility to care for their life.

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

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.

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.

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
‘get off’.

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 ‘I didn’t hear
anything they were saying, but I know that they were saying
something’.^[123] Research
has demonstrated that police members acting in a high stress situation have
reduced sensory perception, such as ‘tunnel vision’ 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]

The Commission submits that the Northern Territory police failed to properly
care for Mr Plasto-Lehner’s 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.

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’s death may have been avoided.

(d) Training of Northern Territory police members in
dealing with mentally ill persons

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.

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’s 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’t
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]

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 ‘Mental
Illness Principles’) 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

The Commission submits that Mr Plasto-Lehner’s 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.

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.

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]

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.

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.

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.

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.

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.

Additionally, and most importantly, the Commission submits that the decision
to convey Mr Plasto-Lehner to Royal Darwin Hospital via Darwin Police Station
was
‘unacceptable’.^[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.

The Commission further submits that the overall circumstances of Mr
Plasto-Lehner’s 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]

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.

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]

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’ 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.

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.

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.

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

The Commission submits that the failure to comply with a number of the
requirements of Part 10 of the Custody Manual – 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’s obligation to provide an effective remedy in respect of Mr
Plasto-Lehner’s right to life, as required by articles 2(3) and 6 of the
ICCPR.

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

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’s 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’s 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.

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’s 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.

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 ‘effective remedy’ in respect of an
individual’s human rights, in this case the right to
life.^[137]

(a) Obligations of the senior police member arising
upon the report of an incident

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.

‘Senior member’ 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’s
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.

In the Commission’s 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

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.

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’s shift, the member should be interviewed as
soon as reasonably possible.

4 Recommendations

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

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.

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 ‘big bellies’ as a risk factor, in
  recognition that obesity may be a factor that is difficult to
  judge.

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

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.

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

The Northern Territory Police should make the following amendments to Part
10 of the Northern Territory Policy Custody Manual – 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’
  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’s shift, the member should be interviewed as soon as
  reasonably practicable
  thereafter.

Search

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

CORONERS COURT OF OF THE NORTHERN TERRITORY

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

1 Introduction

2 The death of Mr Gurralpa

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

2.2 The obligations imposed by the right to life

2.3 Police failure to care for Mr Gurralpa’s health and life

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

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

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

3 The death of Mr Plasto-Lehner

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

(a) Rights to humane treatment

(b) Right to life

(c) Breaches of human rights

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

(a) The decision to use force

(b) The degree of force used in restraining Mr Plasto-Lehner

(c) The police failure to monitor Mr Plasto-Lehner while he was restrained

(d) Training of Northern Territory police members in dealing with mentally ill persons

3.3 Transporting Mr Plasto-Lehner to Royal Darwin Hospital

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

(a) Obligations of the senior police member arising upon the report of an incident

(b) Police member responsibilities under the Deaths in Custody General Order

4 Recommendations

SCHEDULE ONE: RECOMMENDATIONS

Prone restraint and positional asphyxia

Treatment of mentally ill persons in custody

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

1 Introduction

2 The death of Mr Gurralpa

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

2.2 The obligations imposed by the right to life

2.3 Police failure to care for Mr Gurralpa’s health and life

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

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

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

3 The death of Mr Plasto-Lehner

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

(a) Rights to humane treatment

(b) Right to life

(c) Breaches of human rights

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

(a) The decision to use force

(b) The degree of force used in restraining Mr Plasto-Lehner

(c) The police failure to monitor Mr Plasto-Lehner while he was restrained

(d) Training of Northern Territory police members in dealing with mentally ill persons

3.3 Transporting Mr Plasto-Lehner to Royal Darwin Hospital

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

(a) Obligations of the senior police member arising upon the report of an incident

(b) Police member responsibilities under the Deaths in Custody General Order

4 Recommendations

SCHEDULE ONE: RECOMMENDATIONS

Prone restraint and positional asphyxia

Treatment of mentally ill persons in custody

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

2 The
death of Mr Gurralpa

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

2.2 The
obligations imposed by the right to life

2.3 Police
failure to care for Mr Gurralpa’s health and life

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

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

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

3 The
death of Mr Plasto-Lehner

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

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

(b) The degree of force used in restraining Mr
Plasto-Lehner

(c) The police failure to monitor Mr Plasto-Lehner
while he was restrained

(d) Training of Northern Territory police members in
dealing with mentally ill persons

3.3 Transporting Mr Plasto-Lehner to Royal Darwin
Hospital

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

(a) Obligations of the senior police member arising
upon the report of an incident

(b) Police member responsibilities under the Deaths
in Custody General Order

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

2 The
death of Mr Gurralpa

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

2.2 The
obligations imposed by the right to life

2.3 Police
failure to care for Mr Gurralpa’s health and life

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

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

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

3 The
death of Mr Plasto-Lehner

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

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

(b) The degree of force used in restraining Mr
Plasto-Lehner

(c) The police failure to monitor Mr Plasto-Lehner
while he was restrained

(d) Training of Northern Territory police members in
dealing with mentally ill persons

3.3 Transporting Mr Plasto-Lehner to Royal Darwin
Hospital

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

(a) Obligations of the senior police member arising
upon the report of an incident

(b) Police member responsibilities under the Deaths
in Custody General Order

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