Sarah Goodall

August 2015
Manager Investigations & Reviews
Independent Police Conduct Authority

28

Re: Police emails related to investigation report given to the

police legal advisors and the subsequent decision not to
prosecute Corrections personnel involved in the death of Jai
Davis at Otago Correctional Facility
in February 2011.
Dear Ms Goodall,
My original complaint to the Authority in March 2013 was in relation to three
aspects of Police conduct, namely:
1)
Alleged failure by Police to ensure Mr Davis safety despite being aware
that he was suspected
of internally concealing drugs
2)
Alleged failure to adequately investigate Mr Davis death
3)
The time taken to commence an investigation
The IPCA upheld points 2 and 3. The coroner subsequently said the initial
investigation by police was "cursory and flawed" and criticised the police for the
time it took them to begin a proper investigation. He said:
"Too often during the inquest hearing a witness would state that they could not
recall a specific because the death was 'so long ago'. My inquiry has been
hindered by the failure of the police to conduct the necessary (and prompt)
enquiries
into
a
death
as
they
are
required
to
do."
As you are aware, the police decided not to prosecute anyone involved. On 24
May, 2014 I wrote again requesting that the IPCA investigate whether or not the
police have taken a different standard in deciding not to prosecute prison staff
involved in the death of Jai Davis - compared with the standard they apply to
similar cases in the community. The IPCA took no action.
New information has now come to my attention which provides context for the
police decision not to prosecute. A TV3 journalist, Thomas Mead, made an official
information request to police asking for copies of correspondence between
Detective Senior Sergeant Colin Blackie and Detective Inspector Stephen
McGregor both of whom were involved in the investigation into the death Jai
Davis. Mr Mead was sent a collection of emails (copies attached).

The emails confirm that after my initial complaint to the IPCA, Colin Blackie was
appointed to oversee the police investigation. It appears that on completion of
his investigation, a report was prepared which was submitted to Anna Tutton, for
a legal opinion on whether charges should be laid against any Corrections staff.

The Police Report presented to legal

Mr Blackie advised Stephen McGregor by email (23 September 2013) that he had
told legal services that because of his workload, I was not going to be able to
complete my report to the standard that I would have wanted. Mr Blackie
indicated that he delegated the task of completing the report to Detective Sgt
Kate Barrett. The emails show that Kate Barretts report was found to be
significantly substandard and was rated by Detective Inspector Stephen
McGregor at 1/10.
Email from Stephen McGregor dated 23 September 2013 to Colin
Blackie, cc: Peter Read and Greg Sparrow:
The report is lacking on a variety of fronts and is structured as a bullet point
repeat of what witnesses have said with no clear link back to the key issues or in
any form of clear chronology There is no reference to the legal issues that are
on the table, (or) a focus of those issues back to the evidence established from
the investigation. The reader has to make those connections themselves after
sifting through all the material.
The report should follow the chronology, from the first Intel around the
intercepted phone conversation through to Daviss death, with reference to the
various Corrections and nursing staff along the way as to what they said and did
(or didnt do) and what the evidence supports. Then comment needs to be made
about what legal issues have been identified (I understand this has been
discussed previously with (name blacked out) and how the evidence established
from the investigation links or supports that, including gaps in evidence. Then
there needs to be some conclusions and recommendation(s) offered and where
legal needs to provide specific feedback.
Currently there is no clear path in the reporting so this would need to be
rectified. I spoke with (name blacked out - presumably Anna Tutton) this
morning. She is heading out of the country on Saturday so will not be the
reviewer, so whoever does get it wont know any background, even more reason
why there needs to be greater clarity in the reporting. Ill leave it with you.
Email from Stephen McGregor dated 21 November, 2013, 06:33 p.m.
(apparently to Anna Tutton)
When the report was first submitted, I was sent a copy, though it was not
directed to me. I was gobsmacked by it and responded to CJ (CJ Blackie) about
the substandard level of the report and suggested he recover it and resubmit it.
It was from those discussions that I ascertained (i) it was not him who did the
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final report and; (ii) he had prewarned you it was going to be substandard. I have
to say, given the history of this case, I was again gobsmacked by this approach.
It should have been recovered and redone and I have discussed this matter
with superintendent Coster.
Email to Colin Blackie from (name blacked out) 22 November 2013
Hi CJ, no need to apologise. It had just reached the point that I had to record the
ongoing issues. Ive had two legal advisers say theyve never dealt with a file
that is anything like this one - and theyre not talking about the legal issues.
They have both had to do a whole lot of work of a type that legal would not
normally go anywhere near because it is the role of the operational staff.
Two emails from (name blacked out) yesterday confirmed that she needs
assistance and guidance to get the file to the end. Steve is going to call me
today.
Email from Stephen McGregor to Gregory Sparrow, 5 December 2013,
22:17
The issue is not as simple as (name blacked out) having submitted a
substandard report.
I began reviewing the report that night but didnt complete it. There is no point
in trying to sugar-coat it, the report was substandard on a variety of fronts. I
contacted CJ And encouraged him to recover it and redo it. He ignored my
advice and did not recover the report and redo it to an appropriate standard.
(Name blacked out) manager police Legal Lower Nth/Sth confirmed CJ had
made contact as above, but she took that warning to mean the submitted report
would be suboptimal as opposed to substandard. She was not happy!! It turns
out that not only was the report substandard, but the submitted file was
significantly short of all the necessary documentation.
Given the history behind this case, including being the subject of an IPCA
complaint, the situation should not have occurred, but that responsibility sits
with CJ, not (name blacked out). He should have addressed that process quite
differently and listened to the advice given!
The poor standard of the report and file submitted with it (which I am sure does
not reflect the standard of the actual investigation) created a number of
problems for the lawyer who was contacted by police legal to review it. So much
of a concern that (name blacked out) raised it as a risk at a recent lower Nth/Sth
meeting, which is unfortunate given AC Nichols chairs that meeting.

D/Supt Read has reviewed the report and agrees it is substandard and should
have been redone by CJ.
Despite all the above, the legal advisor beavered away trying to work through it
and from time to time had to call on (name blacked out) to provide further
documentation or follow-up on an issue. As the weeks have gone by, more
problems arose with the service (name blacked out) provided, to the point where
I got a call from (name blacked out) frustrated at the lack of appropriate support
from (name blacked out).
Email from Stephen McGregor to Andrew Coster 31 January 2014 08:07
Hi Andy, just a quick update on the Op Crioch (Jai Davis death at OCF), and to
signal to you that legal will have some negative feedback in relation to the
standard of the case presented to them. While A/DI Blackie indicates he has had
previous discussions with (name blacked out) about providing a less than ideal
file, (name blacked out) has indicated that at worst, she expected an 8/10 not a
1/10.
Anna has almost completed her peer review. A contracted lawyer (name
blacked out) was used to review the file and provide a legal opinion. She
completed that very recently and it has been with (name blacked out) for about
a week to peer review and finalise. As you are aware both (name blacked out)
and (name blacked out) have been very critical of the poor standard of the
reporting in the file that was presented. The time taken to review has been as
long as it has because numerous questions from (name blacked out) needed
follow-up and additional documentation provided. Through (name blacked out) I
am aware this caused considerable angst.
Given the history of this matter, for which DI Geoff Jago is now reviewing
relevant to the IPCA complaint, this outcome is less than ideal. It is also
disappointing because there has been some very good work done in the
background by the staff involved getting it to the point of reporting, and falling
at the last hurdle could have been avoided.
Given the recommendation of no prosecution, it may make the above issue
around the quality of the prosecution file presented more problematic.
Email from Stephen McGregor to Anna Tutton 8 February 2014, 11:41
Hi Anna ... As for the separate report, thats fine. I suspect it will be along the
lines we have discussed to date. I strongly suspect there will be some key
learnings from this. One key issue for me where this fell down was that the
correct channels of command were not followed as it should have been meaning the appropriate checks and balances before the file went to legal were
not followed. I can only assume that what was presented to you (blacked out)
was not checked and reviewed as being to the required standard again before it
went out. None of that is acceptable!

Emails regarding the prosecution charges considered in the

report
Email from Colin Blackie to Stephen McGregor (and numerous others)
dated 7 April 2014 19:21
Steve, a couple of questions: were any charges, other than manslaughter
considered by legal?
I understand that the Crown were to further review legal services opinion prerelease of any decisions, is that now not the case?
Email from Stephen McGregor to Andrew Burns and Andrew Coster
dated 10 April 2014 8:37
Hi Andrew, as you are aware the Jai Davis investigation (operation CRIOCH) has
concluded and the final legal opinion came back after the completion of a
number of additional inquiries.
Legal have concluded the evidential sufficiency test was not reached with any
individual from Corrections (OCF). Offences of manslaughter and criminal
nuisance were considered.
Emails regarding who charges were considered against
It appears that the possibility of laying manslaughter charges was considered
against only one member of Corrections staff. The evidence for this is provided in
this email
Email from Stephen McGregor to Andrew Coster 31 January 2014 8:07
In a nutshell, prosecution is not recommended on the basis it is unlikely to
obtain a conviction. There were identifiable systemic problems identified from
what happened, and as such the jury would be unlikely to convict the one
single person (bold added). That is from a quick verbal briefing of the
conclusion.
Other emails suggest the person against whom a prosecution was considered
was the prison officer on duty on Sunday, February 13, the night that Jai Davis
died. Evidence for this comes from the following two emails:
Email from Stephen McGregor to Greg Baird and Colin Blackie dated 7
February 2014, 09:23
After recent discussion with (names blacked out) Im expecting the legal opinion
for Op Crioch next week. (Name blacked out) has indicated there will be some
additional inquiries to be made (bold added) to assist in final decisionmaking. Following analysis of those final matters, it may still be that the case

does not reach the evidential sufficiency test under the Solicitor Generals
guidelines, on the basis that a conviction is unlikely.
Email from Stephen McGregor to Andrew Coster, Peter Read and Anna
Tutton, CC Greg Baird and Jason Guthrie dated 7 March 2014, 09:50.
With DSS Blackie unexpectedly going on leave, Detective Sgt Greg Baird will
pick up the role of reporting the interim findings in relation to those inquiries
identified in the latest legal opinion. Many thanks Greg! He has completed a
number of inquiries himself already and will confirm the outcome of those
inquiries tasked to DS Kate Bartlett. There are a couple of issues relating to the
sleep expert and sound analysis (bold added) to be done by the ECL that
need to be concluded but they are in train.

Analysis
The request for further enquiries relating to the sleep expert and sound
analysis stem from statements made by Corrections Officer Fred Matenga who
came on duty at 11 p.m. on Sunday 13 February, 2011. Mr Matenga told police
and the coroner that each time he checked on Mr Davis during the night (from
11.00pm till 5.00am), Mr Davis was snoring.
However, Mr Daviss last movement on the video recording was at 10:01 p.m. on
Sunday 13th. The time of death was subsequently estimated by forensic
pathologist, Prof Martin Sage to be between 10.01pm on Sunday 13 and 1.00am
Monday 14 February.1 In other words, Mr Davis may have been dead before Mr
Matenga even came on duty.
The emails reveal that in regard to Crimes against the person (Part 8 of the
Crimes Act), legal only considered a prosecution for manslaughter and only
considered such a prosecution against Fred Matenga. Given that Jai Davis
swallowed the tablets which eventually killed him, and may have already died
before Mr Matenga even came on duty that night, it seems highly unlikely that
the evidential test for such a prosecution would ever be met.
The decision not to prosecute Fred Matenga for manslaughter therefore seems
totally reasonable. But there was much more to this investigation than an
improbable manslaughter charge. There is considerable evidence supporting a
potential prosecution against a number of staff under section 151 of the Crimes
Act for failing to provide the necessaries of life. But the emails show that once
the investigation was complete, no consideration was given to this at all.
This omission appears to stem from two key factors. The first is the substandard
report provided to legal which was also significantly short of supporting
documentation. As Stephen McGregor said in his email of 23 September, 2013:

1 Formal written statement of forensic pathologist, Prof Martin Sage, to police,

page 9. Disclosure 10240.
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The report is lacking on a variety of fronts and is structured as a bullet point

repeat of what witnesses have said with no clear link back to the key issues or in
any form of clear chronology. There is no reference to the legal issues that are
on the table, (or) a focus of those issues back to the evidence established from
the investigation.
Although legal asked for additional information, it appears they struggled to
get the assistance they required. The legal contractor had to call on (name
blacked out) to provide further documentation or follow-up on an issue. As the
weeks have gone by, more problems arose with the service (name blacked out)
provided, to the point where I got a call from (name blacked out) frustrated at
the lack of appropriate support from (name blacked out).
And as Stephen McGregor said in his email of 31 January 2014: Given the
recommendation of no prosecution, it may make the above issue around the
quality of the prosecution file presented more problematic.
The second factor is that because Anna Tutton went on leave when the
substandard report was presented, it was reviewed by a contracted lawyer who
was entirely unfamiliar with the case. As a result, it seems the contractor
struggled to appreciate the nuances and intricacies of the evidence and so did
not even consider the possibility of a prosecution for failing to provide the
necessaries of life - which is a less serious charge with a lower evidential test
threshold.
She appears to have missed the point that the prison manager segregated Mr
Davis under section 58, which according to the coroner, was the wrong section of
the Corrections Act; she missed the significance of numerous Corrections
managers and nurses failing to call a doctor to examine Mr Davis despite
Corrections protocols requiring them to do so; and she appears to have ignored
the fact that at least two nurses testified they were aware Mr Davis appeared to
be under the influence of drugs on Sunday, 13 February 2011 just prior to his
death - but both also failed to call the doctor or the health centre manager.
These are the basics of the case.
A comprehensive analysis of the wealth of evidence suggesting that Corrections
managers and nurses could and should have been prosecuted for failing to
provide the necessaries of life is attached.
See Appendix A evidence supporting a charge of failing to provide the
necessaries of life against Acting Prison Manager Christopher Gisler;
See Appendix B evidence supporting a charge of failing to provide the
necessaries of life against On Duty manager Ann-Maree Matenga (wife of
Corrections Officer Fred Matenga);
See Appendix C evidence supporting a charge of failing to provide the
necessaries of life against Health Centre Manager, Jillian Thompson;
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 See Appendix D evidence supporting a charge of failing to provide the

necessaries of life against prison nurses Janice Horne and Gayle Catt.
Given that a significantly substandard report with inadequate supporting
documentation was reviewed by a lawyer who was entirely unfamiliar with the
case, it is not surprisingly that she was unable to get to grips with the intricacies
of the evidence. It appears she was not even told what charges the police
themselves were considering in the course of their investigation. With no
familiarity with the case, no guidance from the police report and difficulty
accessing additional information, this unfortunate lawyer had to try and figure it
all out by herself.
Given these difficulties, it is not surprising that she only looked seriously at what
was happening around the time Davis actually died and focussed on the one
officer, Fred Matenga, who was on duty at that time. If anyone was going to be
found guilty of manslaughter, it had to be him. No one else was present.
By focussing on Mr Matenga, the lawyer appears to have ignored, or simply been
unaware of the significance of the evidence regarding the numerous Corrections
managers and nurses who, given that Mr Davis was strongly suspected of
internally concealing drugs, failed to call a doctor at any stage over the weekend.
It seems the lawyer decided these were just systemic issues. The emails appear
to indicate that, as a result, a prosecution for failing to provide the necessaries of
life (which includes access to medical treatment) was not even considered by the
legal contractor. Nor does it appear to have been considered by Anna Tutton who
peer reviewed her colleagues work on the case.

Request
I therefore request that the IPCA investigate:
1) The failings of the police which led to the provision of a significantly
substandard report to the lawyer tasked with making a decision about
whether the evidential test for prosecution was met.
2) Whether the agreement of the police to allow a contracted lawyer who
was unfamiliar with the case to conduct the review, combined with the
provision of a substandard report (with no reference to the legal issues
that are on the table) to that lawyer contributed to the omission by the
legal team to consider a prosecution for failing to provide Jai Davis with
the necessaries of life.

3) Whether the substandard report (with no clear links back to the key
issues) contributed to a perception by the legal team that actions and
omissions by nurses, managers and prison officers were indicative of

systemic problems at OCF rather than personal failings by the individuals

concerned.
4) To what extent the combination of an inadequate and delayed
investigation (leading to the first complaint to the IPCA) and now the
provision of a significantly substandard report have undermined the
credibility of the police investigation and the ultimate decision not to
prosecute any Corrections staff.

Roger Brooking,
PO Box 29075,
Ngaio, Wellington