The ICAC investigated allegations that, on or about 19 February 2014, Corrective Services NSW (CSNSW) officers based at Lithgow Correctional Centre (LCC) dishonestly exercised their official functions in relation to an assault of a prisoner including by: subjecting the prisoner to the use of force (UOF) which was unwarranted and inappropriate in the circumstances; colluding to provide a false and misleading account of the reasons for attending the cell occupied by the prisoner and subjecting him to the UOF; submitting, reviewing and approving a “use of force package” (including incident reports) that contained false and misleading information about the reasons for attending the cell occupied by the prisoner and subjecting him to the use of force; failing to record the UOF via video camera, as required by CSNSW policy and procedures; and destroying, or not maintaining, CCTV footage of the area immediately outside the cell occupied by the prisoner.
The Commission also investigated whether, on 20 February 2014, CSNSW officers at LCC dishonestly exercised their official functions by falsely representing that 0.2 grams of buprenorphine was recovered from the prisoner’s personal belongings during the search of the cell occupied by the prisoner.
In its report on the investigation, made public on 3 June 2019, the Commission makes findings of serious corrupt conduct against John O’Shea, Terrence Walker, Brian McMurtrie, Simon Graf, Elliott Duncan and Stephen Taylor.
The ICAC is of the opinion that the advice of the Director of Public Prosecutions should be obtained with respect to the prosecution of Mr O'Shea, Mr Walker, Mr McMurtrie, Mr Taylor, Mr Graf and Mr Duncan for various offences.
The Commission makes 19 corruption prevention recommendations to CSNSW to help it improve its systems.
Findings of corrupt conduct
The Commission is satisfied that John O’Shea engaged in serious corrupt conduct from February 2014. He dishonestly and partially exercised his official functions by participating in both the use of excessive force on inmate A by a fellow Corrective Services NSW (CSNSW) officer, Terrence Walker, on 19 February 2019, and the cover-up of the incident.
The Commission is satisfied that Terrence Walker engaged in serious corrupt conduct from February 2014. He dishonestly and partially exercised his official functions by his use of excessive force on inmate A and the cover-up of the incident.
The Commission is satisfied that Brian McMurtrie engaged in serious corrupt conduct from February 2014. He dishonestly and partially exercised his official functions by participating in the cover-up of the use of excessive force on inmate A by a fellow CSNSW officer, Mr Walker, on 19 February 2014.
The Commission is satisfied that Simon Graf engaged in serious corrupt conduct from February 2014. He dishonestly exercised his official functions by participating in the cover-up of the use of excessive force on inmate A by a fellow CSNSW officer, Mr Walker, on 19 February 2014.
The Commission is satisfied that Elliott Duncan engaged in serious corrupt conduct from February 2014. He dishonestly and partially exercised his official functions by participating in the cover-up of the use of excessive force on inmate A by a fellow CSNSW officer, Mr Walker, on 19 February 2014.
The Commission is satisfied that Stephen Taylor engaged in serious corrupt conduct from February 2014. He dishonestly and partially exercised his official functions by participating in the cover-up of the use of excessive force on inmate A by a fellow CSNSW officer, Mr Walker, on 19 February 2014.
For more information about the conduct of the above individuals, please refer to the summary chapter of the full report.
Recommendations for prosecutions
The Commission must seek the advice of the Director of Public Prosecutions (DPP) on whether any prosecution should be commenced. The DPP determines whether any criminal charges can be laid, and conducts all prosecutions. The Commission provides information on this website in relation to the status of prosecution recommendations and outcomes as advised by the DPP. The progress of matters is generally within the hands of the DPP. Accordingly, the Commission does not directly notify persons affected of advice received from the DPP or the progress of their matters generally.
The ICAC is of the opinion that the advice of the DPP should be obtained with respect to the prosecution of John O’Shea, Terrence Walker, Brian McMurtrie, Stephen Taylor, Elliot Duncan and Simon Graf for offences as follows.
John O’Shea, for being a principal in the second degree to the offence of inciting an assault of inmate A, hindering an investigation of a serious indictable offence contrary to section 315 of the Crimes Act 1900, the offence of perverting the course of justice, or attempting or conspiring to do so, contrary to section 319 of the Crimes Act, and the common law offence of misconduct in public office and the offence of wilfully obstructing the Commission, contrary to section 80 of the Independent Commission Against Corruption Act 1988.
Terrence Walker, for the offence of assault occasioning actual bodily harm contrary to section 59(1) of the Crimes Act, the offence of hindering an investigation, contrary to section 315 of the Crimes Act, the offence of perverting the course of justice, or attempting or conspiring to do so, contrary to section 319 of the Crimes Act, and the common law offence of misconduct in public office.
Brian McMurtrie, for the offence of hindering an investigation, contrary to section 315 of the Crimes Act, the offence of perverting the course of justice, or attempting or conspiring to do so, contrary to section 319 of the Crimes Act, the common law offence of misconduct in public office, and the offence of giving false or misleading evidence to the Commission, contrary to section 87 of the ICAC Act.
Stephen Taylor, for the offence of hindering an investigation, contrary to section 315 of the Crimes Act, the offence of perverting the course of justice, or attempting or conspiring to do so, contrary to section 319 of the Crimes Act, the offence of concealing a serious indictable offence, contrary to section 316(1) of the Crimes Act, and the common law offence of misconduct in public office.
Simon Graf, for the offence of hindering an investigation, contrary to section 315 of the Crimes Act, the offence of perverting the course of justice, or attempting or conspiring to do so, contrary to section 319 of the Crimes Act, the offence of wilfully obstructing the Commission, contrary to section 80 of the ICAC Act, the common law offence of misconduct in public office, and the offence of giving false or misleading evidence to the Commission, contrary to section 87 of the ICAC Act.
Elliott Duncan, for the offence of hindering an investigation, contrary to section 315 of the Crimes Act, the offence of perverting the course of justice, or attempting or conspiring to do so, contrary to section 319 of the Crimes Act, the common law offence of misconduct in public office, and the offence of giving false or misleading evidence to the Commission, contrary to section 87 of the ICAC Act.
Briefs of evidence were provided to the DPP on 17 December 2019.
Updates
On 21 April 2022, the DPP advised that there is sufficient evidence to charge the following people with the following charges:
John O’Shea
(1) Do act with intent to pervert the course of justice contrary to s319 of the Crimes Act 1900
(2) Common law offence of misconduct in public office
Terrence Walker
(1) Assault occasioning actual bodily harm contrary to section 59(2) of the Crimes Act
(2) Do act with intent to pervert the course of justice contrary to section 319 of the Crimes Act
(3) Common law offence of misconduct in public office
Brian McMurtrie
(1) Do act with intent to pervert the course of justice contrary to section 319 of the Crimes Act
(2) Common law offence of Misconduct in public office
Stephen Taylor
(1) Common law offence of misconduct in public office
Elliott Duncan
(1) Assault occasioning actual bodily harm contrary to section 59(2) of the Crimes Act
(2) Do act with intent to pervert the course of justice contrary to section 319 of the Crimes Act
(3) Common law offence of misconduct in public office
Court attendance notices have been filed and served and all matters were listed at the Downing Centre Local Court on 30 June 2022. On that date, brief service orders were made and the matters listed for reply to the brief on 25 August 2022.
On 13 July 2022, the DPP advised that there was sufficient evidence to charge Brian McMurtrie with two counts of giving false evidence to the Commission pursuant to section 87(1) of the Independent Commission Against Corruption Act 1988.
The DPP also advised that there was sufficient evidence to charge Simon Graf with two counts of giving false evidence to the Commission pursuant to section 87(1) of the ICAC Act. The DPP further advised that whilst there was sufficient evidence to charge John O’Shea and Simon Graf with counts of wilfully making a false statement to an officer of the Commission pursuant to section 80(c) of the ICAC Act, those offences had since become statute barred and were no longer available, the statute of limitations having expired on 11 January 2021 and 2 August 2020 respectively.
On 25 August 2022, all matters (Crimes Act and ICAC Act charges) were stood over to 6 October 2022 for charge certification and mention respectively. On that date, the Crimes Act charges were stood over to 8 December 2022 for case conference mention and possibly committal. The ICAC Act charges were stood over to 17 November 2022 for charge certification.
On 17 November 2022, the ICAC Act charges were again stood over to 8 December 2022 for charge certification. On that date, the signed charge certificates were presented for each accused, and both matters were adjourned to 16 February 2023 for the case conference mention.
On 16 February 2023, Mr Graf entered pleas of guilty to two counts of giving false evidence to the Commission pursuant to section 87(1) of the ICAC Act. He was committed for sentence to the Sydney District Court on 17 March 2023. Mr McMurtrie’s matter was adjourned to 2 March 2023 for committal.
On 2 March 2023, Mr McMurtrie entered pleas of guilty to the two false evidence charges laid pursuant to the ICAC Act and was committed for sentence to the Sydney District Court on 17 March 2023.
On 16 February 2023, Mr O’Shea, Mr Walker, Mr McMurtrie, Mr Taylor and Mr Duncan’s Crimes Act and common law offences were stood over to 2 March 2023 for further negotiations. On 2 March 2023, Mr Duncan, Mr McMurtrie, Mr Taylor and Mr Walker’s matters were adjourned to 6 April 2023 for further negotiations. Mr O’Shea was committed for trial to the Sydney District Court and his matter is listed for arraignment on 21 April 2023.
On 17 March 2023, Mr Graf’s and Mr McMurtrie’s section 87 ICAC Act matters were both adjourned to 9 October 2023 at Sydney District Court for sentence, with a 3-hour estimate. Sentencing Assessment Reports (SARs) were ordered for both offenders.
On 21 April 2023, Mr Walker entered pleas of guilty to assault occasioning actual bodily harm and misconduct in public office. The charge of intent to pervert the course of justice was withdrawn. Mr Walker was committed to the Sydney District Court for sentence with the first mention listed for 12 May 2023. The Crown made a detention application pursuant to section 22B of the Bail Act 2013 and bail was revoked.
On 21 April 2023, Mr Taylor’s matter was adjourned until 12 May 2023 in the Sydney District Court.
On 5 May 2023, Mr O’Shea’s matter was adjourned until 19 May 2023 in the Sydney District Court.
On 27 April 2023, Mr Duncan and McMurtrie’s matters were adjourned until 18 May 2023 in the Sydney Local Court for further negotiations.
Recommendations for disciplinary action
John O’Shea, Terrence Walker, Brian McMurtrie and Elliott Duncan are no longer employed by Corrective Services. The question of disciplinary action or terminating their employment does not arise.
The Commission is of the opinion that consideration should be given to the taking of disciplinary action against Brad Peebles, Stephen Taylor, Simon Graf, Troy Dippel and Michael Watson. The Commission is of the opinion that consideration should be given to the taking of action against Mr Taylor and Mr Graf with a view to dismissing, dispensing with the services of, or otherwise terminating their services.
Updates
Corrective Services NSW has advised the Commission that the following disciplinary action has been taken:
Brad Peebles – reduction in classification to senior assistant superintendent for a period of 12 months.
Stephen Taylor – reduction in classification to first class correctional officer year 2 for a period of 3 years.
Simon Graf – reduction in classification to correctional officer year 2 for a period of 3 years.
Michael Watson – received an official reprimand.
Troy Dippel – received an official reprimand.
Recommendations for corruption prevention
The Commission makes 19 corruption prevention recommendations to Corrective Services NSW (CSNSW) as follows:
Recommendation 1
That the personal assistant to a general manager (GM) of a correctional centre be required to enter all submitted incident reports into CSNSW’s electronic systems.
Recommendation 2
That CSNSW ensures its policies and procedures discourage the sharing or misuse of passwords. These requirements should also be reflected in the relevant officer’s training.
Recommendation 3
That CSNSW introduces controls to ensure that, if required information is not entered into the Offender Integrated Management System (OIMS) within a specified period of time, a report will be generated and a review conducted by an appropriate officer who will be required to report to the GM.
Recommendation 4
That CSNSW:
- supplies body cameras to correctional officers who are likely to be involved in use of force (UOF) incidents and prioritises the supply of these cameras to correctional officers assigned to the immediate action teams (IATs)
- provides correctional centres with the means to readily obtain footage from these body cameras and store it for a sufficient period of time.
Recommendation 5
That CSNSW:
- mandates the videorecording of the destruction of contraband drugs found on inmates or in their cells
- provides correctional centres with the means to readily obtain such footage and store it for a sufficient period of time.
Recommendation 6
That CSNSW ensures all correctional centres have sufficient technical resources to retain all CCTV footage that is necessary or desirable to retain under CSNSW procedures concerning the UOF and targeted searches.
Recommendation 7
That CSNSW requires that in all contraband at correctional centres is photographed at the time of discovery. This requirement should be reinforced via relevant CSNSW training, compliance and audit programs.
Recommendation 8
That CSNSW communicates to the GMs and managers of security (MoSs) at all correctional centres that they cannot be involved in a review of any UOF package if they were involved in or a witness to the UOF in question. Instead, the UOF package must be externally reviewed.
Recommendation 9
That the activities of the IATs be included in any relevant Operational Performance Review Branch reviews, such as reviews of correctional centres against service specifications.
Recommendation 10
That following review by the MoS and GM of a correctional centre, UOF packages be sent to a centralised CSNSW business unit, which should:
- receive this package before CCTV footage is overwritten
- have direct access to relevant CCTV footage
- receive any other related technical product, such as recordings or photographs
- review either (i) all UOF packages it receives or (ii) a proportion of the UOF packages it receives that is sufficient to readily identify systemic issues that relate to a particular correctional centre.
Recommendation 11
That CSNSW develops specific, independent assurance mechanisms surrounding the searching of cells. These mechanisms should examine whether CSNSW procedures are being complied with, and good practice is being applied, in relation to the:
- discovery of contraband, including videorecording requirements
- reporting of the discovery of contraband
- confiscation and disposal of prohibited substances.
Recommendation 12
That CSNSW implements a coordinated strategy to improve the cultural environment for correctional officers within its centres, with a view to alleviating the burden imposed on those officers who report the misconduct of others. Logically, those measures might include:
- focused training and education on the importance of reporting misconduct within a corrections environment
- support for complainants and protection of their identity
- avenues for making anonymous reports and identification
- exposure and action in response to those who engage in bullying, harassment or other forms of reprisal.
Recommendation 13
That CSNSW monitors the treatment of those officers who have assisted the Commission in this investigation.
Recommendation 14
That CSNSW takes sustained measures to prevent the practice of “therapy”, “cell therapy” or like practices being applied to inmates.
Recommendation 15
That CSNSW investigators have ready access to (i) relevant CSNSW documents, such as UOF packages, and (ii) other evidence, such as CCTV footage, in a manner that does not in any way depend on, or alert, other CSNSW staff.
Recommendation 16
That CSNSW reviews its procedures for the initiation and escalation of investigations. Among other things, this review should address the need for independence and objectivity.
Recommendation 17
That CSNSW reviews its investigation function to ensure that it:
- is staffed in a manner that enables it to meet timeframe key performance indicators without compromising investigation quality
- has access to appropriate technical resources, including a case management system that sufficiently caters for its needs.
Recommendation 18
That CSNSW prioritises the completion of its investigation manual.
Recommendation 19
That staff responsible for CSNSW’s project regarding systemic issues identified in this investigation consider and action the following issues:
- whether any of the conduct identified in the Commission’s investigation occurs at other correctional centres
- the evidence and findings made by anti-corruption agencies in Queensland and Western Australia
- how data analysis of its information holdings can facilitate the identification of misconduct by correctional officers and issues that may be systemic within the corrections sector in NSW.
Responses to ICAC recommendations
The documents posted below have been provided by Corrective Services NSW in response to the ICAC’s recommendations. Their
publication here is to show the status of the responses. It does not
constitute approval or endorsement by the Commission.
Progress report - 24 months - Communities & Justice NSW
12 month - Plan of Action - Corrective Services NSW
Plan of Action - Corrective Services NSW