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Sarah Goodall

Manager Investigations & Reviews
Independent Police Conduct Authority

13 July, 2014

Re: The Police decision not to prosecute Corrections personnel involved in the
death of Jai Davis at Otago Correctional Facility in February 2011.
Dear Ms Goodall,
Jai Davis was admitted to Otago Correctional Facility on Friday 11 February and, at the time, was
suspected of having ‘internally concealed’ drugs prior to his admission. No one called the prison
doctor and he died two days later. It was subsequently revealed that he died of a drug overdose.
Corrections Inspector, David Morrison, was tasked with investigating the death on behalf of the
Corrections Department. His report, dated 13 September 2011, documents at the least seven
different breaches of Corrections protocols by prison and health staff.
It was not Mr Morrison's role to establish whether or not criminal offences were committed but he
provides copious evidence to suggest that they were. Despite his critical findings, Mr Morrison was
not in full possession of the facts – but hopefully the police were and have uncovered further
evidence.
What happened?
Before Mr Davis was brought to the At Risk Unit, two nurses were told by a prison officer to sign a
document granting permission for him to be admitted to the At Risk Unit (Morrison's report, para
138). One of those nurses was Sandra Lawrie. The officer told her that an incoming prisoner was
suspected of swallowing drugs. Ms Lawrie refused to sign it because she felt that he should have
been taken to hospital to be x-rayed rather than admitted to prison - which is about 45 minutes’
drive from the hospital.
Although she was not present at the weekend, the health centre manager, Jill Thompson, confirms
(in hindsight), that taking Mr Davis to the hospital would have been the appropriate course of action.
She states: “As there was clear knowledge that this person was concealing drugs, why did he come
here in the first place? The prison is 45 minutes away from a hospital. If drugs had exploded in a
prisoner’s gut, we would not be able to get (him) to the hospital in time…” (para 195).
Mr Davis died on the evening of Sunday 13 February 2011. In paragraph 181 of Mr Morrison's
report, it says that the PM Nurse (Janice Horne) was "asked if she was aware of what Mr Davis was
suspected of concealing and she replied ‘no’.” That was a lie. Nurse Horne knew full well Mr Davis
was suspected of concealing drugs. Mr Morrison provided the evidence: "At approximately 16:00
hours, Mr Davis was seen by the nurse, who had been informed when she came on duty that Mr
Davis was suspected of concealing drugs and that was why he was in the dry cell in the ARU… Her
assessment of Mr Davis at this time was that he was under the influence of some drug because of the
slow movements that he was making” (paras 55 and 171).
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In paragraph 172, Mr Morrison states: “The PM Nurse had a conversation with the unit officer where
she stated to the officer, Mr Davis ‘looks stoned’." He was more than stoned. The autopsy report
states that Mr Davis died from the combined effect of ingesting benzodiazepines, codeine, and
cannabis.
In other words, Nurse Horne rightly concluded Mr Davis was under the influence of drugs. However,
she then said to Mr Morrison “she did not have much experience with drugs” (para 174) but
nevertheless claimed that “Mr Davis did not need a medical officer" (para 176). If she did not have
much experience with drugs, and did not know what drugs he had consumed, that would be all the
more reason for her to call the doctor or an ambulance. But she didn’t. Instead, she said she
discussed it with the AM nurse (para 176) – but there is no evidence in Mr Morrison’s report that
such a conversation ever took place. Even if it did, Nurse Horne should have called an ambulance,
the prison doctor and/or the health centre manager – not the AM nurse.
The reality is that Nurse Horne was responsible for Mr Davis’ care in the eight hours preceding his
death. It is apparent that the standard of care she provided was well below what is expected of a
registered nurse and that she lied to Mr Morrison to cover up her poor performance. She correctly
concluded that Mr Davis was under the influence of drugs, but did nothing about it. At the very least,
this is a serious breach of nursing practice standards.
David Morrison’s view on what nurses should have done
Mr Morrison is very clear that the Medical Officer should have been advised of the situation and says
a number of times that Policy Standard PSOM S.01.Res 13 was not met. In Para 201, he wrote: "The
investigation is of the view that the nursing staff should have referred this case to the health centre
manager and a medical officer to determine the appropriate course of action in providing the best
care for Mr Davis." In paragraph 218 he says PSOM S.01.Res 13 was breached "as the medical officer
was not called and informed of the reasons why Mr Davis was been confined in a dry cell and subject
to a directed segregation order."
Section 151 of the Crimes Act states “Everyone who has actual care or charge of a person who is a
vulnerable adult and who is unable to provide himself or herself with necessaries is under a legal duty
(a) to provide that person with necessaries; (b) to take reasonable steps to protect that person from
injury. Section 150A of the Crimes Act states that “a person is criminally responsible for omitting to
discharge or perform a legal duty… If the omission or unlawful act is a major departure from the
standard of care expected of a reasonable person to whom that legal duty applies.” Nurse Horne’s
failure to seek medical help appears to be a breach of the Crimes Act.
The health centre manager’s responsibilities
In many respects it is not surprising that Nurse Horne did not call the doctor. Jill Thompson, the
health centre manager, subsequently told Mr Morrison that “she was unaware of the requirement in
PSOM S.01.Res 13 … to inform a Medical officer that a prisoner has been placed in a dry cell” (para
193). This is not really believable. But if it’s true, this statement by Jill Thompson is an admission of
such incompetence it amounts to gross negligence. How are nursing staff at OCF supposed to follow
the protocols if the health manager doesn’t even know what they are? It’s her job to know.
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But Jill Thompson didn’t even know Mr Davis had been admitted to OCF and ‘confined to a dry cell’ because no one told her. Apparently she went off duty early on the Friday and didn’t find out Mr
Davis was even in prison until he was already dead. According to Sandra Laurie, Ms Thomson was
supposed to be on duty on the Friday afternoon that Mr Davis was admitted to prison. If she left
work early without good reason, then it appears she neglected her legal duties; if she was supposed
to be at work but wasn’t, her negligence also contributed to Mr Davis's death.
Mr Morrison’s report highlights systemic failings by the health centre manager and her nursing
team, which made multiple mistakes in the management of Mr Davis’ care. Nurses supposedly gave
instructions to prison officers but consistently failed to document those instructions (paras 196 to
201). Legal responsibility for the documentation of instructions and the standard of health care at
OCF rests with the health centre manager. Mr Davis died - theoretically while under the health
centre manager’s care. She didn’t even know he was in the prison until after he had been dead for
about six hours. All of the nurses who were on duty over the weekend had a responsibility to inform
her. But the greatest burden of responsibility ultimately falls on Janice Horne, the PM nurse, who
observed and documented Mr Davis to be under the influence of drugs in the hours before he died.
The prison manager’s responsibilities
Exactly whose responsibility was it to inform the medical officer of the situation so that Mr Davis
could be examined? Any one of the nurses who were on duty over the weekend could and should
have done so. However, the prison manager has ultimate responsibility for everything that happens
under his (or her) watch and should ensure that officers and nurses carry out their duties.
Mr Morrison’s report is clear that the acting prison manager was fully aware that Mr Davis was
admitted suspected of internally concealing drugs (paras 14 and 18). His report says the On Call
Manager (OCM) signed document M.01.03 Form 01 which states: “I will notify the Medical Officer of
the prison of this segregation within the applicable timeframe after the above named prisoner is
placed in a cell… The On Call Manager who signed this document failed to contact the Medical
Officer and inform him of the directed segregation” (para 156).
This is the only mention in Mr Morrison’s report of this critical failure. It is mentioned in passing but not documented as a “finding” - and there is no recommendation that the OCM should be
disciplined or even investigated for failing to carry out her duties. Mr Morrison fails entirely to hold
the OCM manager to account. By not charging this manager with failing to provide the necessaries of
life, it seems the police have also failed to hold her to account.
The test for prosecution
Section 5 of the Solicitor General’s prosecution guidelines state:
5.1 Prosecutions ought to be initiated or continued only where the prosecutor is satisfied that the
Test for Prosecution is met. The Test for Prosecution is met if:
5.1.1 The evidence which can be adduced in Court is sufficient to provide a reasonable
prospect of conviction – the Evidential Test; and
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5.1.2 Prosecution is required in the public interest – the Public Interest Test.
5.2 Each aspect of the test must be separately considered and satisfied before a decision to prosecute
can be taken. The Evidential Test must be satisfied before the Public Interest Test is considered.
Section 5.3 describes the Evidential test. It says:
“A reasonable prospect of conviction exists if, in relation to an identifiable person (whether natural or
legal), there is credible evidence which the prosecution can adduce before a court and upon which
evidence an impartial jury (or Judge), properly directed in accordance with the law, could reasonably
be expected to be satisfied beyond reasonable doubt that the individual who is prosecuted has
committed a criminal offence.”
Some clarification of ‘a reasonable prospect of conviction’ is also provided: "What is required by the
evidential test is that there is an objectively reasonable prospect of a conviction on the evidence. The
apparent cogency and creditability of evidence is not a mathematical science, but rather a matter of
judgment for the prosecutor."
These two sentences contradict each other. The first sentence uses the word ‘objectively’ as if there
was a scientific test which produces a factual and clear-cut result. The second sentence
acknowledges that there is no mathematical science and that whether there is a reasonable chance
of success is entirely a matter of the prosecutor’s judgement. This confusion in the guidelines is
exacerbated by Section 2.3 which says:
“The Guidelines are not an instruction manual for prosecutors, nor do they cover every decision that
must be made by prosecutors and enforcement agencies. They do not purport to lay down any rule of
law. They instead reflect the aspirations and practices of prosecutors who adhere to the United
Nations Guidelines on the Role of the Prosecutor (1990) and the International Association of
Prosecutors Standards (1999).”
This sentence is quite misleading; on this particular point, the New Zealand Guidelines deviate
significantly from both these international guidelines. Neither of them makes any mention
whatsoever of "a reasonable prospect of conviction". Let’s look at what the international guidelines
actually say.
Paragraph 14 of the United Nations guidelines for Prosecutors says: “Prosecutors shall not initiate or
continue prosecution, or shall make every effort to stay proceedings, when an impartial investigation
shows the charge to be unfounded.” An unfounded charge is one in which the investigation
establishes that no crime has been committed. This is an entirely different matter from the New
Zealand Solicitor General’s requirement that, where a crime has been committed there should also
be a reasonable prospect of conviction.
Paragraph 4.2 (d) of the guidelines adopted by the International Association of Prosecutors says: “In
the institution of criminal proceedings, (prosecutors) will proceed only when a case is well-founded
upon evidence reasonably believed to be reliable and admissible, and will not continue with a
prosecution in the absence of such evidence”.
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This indicates that a prosecution should only proceed where there is well founded evidence which is
both reliable and admissible. The guidelines do not say anything about a reasonable prospect of
conviction. Given that both sets of international guidelines make no mention of this, it is unclear
how the New Zealand Solicitor General came up with this requirement. In fact, under the heading
No Prosecution, the Solicitor General subsequently drops the requirement altogether. In paragraph
5.12 it simply says: “If the prosecutor decides that there is insufficient evidence or that it is not in the
public interest to prosecute, a decision of ‘no prosecution’ will be taken.”
In other words, the Solicitor General’s guidelines are confusing and contradictory. There is no test
which objectively defines whether or not there is a reasonable prospect of a conviction and the
guidelines place an undue emphasis on this requirement. Whether a prosecution should proceed is
entirely a matter of the prosecutor’s experience and individual judgement.
Other aspects of the guidelines
The New Zealand guidelines go on to describe a number of different elements which make up the
so-called ‘evidential test’ - such as determining that there is an identifiable individual, credible
evidence, evidence which the prosecution can adduce, and a standard of proof which is ‘beyond
reasonable doubt’. In their decision not to prosecute anyone over the death of Jai Davis, the police
have not identified which of these particular elements they believe were not met. This makes it very
difficult to evaluate their decision - which is why I am asking the IPCA to do so.
One suspects that the police may believe that there is no ‘identifiable individual’. Section 5.4
describes this requirement as follows: “There will often be cases where it is clear that an offence has
been committed but there is difficulty identifying who has committed it. A prosecution can only take
place where the evidence sufficiently identifies that a particular person is responsible. Where no such
person can be identified, and the case cannot be presented as joint liability there can be no
prosecution.”
I would argue that the evidence uncovered by Mr David Morrison against the prison manager at OCF
who signed a document stating that she would call the medical officer - but then failed to do so constitutes reliable and admissible evidence against the prison manager. Mr Morrison's report also
describes the PM nurse’s discussions with prison officers and her written notes that Mr Davis
appeared to be under the influence of drugs on the Sunday afternoon a few hours before he died. I
would argue that this evidence combined with the PM nurse’s decision not to call the health centre
manager, not to call an ambulance and not call the prison medical officer constitutes reliable and
admissible evidence of a failure to provide the necessaries of life. Mr Davis died primarily because of
inaction by the prison manager and by this nurse.
However, other Corrections staff also contributed to Mr Davis death - particularly those officers
responsible for observing him in the hours before he died. Mr Morrison says they were required to
obtain a verbal response from Mr Davis at least once an hour (to ensure he was still alive) but failed
to do so (paras 8 & 9). But their culpability is less clear cut. In regard to identifying the individual(s)
responsible, the NZ guidelines refer to “an identifiable person (whether natural or legal)”. There is no
doubt that the prison manager, and the health centre manager (who was mysteriously absent from
her post of Friday when Mr Davis was admitted) have ‘legal’ responsibility. ‘Natural’ responsibility

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appears to fall on the PM nurse who observed and documented Mr Davis as being under the
influence of drugs - and as a health professional, did absolutely nothing about it.
In regard to whether or not the evidence presented by the prosecution is sufficient for a conviction
to be reached beyond reasonable doubt, surely that is a matter for the jury to decide. But if the
police decided not to prosecute because they believe this standard would not be reached, they seem
to be confusing the role of the prosecution with the role of the jury. Given the misleading and
contradictory statements in the Solicitor General’s guidelines, it would not be surprising if the police
prosecutions team are equally confused about what standard to apply.
Public interest
Finally, the New Zealand guidelines state that the ‘evidential test’ must be met before the ‘public
interest test’ is evaluated. In regard to whether or not this particular case meets the public interest
‘test’, paragraph 5.7 of the New Zealand guidelines state that "Broadly, the presumption is that the
public interest requires prosecution where there has been a contravention of the criminal law.”
In my opinion, Mr David Morrison's report provides ample evidence that there has been a
contravention of criminal law. Hopefully the police investigation gathered a great deal more
information than Mr Morrison had at his disposal and this would surely add to the view that the
prison manager and health centre manager failed to provide the necessaries to Mr Davis and
thereby contravened the law.
If there is any doubt about this, it would be helpful if the IPCA looks at some of the comparative
cases of neglect provided in my complaint to the IPCA dated 24 May 2014. That complaint suggests
the police have a double standard and readily charge individuals in the community who fail to
provide the necessaries to vulnerable family members – but have never prosecuted anyone in the
Corrections Department for similar offending. If there is a double standard, that would be a matter
of enormous public interest.
The guidelines describe a number of specific factors which indicate when a case may be in the
‘public interest. One of them is identified in paragraph 5.8.14 which says: “Where the defendant was
in a position of authority or trust and the offence is an abuse of that position”. The prison manager
and prison nurses at OCF are all public officials and prisoners are dependent on them to provide
appropriate medical help. Mr Davis was in an extremely vulnerable position and these ‘officials’
abused the trust placed in them.
Paragraph 5.8.3 says a prosecution is also likely to be a matter of public interest “Where there are
grounds for believing that the offence is likely to be continued or repeated, for example, where there
is a history of recurring conduct.” A former nurse at OCF, Sandra Lawrie, has given information to
the police about the poor quality of nursing care prevalent in the Otago prison at the time of Mr
Davis’ death. Her testimony is supported by the coroner who identified that another prisoner,
Richard Barriball, died in in OCF four months before Jai Davis after receiving what the coroner
described as ‘sub-optimal care’ (Coroner’s report para 75).

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I therefore request that the IPCA review the police decision not to prosecute anyone in the
Corrections Department over the death of Jai Davis. In particular, I ask that the IPCA consider the
undue emphasis in the New Zealand guidelines placed on the requirement that there needs to be ‘a
reasonable prospect of conviction’ and whether or not a prosecution in this case is in the public
interest.

Roger Brooking
PO Box 29075,
Ngaio,
Wellington

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