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Poppy Morandin.


For the first time in Australian history, an NSW coroner has referred an NSW Corrective Services officer to the Director of Public Prosecutions, over the fatal shooting of an Aboriginal man in custody.

Forty-three-year-old Dwayne Johnstone was handcuffed and wearing ankle shackles when he was allegedly shot in the back by the prison officer.

The incident occurred on March 15th of 2019, following an alleged escape attempt by Johnstone.

The court heard how whilst in the cells of Lismore Court House that Johnstone had a possible epileptic fit, following being denied bail in relation to an assault charge.

He was transported to Lismore Base Hospital, where following being treated, it is alleged that Johnstone “elbowed and then pushed” a Corrective Services officer, before fleeing across the road.

Witnesses to the incident reported that the officer yelled: “stop, stop, stop or I’ll shoot.”

An officer then fired three shots, with the final one fatally striking Johnstone.

A forensic examination revealed that the bullet had penetrated his back and heart.

Even whilst shackled, witnesses from outside the hospital described him as having “particularly good speed” and was “obviously fit”.

Counsel assisting the inquest, Peggy Dwyer, also explained how armed Corrective Services officers do not carry non-lethal weapons such as tasers, or capsicum spray.

Despite this they are able to discharge a firearm in select circumstances, such as to “to prevent the escape of an inmate”.

Ultimately this is shaped by other circumstances such as that a warning must be given, with Dwyer highlighting how the use of force must be the “option of last resort” and officers “may use no more force than is reasonably necessary in the circumstances”.

Johnstone had twice previously been convicted of escaping lawful custody, which led to his classification as “an inmate….to be handcuffed and ankle cuffed and treated as high risk at all times.”

NSW coroner Teresa O’Sullivan described the death as a “tragedy” and decided the matter met the threshold to be referred to the DPP to decide whether to proceed with charges, only three days into the coronial inquest.

“A five-volume brief of evidence was tendered on the first day of inquest and I have reviewed that material very carefully this week,” she explained.

Magistrate O’Sullivan will now proceed to provide the DPP with a signed statement which states the name of the officer who shot Mr Johnstone, with it then ultimately up to the DPP as to whether charges are laid.

Magistrate O’Sullivan is only the second woman in NSW history to be appointed State Coroner.

Upon her appointment she identified preventing Indigenous deaths in custody as a priority, and the importance of recognising “the connection between colonisation, dispossession, intergenerational trauma, and health outcomes” for Indigenous Australians.

A statement issued by the family and partner of Johnstone explained their approval of the Coroner’s decision.

“There is still a very long way to obtaining closure for the loss of our partner and son, but we are so glad that the matter has been taken so seriously,” it stated.

The inquest heard how Johnstone had been diagnosed with an attention deficit disorder and experienced sexually abused early on in his life.

“Almost 30 years ago the Royal Commission into Aboriginal Deaths in Custody handed down its findings. And yet more than 440 more Aboriginal people have died in custody since and today Aboriginal people are imprisoned at a higher rate than at the time of the Royal Commission.” stated CEO of the Aboriginal Legal Service, Karly Warner.

“We stand with Dwayne’s family today in their calls for justice and walk alongside them at this traumatic time…There must be improved accountability for all deaths in custody – including independent oversight and investigations, putting an end to the practice of police investigating police.” she continued.

Advocates have continuously sought to highlight the injustices associated with the process regarding investigation of Indigenous deaths in custody.

“Prosecution or referral seems to come only from cases where First Nations families have strong public advocacy and community groundswells behind them and strategic litigation resources (not just inquest legal aid).”

“Clearly, there is much legal structure that supports this silence, but the basis of the silence itself is colonisation and white supremacy.” explained First Nations writer, Alison Whittaker.

Click here for the law on escaping lawful custody in NSW.

Questions? Give us a call today. Our Parramatta criminal lawyers regularly appear in court, specialising in criminal law.

Published on 07/11/2020

AUTHOR Criminal Defence Lawyers Australia

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