Corrective Services NSW - allegations concerning officers dishonestly exercising official functions in relation to assault of prisoner (Operation Estry)

Year: 2019 Status: Completed

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.

Recommendations for disciplinary action

John O’Shea, Terrence Walker, Brian McMurtrie and Elliott Duncan are no longer employed by CSNSW. 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 Mick 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.

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.

Media Releases
Witness Transcripts

View all transcripts associated with this investigation. The Commission makes every effort to post the daily transcripts of its public inquiries on its website by 8:00 pm each day when possible. If the Commission sits later than 4:00 pm, the daily transcripts, particularly the afternoon session, may not be available until the next working day.

 

Filename Date pp. Time
00989-01041 from 2.00pm to 4.31pm.pdf 05/06/18 00989-01041 2.00pm to 4.31pm
00940-00988 from 10.00am to 1.02pm.pdf 05/06/18 00940-00988 10.00am to 1.02pm
00897-00939 from 2.00pm to 4.04pm.pdf 04/06/18 00897-00939 2.00pm to 4.04pm
00852-00896 from 10.20am to 1.02pm.pdf 04/06/18 00852-00896 10.20am to 1.02pm
00814-00851 from 2.00pm to 4.05pm.pdf 31/05/18 00814-00851 2.00pm to 4.05pm
00760-00813 from 10.00am to 12.58pm.pdf 31/05/18 00760-00813 10.00am to 12.58pm
00729-00759 from 2.00pm to 3.32pm.pdf 30/05/18 00729-00759 2.00pm to 3.32pm
00684-00728 from 10.15am to 1.03pm.pdf 30/05/18 00684-00728 10.15am to 1.03pm
00632-00683 from 2.00pm to 4.21pm.pdf 29/05/18 00632-00683 2.00pm to 4.21pm
00576-00631 from 10.15am to 1.04pm.pdf 29/05/18 00576-00631 10.15am to 1.04pm
00524-00575 from 2.00pm to 4.10pm.pdf 28/05/18 00524-00575 2.00pm to 4.10pm
00474-00523 from 10.15am to 12.57pm.pdf 28/05/18 00474-00523 10.15am to 12.57pm
00433-00473 from 2.00pm to 3.36pm.pdf 25/05/18 00433-00473 2.00pm to 3.36pm
00387-00432 from 10.30am to 1.08pm.pdf 25/05/18 00387-00432 10.30am to 1.08pm
00342-00386 from 2.00pm to 4.05pm.pdf 24/05/18 00342-00386 2.00pm to 4.05pm
00303-00341 from 10.15am to 12.54pm.pdf 24/05/18 00303-00341 10.15am to 12.54pm
00251-00302 from 2.00pm to 4.09pm.pdf 23/05/18 00251-00302 2.00pm to 4.09pm
00190-00250 from 10.00am to 1.03pm.pdf 23/05/18 00190-00250 10.00am to 1.03pm
00142-00189 from 2.00pm to 4.01pm.pdf 22/05/18 00142-00189 2.00pm to 4.01pm
00090-00141 from 10.00am to 12.58pm.pdf 22/05/18 00090-00141 10.00am to 12.58pm
00058-00089 from 2.00pm to 3.33pm.pdf 21/05/18 00058-00089 2.00pm to 3.33pm
00001-00057 from 10.00am to 1.00pm.pdf 21/05/18 00001-00057 10.00am to 1.00pm
Exhibits
Estry Exhibit List (PDF)
Public notices