Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Aboriginal deaths in custody - Royal Commission (Hon. E.F. Johnston, QC) - Reports -Regional report of inquiry into - Individual deaths in custody in Western Australia (Commissioner Hon. D.J. O'Dea) - Volume 1


Download PDF Download PDF

ROYAL COMMISSION INTO ABORIGINAL DEATHS IN CUSTODY

REGIONAL REPORT

OF INQUIRY INTO

INDIVIDUAL DEATHS IN CUSTODY IN WESTERN AUSTRALIA

VOLUME 1

Commonwealth, Western Australia

ROYAL COMMISSION INTO ABORIGINAL DEATHS IN CUSTODY

REGIONAL REPORT

OF INQUIRY INTO

INDIVIDUAL DEATHS IN CUSTODY

IN WESTERN AUSTRALIA

VOLUME 1

BY

COMMISSIONER THE HONOURABLE D.J. O'DEA

Australian Government Publishing Service Canberra

©Commonwealth of Australia 1991 ISBN (Volume 1) 0 644 14132 8 ISBN (the set) 0 644 14115 8

This- work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without written permission from the Australian Government Publishing Service. Requests and inquiries concerning reproduction and rights should be addressed to the Manager, AGPS Press, GPO Box 84, Canberra ACT 2601.

Printed in Australia by P. J. GRILLS, Commonwealth Government Printer, Canberra

ROYAL COMMISSION INTO ABORIGINAL DEATHS IN CUSTODY

Secretary : John Gavin Assistant Secretary : Jill Sheppard

Reference:

30 March 1991

His Excellency the Honourable William George Hayden, AC Governor-General and Commander-in-Chief of Australia Government House CANBERRA ACT 2600

Your Excellency

45 Flinders Street ADELAIDE SA 5000

GPO Box 1005 ADELAIDE SA 5001

Telephone: (08) 223 6222 Fax: (08) 223 7825

In accordance with Letters Patent issued to me on 27 April1989 and subsequently varied, I have the honour to present to you the report of Commissioner the Hon. D.J. O'Dea of the overall fmdings of his inquiry in Western Australia.

The same report is being provided to His Excellency the Governor of Western Australia in accordance with a Commission issued by him.

Yours sincerely

Elliott Johnston ----­

ROYAL COMMISSION INTO ABORIGINAL DEATHS IN CUSTODY

Secretary : John Gavin Assistant Secretary : Jill Sheppard

Reference:

1991

45 Flinders Street ADELAIDE SA 5000

GPO Box 1005 ADELAIDE SA 500 1

Telephone: (08) 223 6222 Fax: (08) 223 7825

His Excellency the Honourable Sir Francis Bun, AC, KCMG, QC Governor of Western Australia Government House

PERTH WA 6000

Your Excellency

In accordance with the Commission issued to me on 8 August 1989 and subsequently varied, I have the honour to present to you the report of Commissioner the Hon. DJ. O'Dea of the overall findings of his inquiry in Western Australia.

The same report is being provided to His Excellency the Governor-General in accordance with Letters Patent issued by him.

Yours sincerely

Elliott

ROYAL COMMISSION INTO ABORIGINAL DEATHS IN CUSTODY

Secretary : John Gav in A>si>tant Jill Sheppard

29 November 1990

Commissioner The Hon. E.F. Johnston, QC Royal Commission Into Aboriginal Deaths in Custody Second Floor, Flinders House 45 Flinders Street ADELAIDE, SA 5000

Dear Commissioner

3rd Floor CSA Building 445 Ha y Street PERTH W A 6000

GPO Box A45 PERTH WA 6001

Telephone : 1 09) :!21 )999

Fax: t09l .125 9643

In accordance with Letters Patent issued to me in the name of the Sovereign by His Excellency the Governor General on 27 October 1988 and subsequently varied, and consequent upon completion of my inquiry into particular deaths, I furnish herewith, for your consideration, a report of further findings of my inquiry into deaths in the State of Western Australia of Aboriginals and Torres

Strait Islanders.

Yours sincerely

WESTERN AUSTRALIA REGIONAL REPORT

CONTENTS

Page No.

VOLUME 1

PART 1 SUMMARY ....................................................... 1

1.1 Introduction ..... ..................... ........................................ 1

1. 2 My Findings - An Overview ............................................ 4

1.2.1 1.2.2 1.2.3 1.2.4 1.2.5 1.2.6

PART 2

Cause of Death According to Category ........................... 5

Natural Causes/Medical Cases .................................... 5

Suicide/Hanging/Self Hann Cases ................................. 5

Other Cases Involving Violence .................................... 6

The Location of the ])eaths ........................................ 7

Locations Around the State ......................................... 8

THE ROYAL COMMISSION IN WESTERN AUSTRALIA ................................... 10

2.1 The Royal Commission in Western Australia ................... 10

2.1.1 Role of Commissioners in Western Australia ................. 10

2.1.2 Conduct of Inquiries in Western Australia ..................... 14

2.2 Procedures and Sources of Information ........................... 16

2.2.1 Case Inquiries ..................................................... 16

2.2.2 Underlying issues ................................................. 18

2.2.3 Aboriginal Issues Unit ............................................ 21

2.2.4 Criminology Research Unit ...................................... 21

2.2.5 Submissions ....................................................... 22

2.2.6 Exhibits ............................... : ............................. 23

2.2. 7 Consultations and Visits ............................... .......... 23

2.2.8 Conferences ........................................................ 23

2. 3 Difficulties of the Royal Commission in Western Australia ......................................................... 25

2. 3.1 Challenges .......... .. ... ........................................... 25

ix

. I

2.3.1.1 Terms of Reference .................................... 25

Inquiry into the death of Robert Joseph Walker - Supreme Court of Western Australia proceedings ................ 25

Inquiry into the death of .

Robert Walker - Federal Court proceedings . . . . 27 Inquiry into the death of Wayne Dooler-Federal Court Action ............................... 29

Federal Court Action ............................... 30

2 . 3. 1. 2 Problems of Interpretation ............................ 32

Alx>riginality ...... ............................ · ...... 32

Custody ............................................. 33

Deaths in Hospital. ...................... : .......... 34

2.3.2 The Approach taken to the Commission by the W A Government and the Police Union ......... . ............... 36

2.3.2.1 The Government of Western Australia .............. 36

2.3.2.2 W A Police Union of Workers ........................ 40

PART 3 THE DEATHS .................................................. 44

3.1 Profiles of the Deceased ................................................ 44

Introduction .................................................................... 44

Charles Sydney Michael (W/1) .............................................. 45

Robert Walker (W!2) .............. ........................................... 46

Christine Jones (W /3) ......................................................... 48

Wayne John Dooler (W/4) .............................. . .................... 49

Paul Farmer (W/5) ...............•............................................ 50

Darryl Horace Garlett (W n) ................................................. 52

Jimmy Njanji (W/8) ................ -.......................................... 53

The Aboriginal Man who died at Sir Charles Gairdner Hospital (W /9) ...................... . . · ............................. 54

Nita Blanken (W/10) .......................................................... 56

Albert '[)(}ugal. (W/11) ................................ ........................ 58

Hugh Wodulan (W/12) ................ ...... ................................. 59

Stanley Brown (W/13) ....................................................... 60

Misel Waigana (W/14) ........... . ........................................... 61

Benjamin William Morrison (W/15) ........................................ 63

Robert Anderson (W/16) ..................................................... 65

Bernard Albert McGrath (W /17) ........... ................................. 66

Kim Polak (W/18) ............................................................ 68

John Peter Pat (W/19) ............................. : .......................•.. 70

Edward Cameron (W!20) ..... . .............................................. 71

The young man who died at Geraldton on 31 December 1988 (W/21) ................... ................................ 73

Graham Trevor Walley (W/22) .............................................. 75

Ginger Samson W /23) ....................................................... 77

Dixon Gre.en (W/24) .......................................................... 78

X

7 )'b) l)>J) 2

Harris (W {25) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Glenn Michael (W {26) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . M 1

R CCI ohn Vicenti (W {27). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . X_ Mack Ugle (W{28).......... .... .. .. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . K-1

nald Chatunalgi (W {29) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . M6 Faith Marilyn Barnes (W/30) ............... .. .. . .. . ... .. . .. .. .. .... .. . · · M

Bobby Bates (Wf31) ............. ... . ... . .... .. . . . . . . . . . . . . . . . . . . . . . . . . . . X

Roy Norman Walker (W/32)................... ... .. .. .. .. .. .. ...... .. .. 9 1

Milton Wells (W {33) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . · lJ

3. 2 Characteristics of Deceased Persons .... ..... .... ..... .... .. .. . 94

3.2.1 Demographic Characteristics ........ . ... .. .. . ..... .

3.2.1.1 3.2.1.2 3.2.1.3 3.2.1.4 3.2.1.5 3.2.1.6

Age and gender .. . ......... .. ... . . . .... .. .. .... . . .

Marital Status ...... .. .... . .... .. .. ... .... .. . . .. ..

Employment ................. ...... ... .. ... .. ... . ..

Highest Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Community . .. ..... . ... . . . . ....... . ... .... .. . .. . .

Childhood Separation ... .. .... ... .. .. ....... . .. .

3.2.2 Identity....................... . ... . .... .... ... ..... .. . .. .. . . .

3.2.3 Last Apprehension and Detention.. ... ... .. .... .. ...... < J7

3.2.3.1 Place where last taken into custody . .. . . .. ... . .

3.2.3.2 Reason for apprehension.... .. ..... .. .. .. .... . .

3.2.3.3 Most serious offence leading to lal\t detenti on . . . < JH 3.2.3.4 Reason for bail denial.... .. .. .. .. .. .. ... ..... ..

3.2.3.5 Physical condition on apprehension ... . . . . ..... .... 99

3.2.3.6 Observed level of intoxication on appn:hensi on . .. I C l > 3.2.3.7 State of consciousness on apprehension ... . ... .. . lfl)

3.2.3.8 Demeanour on apprehension ....... .... .... .. ... .. 10 1

3.2.4 Custody.............. . ... . ..... . .. .. ... . .. . .. . . . . . . ... .. .... . .. . 1< >1

3.2.4.1 Custodial authority and legal status.... .. ... .. .. . I o I

3.2.4.2 Prison custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I 02 3.2.4.3 Outside contacts.. .. ..... ........ . ... .. ..... .. .. .... .. 102

3.2.4.4 Durations of custody prior to death .. . . .. ... .. .. . ... 102

3.2.5 Details of Death .. ........... .. ......... .. .. ....... .. ... .. ... .. .... 103

3.2.5.1 3.2.5.2 3.2.5.3 3.2.5.4 3.2.5.5

3.2.5.6 3.2.5.7

Custodial authority .. . . ... ... .. . .. .. . ... ..... . . .. ... . .. 10

Place of Death . ....... .. . .. .. . .. .......... .. ... .... ....

Time of Death .... ........ .... ..... .......... .. ..... ....

Manner and cause of Death . .. .. .. .. . .. .. .. .. .. .. .

Resuscitation attempts by custodial staff and/or prisoners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I ()) Level of intoxication at time of death ....... . .. . .. .. I (XJ

Time since last seen alive ................ .. .... .... .. I(Y)

xi

3.2.5.8 State of consciousness when last observed ........ 107 3.2.5.9 Demeanour when last observed ..................... 107

3. 3 Analysis of the Natural Causes/Medical Cases ............ .. . 108

3.3.1 Background ....................................................... 108

3.3.2 Injury .. .... ... ... ... ................. .. ..... . .......... . ..... ....... 108

3.3.3 Death from Disease or Underlying Cause ..................... 110

3.4 Analysis of the Hanging/Self Harm Cases ....... .......... .... 116

3.4.1 Characteristics ... ........ .......... ........ ... ..... .. ............. 116

1. Background ...... ...... ... .. .. .. ....... ........... ... . ...... .. 116

2 . IJeath ........................ ····· ······ · ....................... 117

3.4.2 Is an Explanation Possible? ..... .. ... .... ............... ... ..... 121

Christine Jones . .................. ............................ 121

Hugh Wodulan ............................................... 122

Paul Farmer ................................................... 123

Stanley Brown .... ......... .. ... .............................. 123

Bernard McGrath .. ........................ ............ .. .... . 124

Ben Morrison ................................................. 124

Edward Cameron ............ ...... ........................... 125

Graham Walley ............................................... 125

Wongi . .... ............................. . .... ..... ............. 126

3.4.3 Discussion ............................. .. ..... ..................... 127

3.4.4 Prevention of Death In Custody ...... ............... ........... 132

3.5 Other Cases involving violence .................................... 133

Charles Michael . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 Robert Walker.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 John Peter Pat .. ....... ......... . ... ........... ................. .............. 136

Ricci Vicenti. ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

PART 4 OVER-REPRESENTATION OF ABORIGINALS IN CUSTODY ....................... .. 139

4.1 Nature of the Over-representation in Western Australia .. 140

4.1.1 The Offences ............................. ................ . ....... . 140

xii

4.1.1.1 Offence Histories of Individuals .. .. .... .. ...... .... 140

Juvenile Offence Histories .......... . ... . .... . .. . 140

Adult Offence Histories .. .............. .... .. .... . 141

4.1.1.2 Offences for which Individuals detained at time ofdeath .. ...... ..... .. ... ..... . .. ... ... .. ....... . .... .. . 149

Prison Custody .... .......................... ...... 149

Police Custody .......... .. ........................ 151

4. 1.1. 3 Offences for which Aboriginal People are Detained in Western Australia .... . . ...... ... . ... . ... 152

Summary .. ....... ... . .. ... ....... ..... ... ..... . .... 152

Police Custody .. ...... .. ... .. ..... . .. .... ...... .. . 154

Kalgoorlie ....... .. ..... .... ... . ... .. ..... .... ...... 158

Offences- Gender . .......... ... ..... . ....... ..... . 161

Prison Custody .... ....... ........................ . 162

Offences and Gender .............. .. ........ ...... 164

National and Interstate Comparison .. ........... 166

4. 1.2 Aboriginals in Police and Prison Custody ...... . .. ...... .. .... 170

4.1.2.1 Sumrilary ............................. .. .. .............. 171

4.1.2.2 Sources of Data ........................................ 173

4.1.2.3 PoliceCustody .... ........... ..... ... ..... ... . .. ...... 173

Gender. ... .... ....... .... ...... .. ..... .............. 178

Age .......... .. ............... .. .... .. ........... .... 179

Length of Time Spent in Police Custody ....... 181 4.1.2.4 Prison Custody .... . ... ..... ..... ............ .. .... .... 181

Proportion of Aboriginal Prisoners . .... . ....... 182 Over-representation of Aboriginals in Western Australia Prisons ............. .. ....... .. 186

Gender Difference .. . .. ..... .. ...... . ..... ... ...... 189

Age Distribution ... .. .......... ... . ... ... ... . ...... 192

Education Level.. .......... ............ ............ 194

Employment Status ...... ........ ..... .... .... .. .. 196

Duration of Imprisonment .. ..... .... .. ..... . . ... . 199

Fine J)efault ... .. .......... ... .... ...... ............ 207

4. 1. 3 Causes of high arrest/detention rates ....... .. ........ .......... 210

4. 1. 3.1 Police Resources ... . . .. .... . ....... .......... ......... 210

Financial Resources ......................... .. .... 219

4.1.3.2 Police Discretion .. .. ... ......................... ... ... 221

Constraints on the Exercise of Discretion .... . . 223 Training in Relation to Discretion . ... ...... . .... 223

Discretion in Relation to Policing and Charging Practices .. ..... .•....... ... ....... .. ... . 224

4. 1. 3. 3 Alcohol as a Cause of High Arrest/ Detention Rates ... . ......... ...... ............ . .... 227

4.1.4 Juvenile Justice System .................. .. .. ... .... .... . .. ... ... 235

4.1.4.1 Introduction ............................................ 235

xiii

4. I. 4. 2 The Extent of the Disproportion of Aboriginal Youths in the juvenile justice system .... .................. / ........................... 239

Sources of Statistical Information ............... 24I

Police Custody ......... ........................... 242

Children's Panel and Court ...................... 246

4.I.4.3 The Offences .......................................... 250

4 .1.4.4 How are Youths Dealt with by the Courts? ....... . 252 4.1.4.5 Juveniles in Institutions .............................. 254

4.I.4.6 Police Policies and Practices ........................ 259

Policing Practices ................................. 259

Arrest ............................................... 262

Questioning of Juveniles ......................... 268

4.1.4. 7 Bail ..................................................... 273

4.1.4.8 Legal Services ... ......... ........... .................. 277

Aboriginal Legal Service ......................... 278

Legal Aid Commission ........................... 279

Youth Legal Service .............................. 280

No Representation ............. ................... 28I

Duty Counsel Scheme ............................ 282

24 Hour Legal Service ...... ..................... 283

Provision of Legal Services at the Children's Court .................................. 285

4. I. 4 . 9 Children's Court and Children's (Suspended Proceedings) Panel ................................... 287

Location of Children's Courts ................... 287

The Use of the Children's (Suspended Proceedings) Panel ............................... 288

Police Prosecutors .... ......................... ... 289

Magistrates and Justices of the Peace ........... 290 4.1.4.10 Sentencing Options and Practices ................... 292

4.2 Avoidance of Custody ................................................. 296

4.2.I Arrest without Warrant/Alternatives to Arrest.. .. ............. 296

4.2.2 Bail ................................................................. 307

4.2.2.I Function of Bail. ...................................... 307

4.2.2.2 Bail in Western Australia ............................ 308

4.2.2.3 The Western Australian Law Reform Commission's Report ........ . .... . .................. 3IO

4.2.2.4 All Offences Bailable and Authority to Grant Bail .............................................. 3II

4.2.2.5 Qualified Rightto Bail ....... ... .... .. . .............. 3I2

4 .2.2.6 Bail After Conviction ................................. 320

4. 2. 2. 7 Grounds for Refusing Bail.. ........................ 322

4.2.2.8 Factors Relevant to Consideration of Grounds for Refusal.. ................................ 323

4.2.2.9 Where Pre-Trial Detention Could Exceed the Potential Penalty for the Offence ............... 325

xiv

4.2.2.10 The Need for More Information Relevant to a Bail Decision ........................ ... 326

4.2.2.11 Conditions of Release on Bail.. ................... .. 327

4.2.2.12 Conditions of Release on Bail Other Than the Defendant's Undertaking .................. 329

4.2.2.13 The Requirement of a Surety as a Condition of Bail.. ................. .. ................. 331

4.2.2.14 Other Reforms ................................... ..... . 334

4.2.2.15 Bail Centres and a Bail Hostel.. ..... .......... ...... 336

4.2.2.16 Home Detention ............................. .. ........ 339

4.2.2.17 Other Conditions ...................................... 339

4.2.2.18 Conclusion ...... ............. ... .... .. .. ........ . ..... . 340

4.2.3 Removal Of Incentives To Arrest or Detain In Custody ...... 340

4.2.3.1 Meal Allowance Scheme ........................ ..... 340

4.2.3.2 Payment of Wives for Searching Female Prisoners ............................................... 345

4.2.4 Legal System ....................... .... ... .. ......... ............. 347

4.2.4.1 Introduction ........... ................................. 347

4.2.4.2 The Right to Legal Representation ............ . ... .. 348

4.2.4.3 Understanding of Aboriginal Culture, History and Law by Legal Practitioners ......... .. . 352 4.2.4.4 Aboriginal Peoples Understanding of the Western Legal Process ........................... 354

4.2.4.5 Court Staff in Western Australia ....... ....... ..... . 359

Location of Courts - Oerk of Courts ... . ....... 360 4.2.4.6 Justices of the Peace In Courts of Petty Sessions. 361 Sentencing by Justices of the Peace ............. 365 One Justice Sitting Alone ......................... 370

One Aboriginal Man's Experience Ginger Samson ................................ .. .. 370

4.2.5 Sentencing ...................................................... ... 373

4.2.5.1 Principles of Punishment ............ .. ........... .. . 373

General ........ .. ..................... ........ . .... . 373

Retribution ................ .... . ... .............. . .. 373

Deterrence .......................................... 374

Prevention .............. ............................ 375

Rehabilitation ...................................... 376

Reparation ........... .. ... ............... ........... 377

Imprisonment. .. ....... ............................ 378

Aborigines in ................... ... .... 381

4.2.5.2 Non-Custodial Sentences .... .................. .. ... . 382

Monetary Penalties ................ ... ............. 372

Fines ................. ........................... 372

Incidence .......................... .......... .. . 372

Fine Defaults and Community Work and Development Orders ... ......... ...... 384

Community Based Corrections ... ... .. ......... . 492

XV

Western Australia ... ......... ... ... .... ...... .. . . . 493

Parole ...... .... .... ... ....... ....... ..... ........... 400

Probation ... ........... ... ............. ... .. ...... .. 402

Community SeiVice Orders ... ..... ... .. ...... .. . 403

Home 'Detention ...... . .. ..... .... .. ....... .. ...... 405

Court Drug Diversion Programmes ............. 407

PART 5 PREVENTION OF DEATH ....... .... ... ... . ..... ... .. . . 408

5.1 Prevention of Death - General Issues .. ... ... .. ............ ...... 408

5 .1.1 Interim Report and Vincent Report .. .. . ... .... .. . .. .... ... .. . . . 409

Muirhead Interim Report .. ..... . .... . ... .. .. ... .... ...... .. . .. . . 409

Vincent Report Recommendations .. ................... ..... .. .. 432

5 .1.2 Changes implemented since commencement of Royal Commission .. ................. .. . .. . ... .... .. ....... ..... .. 444

5.1 .3 Duty of Care ............................ ......... ... ... .. .......... 448

5.1. 3.1 Criminal Negligence .... ..... .. ... .................... 449

5.1.3.2 Common Law Negligence . . .... . ........... . ... .. . . . 450

5.1.3.3. Medical Care of Prisoners .... . ...... . ... .. ... . .. ... .450

(a) In Prison Custody ... ..... .......... .... ....... 450

(b) In Police Custody . ... . ... . ..... ........ .. ..... 451

5.1.3.4 Duty to Resuscitate ... ....... .. .. ........ ... .......... 452

5 . 2 Prevention of Deaths - Police Custody ........ ....... ........ ... 454

5.2.1 Police Cells/Lockups ...... ... ........ . .. .... .. .. .......... ....... 455

5.2. 1.1 Size of Police Station and Lockup ... .. .... .. . ... ... 455

5.2.1.2 Cell 'Design and Safety ... .. ... .. ...... .. ..... ... . .... 459

Midland Police Station ..... .. .. ..... ............. 463

CamaiVon Lockup . .... . .. . ... .. ... . . . ....... .. ... 464

Port Hedland Lockup .... ......................... 466

Broome Lockup .... . ............. .......... .. .... . 467

Gerald ton Lockup . ... ..... . .. .. ..... .. .... ........ 469

Kalgoorlie Police Station ............. .... ...... .. 490

East Perth Lockup .. .. .. ... ......... .... ........... 471

Padded Cells ...... ...... ... .. ....... . ......... . .... 473

5.2.2 Assessment and Screening ....... .. ....... ... .. .... . ............ 475

5.2.2.1 Why is it important? ........ . ............. .......... . . 475

5.2.2.2 What the Cases Have Shown- Past Inadequacies .. . ... .... ........ . ..... ............ . .. .... 480

More recent cases .. ........... ..... .......... . . ... 483

xvi

5.2.2.3 Current Assessment Practices of the Police ........ 484 Responsibility for Assessment .................. 488

Screening Form .................................... 491

Assessment of Intoxicated Persons ............. 493 5.2.2.4 What is Required ..................................... .496

5.2.3 Detention of Unconscious Persons or Persons who are not easily roused .. ........................................... .497

What the Cases Have Shown .................................... 497

Current Procedures ............................................... 500

5.2.4 Computer System ................................................. 503

Should the Warning System be Expanded? ................... 506

VOLUME 2

5.2.5 Supervision and Cell Checks .................................... 511

5.2.5.1 What the Cases Have Shown ........................ 512

Christine Jones ...... .............................. 512

Albert J)ougal ...................................... 513

Robert Anderson .................................. 513

Kim Polak .......................................... 514

Bernard McGrath .................................. 515

5.2.5.2 Current Police Practices .............................. 516

Routine Orders .................................... 517

Custodial Care Manual ........................... 518

Frequency of Cell Checks ........................ 520

24 Hour Supervision .............................. 522

Adequacy of Supervision ........................ 523

Records of Cell Checks ........................... 525

Communication of Observations to Officer in Charge .................................. 526

Responsibility for Supervision .................. 528

Physical Structure of Lockups ................... 528

Other Prisoners in the Lockup ................... 529

Electronic Surveillance ........................... 530

Liaison with Support Services ................... 531

5.2.6 Lockup Keeper and Welfare Officer ............................ 532

5.2. 7 Routine Orders and other Instructions ......................... 537

Compliance with Routine Orders ............................... 537

Knowledge of Routine Orders .................................. 539

Consequences of Breach of Routine Orders and other Instructions .......... ....................................... 543

Conclusions ......... ........ .. .................................... 544

xvii

5.2.8 Training of Police ................................................ 544

5.2.8.1 First Aid and Resuscitation .......................... 545

5.2.8.2 RefresherTraining .................................... 550

5. 2. 8. 3 Detection of Serious Medical Conditions .......... 550 5.2.8.4 Custodial Care and Suicide Prevention ............ 552 5.2.8.5 Aboriginal Affairs Training .......................... 554

5.2.9 Availability and Use of Medical Assistance ................... 566

5.2.9.1 Access to Medical Information .. .......... .......... 566

5.2.9.2 Medical Emergencies and Ambulance Services ... 567 5.2.9.3 Access to Medical Attention ......................... 568

5.2.10 Contacts. ........................................................... 577

5.2 .1 0.1 Aboriginal Visitors Scheme ......................... 577

Selection of Visitors .............................. 579

Current Level of Service ............. ............ 580

Training of Visitors ............................... 581

Visits to Lockups - Practice and Procedure .... 582 Support Committees for Visitors ................ 585

Other Difficulties Confronting the A VS ........ 586 The Future of the AVS ........................... 588

5 .2.1 0.2 Family and Friends of a Prisoner. ................. . 589

5.2.10.3 Aboriginal Legal Service ............................. 591

5.2.10.4 AMS and Aboriginal Health Workers .............. 595

5 .2.11 Aboriginal/Police Relations ............................. ........ 595

Introduction ....................................................... 595

Aboriginal Attitudes Towards Police ........................... 597

Police Attitude Towards Aboriginals ........................... 597

Police understanding of and ability to communicate with Aboriginal people ........................................... 598

Use of Abusive and Racist Language .......................... 599

Harassment. ....................................................... 601

Targeting of Communities, Families and Individuals ........ 602 Vehicles ............................................. .. .......... ... 604

Rough Treatment ................................................. 604

Aboriginal Drinking Places ...................................... 605

Warrants ........................................................... 605

Aboriginal Perceptions of the Attitude of the Police .. ... ..... 606 Complaints Against the Police .................................. 607

Aboriginal Police Aides .......................................... 607

Background ................................................... 607

Number of Police Aides ..................................... 609

Problems with the Police Aide Scheme .................... 610

Concerns of the Aboriginal Communities ................. 611 Concerns of Aboriginal Police Aides ............... ....... 613

Reviews of the Police Aide Scheme 1987-1989 .......... 616

xviii

Aboriginal Police Officers ................................... 622

Recruitment and Placement of Officers .. .... .............. 625

Aboriginal/Police Liaison Committees .. ... .... ............ 629

5.3 Prevention of Death in Prison Custody .......................... 633

5. 3.1 Philosophy and Design of Prisons ........................... .. . 633

Aboriginals in Prison in Western Australia .................... 636

Isolation from Country and Community ....................... 638

Language/Communication Difficulties Within Prison ........ 638 Communication Difficulties with Family .................... .. 638

Loss of Cultural Identity caused by Prison experience ....... 638 Security -v- Welfare .............................................. 643

Normalisation ..................................................... 645

Unit Management. ................................................ 646

Provision of Multiple Bed Cells ................................. 646

Unit Management. ...... ............ .............................. 647

Case Management. ................................................ 650

Professional Services in the Prison System .............. ..... 652

Substance Abuse Team ................................... .... 652

Skills Development Team .................................... 653

Sexual Offenders Team ...................................... 653

Special Needs Team .......................................... 654

Education Team ............................................... 654

Security Oassification of Prisoners and Prisoner Placement. ......................................................... 655

NAILSS Survey of Aboriginal Prisoners ...................... 658

Aboriginal Wings - Aboriginal Prisons ? ...................... 660

5.3.2 Recruitment and Training of Prison Officers .................. 665

Recruitment of Prison Officers .................................. 665

Training ................ .. .............. ... ....... .................. 668

Detection of Medical Conditions ................................ 668

First Aid and Resuscitation ...... ........................... . .. .. 671

Identification of Suicide Risks/Suicide Prevention ........... 673 Mechanical Restraints, Chemical Agents and Batons ..... ... . 675 Welfare Role ....................................................... 677

Aboriginal Culture ................................................ 679

5.3.3 Availability and Use of Medical Assistance ................... 681

Medical , Officers .... ........ ....................................... 682

Nursing Services ................................................. 683

Availability of Nursing Staff .................................... 684

Medical Facilities at Fremantle and Canning Vale Prisons ... 689 Aboriginal Prisoners - AMS - Traditional Healers ............ 691 Prisoner Medical Records ........................................ 695

Compulsory Medical Examination and Treatment ........ .. .. 696 Examination on Admission ...................................... 697

Transfer of Prisoners from Prison to Hospital -

xix

Use of Mechanical Restraints .. .... .. ......... .................. 700

Mechanical Restraints .... ... ............. ... .... .. ... ............ 701

Psychiatric Services in Prisons ................................. 703

Independence of the Prison Medical Service .................. 703

5. 3.4 Supervision & Monitoring of Prisoners ....................... 707

5.3.5 Emergency Procedures .......................................... 713

Use of Firearms ................................................... 714

5.3.6 Contacts. ........................................................... 718

5.3.6.1 Family .. ................................................ 718

Prisoner Placement ........ ......... .............. 718

Telephone Calls ....................... ............ 719

Funerals .................... .. ...................... 719

Other Traditional Obligations ...... .. ... ........ . 720

5.3.6.2 Welfare Services ........................... ........... 720

Review of the Provision of Welfare Services to prisoners ........................................ 723

Welfare Services- What may be done? ......... 729 5.3.6.3 Aboriginal Visitors Scheme ......................... 732

5.3.6.4 Other Prisoners ........................................ 734

5.3.6.5 Visiting Justices- Internal Discipline ............... 734 5.3.6.6 Aboriginal Legal Service ............................. 736

5.3.7 Activities .. ..... .................................................... 736

5. 3. 7.1 Employment. .......................................... 736

5. 3. 7. 2 Prisoner Education and Skills Training ............ 738 Literacy ............................................. 740

Numeracy .......................................... 740

Driver Training ........................... ... ...... 741

Alcohol and Substance Abuse ................... 741

Social Skills Training ............................. 741

5.4 Health ................................................. ...................... 743

5.4.1 Risk of Death in Custody ........................................ 743

5.4.1.1 Health Status of Aborigines in Western Australia 743 5 .4. 1.2 Medical Histories of Individuals .................... 745

Charles Michael (W/1) ........................... 745

Robert Walker (W !2) ............................. 745

Christine Jones (W/3) ............................ 745

Wayne Dooler (W/4) .............................. 745

Paul Farmer (W /5) .................... ........... . 746

Darryl Garlett (W n) .............................. 746

Jimmy Njanji (W/8) .............................. 747

The Aboriginal man who died at Sir Charles Gairdner Hospital (W/9) ........... 747

XX

Nita Blankett (W /10) .............................. 748

Albert Dougal (W/11) ............................. 748

Hugh Wodulan (W/12) ........................ .... 748

Stanley Brown (W/13) ........................... 749

Misel Waigana (W/14) ........................... . 749

Benjamin Morrison (W/15) ...................... 749

Robert Anderson (W/16) ......................... 750

Bernard McGrath (W /17) ........................ 750

Kim Polak (W /18) ...................... .. ......... 750

John Pat (W/19) ................................... 751

Edward Cameron (W!20) ........................ 751

The Young Man who died at Geraldton on 31 December 1988 (W{21) ....... 751 Graham Walley (W{22) ........................... 751

Ginger Samson (W {23) ........................... 752

Dixon Green (W{24) .............................. 752

Donald Harris (W/25) ........ .................... 752

Steven Michael (W!26) ........................... 753

Ricci Vicenti (W !27) .............................. 753

Ronald U gle (W /28) .............................. 753

Donald Chatunalgi (W {29) ....................... 753

Faith Barnes (W (30) ......... ..................... 754

Bobby Bates (W(31) .............................. 754

Roy Walker (W(32) ............................... 755

Milton Wells (W (33) .............................. 755

5.4.1.3 Impact of ill health on the custodial experience .... 756

5.4.2 Hospital Systems ...... . .......................................... 759

5.4.2.1 Emergency Procedures- from Custody ............ 759 Prison Orders ...................................... 762

Police Routine Orders ............................ 762

Hospital Emergency Procedures ................ 764

5.4.2.2 Difficulties Experienced by Aboriginal People .... 765 5.4.2.3 Role of Health Professionals ........................ 769

5.4.2.4 Interpreters ................. .............. .. ............ 771

5.4.3 AMS and Aboriginal Health Workers .......................... 778

Police Custody .. ............. .. ................................... 778

Prison .............................................................. 782

5.4.4 Mental Health Services ........................................... 785

5.4.4.1 Psychiatric Services .................................. 786

New Division Programme - Fremantle Prison. 789 5.4.4.2 Culturally Sensitive Services ........................ 791

5.4.4.3 Response of Custodians to Acute Illness. .......... 795 5.4 .4 .4 Future Development of Services .................... 798

Conclusion ......................................... 803

xxi

5.5 Alcohol ...................................................................... 804

5.5.1 Significance of Alcohol in the Cases in Western Australia. 804

Family History ............................ ........................ 805

Individual Consumption ......................................... 805

Arrest and Offences .............................................. 806

Early Offending ........................ . .......................... 811

Adult Offending ................................................... 811

Last Detention ..................................................... 811

Alcohol and Risk of Death ....................................... 812

Masking Medical Conditions .................................... 813

Serious Alcohol Related Conditions ......... .................. 815

Alcohol Affected Behaviour .............................. ....... 816

Distortion of Human Responses ................................ 817

Alcohol, Health and Custody ................................... 819

Police System for Dealing with Intoxicated Persons ......... 820 Breathalysing ...................................................... 822

Conclusion ........................................................ 825

5.5.2 Decriminalisation of Drunkenness ............ .... .............. 825

Legislation ......................................................... 825

Sobering Up Centres ............................................. 834

5.5.3 Treatment facilities ................................................ 839

5.5.3.1 Introduction ........................................... 839

Treatment Facilities ............................... 841

Sobering-up Facilities ............................ 841

Detoxification Units .............................. 841

Rehabilitation Programmes ...................... 842

5.5.3.2 A Sample of Western Australian Facilities ......... 842 Carnarvon .......................................... 842

Broome ............................................. 845

W AADA Study .................................... 848

Roeboume ......................................... 850

Kalgoorlie .......................................... 853

Conclusion ......................................... 855

5.5.4 Liquor Licensing Laws ... . ........ .............................. 858

The Legislation - in brief ........................................ 860

Evidence from the Cases ... .......... ........................... 864

Sale of Alcohol to Juveniles ..................................... 864

Sale of Alcohol to Intoxicated Persons ........................ 867

Role of Licensees ................................................. 872

Police Enforcement.. ............................................. 873

Street and Park Drinking ........................................ 875

Decriminalisation of Street and Park Drinking? ............... 878 Incidence of Liquor Act Offences .............. ................ 881

Conclusion ........................................................ 882

xxii

PART 6 ACTION FOLLOWING DEATH ........................ 883

6.1 Police Investigation of Deaths in Custody ..................... 883

6.1.1 Police Routine Orders Concerning Sudden Deaths ........... 885

Deaths in Police or Prison Custody and Homicides .......... 887

6. 1.2 The Experience of the Royal Commission ..................... 889

Adequacy of Police Coronial/Sudden Death Investigation ... 889 1 . Lack of Independence of Investigation by Police of Deaths in Custody ..... ................... ....... 891

2. Lack of scrutiny of police/prison officer version of circumstances of death ........................ 893

3. Lack of experience of investigating officers ............. 894 4 . Narrow focus of police investigation ..................... 895

5. Presumption that death by hanging was suicide with no suspicious circumstances ............... 896 6. Inadequate photographs taken of scene of death and of body of deceased in situ .................... 897

7. Inadequate brief forwarded by police to Coroner ...... . 897 8. Significant delays occurred in completion of investigations and forwarding of the brief to the Coroner .. . .... .............. ..... . .. ..................... 898

9. Failure by investigating officers to adequately preserve scene of death or collect and retain relevant exhibits .......... ... .... .. ... ....................... 899

6.1.3 Current Police Procedure for the Investigation of Deaths in Custody .... .. .... .. . ...... .................... ...... 901

Prison Deaths .... ............ .. .................................... 902

Death in a Police Cell ... . ..... . .. . ................................ 902

The Requirement of Police Officers to Report ... ............. 908

6.1.4 The Future .. .. .. . ... .... .... ........ ............................... 910

6. 2 Investigations of Deaths in Prison Custody ................... 914

Attempted Suicide and Self-Mutilation by Prisoners .. ................... 920 Coroner's Inquiries ... . .. .. .... .. . ..... ...... .............................. .. 921

6. 3 Autopsies and Forensic Technology Services ................ 922

6.3.1 Deaths in Custody and the Decision to Perform Autopsies .. 923

Qualifications of those Conducting Autopsies ................ 924 Autopsies and the Involvement of Relatives ................... 927 Notification ....... ....... ... .. . . .. .. ... .......... .. ............ 927

xxiii

Right to Request/Refuse an Autopsy ....................... 929

Traditional Communities .................... ................ 930

Observers ....................................................... 931

Timeframe for the Performance of the Autopsy .......... 932

6.3.2 Attendance at the Scene of Death by the Forensic Pathologist ............................................. 933

Police Responsibility .................................. ........... 934

Pathologist's Responsibility .................................... 935

Country Areas .................................................... 936

6.3.3 Adequacy of Autopsies .......................................... 938

Photography ........................................... .. ... ....... 938

Provision of Relevant Information ............................. 940

Exhibits ............................................................ 943

Oothing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 944 Forensic Pathology Services ................................ .. .. 945

Method of Completion of Reports ................... ........... 947

Samples ............................................................ 947

Is a Protocol Necessary? ........................................ 948

6.3.4 Liaison Between Pathologist, Police and Coroner ............ 949

6.4 Coronia! Inquiries ...................................................... 9 50

6.4.1 Introduction ............ ........................................... 950

6.4.2 Structure and Administration of the Coronia! System in Western Australia ............. ................................. 951

How satisfactory are the current administrative arrangements of the Coronia! System in Western Australia? ................... .................. ; .......... 953

Organisation and Administrative Arrangements in Other States ... . ......... .................. . ....................... 955

6.4.3 Status and Qualifications of Coroners ......................... 957

6.4 .4 Role and Jurisdiction of the Coroner in Relation to Deaths in Custody ......................................... .. .. 958

6.4.5 Initial Matters relating to the Coronia! Inquiry ................ 963

Notification of the Coroner ...................................... 963

Notification of Next-of-Kin of Death .......................... 964

Preservation of the Scene/Exhibits ............................. 966

Retention of Relevant Evidence Personal to the Deceased, e.g. Clothing ......................................... 966

Viewing the Body ................................................ 968

xxiv

6.4.6 The Inquest. ....................................................... 970

Inquests into Deaths in Custody ................................ 970

Objectives and Scope of Inquests ............................... 973

Rights of the Relatives and Other Interested Persons -Notification that an Inquest is/is not to be held ................ 975

Standing ... ..... .................................................... 978

Access to Legal Aid .. ......................................... ... 979

Access to Documents in the Possession of the Coroner. ..... 980 Evidentiary and Procedural Matters .... .................... .. .. 983

Pre-Inquest Directions Hearing ............................. 983

The Calling and Examination of Witnesses ............... 984 Rights to make Submissions ................................ 985

Expert Evidence .. ....... ... .................................. 986

Coroner's Powers ................................................ 988

Summoning Witnesses and Documents .... ............... 988

Suppression of Evidence .................................... 989

Compellability of Witnesses and the Privilege against Self-incrimination ................................... m

The Rules of Evidence ................................ . ...... 992

Coroner's Criminal Jurisdiction ................................. 993

Power to Commit for Trial .................................. 993

Procedure Upon Laying of Criminal Charges ............ 994 Findings as to Criminal Liability ........................... 996

Power to Refer a Matter to the Attorney-General ......... 997 Counsel Assisting the Coroner ............................. 997

Juries ........................................................... 999

Use oflnterpreters at Inquests ............................ 1000

Venue of Inquests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1000

6.4.7 Judicial Review ................................................. 1001

6.4.8 Coroner's Findings ........ ................ ..................... 1003

Ambit of the Findings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003 Distribution of Findings ........................................ 1004

Power to Make Recommendations ............................ 1004

Followup and Enforcement of Recommendations . . . . . . . . . . 1005

6.4.9 Counselling Services ............ ............................... 1007

Appendix 1 ................. ........ ............................................... 1009

Appendix 2 ........................................................................ 1011

Appendix 3 ........................................................................ 1015

XXV

PART ONE

SUMMARY

1.1 INTROPUCTION

Towards the end of 1988 I was appointed to inquire into Aboriginal deaths in

custody. I was appointed by the Commonwealth and the State of Western

Australia to carry out my commissions according to the terms of reference which

are fully set out in Part Two of this Report.

When I began my inquiries there were already four other Commissioners, two of

whom had begun conducting inquiries in Western Australia. Each Commissioner

was empowered in similar terms to investigate and report upon individual deaths

where designated. Each of us also had the right and obligation to investigate

those matters which were likely to provide some insight into the gross over­

representation of Aboriginal people in custody and the causes of custodial deaths.

These came to be referred to as the underlying issues.

Commissioner Muirhead, QC, left the Royal Commission in April 1989.

Commissioner Dodson was appointed with a direction to inquire specifically into

underlying issues associated with the custodial deaths. He was also empowered

to take account of social, cultural and legal factors which appeared to have a

bearing on those deaths. Commissioner Dodson has now produced his Report.

In the meantime I have completed my inquiries into twenty-eight individual

deaths and have provided separate reports of my findings as to the cause of

death, the circumstances in which the deceased came to be in custody, how

he/she was treated by custodial authorities and the investigations that were carried

out after the death to help explain the death to the relatives of the deceased and the

public. In a number of my reports I was able to identify underlying issues so

that they might be considered by Commissioner Dodson and included in his

Report.

The individual cases were generally heard in the town where the death occurred.

I went to many places around the State where it could be seen that Aboriginal

communities were living in most depressing conditions, where they occupied

substandard housing or squatted in fringe camps. I heard evidence, or was

informed at conferences and in submissions, about the poor state of Aboriginal

health and oppressive living conditions. I heard complaints of harassment and

close control by police and officials. The family circumstances and the medical

and criminal history of each of the deceased was provided from official records.

I met family members. I inspected lockups and prisons. I had some contact with

inmates. What was put to me and what I heard and saw in place after place

showed evidence of what Commissioner Dodson has described of the plight of

Aboriginal people, 'their destabilised and powerless position, compared to th e

dominant non-Aboriginal population'.

In my reports I have touched on ways in which Aboriginals who have died in

custody have experienced aspects of the criminal justice system, like policing

methods, the courts, prison practices and the whole process of arrest, detention,

prosecution and punishment. When the reports are looked at collectively they

show a link between the relative disadvantage of Aboriginal people of high ri sk

of arrest and detention, and high imprisonment rates and premature deaths in

custody.

The Royal Commission's research has shown that Aboriginals are over­

represented 43 times in police custody and at least 26 times in prison custody in

Western Australia. Moreover almost a third of the total number of Aboriginal

deaths in custody investigated throughout Australia occurred in Western

Australia.

2

This Report is submitted in compliance with a provision in my Commissions

which authorises me, after completion of my inquiry into individual cases, to

report any other findings and any recommendations considered appropriate.

The Report contains an account of the activities of the Royal Commission in this

State which gave rise to investigations of thirty-two Aboriginal deaths in

custody. I have drawn on that collective experience and general information

which has come to me from reports, consultations and various sources and I

present a description of the adverse impact of the criminal justice system on many

Aboriginal people and examine changes which appear to be necessary if the

incidence of deaths in custody is to be reduced. Each aspect which has been

analysed contains the views which I have formulated. In that sense it is a report

of my 'other findings'.

However there are no specific recommendations although there are suggestions

for change in the Report because it was agreed between Commissioners that,

except in purely local matters, recommendations should be reserved for the

National Report so that the National Commissioner can take advantage of the

experience of Commissioners in all regions. The information in this Report is

intended to achieve that object and each of the reports from this region is

designed to complement the other.

Though the Report makes no positive recommendations I found it necessary to

examine what was done about interim recommendations under Part Five which

deals with prevention of death. The Royal Commission Interim Report presented

on 21 December 1988 contained recommendations to deal with the more

immediate factors affecting deaths in custody. Even before that the Government

of Western Australia was aware that Western Australia had the second highest

imprisonment rate in Australia and it recognised the need for initiatives to reduce

high imprisonment rates as an effective of reducing the likelihood of

deaths in custody. The State appointed an interim inquiry and the Vincent

Committee reported to the Ministers for Aboriginal Affairs, Corrections and

3

Police its real concerns and recommended measures to try and cope with

custodial deaths.

Two years on, the recommendations of the Interim Report of the Royal

Commission and the Vincent Report have not been fully implemented by

Government. There have been commendable changes but as the Report shows

many of the recommendations are not fully implemented and measures proposed

are unlikely to be fully effective.

The Report analyses each recommendation and shows the limitations of

legislative and administrative initiatives taken. I most strongly urge upon the

Government and those responsible to recognise that there is a need for immediate

and effective measures to reduce Aboriginal imprisonment.

1.2 MY FINDINGS - AN OVERYIEW

I began my inquiries into individual deaths on 12 December 1988, at which time

it was believed that there were thirty-four deaths in Western Australia required to

be investigated. It was later found that one of those listed (Tony Majurey) was

not of Aboriginal descent and his death was held to be one which did not qualify

for investigation under the terms of reference of my Letters Patent.

Commissioner Muirhead held an inquiry but decided not to submit a report in

another matter (Daniel John Green) because he held that the death was excluded

from the terms of reference.

A chart setting out all the relevant details concerning the remaining thirty-two

deaths is attached as an appendix to this Report. I conducted an inquiry and

submitted a report in respect of all of those deaths listed on the chart with the

exception of Charles Sydney Michael and Paul Farmer, which were investigated

by Commissioner Muirhead; Robert Walker, which was investigated by

4

Commissioner Wyvill; John Pat, which was investigated by Commissioner

Johnston.

1.2.1 CAUSE OF DEATH ACCORDING TO CATEGORY

For the purpose of this Report I have found that the deaths investigated in

Western Australia fell roughly into three categories: natural causes/medical cases;

suicide/hanging/self harm cases; and other cases involving violence.

1.2.2 NATURAL CAUSES/MEDICAL CASES

This comprised the largest group consisting of nineteen persons. Four males

died as a result of a heart attack, three of them were in their twenties, the eldest

was 52 years.

Three persons, two men and one woman, died as a result of head injuries caused

accidentally. Three males died from the effects of epilepsy.

Three men died from the excessive effects of alcohol, one of acute alcohol

poisoning, one from delirium tremens, and the other from either alcoholic

hepatitis or delirium tremens.

Nine others contracted a fatal illness. The diseases included miliary tuberculosis,

bronchial pneumonia, acute pancreatitis, lobar pneumonia and acute meningitis,

asphyxia due to a fulminating infection.

One woman died as a result of a severe attack of asthma.

1.2.3 SUICIDE/HANGING/SELF HARM CASES

Nine people died as a result of a self-inflicted injury. One woman and six men

died as a result of hanging by self-suspension. One man died by strangulation as

a result of a bandage which he applied to his neck. Another man died by cutting

his throat. Suicide in legal terms involves the intention of taking one's life and it

5

is usually very difficult to determine what was the deceased's intention. In only

three of the cases could it be said it was likely that the result was intended. Six

of the deaths occurred in police lockups and most were the result of an impulsive

act within a relatively short time of entering detention. The ages of those

involved ranged from 20 years to 55 years, the mean age being 30.12 years.

At least five of those concerned were suffering from a recognised mental illness.

The effects of alcohol were directly involved in six of the hanging cases. Each of

the deceased who died in police custody had a blood alcohol reading of or

approaching 0.2%.

Six of the hanging deaths occurred in an eighteen month period between June

1987 and December 1988. The influence of media publicity cannot be

determined but there were reasons to suppose that most, if not all, the prisoners

were at risk of self harm (or suicide), not that it was necessarily apparent to their

custodians.

1.2.4 OTHER CASES INVOLVING VIOLENCE

In this category I have placed the cases of Charles Michael and Robert Walker

who died after a struggle with those who had responsibility for their custody in

prison. I have also included the case of John Pat which is not yet determined but

death is thought to have resulted from head injuries following a struggle in police

custody.

I investigated the further case of Ricci Vicenti who was shot while attempting to

escape from Canning Vale Prison. He died in hospital of head injuries caused by

a bullet. It was my finding that the shooting was justified in the circumstances

presented to the responsible prison officer. In my report of that death I examined

the principles of law governing the use of firearms to prevent the escape of

prisoners and suggested possible changes.

6

1.2.5 THE LOCATION OF THE DEATHS

Police Custody- 14

Fourteen persons died while in police custody, one of them a young Aboriginal

woman. One of the males was born in the Torres Strait Islands, the remainder

were males born in Western Australia. Six of these deaths were from hanging,

the person being suspended or partially suspended by a variety of materials. A

seventh death resulted from strangulation with a crepe bandage. All of these

were self-inflicted.

The remainder were found dead in police cells.

Prison Custody- 6

Five male persons died whilst in prison and an Aboriginal woman died of a

severe asthma attack while being taken from a prison for medical aid. Two of the

prison deaths resulted from suicide. Two other deaths followed a violent

struggle with custodians. One death at the prison resulted from a heart attack.

In Hospital - 12

Twelve deaths occurred in hospital to where the deceased had been removed for

attention and treatment. Seven persons had been removed from prison custody

and five persons from police custody. One of these was a woman.

None of these cases was excluded from investigation, inquiries were made into

each death and it was held that there were grounds for concluding that injury was

suffered in custody within the meaning of the terms of reference, which had

caused or contributed to the death. Reports were submitted in each of these

cases.

7

1.2.6 LOCATIONS AROUND THE STATE

Deaths occurred at or in relation to police lockups at Central (East Perth),

Midland, Broome (3), Kalgoorlie (5), Frcmantle, Geraldton (2), Carnarvon,

Roebourne (2), Wiluna, Halls Creek and Port Hedland.

Deaths also occurred at or in relation to prisons at Fremantle, Canning Vale,

C. W. Campbell Remand Centre, Bandyup, Wooroloo, Eastern Goldfields

(Boulder), Albany, Greenough and Broome.

My findings as to cause of death fall into one or other of the categories I have

mentioned. In no case did I find evidence of deliberate foul play on the part of

custodians but the general lack of care that I observed in the course of my

investigations was alarming. In particular police officers appeared indifferent to

procedures designed to meet the legal responsibilities of those having a duty of

care over people in custody, and assessment and screening of Aboriginal

detainees for injury, illness or mental well-being was often minimal or non­

existent. The most glaring cases are those where unconscious persons who were

unable to be roused were detained by police and placed in lockups.

Despite decriminalisation of drunkenness the latest statistics available to the

Commission show the detention rate still decidedly disproportionate. There can

be no reasonable expectation oflessening the risk of Aboriginal deaths in custody

unless recommendations designed to reduce the numbers in custody or to

ameliorate its effects are fully implemented.

It is of course inevitable that numbers of Aboriginal people will continue to be

detained in police and prison custody. A major focus of this Commission has

been to examine the provision of care to persons held in custody in this State. I

emphasise that the sections of this Report that deal with the issue of custodial

care should not simply be seen as directed at custodial authorities exhorting them

to assume greater responsibility with the same limited resources. The issue of

8

custodial care must be seen as the obligation of both the government and the

wider community. If our society is sincere in an expressed desire to eliminate or

greatly reduce the incidence of deaths in custody, if it holds that there are certain

fundamental human rights that apply to all its citizens, including those detained in

police and prison custody then it is incumbent upon it to accept the responsibility

of providing not simply more but better trained police and prison officers to

provide adequate resources for Aboriginal health care (and appropriate structures

for the delivery of that care) and to take proper account of cultural differences

between Aboriginal and non-Aboriginal Australians.

There may be a financial cost in changing existing custodial practices, at least in

the short term. However, this must be contrasted with the human cost of

neglecting to make those changes where the need has become demonstrably

apparent.

9

PART TWO

THE ROYAL COMMISSION IN WESTERN AUSTRALIA

2.1 THE ROYAL COMMISSION IN WESTERN

AUSTRALIA

2.1.1 ROLE OF COMMISSIONERS IN WESTERN AUSTRALIA

The Royal Commission was established on 16 October 1987 when

J.H. Muirhead QC (as he then was) was appointed Commissioner pursuant to

Commonwealth Letters Patent. He was appointed in response to concerns in the

community about the number of Aboriginal deaths in custody, particularly the

increase in hanging deaths during 1987.

It was initially contemplated by Government that the work of the Commission

would take about twelve months to complete. It was not long before the

enormity of the task was appreciated, due to the increase in the number of cases

identified and the amount of preparatory work that had to be done.

On 6 May 1988 a further three Commissioners were appointed, Commissioner

Wootten QC, Commissioner Wyvill QC and Commissioner Johnston QC.

Commissioner Wootten QC was responsible for cases conducted in New South

Wales, Victoria and Tasmania. Commissioner Wyvill QC conducted inquiries in

Queensland and assisted with one case in Western Australia. Commissioner

Johnston QC was initially responsible for inquiries conducted in South Australia,

Northern Territory and assisted with one case in Western Australia.

10

After the appointment of the additional Commissioners, Commissioner

Muirhead, as National Commissioner, was responsible for overseeing the work

of the Royal Commission throughout Australia, as well as continuing with the

inquiries into the individual deaths. The first three inquiries conducted by

Commissioner Muirhead were held in South Australia (Dixon and Highfold) and

New South Wales (Edward Murray). After the appointment of the three further

Commissioners he came to Western Australia to commence the inquiries in this

State.

Western Australia had the greatest number of cases to be heard with 36 deaths

being reported to the Commission. Of those, 32 were found to be within

jurisdiction and reported upon. A formal inquiry was held in another case but it

was found to be outside the terms of reference (Daniel John Green). A further

three cases were found to be outside the terms of reference (Majurey, Johns and

Simpson). These are discussed in more detail later in the section.

Commissioner Muirhead commenced the first inquiry into a death in Western

Australia on 28 June 1988 with the hearing into the death of Charles Michael.

Due to the enormity of the task in Western Australia with the number of deaths to

be investigated and size of the State, it was decided that another Commissioner

was needed to assist with the conduct of inquiries in this State. On 27 October

1988 I was issued with Commonwealth Letters Patent to conduct inquiries into

the deaths of Aboriginals who had died in custody in Western Australia and

elsewhere in Australia as directed by Commissioner Muirhead.

The Terms ofRefen:!nce as amended (7 December 1988) required me to inquire

into:

(a) deaths:

(i) in the State of Western Australia; and

11

(ii) where in a particular case, or any particular cases, you are so requested by the Honourable James Henry Muirhead under the original Commission - elsewhere in Australia;

since 1 January 1980 of Aboriginals and Torres Strait Islanders (including any such deaths that may occur after the date of these Our Letters patent) whilst in police custody, in prison or in any other place of detention, but not including such a death occurring in a hospital, mental institution, infirmary or medical treatment centre unless injuries suffered while in police custody, in prison or in any other place of detention caused or contributed to that death; and

(b) any subsequent action taken in respect of each of those deaths including, but without limiting the generality of the foregoing, the conduct of coronia!, police and other inquiries and any other things that were not done but ought to have been done:

In early 1989 Commissioner Muirhead QC announced his intention to resign his

Commission and on 2 8 Apri I 1989 his resignation became effective.

Commissioner Johnston QC was appointed as the National Commissioner to

replace Commissioner Muirhead QC. I was required to consult with

Commissioner Johnston QC and to submit my reports to him. The terms of

reference of my letters Patent were amended accordingly (27 April 1989).

The terms of reference were also amended so that deaths occurring after 31 May

1989 would not be included within the inquiries of the Royal Commission.

I commenced my first formal inquiry in Western Australia on 12 December 1988.

I had completed inquiries into the deaths of Christine Jones, Wayne Dooler and

Darryl Garlett, and commenced the inquiry into Njanji's death prior to

Commissioner Muirhead's resignation. Commissioner Muirhead conducted

inquiries into the deaths of Charles Michael, Paul Farmer and Daniel Green in

Western Australia prior to leaving the Royal Commission.

12

After Commissioner Muirhead's resignation there was some reluctance on the

part of the Government of Western Australia to appoint a Commissioner to

replace him.

The Western Australian Government appeared persuaded by the argument of the

Police Officers Union of Workers that comprehensive inquiries into individual

deaths were not warranted and that the government would be better benefited by

an inquiry concentrating on underlying issues.

However on 28 June 1989 Commissioner Dodson was appointed to inquire into

and report upon any underlying issues associated with deaths of Aboriginals and

Torres Strait Islanders in Western Australia.

Commissioner Dodson was the only Aboriginal appointed to be a Commissioner.

He was also the only non-lawyer.

Commissioner Dodson's appointment was of course welcomed by me and to a

great extent relieved me of the task of examining the broader underlying issues

associated with deaths in custody in Western Australia. However subsequent to

Commissioner Dodson's appointment I was still left with the formidable task of

conducting inquiries into and reporting upon the deaths of a further 25 persons

who had died in custody or subsequent to detention.

Assistance in conducting inquiries in Western Australia was given by

Commissioner Wyvill QC and Commissioner Johnston QC. Commissioner

Wyvill commenced the inquiry into the death of Robert Walke·r on 1 November

1988 at the request of Commissioner Muirhead and Commissioner Johnston

conducted the inquiry into the death of John Pat. The Pat inquiry occupied three

months of hearing time, most of it being held in Roebourne. Indeed both the

Robert Walker and John Pat inquiries were complex and controversial. They

were lengthy and extremely demanding of the Commissioners' time and I am

most grateful to Commissioner Wyvill and Commissioner Johnston for their

13

assistance in conducting those inquiries, especially given the enormous demands

upon them in the States where their major responsibilities lay.

Commissioner Johnston not only had the responsibility of conducting inquiries

into the individual deaths in South Australia and the Northern Territory but as the

National Commissioner was responsible for overseeing the Royal Commission at

a national level and preparation of the final report to Government.

In carrying out his responsibilities at a national level Commissioner Johnston

required that the other Commissioners consult with him. For this purpose

Commissioners Wootten, Wyvill, Dodson and myself met with Commissioner

Johnston regularly to discuss issues pertinent to the work of the Royal

Commission.

During the course of the Royal Commission in Western Australia Commissioner

Dodson and I had consultations to ensure that all issues were being addressed

without unnecessary duplication.

After the completion of the inquiries into the individual deaths (mid July 1990) I

participated in several joint sessions with Commissioner Dodson when we met

with heads or representatives from State government departments.

Ongoing consultation was established between Commissioner Dodson's staff

(mostly based in Broome) and my staff in Perth to ensure that the issues involved

in Aboriginal deaths in custody in Western Australia were being thoroughly

examined.

2.1.2 CONDUCT OF INQUIRIES IN WESTERN AUSTRALIA

As noted above, during the course of the Royal Commission, I was required

pursuant to my Letters Patent to inquire into and report upon the remaining 28

deaths in Western Australia.

14

-

Generally the inquiries were held in the town where the death occurred. This

meant the hearings were held in locations all over the State from Halls Creek and

Broome in the north, to Wiluna and Kalgoorlie in the east. Inquiries were also

held in Geraldton, Carnarvon, Port Hedland and Perth. The geographical size of

Western Australia and the diversity of Aboriginal communities put demands upon

the investigations of both Commissioner Dodson and myself which no doubt

were quite different from the other States of Australia

The large number of deaths to be investigated and the geographical dimensions of

the task placed parameters on the extensiveness of the pre-hearing investigations,

the formal inquiries and the subsequent reports into the individual deaths. In

many instances it was a matter for regret that I was unable to spend more time in

the communities which I visited, as this would have further assisted me in my

inquiries. However the legal staff and Aboriginal field officers employed by the

Royal Commission worked hard to ensure proper community contact was made.

Despite the limitations discussed above, I did visit a number of Aboriginal

communities and organisations particularly in relation to my inquiries in Port

Hedland and Broome. These meetings are discussed in more detail below.

The limitations placed upon me also dictated that my focus be largely restricted to

examination of the facts and circumstances surrounding the deaths. This

inevitably meant that many aspects of my inquiries were centred on the criminal

justice aspects of the deaths, i.e., the background of the deceased, particularly in

relation to the criminal justice system, the reason for the deceased's arrest and

detention prior to death, the circumstances of death, and the action following the

death. To a large extent I relied upon the inquiries of Commissioner Dodson and

the Aboriginal Issues Unit, whose work is discussed in more detail below, to

address the underlying issues involved in the deaths. I am confident that they

consulted widely with both Aboriginal and non-Aboriginal people and

organisations in their investigations. The extensive examination of underlying

issues by Commissioner Dodson is reflected in the Report he has prepared.

15

2.2 PROCEDURES AND SOURCES OF INFORMATION

2.2.1 CASE INQUIRIES

'Guidelines for investigations and hearings relating to particular deaths' were

issued by Commissioner Johnston on 19 July 1989 which replaced the original

document 'Procedures Guidelines'. These documents outlined the methodology

and procedures followed by Commission staff in collating relevant documents

and in pre-hearing investigations and the processes adopted in formal hearings of

the Commission.

The guidelines provided for collection of documentary material such as police,

court, Crown Law Department, probation and parole boards, Community

Services, Coroners, Corrective Services, medical, social security, Aboriginal

Legal Service and education files together with media reports. This material

provided a great deal of information about the background of the deceased.

These files were available for copying by the parties involved in the inquiry into a

particular death.

Royal Commission staff identified witnesses from whom statements were

sought. Those statements were distributed to the parties.

In the individual case inquiries leave to appear was granted to all interested parties

who sought leave to appear. Counsel for the family, Counsel for individual

police and prison officers, Counsel for the Police Officers Union and Prison

Officers Union and Counsel for the Western Australian government were granted

leave to appear in all cases. In addition Counsel for the Committee to Defend

Black Rights (CDBR), Counsel for National Aboriginal and Islanders Legal

Services Secretariat (NAILSS) and Counsel for Aboriginal Legal Service

regularly requested and were granted leave to appear, in relation to underlying

issues in the cases.

16

Attempts to shorten the fonnal hearings were made throughout Australia. In

Western Australia this was a necessity given the number of deaths to be

investigated.

One method, mentioned by Commissioner Muirhead in the Interim Report, was

for the Commission to instruct counsel to seek leave to appear at the inquest into

deaths which occurred after the commencement of the Royal Commission. In

Western Australia, Counsel Assisting the Royal Commission was granted leave

to appear in the inquests into the deaths of Cameron, Wongi, Walley and

Chatunalgi. Because of the thoroughness of the inquests into these deaths, the

Royal Commission was able to investigate them far more quickly and hearing

time was used to concentrate on underlying issues involved in the deaths,

e.g. one hearing was held into the deaths of Cameron, Wongi, Walley over a

one week period.

Pre-hearing conferences were also adopted in an attempt to shorten hearings and

provide consultation between counsel assisting and counsel for the parties. The

conferences were used for the purposes of the identification of issues and which

of them were in dispute; identification of witnesses who should be called to give

oral evidence and witnesses whose statement only need to be tendered.

The cooperation of many witnesses in providing statements to the Royal

Commission greatly assisted in shortening the formal hearings. In some

instances witnesses were asked to provide additional statements to cover

particular concerns of parties raised at the prehearing conferences. In one inquiry

because of the comprehensiveness of the documentation and availability of

witness statements it was found unnecessary to hold a formal hearing (Ginger

Samson). For the same reason, in another five inquiries the formal hearing

process occupied less than two days (Ronald U gle, Steven Michael, Donald

Harris, Kim Polak, Donald Chatunalgi). It should also be noted that in the

Samson case the family expressed no interest in participating in a formal hearing.

17

Unfortunately the Royal Commission in Western Australia was mostly unable to

interview and obtain statements from prison and police officers, even when their

involvement in the circumstances surrounding the death was peripheral. The

reason for this was that most officers declined on legal advice to provide

statements to the Commission. This generally meant that the officers had to be

summonsed to give evidence before the Commission thus increasing the duration

and costs involved in the hearings. However during the investigations into the

deaths conducted by the Royal Commission in 1990, I found that the police

officers involved, particularly in relation to the investigations into the deaths,

were more willing to provide statements to the Royal Commission than had

earlier been the case.

Subsequent to the investigation and hearings of the deaths, I was required to

report my findings on each individual death to Commissioner Johnston QC. The

writing of reports occupied much of my time when I was not conducting hearings

and reports were submitted on the 28 individual deaths into which I inquired.

The individual reports in most cases concentrated on the background of the

deceased, the circumstances of the deaths and the action following death. The

underlying issues involved, were often flagged for further investigation and

reporting upon by Commissioner Dodson and myself.

2.2.2 UNDERLYING ISSUES

Commissioner Dodson provided the following explanation of underlying issues

in his report.

In determining what constitutes an 'underlying issue', I have examined all social, cultural, legal and economic matters as they directly and indirectly affect the constantly high rate of imprisonment of Aboriginal people in this State. In sum, an

'underlying issue' can be defined as understanding the 'why' and 'how' of high rates of Aboriginal incarceration. Examining the 'why' and 'how' has meant attempting to cover a broad range of complex and wide-ranging issues, that impinge on the lives of Aboriginal people in Western Australia. Some of the major

'underlying issues' which form the foundation of Aboriginal powerlessness include: the ongoing marginalisation of Aboriginal

18

matters in areas of government policy and practice at Federal, State and Local levels ; the power of vested interests which, often in association with government instrumentalities, seek to deny Aboriginal aspirations; misinformed beliefs and practices toward Aboriginal people among many sectors of non-Aboriginal Society,

that impact on the day by day lives of Aboriginal people; the ongoing effect of mission and other forms of institutionalisation on the socio-cultural and economic lives of Aboriginal people; and some of the adverse effects of contemporary Aboriginal social life brought about by Aborigines themselves, as well as those from

outside of Aboriginal society. Underlying issues are therefore those phenomena that arise in considering the legal, cultural, social and economic factors as they occur independent of the other society or through their inter-relatedness to it.

Commissioner Dodson ' s inquiries in regard to underlying issues were far more

wide-ranging than mine. The nature of my inquiries resulted in my examination

of underlying issues being largely confined to their impact on the immediate

cause and circumstances of the deceased's involvement with the criminal justice

system and their deaths.

Commissioner Johnston did not issue guidelines for investigations relating to

underlying issues and I did not promulgate any guidelines myself. As mentioned

before, to a large extent I relied upon Commissioner Dodson and the Aboriginal

Issues Unit to investigate those areas. However throughout my inquiries I have

gathered a great deal of information about underlying issues which was obtained

in a number of ways.

During the individual inquiries into the deaths, witnesses were called who were

able to provide information about underlying issues that were particularly relevant

to the death being investigated. In the cases in which the facts were complex the

amount of time able to be devoted to underlying issues was quite limited.

However, in cases where counsel assisting had appeared at the Inquest and the

facts were well known to the Commission or in cases where the evidence as to

the facts was straightforward and provided through statements and other

documentation, I was able to focus more closely on the underlying issues.

19

As mentioned above, in the inquiries into the deaths of Cameron, Wongi and

Walley, who had all died in Geraldton and into whose deaths comprehensive

coronia! inquiries were conducted, the week allocated to the formal hearing into

the three deaths was devoted almost entirely to investigating underlying issues.

Only one witness was called whose evidence related primarily to the facts of one

of the deaths. The rest of the hearing was conducted in a more informal manner,

by way of a conference session, with two or three witnesses giving evidence on

the same topic to the Commission at a time. A round table discussion was held

with Counsel, instructing solicitors, the witnesses and myself present. All

present were free to ask the witnesses questions. A similar format was used at

other times.

Statements and reports were also obtained from witnesses in relation to

underlying issues without them being called to give oral evidence.

Requests for submissions were also made by the Royal Commission. At a

national level a discussion paper about the underlying issues involved in

Aboriginal deaths in custody was distributed widely to Aboriginal and non­

Aboriginal organisations and individuals throughout Australia as well as to the

Commonwealth and State governments inviting submissions or comments in

response. At a national level over 200 submissions were received although only

12 came from persons or organisations within Western Australia. I suspect the

main reason for the paucity of Western Australian submissions was largely due to

the comprehensive work Commissioner Dodson had carried out in relation to

obtaining information from the Western Australian community in relation to

underlying issues.

Information about underlying issues was also obtained through formal

conference sessions which were held outside the context of individual case

inquiries.

20

During the course of my inquiries into the individual deaths, I also had a number

of informal meetings with the families of the deceased and Aboriginal

organisations. I also visited the police station lockups and the Corrective

Services institutions where the deceased had been last detained or which were

relevant to my inquiries.

2.2.3 ABORIGINAL ISSUES UNIT

As mentioned above, the Aboriginal Issues Unit (AIU) in Western Australia

assisted Commissioner Dodson and me in obtaining the views of Aboriginal

people and communities, on the reasons for Aboriginal deaths in custody,

particularly in relation to underlying issues. The AIU submitted their Final

Report to Commissioner Dodson and myself in September 1990.

The AIU in Western Australia was initially headed by Mr Rob Riley and later by

Mr Darryl Kicken. Their small team worked in conjunction with the Aboriginal

Advisory Working Group (AA WG) which was established to assist the AIU

determine directions and keep the Aboriginal community informed of

developments within the Royal Commission. Members of the AA WG were

Aboriginal people who held prominent positions within the Aboriginal

community and their assistance was of great value to the work of the AIU.

The AIU adopted a consultative approach holding community meetings with

Aboriginal communities to ensure comprehensive input from Aboriginal people.

They were of a workshop style and designed to encourage discussion within the

Aboriginal community about why such a disproportionate number of Aboriginal

people were taken into custody and why some of these people died.

2.2.4 CRIMINOLOGY RESEARCH UNIT

The Criminology Research Unit of the Royal Commission is located in the

offices of the Royal Commission in Canberra. The Unit is headed by Mr David

Biles, the Deputy Head being Mr David McDonald. In addition to the Unit's

21

research programme approved by the Commissioners, the Research Unit has

assisted my staff with Western Australian research projects and with individual

research requests. Their assistance has been of great value to the work of my

office. In particular, the Research Unit, assisted with a study of arrest and bail

patterns in 1987 and 1990 at Kalgoorlie Police Station. The Unit analysed the

initial data collected for the 1987 study period and designed a data collection fo rm

for the 1990 study period and analysed the results. Their findings were

presented in Criminology Research Unit Research Paper No. 18 by

D. McDonald: 'Arrests, Custody and Bail, Kalgoorlie, 1987 and 1990'. The

Unit has also produced a report based on data collected about each of the Western

Australian cases. This has formed the basis of the section of this Report dealing

with the characteristics of the deceased persons. The Unit has also been of great

assistance in providing statistical information and advice for this Report.

2.2.5 SUBMISSIONS

In addition to submissions invited in response to the Royal Commission

discussion paper on underlying issues, referred to above, the Royal Commission

also received a number of General Submissions relating to underlying issues.

Submissions were received on issues relating to health, mental health, the

criminal justice system, suicide, custodial facilities, and training in Aboriginal

issues. A list of the 40 General Submissions received by me are annexed to the

Report.

2.2.6 EXHIBITS

During the course of my individual inquiries a great many exhibits were tendered

to the Commission; 1711 such exhibits were tendered. The number of exhibits

tendered in each case varied with 187 exhibits being tendered in the Pat inquiry to

16 exhibits being tendered in the Chatunalgi inquiry. In some instances a

submission, statement or report has been of such significance to the overall work

of the Commission that I have made it a General Exhibit. Thirty-five General

Exhibits were received by me during the course of my inquiries. The General

22

Exhibits included Police Routine Orders, submissions of the Perth Coroner,

reports on alcohol use, reports on Aboriginal/Police relations, reports on housing

and land needs, reports on medical and mental health issues, manuals for police

officers, police aides and the Aboriginal Visitors Scheme, submissions on

juvenile justice issues, Annual Reports of State Government departments and a

report on the implementation of interim recommendations of the Royal

Commission. A list of the General Exhibits are annexed to the Report.

2.2.7 CONSULTATIONS AND VISITS

In addition to the more formal means of informing myself of the issues involved

in the deaths, I also met with individuals, family members and representatives of

organisations on a more informal basis. Twenty-nine meetings of this nature that

took place in Western Australia have been documented. They included

consultations with family members on their home ground, visits to formal

Aboriginal communities, a visit to an Aboriginal alcohol rehabilitation centre,

meetings with members of the Aboriginal Visitors Scheme plus visits to police

station lockups at Port Hedland, South Hedland, Broome, Carnarvon, East

Perth, Fremantle, Wiluna, Kalgoorlie, Geraldton, Halls Creek and to the

following Corrective Services institutions: Wooroloo Training Centre;

Greenough Regional Prison, Geraldton; C.W. Campbell Remand Centre, Perth;

Canning Vale Prison, Perth; Broome Regional Prison and Eastern Goldfields

Regional Prison, Kalgoorlie. The juvenile institutions run by the Department for

Community Services in Perth were also visited (Longmore Remand Centre,

Nyandi Training Centre and Riverbank Training Centre).

2.2.8 CONFERENCES

Several formal conference sessions were held after the completion of the

individual hearings. On 16 July 1990 a one day conference was held on juvenile

justice issues. The conference was divided into two sessions. In the morning

session I met with representatives from different organisations involved in

providing legal services to youths. Representatives attended from the Youth Unit

23

of the Legal Aid Commission, the Youth Legal Service, the Aboriginal Legal

Service of Perth and Port Hedland plus an observer involved in the juvenile

justice field. In the afternoon session Commissioner Dodson and I met with

Judge Jackson, the President of the Children's Court, together with several

magistrates from the Children's Court. This session was held in confidence.

On 20 July 1990 Commissioner Dodson and I met with Mr Monger, a

representative from the Crown Law Department. Prior to the session a list of

questions had been forwarded to the Department and the Department had

provided responses (G/W/34). Matters requiring clarification were raised during

the session, in addition to other matters. An additional list of questions was

subsequently directed to the Department to follow up matters that were unable to

be answered during the session.

On 31 July 1990 Commissioner Dodson and I had another joint conference

session with Mr Brian Bull, Commissioner of Police in Western Australia.

Again prior to this session the Police Department had been provided with a list of

questions to which they had responded. Many matters pertinent to

Commissioner Dodson's and my inquiries were raised with Commissioner Bull.

Again a further list of questions was forwarded to the Police Department

subsequent to the session.

On 31 August 1990, I held another conference session with Mr David McCann,

the Perth Coroner. This was attended by Counsel for the parties as well as by

Royal Commission staff. Discussion papers on Coronia! Issues had been

distributed prior to the session.

24

2.3

2.3.1

2.3.1.1

DIFFICULTIES OF THE ROYAL COMMISSION

IN WESTERN AUSTRALIA

CHALLENGES

Terms of Reference

There have been a number of legal challenges to the terms of reference of the

letters patent issued to various Commissioners in Western Australia. These

challenges arose out of the hearing by Commissioner Wyvill into the death of

Robert Joseph Walker and that challenge caused further legal proceedings to

issue against me in relation to the inquiry into the death of Wayne John Dooler.

Other legal action was taken out in the Supreme Court of Western Australia in

relation to the Walker matter prior to the Federal Court challenge. There was also

an appeal to the Federal Court under the Administrative Decisions (Judicial

Review) Act in relation to the decision of Commissioner Johnston refusing the

application of the Counsel for the police officers to prohibit publication of the

inquiry into the death of John Peter Pat.

It is acknowledged that the Government of Western Australia funded the legal

actions concerning the Walker and Dooler matters. The details of the legal

proceedings are set out in more detail below.

Inquiry into the death of Robert Joseph Walker- Supreme Court of Western

Australia proceedings

The first of a series of actions was taken in the Supreme Court of Western

Australia on 22 November 1988. On that day eight motions were filed ex parte

for a Writ of Prohibition to be issued against Lewis Wyvill QC the Commissioner

inquiring into the death of Walker. The Applicants were seven prison officers

and John Robert Quigley, the legal representative for the individual prison

officers in the Walker inquiry.

25

Pidgeon J. granted orders nisi on 22 November 1988 in relation to each of the

above applications save for the application of Quigley which was dismissed.

These matters arose out of the issue of a subpoena by Commissioner Wyvill on

22 November 1988 directed to Quigley and to Paul Price, also a legal

representative for the prison officers, requiring them to attend the Commission

hearing on 23 November 1988 and to produce items set out in the schedule as

being all notes, records, documents, correspondence, communications, files,

taken or recorded or prepared relating to conferences held between 27 August

1984 and the date of the subpoena with persons named therein including the

Applicants in actions no 2615 of 1988 and 2621 of 1988.

The issue of the production of documents was set in motion on 18 November

1988 by the cross examination of the Applicant Hanna by Mr Kevin Ryan,

Counsel for the family of the deceased. At page 1226 of the transcript, Hanna

testified that when he gave his evidence at the inquest into the death of Walker he

had refreshed his memory from a document which contained his instructions to

his lawyer. On 21 November 1988 Hanna testified that he had attended a

meeting at 18 The Terrace, Fremantle which was used by the union for social

occasions. Other officers who were involved in the death of Walker including

Boath, White, Hide, McLaughlin and Miller also attended the meeting with their

legal representatives, Messrs Quigley and Price. Hanna testified that at the

meeting, everyone gave an account of what had happened in the incident which

led to the death of Walker. Notes were taken at a later meeting with Price and a

copy of those notes was provided to Hanna which he used to refresh his memory

before the Coroner.

Mr Ryan called upon Mr Quigley to produce the original or any copy in his

possession of that statement at page 1244 of the transcript.

26

The issue of whether the document was the subject of Legal Professional

Privilege was argued at pages 1253 to 1301 and the matter was adjourned on

21 November for the Commissioner to consider the argument.

On 22 November 1988, Quigley and Price were served with the aforementioned

subpoenas and the Commissioner advised all Counsel that he considered that

before he could rule on the question of privilege, he would first have to hear

evidence from Quigley as to what took place at the meeting and what notes were

taken. The matter was then adjourned to 23 November 1988 when Quigley

would be required to give evidence.

During the course of the hearing on 23 November 1988, Commissioner Wyvill

was advised that orders nisi had been issued in the Supreme Court at 10.00 pm

on the previous evening.

This matter was eventually transferred to the Federal Court under the provisions

of the Jurisdiction of Courts (Cross-vesting) Acts on 13 March 1989.

Inqyiry into the death of Robert Joseph Walker- Federal Court proceedings

On 7 December 1988 a further Application, no. WAG 184 of 1988, was taken

out in the Federal Court of Australia in the Western Australian District Registry.

The Applicants were the same seven prison officers and the police and prison

officers unions.

In this action the Applicants sought the following orders:

1. Orders pursuant to the Administrative Decisions (Judicial Review) Act

(i) review of the action of the Respondent in issuing the subpoena

against Quigley and Price;

(ii) review of the conduct of the Respondent in requiring Quigley and

Price to produce documents subject to the subpoena;

27

(iii) review of the decision of the Respondent that the legal professional

privilege had been waived.

2. A Writ of Prohibition against the Respondent prohibiting him from

proceeding with the inquiry under the Letters Patent issued by the

Commonwealth Government and the Government of Western Australia and

an injunction to restrain the Respondent from proceeding further with the

inquiry and from exercising or purporting to exercise compulsive powers.

In the alternative, a Writ of Prohibition to issue in so far as it related to

documents or papers the subject of a claim oflegal professional privilege and

an injunction to restrain the Respondent from proceeding further with the

taking of such evidence.

The Federal Court matter came on for hearing on 8 December 1988 and was

referred to the Full Court of the Federal Court sitting in Sydney for hearing on

21, 22 and 23 December 1988. Questions raised during this hearing related to

whether Commissioner Wyvill had been validly appointed by both the

Commonwealth and the State Governments. The argument centred around the

wording of the Letters Patent requiring the Commissioner to report to

Commissioner Muirhead (who at that time was the National Commissioner)

rather than to the Executive. The Full Court of the Federal Court gave their

decision on 22 February 1989 that Commissioner Wyvill had been validly

appointed by both Governments under the appropriate legislation.

The Applicants on having their Application dismissed, sought special leave to

appeal to the High Court and such special leave was refused.

It was agreed that the action taken in relation to the Legal Professional Privilege

issue was premature as Commissioner Wyvill had at that time made no

determination on the issue of privilege other than to direct Quigley and Price to

give evidence on the matter. A programme was determined on the future

progress of that matter, which allowed time for an appeal to be made to the

28

Federal Court in the event that the ruling was that the documents sought were so

privileged. It is of note that following all of the expense, time delay and

aggravating factors of the police and prison officers unions bringing the actions

in the various courts that when Hanna resumed giving evidence on 20 October

1989, eleven months after he commenced his evidence, the document called for

by Mr Ryan and the subject of the subpoena to Quigley was produced by his

Counsel without objection. It is apparent that the Counsel for the prison officers

determined not to pursue the issue of Legal Professional Privilege at this time.

Inq.uiry into the death of Wayne Pooler- Federal Court Action

On 18 January 1989 an application was filed in the Federal Court of Australia,

Western Australian Registry directed against me by the Police Officers Union and

two police officers seeking the the following orders:

(i) A Writ of Prohibition against the Respondent prohibiting him from

proceeding further with the inquiry into the death of Dooler or any other

death in custody under Letters Patent issued by the Commonwealth

Government and the Western Australian Government.

(ii) An injunction to restrain the Respondent from proceeding further with the

conduct of such inquiry and from exercising or purporting to exercise

compulsive powers pursuant to the Royal Commissions Act 1902 (Cwth)

and the Royal Commissions Act (WA) 1968.

This matter arose as I commenced an inquiry into the death of Wayne John

Dooler in Carnarvon on 16 January 1989 and at that time the issue of the validity

of the Letters Patent was before the Full Federal Court. This action had less to

do with the facts of the Pooler hearing than the fact that the challenge to another

Commissioner's letters patent had not yet been determined.

The Application for interim relief came on for hearing before Lee J. on

19 January 1989, the final day of the hearing, and was refused on the basis that

29

there was no evidence of any harm or detriment to the witness Atkinson. The

Applicant Brajkovich had already given evidence. The matter was adjourned sine

die to allow evidence of detriment to be placed before the Court. The matter was

not proceeded with and was formally discontinued on 26 May 1989.

No such action was taken in relation to my commencing the inquiry into the death

of Christine Jones which commenced in Perth on 12 December 1988 and

concluded on 9 February 1989.

Federal Court Action

On 12 January 1990 during the course of the first pre-hearing conference in

relation to the Pat inquiry, Counsel for the WA Police Union of Workers advised

of an application in relation to the nature of the hearing to be conducted having

regard to a possible contempt of the Supreme Court of Western Australia.

This Application was brought before Commissioner Johnston on 22 January

1990 seeking an order that the inquiries be restricted from publication on the

basis that the hearing was to be conducted in Roebourne. Mr Quigley reserved

his position in relation to any part of the hearing occurring elsewhere.

Commissioner Johnston ruled on 6 February 1990 rejecting the Application.

On 22 February 1990 an Application was filed in the Federal Court of Australia at

the New South Wales Registry by the five police officers who had been acquitted

of the unlawful killing of Pat. The Application sought orders to review the

decision of Commissioner Johnston of 6 February 1990 and was argued on

2 March 1990 before Foster J. Judgment refusing the Application was handed

down on 5 March 1990.

The background to this Application was that the five Applicants had stood trial

and had been acquitted of the unlawful killing of Pat. Subsequently the ABC

30

televised a programme dealing with the death of Pat. The five Applicants

instituted an action for defamation in the Supreme Court of Western Australia

seeking damages for alleged libel in respect of the programme. At an early sitting

of the Commission in Canberra in December 1987 the question of a public

inquiry constituting a contempt was raised. It was agreed that the inquiry into the

death could not be commenced until the latter part of 1988 and the issue was

adjourned to be further considered.

The matter came on for mention before Commissioner Muirhead on

19 September 1988. Counsel for the police officers made his position clear that

his only concern was that the matter should be heard in camera. The pleadings in

the Supreme Court were still not finalised and the matter was again adjourned

until 6 February 1989. At that date the pleadings had still not been finalised and

they were subject to interlocutory applications. It was clear that the matter would

not be heard before September 1989 and I would assume responsibility for the

inquiry.

I asked that the parties make submissions by 21 April 1989 and submissions

were made including that neither the Plaintiffs nor the Defendants were seeking a

jury trial. On 28 June 1989 parties were advised that I intended to deal with the

inquiry by way of a public hearing which would commence in Roebourne on

5 March 1990. No steps were taken by any party in respect of that ruling.

In November 1989, due to the number of cases still to be heard in Western

Australia, it was determined that Commissioner Johnston would hear the Pat

matter instead of me and in December 1989 he invited parties to make

submissions on this point and indicated that he would be prepared to come to

Perth for a hearing if that was required. Counsel for the police officers advised

that he would prefer to make his application at a pre-hearing conference listed for

12 January 1990 and it was at that time he advised that the pleadings were still

not finalised and his advice from Counsel was that the Plaintiffs should seek trial

31

by jury. The application was made, refused and the subsequent appeal to the

Federal Court as set out above was also refused.

2.3.1.2 Problems of Interpretation

The terms of reference caused a considerable amount of legal argument as to the

meaning of several phrases. The full tenns of reference have been set out

elsewhere, but the sections which caused difficulty are as follows:

Aboriginality

.. . the deaths in Australia since 1 January 1980 of Aboriginals and Torres Strait Islanders ...

The death of Tony Majurey (King) was referred to the Commission by Counsel

for the family at the initial sitting of the Commission in Canberra and evidence

was taken before Commissioner Muirhead on 14 December 1987 as to the

acceptance of Mr Majurey by Aboriginal people at a young age when he arrived

in Australia from New Zealand and later lived in a de facto marriage with an

Aboriginal women with whom he had children.

Commissioner Muirhead ruled on 5 February 1988 that Majurey was Aboriginal

for the purposes of the Commission's inquiry and that the death would be

investigated.

On the resignation of Commissioner Muirhead, the inquiries in Western Australia

fell to be considered by me and I was required to satisfy myself that all such

matters were within jurisdiction and upon considering the matter of Majurey's

Aboriginality, with the benefit of an additional letter from a member of

Mr Majurey's family in New Zealand setting out his family background, came to

a different conclusion. I published my ruling on 19 March 1990 and the name

was removed from the list of deaths for inquiry.

32

Custody

... whilst in police custody, in prison or in any other place of detention .. .

There were four deaths before the Commission for inquiry in which in each case

at the time of the death, the deceased was not in custody.

Commissioner Muirhead determined on 22 December 1988 that Victor Simpson

who suffered fatal injuries in a struggle at the Railway hotel at Mullewa with the

publican who restrained him with a neck hold did not die in police custody or in a

place of detention within the meaning of the Terms of Reference of the inquiry.

The remaining deaths of Bobby Bates, Albert Dougal and Jimmy Njanji occurred

in hospital following their release from a period of custody. The authority to

inquire into their deaths is subject to the restrictive 'hospital' clause which is

discussed later. Commissioners favoured a construction of the clause which did

not exclude such a death merely because custody had ceased.

Bates died in hospital of bronchial pneumonia following a period of incarceration

for fine default. On being made aware of the seriousness of Bates' illness and

the likelihood of the death of Bates whilst in custody, by an Order of Executive

Counsel the fine was remitted. Jurisdiction was challenged by Counsel for the

prison officers. I determined that the matter was within jurisdiction as:

.. . what caused his death was related to the illness which developed while he was in custody .. .

Dougal died in the Derby District Hospital on 9 December 1980 after having been

arrested for drunkenness on the evening of 4 December. The drunk charge was

dismissed on 5 December 1980 when the police advised the Court that the

defendant was in hospital and offered no evidence. Jurisdiction in this case was

challenged by the State Government and by the Western Australian Union of

Police Workers and this challenge is discussed below as a 'hospital death'.

33

Njanji died at the Port Hedland Regional Hospital on 2 June 1985 from

asphyxiation due to laryngeal oedema which was a complication of a wound he

had received whilst in custody at the Port Hedland Lockup when hit over the

head with a piece of wood by a fellow detainee on 16 May. He had been released

from custody on 19 May and was admitted to hospital the same day. Jurisdiction

was challenged in this matter by the State Government and also by the Counsel

for the treating doctor. This challenge is discussed elsewhere as a 'hospital

death'.

Deaths in Hospital

... deaths .. . whilst in police custody, in prison or in any other place of detention, but not including such a death occurring in a hospital, mental institution, infirmary or medical treatment centre unless injuries suffered while in police custody, in prison or in any other place of detention caused or contributed to that death; ...

The following deaths occurred in a hospital and were subject to the restrictive

clause, being the matters of the Aboriginal man who died in Sir Charles Gairdner

Hospital, Faith Barnes, Bobby Bates, Albert Dougal, Darryl Garlett, Daniel

Green, Donald Harris, Jimmy Njanji, Ronald Ugle, Roy Walker and Milton

Wells. Challenges to jurisdiction were made on the matters of Daniel Green,

Darryl Garlett, Albert Dougal, Jimmy Njanji and Ronald Ugle on the basis that

there was no injury suffered whilst in police custody, in prison or any other place

of detention that was the cause or that contributed to the death. In each case,

apart from Njanji, the challenge was made by both the State Government and the

relevant police or prison officers union.

In rejecting the challenge on Njanji I was moved to say:

The case was one in which an Aboriginal died after being assaulted in a police lock-up , where there is evidence to indicate that the assault would have gone unrecorded if death had not followed; where there is evidence upon which findings could be made that both the sudden death investigation and the CIB investigation fell below what may be regarded as adequate. In these circumstances I find it strange and discouraging that the State Government which

34

has commissioned me to inquire into Aboriginal deaths in custody, seeks to challenge my authority to do so in this case.

It is lamentable that in a case such as this in the course of which the conduct of police officers has been called into question and where there has been no submission on jurisdiction by their counsel, the State Government should make such a submission.

The death of Daniel Green was found not to be in jurisdiction by Commissioner

Muirhead on 17 April 1989 and no report on that death was forwarded to the

Executive.

Daniel, unlike Darryl Garlett and Ronald Ugle, had a history of heart disease and

had suffered at least three previous heart attacks caused by myocardial

infarctions. His case may be distinguishable on that ground alone.

Commissioner Muirhead came to a preliminary conclusion that the death of U gle

was not within jurisdiction however he did not formally decline jurisdiction

before resigning his Commission. I explained in the Report of the Inquiry into

the Death of Ronald Mack Ugle the reasons for coming to a different conclusions

from Commissioner Muirhead.

At all events Commissioner Muimead found that:

There was a physiological deterioration on about the morning of 13 March which occurred in custody and heralded approaching death. (In a sense it was a definite phase of his illness which ended in death.) But in the view I take of jurisdictional matters it did not fall within the classification of an injury suffered in custody which

caused or contributed to death.

He then went on to enlarge upon the general question of jurisdiction in the

'hospital cases' saying:

A phase or symptom of pre-existing heart disease or progressive malfunction suffered in custody is not, if death ultimately results, an 'injury' which caused or contributed to that death merely because the phase or symptom was experienced in the custodial situation. It will

be different if that phase, symptom or illness can be associated with an aspect of custody, e.g. specific contributory effort, neglect of or delay in treatment, misdiagnosis or other matters of this nature.

35

In the Report of Inquiry into the Death of Darryl Horace Garlett, I took a different

view and said that:

... progressive physiological changes due to underlying diseases may in my opinion constitute an injury. In this respect it is necessary to take a broad view of injury which may include harm of any kind done or sustained.

In reaching that view I placed importance on the express reference in the Terms

of Reference to a temporal relationship between the injuries suffered and the fact

of custody. In the absence of express words I declined to import the additional

causative element favoured by Commissioner Muirhead, but, so far as I am

aware, by no other Commissioner.

The deaths ofNjanji, Garlett, Dougal and Ugle were found to be in jurisdiction

and reports were forwarded accordingly.

2.3.2

2.3.2.1

THE APPROACH TAKEN TO THE COMMISSION BY

THE WA GOVERNMENT AND THE POLICE UNION

The Government of Western Australia

On 30 October 1987, the then Premier, Brian Burke, wrote to the Prime Minister

and confirmed the State's willingness to cooperate with this Royal Commission.

The letter referred to the cost sharing and administrative arrangements for the

Commission. The Government of Western Australia agreed to fund a legal

officer, a research officer and a typist, would make available court facilities and

cover the costs of any of its officers representing Government Departments who

were to be called as witnesses.

Accordingly the State Government issued me with Letters Patent to conduct my

inquiries in this State. This was in addition to the Letters Patent issued to me by

the Commonwealth. The State Government also issued Letters Patent to the

other Commissioners who conducted inquiries in Western Australia:

36

Commissioner Muirhead (as he then was), Commissioner Wyvill and

Commissioner Johnston.

Although the letter from Premier Burke clearly expressed a commitment on

behalf of the State to cooperate with the Royal Commission there were a number

of events which from time to time caused me concern that the Governments level

of cooperation was less than full. Matters which led me to have such concern

included:

(a) In a number of instances Counsel appearing before the Royal Commission

on behalf of the State Government, submitted that I had no jurisdiction to

inquire into a particular death. Those Submissions were, on occasion,

made well after I had made a ruling on my jurisdiction to inquire into the

deaths concerned. For example, at the pre-hearing conference held before

the commencement of my inquiry into the death of Jimmy Njanji, Counsel

for the State Government explicitly stated that he was not instructed to

challenge jurisdiction. Yet, in his final Submissions in that matter (and

presumably upon instructions) the same Counsel submitted that I had no

jurisdiction to report on Njanji's death.

In the matter of Albert Dougal I made a decision following Submissions

from all Counsel, that the death was within my jurisdiction to inquire.

Counsel for the State did not attempt to appeal that decision. I was

therefore surprised when, in his final Submission in that matter, Counsel

again submitted that the death was outside jurisdiction.

(b) Counsel Assisting the Royal Commission sought leave to appear at the

coronia! inquest into some of the deaths which occurred during the life of

the Commission. Leave was so sought in order to reduce the Royal

Commissions hearing time in relation to those deaths. In the first such

matter, the inquest into the death of Edward Cameron, Counsel for the

State Government opposed the granting of leave to Counsel Assisting the

Commission. He submitted to the Coroner:

37

To sum up, Sir, in our submission this application by counsel on behalf of the Royal Commission is misconceived. If successful it would have far reaching and dangerous consequences for the administration of justice in this state · I insofar as it concerns the conduct of coronia/ inquiries insofar as it may be seen to threaten independence and autonomy for the running of coronia/ inquests in this state. In our submission the application should be refused.

This is a surprising attitude to take to an initiative of a joint

Commonwealth/State Commission which was attempting to avoid further

public cost. It is incongruous, indeed, extraordinary that where my Letters

Patent specifically authorise me to consider the conduct of Coronia!

inquiries that Counsel for the Government, presumably on instructions,

should submit that if leave were given to Counsel Assisting the

Commission, it might be seen as a threat to the independence and

autonomy of the conduct of Coronia! inquiries.

(c) The State Government funded actions by the W A Police Union and the

W A Prison Officers Union challenging the Royal Commission in the

Supreme Court and the Federal Court. This led to the remarkable situation

of the State funding a challenge by a third party against the validity of

Letters Patent which it itself had issued.

Details of the challenges in the matters of Robert Walker and Wayne

Dooler have been set out in section 2.3.1.1 of this Report.

(d) Requests made by the Royal Commission to State Government

Departments for documents or information often appeared to have been

afforded low priority by those Departments. This was particularly so in

the early months of the Commission's operation in this State. From time

to time there were considerable delays between the request and the supply

of the material. Some of the delays were, of course, understandable.

The John Pat inquiry provided a dramatic example of some of the

difficulties the Royal Commission encountered in its dealings with State

38

Government Departments. In that matter it would appear that documents

were deliberately withheld from the Commission and it was by accident

that the existence of these documents were acknowledged to the

Commission.

The majority of documents listed were received on 26 January 1990 but

two documents were retained. One of these documents was delivered to

the Commission on 16 February 1990 and the other was provided by the

Crown Law Department on 27 February 1990. In relation to the latter

document, the Police Commissioner maintained that he had a claim of

Legal Professional Privilege but did not pursue the matter as the Crown

Law Department had produced the document. The Pat inquiry commenced

on 6 March 1990. Further documents were produced during the course of

the hearing including Commissioner Bull's handwritten notes taken at the

trial of the five officers in May 1984.

Because of the withholding of documents in the Pat matter, a letter was

written to Crown Law on 26 September 1989 asking for confirmation that

the Police Department had delivered all relevant documents, (or a list

identifying any documents which had been withheld) in all matters which

were before the Commission, either heard or part heard. No reply was

received and the matter was pursued. On 5 February 1990 a letter was

written by Crown Law advising that due to an oversight, they had not

communicated an assurance given by Chief Inspector Foley of the Police

Royal Commission Liaison Unit on 12 October 1989 that all relevant

material located by the Police Department had already been supplied. It is

patently clear that this was not the case on 12 October 1989, as the

Commission had not by that date even been provided with the list of

previously non-disclosed documents.

Despite the subpoena, a police officer had decided of his own motion not

to produce certain documents as he considered them either 'privileged ' or

not to be relevant. His views were not communicated to the Commission

39

which would have been unaware of the existence of the documents were it

not for the incidental disclosure of their existence when a Commission staff

member requested a document mentioned in the materials already

produced.

The above examples should not be taken as representative of every contact

between this Commission and State Government Departments. In many

instances considerable assistance and cooperation was received by the

Commission. Without that cooperation much of the work of the Royal

Commission would not have been possible.

However, in some instances Government Departments (and/or individuals within

those Departments) appeared to adopt a defensive stance to inquiries from the

Royal Commission. There was on their part, a perhaps understandable

reluctance to accept or recognise criticism of their past and present practice and

procedure.

In that regard I stress that, although the approach of this Commission has, at

times, been to criticise the operations of Government as they have impacted upon

Aboriginal people, it has also been to highlight those areas of positive and

innovative approach by Government and its departments in addressing the

tragedy of deaths in custody. That approach has continued in this Report.

2.3.2.2 W A Police Union of Workers

In contrast with the State Government's expression of willingness to cooperate it

is a matter for regret that the Police Union bitterly opposed this Royal

Commission and for the most part declined to cooperate.

On a number of occasions individual members of the union who were themselves

willing to assist the Commission were dissuaded from providing statements to

the Commission. In instances where police officers (members of the union)

40

would not provide a statement to the Commission, or even speak with

Commission staffto be able to ascertain whether their evidence could potentially

assist the Commission, oral evidence was required.

This prolonged process of obtaining evidence from police officers involved

considerable cost for the Commission and the State, sometimes involving the cost

of a replacement for a witness required to travel to give oral evidence, and costs

associated with his travel and legal representation. There were some occasions

when the value of oral evidence in hindsight was outweighed by the cost of

obtaining it.

In his report to Union members in the Police News of December 1988, the

President said:

When we look at the Muirhead Royal Commission, its costs, results and controversy, there is no justification in real terms for its continuation in my view. The costs incurred in WA alone during this past year must be millions of dollars. The Aboriginal community of Australia is publicly reported as decrying it as a waste of time, with no credibility, and openly stating the results of it will

never be accepted. Is it addressing the proper issues in the proper manner now begs an answer.

Obviously the time has come to cancel the Commission. Let's face it - it has not finished one inquiry in WA, still hasn't produced a report on that. Can it, or will it, ever finish? Cost effectiveness alone should rule it out ...

In fact at the time of publishing this article, one inquiry had been completed and

two were in progress. Commissioner Muirhead, who was initially the only

Commissioner, had completed three inquiries, with another one part heard in

New South Wales and South Australia before coming to Western Australia in

June 1988. He had also prepared the interim report this inquiry which was

released in December 1988.

41

In the March 1989 edition of Police News, the union newspaper, it was reported

that the union had commenced legal proceedings challenging the validity of the

Royal Commission. The members were told that:

The current situation follows frequent clashes between the Police Union's lawyer John Quigley, and Royal Commissioner Wyvill which culminated in Quigley being called as a witness before the Commission and refusing to answer questions in conversation he had with Police clients back in 1974 which he claimed were privileged.

He has had to withdraw his appearance on behalf of the Police/ Prisons Unions who are now represented by 3 Q.C.' sfor which the WA government is picking up the tab.

This completely misrepresents the situation which gave rise to the action and

which is set out in more detail elsewhere, but suffice it to say, the matter had

nothing to do with Police clients, 1974 or Mr Quigley refusing to answer

questions.

The above extracts from the Police News reveal that the members of the Union

were misinformed about the true situation in each case. That is regrettable and

although the harm done by such carelessness is not quantifiable, potentially it

could prejudice otherwise cooperative police officers against the Commission.

It is understandable that police officers might feel defensive about an inquiry

which is obliged to investigate in detail their work practices, decisions taken in

the course of their work and their behaviour in the context of a person in their

care dying. I appreciate that honest, hard working police officers might have

some affront at being investigated. However, I cannot understand why the

Union should be fundamentally opposed to any Inquiry whose task it is to

uncover not only malpractice but also to reveal and commend the strengths of

police work. In the former case I would expect the Union to cooperate to expose

any members who did not live up to the high standards set for police officers.

42

It is unfortunate to say the least that the Union was unable to see the benefits of

the Commission not only to the public and in particular the Aboriginal

community but also to the police force.

43

PART THREE

THE DEATHS

Part Three of the Report deals with the deaths of the 32 Aboriginal persons who

died in custody in Western Australia from 1980 to 1988. The first section (3 .1)

presents a profile of each ofthe individual deceased providing a brief summary of

the background of each person. The second section (3.2) examines the

characteristics of the 32 deceased as a group including the demographical

information, information about the last apprehension and detention, the final

period of custody, details of the deaths. The following three sections (3.3-3.5)

provide an analysis of the 32 deaths grouped into the three categories previously

discussed: natural causes/medical cases; hanging/self-harm cases and other cases

involving violence. By examining the deaths in this way I attempt to provide

some insight into the lives of the individuals who died in custody, how they came

to be in custody and how or why they died.

3.1 PROFILES OF THE DECEASED

Introduction

The following section provides a brief summary of the background of each

person who died, how they came to be in custody and the cause of their death.

Initially I would like to apologise to the family, relations and friends of the

deceased for any further distress or embarrassment that discussion of the

personal details of the deceased may cause them. However it is important that it

is remembered that the individuals who died in custody had their own lives and

44

families. Many of the deceased suffered badly as a result of government policies,

the European criminal justice system and an uncaring non-Aboriginal society.

Perhaps the lives and deaths of these 32 Aboriginal people could be seen as an

illustration of the way in which non-Aboriginal society, laws and culture have

been involved in the oppression and destruction of Aboriginal people's lives.

In many instances the Royal Commission has had to rely to a large extent on

information in government records about the deceased. I recognise that this

information is sometimes inaccurate and presents a rather biased view of the

deceased with emphasis being placed on aspects of their lives which required

them to have contact with government departments anq agencies.

I should also point out that characteri.stics of the deceased are discussed more

generally in the following section of the Report. Aspects of the deceased's lives

are also summarised in chart form in Appendix 1 of the Report. I also refer to

Commissioner Dodson's Report which discusses the people who died in

custody. Finally I refer to the individual reports of the inquiries into the deaths

which provide more detail on the life and death of each deceased and the

investigations which followed their death.

Charles Sydney Michael (W/1)

Charles Michael was born on 16 July 1953 at Wandering. He was the fourth of a

family of six children. At the age of 5 he was committed to the care of the Child

Welfare Department and admitted to Marribank Mission near Katanning. Three

years later he was returned to his parents' care at Wandering Mission.

At the age of 12 in 1966, he made his first court appearance at Beverly Children's

Court after committing several dishonesty offences. He was sentenced to twelve

months' supervision by the Child Welfare Department. He continued to be

convicted of offences as a juvenile and in 1967 at the age of 13 was admitted to

Hillston, a juvenile institution. From this time on he spent lengthy periods in

Hillston and departmental reports indicated he yearned for his family and resented

45

institutional life and authority. He worked with his father for a short period in a

shearing team but repetitive offending continued. In 1970 when he was only 16

years old he was sentenced to six months imprisonment for the offences of

unauthorised use of motor vehicle, driving under the influence and no motor

driver's licence. He was placed in Fremantle Prison. This commenced a pattern

of existence in the course of which he spent much of his life in custody.

As an adult Charles Michael was convicted of 41 offences, most of which were

dishonesty offences, unauthorised use of motor vehicle and driving offences.

Charles Michael was a heavy user of alcohol and many offences were committed

whilst intoxicated. For these offences he received many sentences of

imprisonment for periods ranging from one month to 12 months. The cumulative

effect of which resulted in his spending many years in prison for minor offences.

The only serious offences of which he was convicted were a sexual offence and

deprivation of liberty for which he received a cumulative sentence of 6 years

4 months (no minimum). He was serving this sentence at the time of his death.

Charles Michael married some years before his death and in spite of his lengthy

periods of imprisonment, his relationship with his wife and family endured.

Charles Michael died on 9 October 1984, aged 31, from a heart attack

(myocardial infarction). At the time he was a prisoner at Barton's Mill Prison, he

was suffering a serious heart condition, atheroma and coronary thrombosis. His

medical condition was unknown to the prison medical authorities. He died

following a struggle with several prison officers.

Robert Walker CWO,)

Robert Walker was born in Port Augusta on 25 December 1958, the second

youngest in a family of 15 (three of his siblings died before he was born). His

father died in a car accident when he was almost four years old. Robert spent

most of his childhood living with his mother.

46

In 1971 at the age of 12 years Robert Walker made his first court appearance. He

was charged with illegal use of a motor vehicle and stealing three bottles of milk.

He was placed on a three year bond with supervision. He committed several

offences at the age of 13 years and on one occasion was found drunk and placed

in the Adelaide city watchhouse overnight. In 1974 at the age of 15 he was sent

to a juvenile institution (McNally Training Centre) where he spent much of the

next two years. He consistently reoffended, the offences being of a dishonest or

violent nature (including sexual assault). The departmental records are illustrative

of many occasions in Walker's life where he and his family were stereotyped by

governmental officers who imposed upon him their view of the proper way for

Aboriginal persons to live.

In 1976 he was imprisoned at Yatala Prison after being convicted of assault.

After his release from Yatala he joined a 'bikie gang' and commenced

experimentation with a variety of drugs. In 1978 he met Vivian Moore who

became his fiancee. In 1979 he was convicted of a sexual offence and sentenced

to three years imprisonment for an offence committed in 1977. In prison he

sniffed glue and thinners.

After release from prison in 1981 Robert Walker attended the Aboriginal College

of Music for six months. In January 1982 he had enrolled in a course with a

view to obtaining a Community Development Certificate. He also worked part­

time playing the guitar. He published a booklet entitled 'Up, Not Down Mate!

Thoughts from a Prison Cell', a book of poetry written whilst imprisoned. He

completed the first six months of the Community Development course but his

world fell apart again when in mid 1982, intoxicated with a mixture of alcohol

and drugs, he indecently assaulted a patient in the Port Lincoln Hospital. He

committed another sexual assault offence in Perth in September 1982. He was

sentenced for this offence in September 1983 and was sentenced to 6 years

imprisonment and declared an habitual criminal under section 661 of the Criminal

Code. This was the sentence he was serving at the time of his death.

47

Robert Walker died on 28 August 1984 at Fremantle Prison. He was 25 years

old. The cause of death was asphyxia resulting from compression of the chest

which he suffered during a struggle with prison officers.

Christine Jones CW/3)

Christine Jones was born in Carnarvon on 27 October 1958. She was one of

eight children, although the children did not grow up together. Christine spent

her early childhood living with her parents in Carnarvon and grandmother in

Meekatharra. When Christine was 5 years old she was declared a neglected child

and committed to the care of the Child Welfare Department until 18 years of age.

After a short period of foster care Christine was sent to the Church of Christ

Mission at Carnarvon. She remained at this and related missions for the next ten

years. At the mission she met her older brother, Rodney, the existence of whom

she had previously not known. Like other institutionalised children, Christine

was provided with care, education and subsistence but at the cost of family and

cultural dislocation.

Christine Jones commenced drinking at the age of 14. This is when her

involvement with the criminal justice system commenced. In 1973 at 14 years of

age she was convicted of her first offence, disorderly conduct.

Christine had a child when she was 16 years old. She had a second child four

years later. It appears she was unable to cope with the care of her children and

both were sent to her mother for upbringing. During this time Christine

developed a severe alcohol problem where she was drinking constantly and

would exhibit sudden mood changes and outbursts of temper. It seems that her

self-esteem was low and from about 1976 she engaged in acts of self mutilation

by wrist slashing.

Between 1978 and 1979 Christine was convicted of eight offences, all directly

related to alcohol usage: disorderly conduct (4), re-enter licensed premises (3)

and driving under the influence. About three weeks before her death Christine

48

was arrested for unauthorised use of a motor vehicle ('joyriding') and was

granted bail to appear at a later date but failed to appear. Some time before this

offence she had come to live in Perth from Broome and Carnarvon. At the time

of her last detention she was arrested by police on a warrant issued because of

unpaid fines.

On 18 October 1980 Christine was detained at Midland Police Station. She died

at the lockup when she hanged herself by the sleeve of her cardigan. Christine

was 21 years old when she died.

Wayne John Pooler CW/4)

Wayne Dooler was born on 1 October 1960 at Carnarvon. He was the fourth of

six children born to Mitchell and Peggy Pooler. He was brought up with his

family in the Carnarvon area. The children were often separated from their

parents because the parents were apparently unable to look after them all.

Consequently Wayne's sister, Susan, and her two brothers, Michael and Rex,

spent some time in missions as wards of the State. It appears that Wayne stayed

with his parents who were anxious to keep the family together.

Wayne Pooler spent some of his childhood at the Carnarvon Reserve where the

conditions were appalling. He attended school and left Carnarvon High School

in his second year. While still at school he started drinking alcohol. He was first

charged with an offence at the age of 13 for being unlawfully on the curtilage. It

was dismissed under section 26 of the Child Welfare Act. When he was 15 he

was charged with drunk and at 16 with unseemly behaviour on a native reserve.

Thereafter he was regularly convicted of minor offences in which alcohol played

a part: drunkenness (7) and juvenile on licensed premises (2). His sister, Susan,

told the Commission that when Wayne was visiting her and her husband on the

station where they worked he did not drink and seemed happy. However, when

he returned to Carnarvon, he would again indulge in heavy drinking due to

boredom and unemployment.

49

On 19 June 1980 Wayne Dooler was arrested for drunk by the police and taken in

an unconscious condition to the Carnarvon Lockup. A short while later he died

in the lockup as a result of acute alcohol poisoning. Wayne Dooler was 19 years

old when he died.

Paul Fanner CW/5)

Paul Fanner was born on 19 April 1951 at Gnowangerup. His parents were

Meryl Fanner and Cecil Bolton. His father died in about 1966 and it appears that

Paul Fanner was raised by his mother, his stepfather, his grandmother and other

members of his family. He was one of six children.

Some time prior to 1961 Paul Farmer and his family moved from Gnowangerup

to the Tambellup Mission near Katanning. Paul Farmer was described as a bright

and happy child and it is clear that he had strong ties with his family and

relatives. He went to school at Tambellup and had left school by the time he was

13 years old. Information on Child Welfare Department files stated that Paul

Farmer was of low intelligence. However information before the Commission

showed otherwise and his lack of interest and success in the education system

should be seen as a reflection on the inadequacy of the education system to cater

to the needs of Aboriginal children, a problem which still exists today. The

picture presented to the Commission was that Paul Farmer was a man of

considerable artistic and intellectual ability.

Paul Farmer had his first contact with the criminal justice system at the age of 10

years when he appeared at the Gnowangerup Children's Court on a charge of

break, enter and steal. It was dismissed under section 26 of the Child Welfare

Act. At the age of 11 he was convicted of two counts of stealing and placed on

probation. At the age of 14 years years he was again convicted of stealing and

sent to Longmore Training Centre, a juvenile institution, for four months. He

was further institutionalised for six months the following year for interfering with

a motor vehicle.

50

In 1966 at the age of 15, Paul Farmer was convicted of a sexual offence and

sentenced to eight years imprisonment with a minimum of five years. He was

sent to Fremantle Prison. After spending some of the most formative years of his

life in prison it is not surprising that after his release his involvement with the

criminal justice system continued. By the time he was released in August 1971

he had not only suffered the emotional deprivation of isolation from his friends

and family but had received no counselling in relation to the offence he

committed. He had been punished under white law but still had to face his own

community.

In March 1972 he again appeared in court on a minor offence. In 1974 he was

sentenced to six months imprisonment for driving offences. His parole was

cancelled and from this time until the time of his arrest in June 1981, which

heralded his final period of imprisonment, he had a regular history of offences

that resulted in short periods of imprisonment. It appears that he spent

approximately 13 of the last 18 years of his life in prison (for 22 offences).

The departmental files suggest Paul Farmer began drinking heavily at a very early

age. It appears that whenever he was out of prison he had problems with

excessive alcohol usage. Paul Farmer had been institutionalised by the criminal

justice system and had difficulty coping in the world outside prison. He had

unresolved problems with the Aboriginal community and it is doubtful that his

sense of shame for his original offence ever left him.

In June 1981 Paul Farmer was arrested and placed in the C.W. Campbell

Remand Centre. During this period he made his first suicide attempt by cutting

his left arm. It was the first of five suicide attempts reported during his

imprisonment from June 1981 until his death in 1984. Whilst in prison Paul

Farmer received some psychiatric treatment and assessment. He was diagnosed

as suffering from schiwphrenia illness and depression. The psychiatric services

available to prisoners, particularly Aboriginal prisoners, were very inadequate

and Paul Farmer did not receive any culturally appropriate help with his spiritual

fears and anxieties. Such assistance may have helped to alleviate his mental

51

health problems. On 11 April 1984 Paul Fanner died in Albany Regional Prison

when he cut his throat with a razor blade . He was 33 years of age.

Darryl Horace Garten (WO>

Darryl Garlett was born on 7 June 1954 in the small country town of Tam min.

He was one of 13 children. Darryl and his brothers and sisters were educated at

the local school which Darryl attended until 14 years of age. He then worked as

a fann worker in the area. The family was close and the older children helped

care for the younger ones.

Darryl Garlett commenced drinking ai a relatively young age. His first

involvement with the criminal justice system was in 1971 when he was aged

17 years and he was convicted of disorderly conduct. Between 1971 and 1980

he was convicted on 12 offences, all of which involved alcohol in some way:

disorderly conduct (5), driving under the influence (4), no motor driver's licence

(2), park drinking (1). Darryl Garlett was reponedly a heavy user of alcohol.

However, generally speaking he appeared to be a relatively healthy, fit young

man.

Darryl Garlett had apparently developed coronary artery disease over a

considerable period of time which remained undiagnosed and symptom-free until

shortly before his death.

On 17 March 1980 he was sentenced to six months imprisonment for his fourth

driving under the influence offence. It was the first time he had been sentenced

to imprisonment.

Darryl Garlett died on 26 May 1980 at the Wooroloo District Hospital. At the

time of his death he was a prisoner in the Wooroloo Prison Fann. He died from

a coronary occlusion due to an atheroma as a result of coronary anery disease.

He was aged 26 at the time of his death.

52

Jjmmy Niaoii

Jimmy Njanji was born in the Gibson Desert country on the western edge of the

Pilbara region of Western Australia. His date of birth is unknown although it

was probably in the 1920s. He lived in a traditional manner and his language

_group was probably Putittjarra. In the early 1960s Njanji, his wife, Mulalla, and

children were brought into the Jiggalong Mission from the Lake Disappoinnnent

area in the Gibson Desert.

In 1967 Njanji and his family moved to Wiluna Mission. Njanji worked as a

stockman on stations around Wiluna and Meekatharra for short periods of time.

In about 1969 Njanji and his wife separated. It is believed that his wife may have

gone to live at Jiggalong with another man. In 1971 Mulalla returned to Wiluna

with her new husband.

According to traditional law the other man had to submit to punishment from

Njanji for having taken his wife. Punishment was carried out but apparently

Njanji also threw a spear at the time which pierced his thigh, an additional

punishment which he had no right to inflict. The man was hospitalised and

discharged after treatment. Some ten days later the wound re-opened and the

man haemorrhaged to death. I refer to Commissioner Dodson's Report for a

detailed discussion of this matter.

Jimmy Njanji was arrested on 20 February 1971 and charged with manslaughter

which was later changed to unlawful wounding. This was Njanji 's first

encounter with the European criminal justice system. Njanji pleaded guilty and

was sentenced to 18 months imprisonment with a minimum term of one month.

the sentencing judge taking into account Aboriginal traditional law and the fact

that Njanji would face traditional punishment if he returned to the Wiluna area.

Upon release Njanji did not return to Wiluna and spent the remainder of his life in

the Pilbara. principally Port/South Hedland. From time to time he lived in the

Warralong community where alcohol was banned but when he was in Port/South

Hedland he drank heavily. He mainly lived in the drainage ditches surrounding

53

South Hedland together with other destitute Aboriginal people. His first

conviction of drunk occurred after his release and over the next 15 years he was

convicted of 25 offences most of which related to alcohol.

Njanji also suffered from diabetes which was poorly controlled due to his

reluctance to seek medical treatment and follow instructions.

On 16 May 1985 Njanji was arrested for being drunk and placed in the Port

Hedland Lockup. Whilst in the lockup Njanji was hit on the head by a fellow

prisoner. Njanji's laceration was treated at the Port Hedland Regional Hospital

and he was then returned to the lockup. On 17 May 1985 he was convicted of

drunkenness and sentenced to two days imprisonment. He was released on

19 May 1985 and that day he attended at Port Hedland Hospital and was

admitted suffering from facial cellulitis and scalp infection. In hospital the cause

of the cellulitis was not recognised and inappropriate treatment was given. A

tracheostomy was required but it was not performed. The cellulitis was caused

from an infection of the head wound.

On 22 May 1985 Njanji died at the Port Hedland Regional Hospital as a result of

asphyxia due to laryngeal oedema. In other words Njanji had choked to death.

He was approximately 55 to 60 years old when he died.

The Aboriginal Man who died at Sir Charles Gairdner Hospital (W/9)

The deceased in this inquiry who was not referred to by name out of respect for

the traditional beliefs of his family, was born on 30 March 1957 at Roebourne.

His mother was Sylvia Allen and his father is now deceased. All of the

deceased's life was spent in and around Roebourne. His parents lived at both the

Woolshed and the Village, Aboriginal communities in Roeboume. The deceased

was the eldest of eight children. He attended Roebourne Primary School and

then Karratha High School until the age of 10 years. He spent periods of his

youth living at the Weerianna Hostel in Roeboume and attending school from

there.

54

The family background of the deceased was strong in cultural traditions and he

was taught Aboriginal dances and law. However during the deceased's

childhood his family life was characterised by excessive alcohol consumption and

unemployment.

The deceased commenced drinking in his early teens and he continued to drink

heavily for the rest of his life. He was arrested for drunkenness 51 times.

The deceased was first imprisoned in 1973 at the age of 16 for stealing two

blocks of chocolate and he was sentenced to one month's imprisonment. He

appeared in the Children's Court on eight occasions and was sentenced to

imprisonment five times, all for trivial offences. Between the age of 16 and his

death (at age 26 years) he was sentenced to imprisonment 14 times.

On 22 October 1982 the deceased was convicted of a sexual offence and

sentenced to four years imprisonment (no minimum term). He had previously

served his terms of imprisonment at Roeboume Regional Prison however

because of the type of offence and length of sentence he was sent to Fremantle

Prison where he was admitted on 16 November 1982.

On admission to prison he underwent a routine medical examination including a

micro chest X-ray. On 7 December 1982 the deceased underwent an X-ray

examination at the Chest and Tuberculosis Services Clinic in Fremantle.

Shadowing on the X-ray was interpreted as a pneumonic infection of the lungs

and treated with antibiotics. Followup X- rays were not carried out in accordance

with medical advice. The deceased became seriously ill in February 1983. On

23 February 1983 he was transferred from Fremantle Prison to Fremantle

Hospital and then to Sir Charles Gairdner Hospital.

The deceased died late on 25 February 1983 without the miliary or acute

generalised tuberculosis which caused his death having been conclusively

diagnosed. The deceased's family were not notified by prison authorities of his

illness or transfer to hospital, in fact they did not learn of his death until five days

55

after it had taken place. The deceased was 25 years old when he died at Sir

Charles Gairdner Hospital.

Nita Blanken CW/IID

Nita Blanken was born at N arrogin on 1 April 1941. She was one of 12 children

born to Connie and Theo Narkle. When she was 5 years old she was placed with

three of her brothers and sisters at Roelands Mission. The mission was run by

non-denominational fundamentalists along very strict lines.

Nita attended Bunbury High School. She was withdrawn from school in 1957 at

the age of 16. Nita left the mission at the age of 17 and began training as a

nursing aide at Busselton District Hospital. A year later she was dismissed from

her job as a result of an altercation.

Nita Blankett moved to Perth and prior to the birth of her children was in regular

employment. Her first child was born in 1968. She later formed a relationship

with Henry Blankett, a Thursday Islander, and they were subsequently married.

Nita Blankett and her husband had a further four children.

Nita Blanken's first involvement with the criminal justice system occurred in

1970 when she was 29 years old and charged with harbouring an absconder (her

nephew). Later that year Nita Blankett and her husband moved to Queensland

where they spent the next six years. Little is known of her life in Queensland

apart from the fact that it was during this time that she first suffered from asthma.

Nita Blankett and her family returned to Western Australia in 1976 and from that

time on she had steady contact with various government departments and

agencies principally due to her medical condition, her contact with the criminal

justice system and welfare problems.

In September 1976 Henry Blankett was convicted on serious charges and

sentenced to 12 months imprisonment. A short time later in December 1976 Nita

56

Blanken was convicted of disorderly conduct and resisting arrest. It was the

commencement of a pattern of offending which continued until her death.

Nita Blankett had difficulty in managing the care of her children and from 1977

onwards they spent time in foster homes and in the care of her mother.

Between December 1976 and the time of her death (11 January 1982), Nita

Blankett had 30 convictions recorded against her. They were mainly petty

offences or motor vehicle offences, usually committed under the influence of

alcohol. Her convictions were as follows: disorderly conduct (8), resisting arrest

(2), refuse/false name and address (5), assault (2), stealing and receiving (1),

driving under the influence (3), no motor driver's license (4), on premises

without lawful excuse (1) drunkenness (1) and wilful damage (3).

Nita Blankett was sentenced to imprisonment on two occasions. She was first

sentenced to two months in 1981 for no motor driver's licence, this being her

third offence of this nature. The second time was on 11 January 1982 when she

was sentenced to three months imprisonment for her third conviction for driving

under the influence and a further three months for no motor driver's licence, this

being her fourth conviction of that nature. She was serving these sentences at

Bandyup Women's Prison at the time of her death. Nita Blankett had spent time

in B andyup on four other occasions as a result of non-payment of fines.

Nita Blankett was a chronic asthmatic for approximately 12 years prior to her

death. Her asthma was never well controlled and intermittently required

emergency attendances at hospitals, the AMS and community health.

Nita Blankett suffered an asthma attack in Bandyup on 14 January 1982. The

seriousness of her attack was inadequately assessed by prison and nursing staff.

In addition there were delays in removing her from the prison for medical

treatment.

57

That same night Nita Blankett died in the back of a prison van en route to a

medical centre to obtain medical treatment for the acute asthma attack which she

was suffering. She was aged 41 years when she died.

Albert Dougal (W/11)

Albert Dougal was born in Broome on 26 February 1956, to Jack and Josephine

Dougal. Jack came from Lombardina and Josephine from Beagle Bay. They had

eight children, although one died in 1954.

The Native Welfare Department had considerable involvement and control over

the lives of Albert Dougal's parents. Until 1966 Albert Dougal lived with his

parents at Broome, Beagle Bay and Lombardina.

Albert Dougal and his three young sisters were committed to the care of the Child

Welfare Department in January 1966. The reason for the committal was that

according to the Department the father was not adequately supporting the family.

The children resided at Beagle Bay Mission. Albert Dougal left the mission in

1972.

Albert Dougal had a very minor record of criminal convictions. He was fined for

stealing a sausage in 1978 and for disorderly conducted (urinating in public) in

1980.

On 8 December 1980 Albert Dougal was involved in a fight outside the Roebuck

Bay Hotel in Broome. He was punched and fell to the ground Although he was

unable to get up, no one went to his assistance. He was later noticed by the

police lying on the roadway and was arrested for drunkenness. He was

unconscious and the police were unable to rouse him.

He was then taken to the Broome Lockup and before being placed in the cells, he

was hosed down because he had excreta on his clothes and person. He was then

carried into the lockup, placed on the concrete floor and left in his wet clothes.

58

He was left in the lockup overnight and never regained consciousness. The next

morning the OIC of the police station noticed that he appeared to be having a fit.

A nurse attended and Albert Dougal was removed to the Broome District

Hospital. He was later transferred to Derby Regional Hospital where he died on

9 December 1980 from brain damage caused by the head injury suffered when he

hit his head on the ground in the fight. Albert Dougal was 24 years old when he

died.

Hugh Wodulan CW/12)

Hugh Wodulan was born to Molly Wodulan and Peewee Cooper on 1 July 1953

at Liveringa Station near Derby. He had a younger brother, Willy, and a sister,

Joy. When Hugh was five years old he was placed at the United Aborigines

Mission Hostel at Derby where he remained until he was 13 (1966). During this

time his family lived at the Derby Native Reserve, the Looma Community and

then Broome where they settled at One Mile Reserve. This was where Hugh

Wodulan was living at the time of his death. After completing primary education

at the mission Hugh Wodulan attended Derby High School until he was 15 years

old and had completed second year.

Hugh Wodulan's involvement in the criminal justice system commenced when he

was 15 years old and was convicted of unauthorised use of a motor vehicle,

driving under the influence and two counts of break, enter and steal. The

offences all occurred on one occasion whilst he was drunk. He was committed

to the care of the Child Welfare Department until 18 years of age and sent to

Longmore Remand and Assessment Centre in Perth for assessment. He was

returned to the Derby Native Reserve. He had an initial placement doing station

work at which he excelled but when the station was sold he was returned to the

care of the Child Welfare Department.

From this time on he was continually involved in the criminal justice system and

accumulated an extensive criminal record. He received stern treatment for many

minor offences and imprisonment was often the first, rather than the last, resort.

59

The result was from the time of young adulthood until his death he spent most of

his life in penal institutions. He was convicted of a total of 76 offences, many of

a petty nature, and involving alcohol.

Hugh Wodulan was a chronic alcoholic and in June 1983, the month preceding

his death, he was admitted to Milliya Rumurra, an Aboriginal alcohol

rehabilitation centre. He was required to leave Milliya Rumurra because of his

disruptive behaviour towards other inmates.

On 12 July 1983 he was convicted of aggravated assault and placed on probation.

He sought readmission to Milliya Rumurra but the manager refused because of

his previous conduct. At this time, his mental state had deteriorated, he appeared

to be suffering from alcohol withdrawal and needed alcohol detoxification. There

were no beds available at Broome District Hospital for treatment there.

On 19 July 1983 Hugh Wodulan was arrested for drunkenness and placed in the

Broome Lockup. Less than three hours after he was placed in the cell he was

found hanging. Hugh Wodulan was 30 years old when he died.

Stanley Brown CW/13)

Stanley Brown was born on about 1 June 1945 at DeGrey station in the Pilbara.

He was the second of six children. He was a full Gnarla man and his family

were Berrigurrah people. Until 1973 he lived and worked at DeGrey station

doing seasonal station work. He received no European education. He was

involved in Traditional Aboriginal Law and in 1986 when his people returned to

the DeGrey River area he was engaged in the revival of traditional ceremonies

and initiations.

In 1967 he was married to Mary Walters under traditional law. The relationship

was stonny being marked by episodes of drinking and violent behaviour, they

separated and were reconciled many times.

60

Stanley Brown developed a alcohol problem and had numerous

convictions for drunkenness and drink related offences. The most serious of

these concerned violent assaults upon his wife which resulted in his conviction

for aggravated assault and imprisonment on a number of occasions. Their

relationship ended in 1983 when Stanley Brown was convicted of assault

occasioning bodily harm and was sentenced to a minimum of one year's

imprisonment. At about this time Mary Walters left Port Hedland and went to live

in Broome.

Stanley Brown was released from prison on parole in November 1984. Shortly

after his release he returned to the Pilbara and spent most of his time at

Yandeearra station. At the expiration of his parole he left Yandeearra and

returned to the South Hedland area where he lived, as many other homeless

Aboriginal people, in the drainage ditches around the town. He was drinking

very heavily at this time.

Three weeks prior to his death Stanley Brown and some other relatives went to

Broome to visit the deceased's brother who was in Broome Regional Prison.

During that time Stanley Brown spent some time with his ex-wife, Mary Walters.

He was arrested on four occasions for drunkenness while in Broome, the fourth

occasion being on 27 June 1987.

Stanley Brown was placed in the Broome Lockup at 3.40 pm on 27 June 1987.

He was found hanging at 6.30 pm partially suspended by a mattress cover. He

was aged 42 at the time of his death.

Misel Waigana CW/14)

Misel Waigana was born on 30 November 1947. His place of birth was Saibai

Island which is in the Torres Strait. Little is known about his life prior to coming

to Western Australia.

Misel Waigana came to Western Australia in about the mid 1960s. He was

among the first so-called 'Thursday Islanders' who came to Western Australia to

61

work on railway construction for the iron ore industry in the Pilbara. He also

worked on the Western Australian section of the standard gauge railway to the

Eastern States and from 1966 to 1977 he worked as a seaman and engine

attendant on pearling luggers.

In about 1978, he married Valerie Janet Licciardello. There were two children of

that union. In the early 1980s Misel Waigana commenced a de facto relationship

with Rita Spratt which continued until his death. They lived together in Perth,

Fremantle and Rockingham.

Information about Mise! Waigana's health commences in 1976. He was known

to be a heavy consumer of alcohol and there are numerous admissions to hospital

for alcohol-related conditions. In 1986 the deceased was diagnosed as having

epilepsy and was prescribed Dilantin, an anti-epileptic medication. Hi s

compliance with the medication was poor.

Mise! Waigana's drinking problems are reflected in his criminal record. He had

23 convictions in Western Australia, of which 11 were for park drinking, street

drinking or being drunk. Other offences were committed whilst under the

influence of alcohol. He was sentenced to imprisonment on two occasions; the

first in 1984, for seven days for disorderly conduct and the second in 1986, for

three months, for aggravated assault.

The deceased was arrested twice on 4 March 1987. On the first occasion he was

arrested early in the morning for being unlawfully on the curtilage. He was

charged and released on bail.

A little later in the day he was arrested again after being found behaving in a

bizarre way, calling out 'Don't kill me', yelling and screaming and waving his

arms about. He was arrested on a charge of disorderly conduct and lodged in the

East Perth Lockup. At about 12.15 on the afternoon of 4 March 1987, Mise!

Waigana was found dead in a cell of the lockup. The cause of death was delirium

tremens. Misel Waigana was 39 years old when he died.

62

Benjamin William Morrison CW/15)

Ben Morrison was born at Pinjarra on 2 November 1932. He was the son of

Annie Stack and Wilfred Morrison. In 1938 when Ben Morrison was five years

old he was living with his parents in their camp at Guildford. An incident

occurred which resulted in his father being convicted of disorderly conduct. As a

consequence, the Commissioner of Native Affairs directed that Ben Morrison be

removed to Moore River Native Settlement. Ben Morrison spent his school years

at New Norcia Mission, leaving there at the age of twelve to live with his mother.

In 1950 when Ben Morrison was almost eighteen living in the Northam district, a

warrant was issued for his removal to the Moore River Nature Settlement, due to

what was referred to as his 'unsatisfactory behaviour and liking for liquor'. He

remained there until 23 October 1950 when he was released. Thereafter he

travelled widely.

His mother, Annie Stack, died in 1961.

Ben Morrison had two children by Mary Kathleen Northover who died shortly

after the birth of her second daughter. Eight days after the birth the child was

committed to the care of the Child Welfare Department despite attempts by Ben

Morrison to make arrangements for her care. Throughout his life he spoke of his

family, his daughters and grandchildren with concern.

Ben Morrison was well regarded when he was not drinking. He was well read

and discussed topical events. He was a good and reliable worker and took great

pride in his appearance and made continual efforts to be well dressed and clean.

Ben Morrison's 'home' was an open-air camp under the Freeway Bridges in

West Perth. He was reported as not liking to stay indoors overnight preferring

the freedom and fresh air of outside life. He was also regarded as a bit of a

loner. When Ben Morrison had been drinking he was known to have a change in

personality and he would became aggressive and violent. He had a serious

63

alcohol problem and sought treatment from time to time at alcohol rehabilitation

centres.

At the time of his death Ben Monison had an extremely extensive criminal record

having accumulated approximately 275 convictions. The majority of the

convictions were for drink related offences (121) with 95 for drunkenness. Most

offences in Ben Monison's criminal record were committed under the influence

of alcohol. For many offences he received small fines and it is not possible to

say how often he served periods of imprisonment in default of paymelllt of the

fines. It also emerged from his criminal record that Ben Monison had travelled

extensively with convictions recorded in South Australia, Victoria, NSW and the

ACT. At the age of 32 he once said he had spent 17 years of his life in goal.

Ben Monison had a history of mental health problems and several times had

displayed suicidal behaviour in custody. On one occasion he ripped up a blanket

and told the police he was going to hang himself with it. He was charged with

wilful damage.

The various governmental records make numerous references to assaults on

innocent persons for imagined slights. This was described by medical experts as

a paranoid state. The medical evidence suggested that Ben Monison also

suffered from a condition known as mania a potu which affects the person each

time he drinks alcohol. He was also suffering from the early stages of

Alzheimer's disease which according to medical evidence was made worse by

alcohol consumption.

Ben Morrison's final encounter with the police was on 6 April 1988. After an

altercation with an off duty officer he was arrested for disorderly conduct. He

was placed in a cell at Fremantle Police Station lockup. Less than half an hour

after placement in the cell, Ben Monison was found hanging from the bars of the

cell door by a strip of blanket. Ben Morrison was 55 years when he died.

64

Robert Anderson CW /16)

Robert Anderson was born in the Wiluna area on about 10 March 1956. His

birth was not registered and the precise date is not known. His mother was

Barbara Anderson, now deceased and his natural father is also deceased.

Robert Anderson had four older sisters, one younger stepbrother and two

younger sisters. When Robert Anderson was three or four years old, his mother

married Pluto Jones, according to traditional law, and the community thereafter

treated Pluto Jones as his father.

The community into which Robert Anderson was born was very traditionally

oriented with its Aboriginal law and culture intact. Wiluna is an important place

to Aboriginals of the Western Desert Culture for traditional reasons and as many

as 300 to 400 people may come to Wiluna from other areas for ceremonial

occasions.

During 1956, the year of Robert Anderson's birth, the Seventh Day Adventist

Church established a mission at Wiluna. The mission initially served as a ration

distribution point but the activities of the mission gradually increased with the

establishment of a primary school, dormitories for boys and girls and huts for

pensioners.

Robert Anderson was admitted to the Wiluna mission in October 1963 to attend

school. Although his mother initially resided at the mission, by 1965 she was

living at Bondini Reserve, located about six kilometres from the mission.

In 1967 the mission records note that Robert Anderson tended to take a 'slight fit

occasionally' and that he was examined by a Meekatharra doctor.

In February 1968, Robert Anderson became a boarder at Karalundi mission,

another Seventh Day Adventist mission, located approximately 200 km west of

Wiluna. The deceased finished school at Karalundi at the end of 1971 at the age

of 15 years. By the time he left the mission his epileptic condition was clearly

65

recognised and he had received treatment at Perth and Meekatharra hospitals. He

was placed permanently on anti-epileptic medication in 1969.

Very little is known about Robert Anderson's circumstances from 1972 until his

death in 1983. Apart from the fact that he lived at Nganganawili Village which

stands on the former mission site. He was regarded as a good worker and was

working on the building and maintenance of houses at the Village at the time of

his death. He only drank on weekends. He never married.

Between 1973 and 1983, Robert Anderson was convicted of thirty offences:

drunk (11), disorderly conduct (9), re-enter licensed premises (3), street drinking

(2), assault (2), stealing (2), wilful damage (1). They were all of a minor nature

and for many he received short sentences of imprisonment. The majority of

offences committed by the deceased were alcohol related or committed under the

influence of alcohol.

Robert Anderson's epileptic condition was well known in the Aboriginal

community in Wiluna. His compliance with his anti-epileptic medication was

generally poor and his fitting was poorly controlled.

Robert Anderson was arrested on Saturday 26 February 1983 for drunkenness.

He was placed in the Wiluna Lockup. Instead of being released to bail when he

sobered up, Robert Anderson was detained in the lockup over the weekend. On

Monday 28 February 1983 at about 7.00 am he was found dead in a cell. The

cause of death was epilepsy. Robert Anderson was about 27 years old when he

died.

Bernard Albert McGrath CW/17)

Bernard McGrath was born on 30 September 1967 in Kalgoorlie. He was the

youngest son of Edward (Ted) and Betty McGrath who had seven children, three

of whom are now deceased.

66

Bernard McGrath was brought up in Kalgoorlie. His father, Ted McGrath, was

employed by the Railways and was in steady employment. Ted McGrath

believed strongly in the work ethic and discipline, which led to conflict with

Bernard when he was in his teens. By the time Bernard was 18 he had grown

distant from his father because of his failure to get a job and his excessive

drinking. These differences led Bernard to leave home but he still lived in the

Kalgoorlie area and would stay at the homes of friends or other family members.

He remained close to his mother and would visit his parents' home to see her.

Bernard McGrath showed little interest in primary and high school although he

was regarded as an intelligent student with potential. He had a history of truancy

and rarely applied himself to school work. He presented as a cheerful person

who could display a defiant and anti-authority attitude towards teachers and staff

at the Child Welfare Department.

After leaving school Bernard was generally employed apart from periods spent

on community service work.

His defiance of authority and his behaviour resulted in numerous appearances

before the court. At the age of ten he was charged with breakipg and entering,

after breaking into his primary school to steal some coloured pencils. The charge

was dismissed by the Children's Panel. He first appeared in the Kalgoorlie

Children's Court at the age of 13 for one count of break, enter and steal (stealing

cigarettes and soft drink). He thereafter appeared six more times in the

Children's Court on a total of 11 offences, all of a petty nature.

Between his 18th birthday and his death (two years), he appeared before the

Kalgoorlie Court of Petty Sessions on nine occasions for 15 offences, again of a

petty nature: disorderly conduct (2), break and enter with intent (2), breach of

probation (2), aggravated assault (1), resist arrest (1), unlawful damage (2),

stealing (1), driving under influence (1), no motor driver's licence (1),

unauthorised use of motor vehicle (1), drunk (1). On two occasions he was

ordered to perform community service work. The latter Community Service

67

Order (CSO) was not complied with and Bernard McGrath reoffended, which

resulted in his receiving a six month sentence of imprisonment for the offence,

together with a six month concurrent sentence for breach of the CSO. Bernard

McGrath found prison a difficult experience. He was released on 4 March 1987.

At the time of his release his first CSO was still outstanding.

On 14 November 1987 Bernard McGrath was arrested by two police officers for

breach of the outstanding CSO. He was apprehended under a warrant issued

under the Offenders Probation and Parole Act 196:.;. One of the arresting officers

knew Bernard McGrath and Bernard had previously complained of harassment

by this officer.

Bernard McGrath was lodged in the Kalgoorlie Lockup shortly before midnight.

At 12.35 am on 15 November 1987, approximately 45 minutes after placement

in the cells, he was found by another prisoner hanging, partially suspended by a

strip of towel from the bars of the cell door. His body was not discovered by the

police for nearly five hours. Bernard McGrath was 20 years old when he died.

Kim Polak CW/18)

Kim Polak was born on 24 January 1957 at Leonora, the child of Rosie Polak (or

Rosie Thunagoody) and Jimmy Polak. His father was from the Wiluna area and

his mother was born at Warburton. They were traditionally oriented. At the time

of Kim Polak's birth his parents were living at Mount Margaret Mission.

Rosie and Jimmy Polak had five children, although one child died in infancy.

Kim Polak's older sister, Dorothy, died in 1983. During the children's early

years the parents were often working on stations, leaving the children in the care

of the mission.

Kim Polak's father died in December 1966 and after that his mother moved to

Mt Margaret Mission to be with her children.

68

Polak's first involvement with the criminal justice system commenced when he

was 12 years old and appeared in the Leonora Children's Court charged with

unauthorised use of a motor vehicle. He was 're-committed' to the care of the

Child Welfare Department. At the time his mother was living at Cosmo

Newberry Mission in conditions that were described by a departmental officer as

'very dirty and depressing'.

Kim Polak attended Cosmo Newberry School for a short period of time during

1970 however in July 1970 government records indicate that he was living at

Kurrawang Mission and his mother was still at Cosmo Newberry.

Kim Polak had extensive involvement with the criminal justice system as a

juvenile. He was convicted in the Children's Court on 29 occasions of a total of

43 offences. The most common offence was unauthorised use of a motor

vehicle. As a result Kim Polak served a period of detention in Hillston, a

juvenile institution outside Perth. He absconded from there and committed

further offences. His pattern of offending in his youth consisted of traffic

offences, petty dishonesty, drunkenness and drink-related offences.

As an adult, Kim Polak's criminal record shows a similar pattern of offending

with additional convictions for assault, or similar crimes of violence. From 1969

until his death in 1985 he was convicted of approximately 120 offences. He was

sentenced to imprisonment on 43 charges, the longest single term being for

12 months in 1978 for aggravated assault.

Throughout the 1970s Kim Polak had little contact with either his mother or his

siblings. His mother started drinking ·some time after her husband's death and a

government record from 1979 states that she had been diagnosed as paranoid

schizophrenic. The three older children, Russell, Dorothy and Kim, when not in

custody, lived as fringe dwellers in the central and north-eastern Goldfields area.

They all had substantial alcohol abuse problems.

69

During the 1980s Kim Polak's alcohol problems worsened and his mental

condition deteriorated. He was diagnosed as being a chronic alcoholic who was

brain-damaged and suffering from schizophrenic illness. He was shuffled

between police and prison custody, psychiatric hospitals and life on the fringe.

Kim Polak was arrested for street drinking on 26 March 1985. Upon his arrest

outstanding warrants for non-payment of fines were discovered to exist. At the

time of Kim Polak's arrest he was seriously ill. Against advice, he had

discharged himself from hospital the previous day. Kim Polak died in Kalgoorlie

Lockup on 28 March 1985. The cause of death was either alcohol withdrawal or

acute hepatitis. He was aged 28 at the time of his death.

John Peter Pat CW/19)

John Pat was born on 31 October 1966 in Roeboume District Hospital. He was

Jinjibandji. Mavis Pat, his mother, was 16 years old and his father, Len Walley,

was approximately 36 years of age. They were married according to traditional

Aboriginal law.

Mrs Pat left Mr Walley when John Pat was still a young child. She commenced

living with Mick Lee who was regarded as a leader within the Aboriginal

community in Roeboume. He worked at the Youth Centre in Roeboume for a

number of years and Mrs Pat became a teacher's aide at the school in Roeboume.

John Pat was the eldest of three children born to Mrs Pat. He lived at the station

in Mt Florence with his family before coming to live at Roeboume Reserve with

them when he was 9 years old. About a year later the Reserve was bulldozed and

the Aboriginal people were moved out to the Aboriginal village in Roeboume.

John Pat went to school until second year high school and then went to work at

Pyramid Station as a stationhand. He only worked there for a couple of months

before returning to Roeboume.

At the time of his death John Pat had been unemployed for almost three years.

70

In July 1981 John Pat was convicted of two charges of aggravated assault

(police). This resulted in his being placed under the control of the Department for

Community Welfare. The order expired on 30 October 1982 when John Pat

turned 16.

On 8 September 1982 he was convicted of disorderly conduct and aggravated

assault (police). These offences occurred when he was intoxicated. He was

convicted of a further four drink-related offences. It appears that it would have

been common for John Pat, who was a juvenile, to spend the night in Roebourne

Lockup after being arrested on drunk charges.

On 28 September 1983 John Pat was involved in a fight outside the Roeboume

Hotel. The fight involved three off duty police officers and one Aboriginal police

aide and a number of young Aboriginals. John Pat was injured in the fight. He

was arrested and taken to the Roeboume Lockup. John Pat died in the juvenile

police cell at the lockup. The cause of death given by the forensic pathologist

was closed head injury. John Pat was 16 years old when he died.

Edward Cameron (Wf2Q)

Edward Cameron was born at Carnarvon on 26 December 1964. His parents

were Beryl June Cameron and Leedham Donald Cameron.

Beryl and Leedham Cameron had six children, Edward being the eldest child.

He had two brothers and three sisters. When Edward was approximately 7 years

old the family was living at Boulder. His father was employed as a labourer with

the Main Roads Department. There were a number of marital separations,

sometimes because of the imprisonment of Leedham Cameron. The marriage

broke down in 1977. Edward Cameron then went to live with his grandmother

and other relatives in the Geraldton area. He attended local primary and high

schools. He was an average student and remained at school until he was 15

years old.

71

During the latter part of 1980 Edward Cameron worked at the Desert Fann citrus

orchard at Wiluna for a few months. In 1984 he enrolled in a four month

stationhand course. He then worked for one month at the Geraldton Brake and

Clutch Centre. For the next 12 months he worked as a fencing contractor in the

Northern Territory and returned to Geraldton at the age of 21.

From 1985 until his death in 1988, Edward Cameron was unemployed. Edward

was a keen footballer and was well-known, well liked and highly respected in

Geraldton, largely through his position in a local football team.

Edward Cameron first appeared before the Geraldton Children's Court at the age

of 15 on a charge of stealing. The charge was dismissed under section 26 of the

Child Welfare Act and he was placed under the supervision of the Department for

Community Welfare for six months.

He had nine convictions as a juvenile, mostly for break and enter offences. He

was placed under the control of the Department for Community Welfare until 18

years of age. His wardship expired on 26 December 1982. From 1983 until his

death he was convicted of five offences of a relatively minor nature. Edward

Cameron had a de facto relationship with Nadelia Champion and they had a child

in January 1988. They had been living together since approximately December

1987.

Two weeks before his death Edward Cameron and several male friends were

accused by a young woman of having committed sexual assault. The allegation

was reported in the local press and was apparently believed by Edward

Cameron's friends and relatives. The allegation was also believed by his de facto

wife, who left him, taking their son. It should be pointed out that the co-accused

charged with sexual assault were all acquitted at their trial.

On 8 July 1988 following a drinking session with some friends, Edward

Cameron was arrested at 2.30 am upon being discovered 'shopping' in a local

grocery store. He was taken to Geraldton Police Station. His mood fluctuated

from laughing at a joke to being surly and uncooperative. He was placed in a cell

72

and checked once at 3.00 am. At 6.25 am he was discovered hanging. Edward

Cameron was 23 years old when he died.

The Young Man who died in custody at Geraldton on 31 December 1988 CW/21)

The deceased in this inquiry was referred to as 'Wongi ',rather than by name, out

of respect for the traditional beliefs of his family.

Wongi was born on 5 March 1960 in Kalgoorlie. His parents were Joyce and

Percy Maher. His family members included an older half brother, two sisters

and a younger brother. At the age of 11 months Wongi and one sister were

committed to the care of the Child Welfare Department until the age of 18. They

were both declared to be neglected under the Child Welfare Act. Wongi and his

sister were released to the care of the Native Welfare Department and were

admitted to the Church of Christ Mission at Norseman shortly after their

committal.

Wongi remained at Norseman Mission from 1961 until he was released into his

mother and stepfather's care in September 1974. Little is known ofWongi's life

during his time at the mission apart from the fact that he attended the public

primary school and high school at Norseman.

Wongi had his first encounter with the criminal justice system at the age of 14

when he appeared before the Coolgardie Children's Court and was convicted on

four charges of unauthorised use of a motor vehicle, five charges of break, enter

and steal, one charge of wilful damage and one charge of breaking and entering.

He was re-committed to the care of the Child Welfare Department and placed in

the Medina Hostel in December 1974. This was despite the fact that Wongi's

mother was noted as having stable living conditions and that Wongi and his

mother both wanted him to go home. While living at Medina Hostel he

committed further offences. He was convicted of a total of 27 charges as a

juvenile and spent further periods of time detained in Longmore Training Centre,

the Church of Christ Working Boys in Kondinin and the Hillston Training Farm.

73

In 1976 he was returned to his mother in Coolgardie. After further offences he

was placed in the Department's maximum security institution Riverbank in 1976

and again in 1977.

By the time Wongi reached his 18th birthday he had no prospects for

employment, no social support, a personality disorder developed as a result of an

institutionalised upbringing in which he was deprived of parental affection and

support. The adult lifestyle of crime and custody which followed appears almost

inevitable.

On 10 January 1978 Wongi appeared in the Kalgoorlie Children's Court on

charges of break, enter and steal and wilful damage. He was sentenced to three

months imprisonment and admitted to Kalgoorlie Regional Prison. On 5 March

1978 he turned 18 and his wardship expired.

Over the next eight years Wongi was convicted of numerous offences which

were primarily for drinking/public order, motor traffic and property offences

(principally break and enter). Between 10 January 1978 and his death, Wongi

was convicted of approximately 80 offences. His only conviction for a serious

offence occurred in 1986 when he was convicted of robbery with violence and

break enter and steal.

He was sentenced to three years for robbery and one year for break, enter and

steal to be served cumulatively with a non-parole period of two years. Wongi

was released on parole from Fremantle Prison on 7 November 1988. A special

condition of his parole was that he reside at Mullewa Rehabilitation Centre for not

less than three months. When he arrived at the alcohol rehabilitation centre they

were preparing to close over Christmas and were not expecting him . An

alternative placement could not be found and on 2 December he was brought to

Gerald ton. Between that time and the time of his final arrest on 31 December

1988 Wongi committed several offences. His parole officer noted that he had

committed the offences because 'he says he can't hack parole and wants to go

back inside where he feels he is most settled'. Wongi was arrested on

74

30 December 1988 for breaking into a locked car and was taken to the Geraldton

Police Station. He threatened to 'string himself up' and tore up a blanket in the

cell. A member of the Aboriginal Visitors Scheme attended and talked to him.

Wongi was released on bail and taken by the Visitors to his accommodation.

Wongi was arrested again at 12.45 am on 31 December 1988 when trying to

break into a hotel and taken to Geraldton Police Station. He was placed in a

security cell in the lockup. Wongi was found not breathing with a bandage

wound around his neck at 2.04 am. Attempts at resuscitation were unsuccessful.

He died from asphyxiation as a result of self-strangulation. Wongi was 28 years

old when he died.

Graham Trevor Walley CW0.2)

Graham Walley was born on 4 December 1966 at Northam. His mother was

Vera Slater and his father was Malcolm Cyril Walley. He was the youngest of

eight children and had a half-brother, three brothers and three sisters.

Graham Walley came from an especially deprived background. His mother

struggled to provide shelter and support for her family after she became separated

from her husband. She was forced to proceed with maintenance action against

her husband otherwise her financial assistance from the Department of

Community Welfare would be discontinued. Walley's father was imprisoned on

several occasions for non-payment of maintenance. His mother had difficulty in

providing accommodation for the family and applications for a State Housing

Commission house met with long delays (sometimes years) and regular rejection.

Graham Walley's family experienced years ofhomelessness and Graham in tum

experienced years of institutional care, firstly through the family's destitution and

later as a result of juvenile offending. Graham Walley spent years in and out of

juvenile institutions throughout the State, including Bridgewater, Centre Care in

Beverley, Sister Kates, Nazareth House, Mt Lawley Reception Home, Hillston,

Longmore Training Centre and Riverbank. Walley was also placed in foster

homes during his early childhood. The end result was that Graham Walley was

totally institutionalised. In 1982 when he was aged 16, he told staff at

75

Riverbank, the State's maximum security juvenile institution, that he would

prefer to spend Christmas at the institution. As one staff member commented 'It

is tragic that he feels like that'.

In 1981 it was discovered that Graham Walley had practically no hearing in his

right ear and very little in his left ear. It is not known how long he had been

suffering from these hearing problems. Once detected he was operated upon and

the defect was remedied however it is probable that his undiagnosed hearing

defect had affected his education and had resulted in his behaviour being

misinterpreted for many years.

Graham Walley's involvement in the criminal justice system was extensive. His

first appearance was recorded in 1976 when at the age of9 he pleaded guilty to

one charge of break and enter with intent, four charges of stealing and receiving,

and one charge of being unlawfully on the curtilage. As a juvenile he appeared in

the Children's Court on 42 occasions and was convicted of approximately 80

offences. He also appeared in the Supreme Court on 19 August 1983 and

pleaded guilty to a sexual offence. Apart from this offence, the common offences

he committed as a juvenile were property offences (theft, break and enter,

damage) and traffic offences (unauthorised use of a motor vehicle and no motor

driver's licence).

Some time in 1982 Graham Walley commenced a de facto relationship with

Marilyn Dianne Adams. Their first child was born when Graham Walley was

only 16 years old. He and Marilyn Adams had two more children, Tayha Marie

and Kristen. As an adult his pattern of offending continued with convictions

being recorded against him for drunk driving, driving whilst under suspension,

escaping legal custody and unauthorised use of a motor vehicle. On 15 April

whilst still on parole Graham Walley was convicted in the Geraldton Court of

Petty Sessions on three counts of break, enter and steal, four counts of driving

whilst his licence was under suspension and three counts of unlawfully driving a

motor vehicle. For these offences he was serving a total of 24 months of

76

imprisonment. Walley was serving his sentence in Greenough Regional Prison

at Gerald ton in order to be near his children.

Whilst in prison, Graham Walley learnt that his de facto wife had commenced a

relationship with another man. Letters he wrote in prison reveal that he missed

his family greatly, especially his children.

On 23 October 1988 Graham Walley was found in his cell hanging by a prison

issue belt. He was 21 years old when he died.

Ginger Samson CW 0.3)

Ginger Samson was born on Millstream Station in the Pilbara region of Western

Australia in 1944. The exact date of his birth is unknown. His father was Jack

Samson, however the name of his mother is not known to the Royal

Commission. It is also not known how many brothers and sisters Ginger

Samson had.

Ginger Samson seemed to have lived his whole life in the Roeboume-Onslow

area in the Pilbara. He was said to have worked extensively on pastoral stations

and for mining companies. Ginger Samson was married to Violet Beirung and

they had seven children. At the time of his death he was living on a permanent

basis in Roeboume, dependent upon Social Security and was fighting a losing

battle with alcohol.

Ginger Samson had been convicted of a total of 128 offences, the bulk of which

occurred in the last ten years of his life. Most of the charges he faced were

directly related to the consumption of alcohol. Ginger Samson's first appearance

in court was in 1963 on driving charges for which he was convicted and fined.

He was 18 years old at the time. Between 1966 and 1983 he was periodically

charged with offences related to alcohol, but no more than two or three times per

year. It was after 1983 that his criminal record showed almost continual

convictions for drink-related offences such as drunk and re-entering licensed

77

premises. From that time it seems that Ginger Samson's life was centred on

alcohol consumption. During his life Ginger Samson was convicted of

88 offences which were related to the consumption of alcohol.

Ginger Samson appears to have been a chronic alcoholic during the last six years

of his life. To compound his alcohol problems, he also suffered from epilepsy,

which was probably a result of an earlier head injury. The police at Roebourne

were generally aware that Ginger Samson was an epileptic and prone to take fits .

On 29 March 1988 Ginger Samson was arrested at the Victoria Hotel in

Roebourne for drunkenness. He was unable to walk or stand and was carried

into the cells at Roeboume Lockup.

At 6.30 am on 30 March 1988 Ginger Samson was found dead in the lockup by a

police officer. His death was found to have resulted from epilepsy resulting from

a closed head injury and excessive alcohol consumption. He was 44 years old

when he died.

Dixon Green CW/24)

Dixon Green was born at Wyndham in Western Australia on 14 February 1960.

His father was Donald (known as Don or Darky) Green and his mother was Dora

Green (nee Bradshaw). They were married in Halls Creek in 1952. Both

parents are now deceased. It is believed that Dixon Green's father was

traditionally orientated however Dixon himself did not go through the law.

Dixon Green's father, Don Green, did contract work on stations in the East

Kimberley and neighbouring areas of the Northern Territory. Towards the end

of Don Green's life he was in the process of establishing a small property for

himself and his family. Land for his family and relations were very important to

him. He died on 9 January 1990.

The property is now known as Dillon Springs Outstation Homelands Centre Inc.,

and was taken up by his sons and daughters and their families.

78

Dixon Green had eight brothers and sisters. He attended several schools

including Halls Creek, Wyndham, Kununurra and Nightcliff in Darwin.

Dixon Green appeared in the Children's Court on five occasions during his

youth. His first appearance was in 1973 when he was aged 13 years. All the

offences were committed in the company of other boys and generally involved

the theft of small amounts of money or food.

As an adult Dixon Green worked mainly doing stock work. He had a de facto

relationship with Martina Parry and they had one child, a daughter named

Carmel. With the exception of his final offence, Dixon Green had only a minor

criminal record as an adult. Between 1980 and 1984 he was convicted of eight

offences, these being driving under the influence (2), no motor driver's licence

(3), false name (1), possession of unlicensed ammunition (1). On 13 February

1984 Dixon Green was convicted of a sexual offence. He was sentenced to five

years, six months imprisonment with a minimum of two years, nine months. He

was serving this sentence in Broome Regional Prison at the time of his death.

Dixon Green died on 19 November 1985 in Broome Regional Prison. His death

was a result of ischaemic heart disease. He was 25 years old when he died.

Donald Harris (Wf25)

Donald Harris was born on 29 March 1959 at Kalgoorlie District Hospital. His

mother was Margaret Harris (or Margaret Stanley) of Balladonia and his father

was Gordon Harris of Dalyup.

Donald was the eighth of nine children, five boys and four girls. Three and a

half years before his birth, five of his brothers and sisters were declared

neglected, committed to the care of the Child Welfare Department and placed in

the Church of Christ Mission at Norseman. In December 1961 Donald, aged 3,

and two of his siblings were also declared neglected and committed to the care of

the Child Welfare Department until 18 years of age . They were also placed in

79

Norseman Mission. Donald was to spend some 13 years at the mission.

Donald's sister, Joy McPhee, believed that the Mission destroyed their family

life. Although the Mission provided for basic physical needs such as food,

clothing and shelter, mission upbringing resulted in social and emotional

deprivation.

Donald Harris attended Norseman High School. He wanted to be a hairdresser

but this ambition was never achieved. He left school at the end of 1974.

Donald Harris's first involvement with the criminal justice system was in 1974

when he was charged with stealing and receiving. The charge was dismissed

pursuant to section 26 of the Child Welfare Act.

Upon leaving the mission, Donald Harris had difficulty in adapting from the

highly regimented mission life to a situation where there were few controls and

little support. He commenced drinking and a pattern of petty offending was

established that continued into adulthood. Between 1975 and 1988 he was

convicted of 43 offences, mainly property offences, driving offences (including

driving under the influence, no motor driver's licence and unauthorised use of a

motor vehicle) and drink-related offences.

On 2 January 1988 Donald Harris appeared in East Perth Court of Petty Sessions

on a number of traffic offences. Bail was refused and he was remanded in

custody until 8 January 1988. He was taken to Canning Vale Remand Centre.

He was further remanded to appear on 18 January 1988. On that day he was

sentenced on all outstanding sentences, save a charge of breaking and entering to

which he maintained a plea of not guilty. He was bailed and a hearing date was

set for 25 March 1988. In respect of the other offences he was fined but not

given time to pay. He was returned to Canning Vale Remand Centre to serve the

fine default period. He was due for release on 20 February 1988 but on this date

was unable to meet the bail conditions requiring a surety of $1000 so he remained

in custody as a remand prisoner.

80

On 4 March 1988 Donald Harris complained of severe stomach pains. He was

promptly transferred by ambulance to Fremantle Hospital. There he died of acute

pancreatitis on 10 March 1988 in the intensive care unit. He was 29 years old

when he died.

Steven Glenn Michael CW0.6)

Steven Michael was born on 29 November 1957 at Beverley. His mother, Susan

Michael, was born at Katanning and his father, George Michael, in Brookton.

The family lived at the Native Reserve, Beverley. Steven was the fifth in a large

family comprising seven boys and three girls.

On 11 November 1958 five of the then six Michael children were found to be

destitute or neglected and were committed to the care of the Child Welfare

Department. No order was then sought in respect of Steven, then aged 11

months. The children's father was in prison at the time. The children were

admitted to Marribank Mission. In December 1961 the children were returned to

their parents.

Steven Michael's first court appearance was at the age of nine in December 1966

when charges of breaking and entering and wilful damage were dismissed in the

Beverley Children's Court. Four months later Steven was committed to the care

of the Child Welfare Department after being convicted of being unlawfully on

premises. As a juvenile he appeared in vaqous Children's Courts on

33 occasions to answer some 89 separate charges. Thirty-seven of these were

for stealing offences and 40 charges related to unlawful use of a motor vehicle or

driving without a licence.

In April 1968 Steven Michael was admitted to St Xavier's Native

Mission, Wandering. In May 1969 he was in Mt Lawley Reception Home. The

next five years involved continual movement between his parents at Beverley and

the juvenile institutions, Hillston, Longmore and Riverbank.

81

As an adult, Steven Michael's extensive criminal record continued. The pattern

of offending also continued. Between 1976 and 1986, Steven Michael's criminal

record lists 26 appearances involving 91 charges. Break, enter and steal, break

and enter with intent and stealing offences accounted for 33 convictions, while

offences involving motor vehicles accounted for 42 charges. Steven Michael was

often intoxicated at the time of the offence.

In April 1985 he was sentenced to 28 months imprisonment for traffic, theft and

breaking and entering offences. He received a further four months sentence for

escaping.

Prison records show that in 1979 he had a de facto wife, Dallas Nannup, and

their first child was due. The records also show that Steven Michael gave a

history of heavy alcohol intake and in July 1986 he reported smoking 30 to

40 cigarettes a day.

On 23 May 1987 Steven Michael suffered a heart attack while playing football at

Canning Vale Prison. He was taken to Fremantle Hospital where he was

pronounced dead. It was ascertained that the cause of death was ischaemic heart

disease. Steven Michael was 29 years old when he died.

Ricci John Vicenti (W27)

Ricci Vicenti was born in Perth on 15 January 1963. His mother was Heather

Myrtle Vicenti who had been brought up in Mogumber and Roelands Missions.

In 1953 she marrieq Arnold Rudolph Vicenti who was German. They had two

children before they separated in 1961. In 1962 Mrs Vicenti had a relationship

with another man, it was probable that Ricci was his son. Prior to Ricci's birth

Mrs Vicenti was reunited with her husband who had no wish to see the child,

Ricci. Mrs Vicenti made arrangements to have him adopted. Initially Mrs Vicenti

consented to his adoption but later changed her mind, and in June 1963 took him

home from the Ngala Home. Ricci thereafter had an unusual childhood. During

1963, with the full consent of his natural mother, Mrs Joan Smith and Mrs Rene

82

Heisler, both non-Aboriginal, assumed the day to day care of Ricci, although he

still was able to see his natural mother.

Joan Smith became a major influence on Ricci's upbringing. When Ricci Vicenti

was about six months old, with Mrs Vicenti 's consent, Mrs Smith and

Mrs Heisler took Ricci to live with them in Sydney and later Melbourne. In

1964 they took Ricci and another young Aboriginal boy to live with them in

Eastern Europe. Mrs Smith and Ricci Vicenti returned to live in Melbourne in

1969. Mrs Vicenti learned of her son's return and continued to enjoy intermittent

contact with him.

Ricci Vicenti was educated at StJohn's College and the Baysbrook High School

in Melbourne. He left school without completing his third year and worked

variously as a stablehand, cleaner and labourer.

In late 1978 or early 1979 when he was barely 16, Ricci Vicenti formed a de

facto relationship with Anita Marks. They had a child whom they named Tony.

In late 1979 Ricci Vicenti, Anita Marks and their son, Tony, travelled to Perth to

live with Mrs Vicenti in her flat in K winana for a brief period.

In November 1979 Ricci Vicenti appeared in the Rockingham Children's Court

and was convicted of unauthorised use of a motor vehicle and disorderly

conduct. Shortly after this Ricci Vicenti and his family returned to Melbourne.

In 1981 they returned to Western Australia where Ricci Vicenti remained until his

death. In Western Australia he and his partner separated, Anita Marks retaining

custody of their son.

When Ricci Vicenti returned to Western Australia he appeared in court on a

further three occasions in 1981 and was convicted of six offences, all involving

petty dishonesty. In December 1981 he received a sentence of three months

imprisonment for three convictions for stealing and receiving and one of break

and enter with intent.

83

Ricci Vicenti spent his period of imprisonment at Karnet Prison Farm.

Ricci Vicenti was arrested for the last time on 6 March 1982 only 8 days after his

release from prison. He was apprehended during the commission of a breaking,

entering and stealing offence at a suburban Woolworth's store in Perth. On

8 March 1982 he pleaded guilty to this charge and an additional three charges of

break, enter and steal and one charge of stealing and receiving. He was

remanded in custody until 29 March 1982 for the preparation of a pre-sentence

report.

On 28 March 1982 Ricci Vicenti was a remand prisoner at the C.W. Campbell

Remand Centre in Canning Vale. He was shot by a prison officer while

attempting to escape. He died at the Royal Perth Hospital on 31 March 1982 as a

result of a gunshot wound to the head. He was 19 years old when he died.

Ronald Mack Ugle CW /28)

Ronald U gle was born on 17 August 1930 at Tarnal a Station near Shark Bay. He

spent most of his first thirteen years on Dirk Hartog Island where his father was

employed as a stockman. His father died in 1943 causing his mother to take the

family to Carnarvon. Ogle's formal education ended when he completed primary

school. He spent most of his life in and around Carnarvon. Not a lot is known

of his early life.

Ugle lived in a de facto relationship with Stella Jackamarra for around thirty-two

years. The couple had thirteen children born between 1952 and 1972, twelve of

whom survived. Ugle was granted citizenship rights in 1959. For some twenty

years he was employed in a pattern of seasonal work as a station and shed hand

on stations in the Carnarvon area. Department records prepared in relation to

their children claim that both Ugle and his wife were heavy drinkers, and that this

led to violent outbursts. Ugle appears to have been in steady employment. From

October 1980 until May 1982 he was employed as a gardener by the Carnarvon

Shire.

84

Ugle's criminal record commenced in 1948 with a disorderly conduct charge.

From that time up until 1982 he was convicted of relatively minor offences.

These included two charges of assault, and four charges of disorderly conduct by

fighting. There were eleven offences for drunkenness during the period 1971 to

1979, but no convictions for traffic offences.

On 22 May 1982 he was charged with two counts of manslaughter and one of

driving under the influence of alcohol. He had been driving with a blood alcohol

level three times the legal limit. The vehicle left the road and collided with two

pedestrians. Both pedestrians were killed.

In November 1982 Ugle was convicted of the charges following a trial. He was

sentenced to a term of four years but was eligible for parole, which meant a

minimum sentence of two years. He entered Geraldton Prison on 10 November

1982. His estimated earliest date of release was 21 August 1984. The Reception

History Sheet records that neither Ugle himself nor the reception officer who

questioned him was of the opinion that any medical treatment was required.

There is no record of an initial medical screening having been conducted.

In August 1984 Ugle applied for a transfer to Broome Regional Prison so he

could be near his children. He arrived in Broome on 3 May 1983. There is no

record of his having received an initial medical screening upon arrival at the

prison.

On 12 December 1983 Ronald Ugle was observed to be breathing heavily and

making funny noises. He was semi-conscious. Prison authorities immediately

took him to the Broome District Hospital.

Ronald Ugle died in Broome District Hospital on 12 December 1983 of a heart

attack due to severe coronary artery disease. He was 53 years old when he died.

85

Donald Cbatunalgi (W{29)

Donald Chatunalgi was born at Alice Downs Station in the East Kimberley

Region of Western Australia on 18 January 1961. His parents were Daisy

Chatunalgi and Johnny Mulligan. Chatunalgi 's father worked as a stockman,

mainly at the Alice Downs Station fifty or so kilometres north of Halls Creek.

For much of his youth Donald Chatunalgi lived with his mother on the Halls

Creek Native Reserve, while his father worked out at the station when work was

available. Generally stock work in the Kimberleys provided only seasonal

employment, with most stations closing down during the 'wet' season. His

father was unemployed during the summer months. Chatunalgi had four sisters

and two brothers, born between 1949 and 1970, he was the second child and the

oldest son. While living at the reserve with his mother and brothers and sisters,

he attended school in Halls Creek.

It appears that that during his youth Chatunalgi only had limited contact with the

police and the judicial system. He appeared in the Children's Court on only three

occasions, each involving relatively minor offences.

His first appearance was on 21 June 1975 when he was fourteen. He was

charged with breaking into the school and removing a guitar. The charge was

dismissed pursuant to section 26 of the Child Welfare Act. As a juvenile he was

convicted of four charges all of a petty nature and committed to the care of the

Child Welfare Department until he was 18 years of age.

Between the age of eighteen and his death eight years later, Chatunalgi

accumulated eight further convictions, all but one of which related to traffic

offences. The exception is a charge of disorderly conduct on which he was

convicted and sentenced to seven days imprisonment. At least four of the

offences were alcohol-related.

In the latter part of his adult life he appears to have become a 'binge' drinker, and

irregular excessive drinking seems in tum to have precipitated severe epileptic

86

seizures following withdrawal of alcohol. Moderate psychiatric disturbances

appeared about the same time and in conjunction with the epileptic seizures.

On 15 December 1988 Donald Chatunalgi was arrested on warrants of

commitment for unpaid traffic fines imposed in October 1988. He was placed in

the lockup at Halls Creek Police Station at 11.30 am. At 7.30 pm Donald

Chatunalgi suffered a fit in the male cell block. Prisoners were unable to attract

the attention of a Police Aide who was the only staff member on duty at the

lockup at the time. Help was raised but no signs of life were detected and

resuscitation was not attempted. At 8.00 pm a doctor certified life extinct. The

cause of death was found to be epilepsy. Donald Chatunalgi was 27 years old

when he died.

Faith Marilyn Barnes (W /30)

The Royal Commission has no certain infonnation about when and where Faith

Barnes was born. It is likely that she was born on about 4 December 1954 in

Kalgoorlie.

Her mother was Hazel Wuni. She died in August 1957 when Faith was not yet

three. Her father Bordie Parker, was usually employed as a station hand in the

Leonora area. He died in August 1966. Faith had a younger sister Christine

born in July 1956.

After their mother's death, Bordie Parker gave Faith and her sister Christine to be

brought up by his sister, Marie Barnes, and her husband, Jimmy Barnes, who

had no children of their own. At this time Mr and Mrs Barnes lived in a two­

roomed hut on the Leonora Native reserve. Mr Barnes died the following year

and his wife was left to raise Faith and Christine on a widow's pension. Some

time after the death of her husband, Mrs Barnes and the two children moved to

live in Menzies.

87

Little is known of Faith Barnes' childhood or schooling. In February 1962 the

Assistant District Welfare Officer of the Native Welfare Department in Leonora

reported that Faith had been absent from school during 1961 for 138 half days.

Faith Barnes suffered during her childhood from a considerable number of minor

ailments of a kind which generally result from poverty and deprived living

conditions. These are noted on her records from the Menzies Nursing Post from

1968 to 1975 and include sore eyes, infected wounds, bums, boils and scabies.

Between the time when she was twenty-one and her death Barnes was the victim

of numerous severe assaults. She was admitted to Kalgoorlie Regional Hospital

for head injuries on five occasions, received outpatient treatment on two

occasions and was treated at the Menzies Nursing Post on nine occasions for

head injuries. During this period she also received treatment many times for

other traumatic injuries to various parts of her body.

Quite apart from injuries, she also received treatment for fits and diabetes. The

fits were almost certainly the result of the head injuries. In the last two years of

her life her health deteriorated significantly.

She was hospitalised some months before her death in an attempt to stabilise her

diabetes. She was suffering from high blood pressure, rheumatic heart disease

and diabetes associated with her excessive alcohol intake. Her problems with her

diabetes continued after discharge.

Barnes had a substantial alcohol problem. Between 1974 and her death, she was

arrested on forty occasions for being found drunk in a public place. In most

instances these offences resulted in the imposition of a fine.

However Faith Barnes frequently served a prison term in default of payment.

During her life, Faith Barnes was convicted of 48 offences being convicted of

disorderly conduct (6), unlawfully on premises (1) and unlawful assault (1), in

addition to the drunkenness convictions.

88

It appears that for most of her life Barnes lived with her aunt, Marie Barnes. In

records from 1981 and 1982 her next of kin was recorded as Malcolm

McDonald, who is variously described as her de facto husband and her uncle.

On 26 October 1982 Faith Barnes was arrested for drunkenness. She was unable

to be roused and was lifted into the police van. She was taken to the Kalgoorlie

Police Station Lockup and half dragged, half carried into the female cell block.

Later in the day she was found with blood on her head and attempts to rouse her

were unsuccessful. She was taken to the Kalgoorlie Regional Hospital by

ambulance. She was transferred to Royal Perth Hospital where she was found to

have a severe head injury. On 27 October 1982 Faith Barnes died as a result of

an acute subdural haematoma from an injury to her head. She was approximately

27 years old when she died.

Bobby Bates (W(31)

Bates was born on 1 July 1952 at Warburton Range. His parents, Kiwinjikunu

Bates and Kuntjari Bates, were traditionally married in approximately 1951. His

father died at Warburton Ranges Hospital in mid-1962 of spear wounds to the

thigh. His mother was born in 1933 at Warburton Ranges. In 1962 she was

living at the Laverton Native Reserve with her children Bobby, Enid (born

1.8.58) and Eliza (born 23.8.62).

On 28 September 1965 Bates first appeared before the Laverton Children's Court

and was found guilty of driving a motor vehicle without a licence and without the

owner's consent. He was committed to the care of the Child Welfare Department

until age 18 years and was disqualified from holding a licence unti11 July 1969.

A recommendation was made that, due to lack of parental control, he be placed in

an institution outside the Laverton District to receive corrective training. The

Department of Native Welfare was not able to place Bates in an institution in its

Eastern District and he was sent to the Child Welfare Reception Home in Perth.

Bates entered Longmore in October 1965 aged 13 years.

89

Bobby Bates appeared five more times in the Children's Court on nine charges,

including unauthorised use of a motor vehicle (3), stealing (2), drunk (3) and no

motor driver's licence (1), escaping legal custody (1).

During his youth he spent periods of time at Hillston Training Farm and the

Esperance Hostel.

Bates's criminal history from 1965 until 1986 records 26 convictions as follows:

Drunk (8), UnauthorisedUse of a Motor Vehicle (5), No Motor Driver's Licence

(2), Assault (4), Stealing (3), Disorderly Conduct (2), and one escaping legal

custody and driving under the influence. He was only convicted of one offence

during the period December 1977 to March 1984.

Bates and his family lived at Warburton Community, located about halfway

between Kalgoorlie and Alice Springs. Bobby Bates was traditionally oriented

and he eventually became the Vice Chairman of the Warburton Community

Council and its works supervisor.

On 24 January 1986 Bates was fined $800 and costs with 41 days imprisonment

in default for driving under the influence of alcohol. On 16 April 1986 a Warrant

of Commitment in respect of the fine was issued and Bates was arrested at

Laverton, on 29 April 1986.

Bates entered Eastern Goldfields Regional Prison at 5.40 pm on 29 April 1986

from Laverton Lockup. His sentence was recorded as $822.50 or 41 days.

On 9 May 1986 Bobby Bates was seen by a doctor in his surgery in Kalgoorlie.

The doctor admitted Bobby Bates to Kalgoorlie Regional Hospital having

diagnosed lower lobe pneumonia. On 14 May 1986 he was transferred to Sir

Charles Gairdner Hospital. On 20 May 1986 Executive Council approved

remission of the balance of Bobby Bates' sentence. He died on 2 June 1986 at

Sir Charles Gairdner Hospital of bronchopneumonia. He was 33 years old when

he died.

90

Roy Nonnan Walker (W/32)

Roy Walker was born on 26 October 1918 in Laverton, Western Australia. After

the death of his father, his mother re-married. He had one brother and one sister.

His mother died in 1940, and his step-father in 1963.

Walker was educated at the Mt Margaret Mission School until he was 14 years

old. There is no record of him committing any criminal offences as a juveniie.

In 1944 he married, and had eight children, three boys and five girls. He had

quite an extensive employment history in the course of his life showing that he

worked on various stations in the Leonora area, as well as in prospecting, mining

and shearing.

It was not until February 1942 when he was approaching twenty-four years of

age that Walker was convicted for the first time. In the Laverton Court of Petty

Sessions he was sentenced to imprisonment for seven days for being found in a

prohibited area. It was his first offence. Between 1942 and 1963 he was

convicted on six occasions for drunkenness.

His problems with alcohol appear to date from that spell in prison, leading to a

deterioration in both his health and his lifestyle.

Between 1965 and 1979 he was convicted on some twenty-eight occasions for

being found drunk in a public place. While the Commission has not been able to

obtain his criminal record between 1979 and his death in 1981, a warrant card

shows that in April and August 1980, and again in January 1981 he was arrested

in Kalgoorlie on warrants issued after fines remained unpaid. It appears that the

fines were imposed after conviction for drinking offences. It would appear likely

that there were others.

He suffered from numerous injuries and illnesses in the last six years of his life,

an indication of the way in which his life and health generally deteriorated.

91

On 26 March 1981 Roy Walker was found by the police lying unconscious near

the pipeline on the outskirts of Kalgoorlie. He was carried to the police van and

taken to the Kalgoorlie Police Station where he was placed in the lockup at about

8.00 am. At 3.50 pm he was still unconscious and found to have fresh blood

around his mouth and nose and was breathing noisily. He was taken to

Kalgoorlie Regional Hospital by ambulance. There he was found to have a

fractured skull with a haemorrhage inside the skull. He was transferred to Royal

Perth Hospital. He died in Royal Perth Hospital on 2 April 1981 as a result of a

subdural haemorrhage from a serious head injury, suffered as a result of a fall.

Milton Wells (W/33)

Milton Wells was born in Kalgoorlie on 10 January 1955. His parents were Len

Wells and Pearlie Mcintyre who married in February 1954. They were born at

Mt Margaret Mission and were residing at Laverton at the time of their marriage.

Wells was the eldest of their eight children. He was to be followed by five

sisters and two brothers between 1956 and 1965. He spent his early years on a

sheep station near Kalgoorlie where his father was a station hand.

In 1957 his parents were granted Certificates of Exemption from the provisions

of the Native Administration Act 1905-1947 which gave them the rights and

responsibilities of Australian citizens for the first time. They were then able to

vote, legally to possess alcohol, and obliged to fill in census forms.

In February 1969, at the age of fourteen, Wells was sent to Wongutha Training

Centre for farm and station training. He did not return after holidays and was

discharged to his parents at Kalgoorlie later that year. He left school at the age of

fifteen and then worked as a station hand for four years.

Wells first appeared before the Kalgoorlie Children's Court on 31 October 1970

at the age of 15 on charges of giving a false name and resisting arrest. The

charges were dismissed pursuant to section 26 of the Child Welfare Act.

92

Following his initial appearance in the Kalgoorlie Children's Court, Wells's

Criminal History Sheet records twenty-six court appearances in Kalgoorlie,

Leonora, Laverton, Mt Magnet and Adelaide during the period 1972 to 1985.

The charges were for the most part directly alcohol related or motor vehicle

offences: found drunk, six of park drinking, eight of disorderly conduct, driving

under the influence, five of refuse a breath test, two of re-entering licensed

premises, unauthorised use of a motor vehicle, dangerous driving, driving

without a licence, eight of driving an unlicensed motor vehicle. There are also

two convictions for aggravated assault, two for stealing, one of escaping from

legal custody, three of resisting arrest and one of being found unlawfully on

premises.

In the late 1970s Wells lived in South Australia surviving on unemployment

benefits and casual fruit picking work.

Prior to 1977 Wells formed a de facto relationship with Jenny Carter and the

couple had one child.

Milton Wells appears to have had some alcohol problems but did not become

completely dependent on the drug.

Milton Wells was arrested on 5 August 1985 for unlawful damage of a motor

vehicle. He was placed in the Kalgoorlie Police Station Lockup. At the time he

was extremely ill suffering from meningitis associated with lobar pneumonia.

The following morning he was found to be suffering from a fit, an ambulance

was called and he was taken to Kalgoorlie Regional Hospital. He died there on

6 August 1985 of lobar pneumonia and acute meningitis. Milton Wells was

30 years old when he died.

93

3.2.1.2 Marital Status

TABLE 3.2: MARITAL STATUS

Marital status Total

Never married 12

Married by law 3

Married - de facto 7

Separated - not divorced 1

Separated - de facto 9

TOTAL 32

3.2.1.3 Employment

The employment status for each of the cases immediately prior to the final

detention showed that 26 were unemployed, five were employed full time and in

one case the information was not known. The full time occupations were:

gardener (Carnarvon Shire Council); labourer; Works Supervisor (Warburton

Abo riginal Community); and in two cases as stockman.

The usual occupation for all of the cases is displayed in the table below.

TABLE 3.3: USUAL OCCUPATION

Usual occupation

Labourer Fann labourer Stockman Unemployed Invalid pensioner Gardener

Shearer, fann worker Student/musician Works supervisor Not known

TOTAL

95

Number

8

6

5

4

4

1

1

1

1

1

32

3.2.1.4 Highest Education

The table below indicates the highest level of education attained by the deceased.

TABLE 3.4: HIGHEST EDUCATION LEVEL ATTAINED

3.2.1.5

Level of education

Nofonnal Some primary Completed primary Some secondary Not known

TOTAL

Community

Number

3

3

2

21 3

32

The following table provides infonnation about the community previously lived

in by the deceased.

TABLE 3.5: TYPE OF COMMUNITY DURING FIVE YEARS PRIOR TO APPREHENSION AND IMMEDIATELY PRIOR TO APPREHENSION

Type of community*

Major urban Minor urban Aboriginal community Fringe camp Rural Rural property

TOTAL

Previous 5 years

7

13 5

4

2

1

32

Prior to apprehension

10 13 3

3

1

2

32

* Major urban = 100,000+; Minor urban = 1000 to 99 999; Rural= 200 to 999

96

3.2.1.6 Childhood Separation

The data indicated that 15 cases had been separated during childhood from the

family through intervention by the state, missions, etc., while 13 case had not

experienced separation and the information in four cases was not known.

3.2.2 IDENTITY

All cases identified as Aboriginal, were accepted as Aboriginal and were of

Aboriginal descent. A named Aboriginal group/tribe to which the person was

affiliated was identified in 14 cases. In 17 cases the information was not known

and in one case, the person did not affiliate with a named Aboriginal group/tribe.

In eight cases the person's first language was an Aboriginal one, in nine cases the

first language was not an Aboriginal one, in two cases the first language was an

Aboriginal one but the name of the Aboriginal group/tribe was not known and in

13 cases the information was not known.

3.2.3

3 .2.3.1

LAST APPREHENSION AND DETENTION

Place where last taken into custody

In 31 cases the place where last taken into custody was Western Australia and in

one case the person was taken into custody in South Australia. In all cases the

arresting authority was the State Police.

97

TABLE 3.6: PLACE WHERE TAKEN INTO CUSTODY

3.2.3.2

Location

Kalgoorlie Perth Broome Fremantle Geraldton Carnarvon Halls Creek Roeboume

Adelaide, S.A. Laverton Port Hedland Rural town, W.A. Wiluna Woodbook Station, Roeboume

TOTAL

Reason for apprehension

Number

5

5

4

3

3

2

2

2

1

1

1

1

1

1

32

Six cases were apprehended under warrant and 26 cases were apprehended for

offences; nine of the latter were drunkenness.

3.2.3.3 Most serious offence leading to last detention

TABLE 3.7: MOST SERIOUS OFFENCE LEADING TO LAST DETENTION

Offence

Homicide Assault Sex offences Break & enter Property damage Justice procedures

Drunkenness Good order Drink driving

TOTAL

98

Number

1

1

5

6

1

1

9

3

5

32

3.2.3.4 Reason for bail denial

There were 19 police custody cases where an offence was involved and one

prison remandee. Bail was denied in these cases for a number of reasons, shown

in the table below, as: 'sentenced' - cases where the person was sentenced by a

court to a period of imprisonment, which was being served in the police cells;

'antecedents'- where there was an outstanding warrant or the person was on bail

at the time of the offence; 'remand'- cases where the person was being held on

remand; and 'intoxication' -where the person had been arrested for an offence

but was too intoxicated to be released.

TABLE 3.8: REASON FOR BAIL DENIAL

3.2.3.5

(Includes all police cases and one prison remand case)

Reason

Sentenced Antecedents Remand Intoxicated Threatening behaviour Not known

TOTAL

Number

4

3

1

10 I

I

20

Physical condition on apprehension

The table below shows the physical condition of the 19 persons detained in police

custody when apprehended by police.

99

TABLE 3.9: PHYSICAL CONDITION ON APPREHENSION

Condition Number

Well 2

Sick 2

Injured 2

Intoxicated 9

Unconscious 4

10TAL 19

3.2.3.6 Observed level of intoxication on apprehension

The following table shows the observed level of intoxication of the deceased in

police custody when apprehended by the police.

TABLE 3.10: LEVEL OF INTOXICATION

Category

Alcohol-level not known Alcohol-mild Alcohol-high None

10TAL

Number

2

3

11 3

19

3.2.3.7 State of consciousness on apprehension

The following table shows that 13 of the deceased detained in police custody

were awake when apprehended, four were unconscious, one was difficult to

arouse and in one case the state of consciousness on apprehension has not been

detennined (Pat).

100

TABLE 3.11: STATE OF CONSCIOUSNESS

3.2.3.8

Category Number

Awake 13

Arouse-difficult 1

Not arouse 4

Not detennined* 1

TOTAL 19

* In the Pat case, there were conflicting

reports as to the state of consciousness. Presently awaiting the Commissioner's findings.

Demeanour on apprehension

Of the 13 police and one prison remand case which were reported as awake, the

demeanour on apprehension was recorded as nonnal in nine cases, aggressive in

one case, distressed in three cases and not detennined in one case (Pat).

3.2.4 CUSTODY

3.2.4.1 Custodial authority and legal status

The following table shows whether the deceased was in police or prison custody

and their legal status whilst in custody.

TABLE 3.12: CUSTODIAL AUTHORITY AND LEGAL STATUS

Custodial Authority_

Police Prison Total

Legal status Otarged 15 1 16

Serving sentence 4 12 16

TOTAL 19 13 32

101

3.2.4.2 Prison custody

Of the 13 cases in prison custody the security ratings were described as

maximum in six cases, medium in one case and minimum in six cases.

Participation in prison programmes was noted as educational in two cases,

sporting and/or educational in five cases, nil for five cases, and in one case the

information was not known.

Two cases were assigned work as fann duties, two cases as laundry duties, one

case as garden duty, one case as cleaning duties, one case as metal work, four

cases did not have work assignments and for two cases the information on work

assignment was not known.

3.2.4.3 Outside contacts

Eight cases were noted as having had contacts with family or friends prior to

death, one case was noted as having contact with aid organisations, 18 cases had

no such contacts while in custody and for five cases the information was not

known.

3.2.4.4 Durations of custody prior to death

The lengths of custody prior to death are detailed below.

TABLE 3.13: LENGTH OF TIME IN CUSTODY PRIOR TO DEATH

Time in custody Police Prison Total

Under 2 hours 6 6

2 and under 6 hours 5 5

6 and under 12 hours 4 4

12 and under 18 hours 1 1

18 hours and under 1 day 1 and under 14 days 3 1 4

14 days and under 1 month 1 1

1 and under 6 months 4 4

6 months and under 1 year 1 1

Over 1 year 6 6

TOTAL 19 13 32

3.2.5 DETAILS OF DEATH

3.2.5.1 Custodial authority

The following table summarises the year of death and the custodial authority.

TABLE 3 . 14: YEAR OF DEATH AND CUSTODIAL AUTHORITY

Custodial Authority Police 3 1

Prison 1

TOTAL 4 1

1

2

3

* 1 January 1989 to 31 May 1989

3

2

5

3

3

103

3

1

4

1

1

3

1

4

5

2

7

19 13

32

3.2.5.2 Place of Death

TABLE 3.15: PLACE OF DEATH AND CUSTODIAL AUTHORITY

Custodial Authority Police Prison

TOTAL

3.2.5.3 Time of Death

Place of death Police Prison General Total

Hospital

14 5 19

6 7 13

14 6 12 32

The time of day that the deaths occurred is displayed in the table below.

TABLE 3.16: TIME OF DEATH

Time of death Number

Midnight to before 0600 hours 6 0600 to before 0800 hours 1

0800 to before 1000 hours 1000 to before 1200 hours 1

1200 to before 1400 hours 4

1400 to before 1600 hours 6

1600 to before 1800 hours 3

1800 to before 2000 hours 3

2000 to before 2200 hours 3

2200 to before midnight 5

TOTAL 32

3.2.5.4 Manner and cause of Death

A summary of the reported cause of death, the Coroner's finding and the

Commissioner's finding in each case, where available, is displayed in the table

below.

104

TABLE 3.17: REPORTED CAUSE OF DEATH, CORONERS' FINDINGS AND COMMISSIONERS' FINDINGS

Cause of death Reported Coroners' Commissioners'

cause finding finding

Suicide 10 5 3

Self inflicted-intention not determined 4 6

Homicide 1 2 l

Accident 1 4 5

Natural causes 14 15 16

Not determined 6 2

TOTAL 32 32 31 (*}

(*) Commissioner Johnston's finding is not available in the Pat case.

As can be seen in the table above, the Commissioner's findings of the cause of

death was reported as natural causes in 16 cases. The actual natural cause of

death has been categorised as follows: heart condition in five cases; respiratory

condition in three cases; condition resulting from alcohol abuse in three cases;

epilepsy in three cases and other disease in two cases.

TABLE 3.18: CUSTODIAL AUTHORITY AND MANNER OF DEATH

Manner of death Police Prison Total

Hanging 7 1 8

Head injury 5 5

Gunshot 1 1

Other external trauma 2 2

Alcohol use 3 3

Natural causes 4 9 13

TOTAL 19 13 32

105

3.2.5.5 Resuscitation attempts by custodial staff and/or prisoners

TABLE 3.19: CUSTODIAL AUTHORITY AND RESUSCITATION ATTEMPTS

Resuscitation attempted Police Prison Total

Yes 3 4 7

No 11 4 15

Not aQQiicable (died in hosQital} 5 5* 10

TOTAL 19 13 32

* In one prison custody case (W (27) the actual place of death was at hospital. However resuscitation was attempted prior to transport to hospital.

3.2.5.6 Level of intoxication at time of death

The mean of the blood alcohol content at the time of death was 0.08 per cent, the

median was nil and the range was nil to 0.61 per cent.

TABLE 3.20: LEVEL OF INTOXICATION AT DEATH

3.2. 5.7

Intoxication level

Alcohol-high Alcohol-moderate Alcohol-mild None

TOTAL

Time since last seen alive

Number

6

3

I

22

32

There were 16 cases attended at the time of death: eleven were in hospital; and

five died in the presence of other detainees/officers. The time since last seen alive

for the remaining 16 cases is shown in the table below.

106

TABLE 3.21: TIME LAST SEEN ALIVE

3.2.5.8

Length of time

Under I hour I and under 2 hours 2 and under 3 hours 3 and under 4 hours 4 and under 8 hours

8 and under I2 hours

TOTAL

Number

7

4

2

I

I

I

16

State of consciousness when last observed (e.g. awake, asleep but easily aroused, could be roused with difficulty, unable to be roused)

Fourteen cases were reported as awake when last observed prior to death, four

cases were asleep, three could not be aroused and the information in one case

was not known.

3.2.5.9 Demeanour when last observed (e.g., normal, aggressive, distressed, depressed)

Of the 14 cases reported as awake, two cases were noted as 'aggressive', two

cases as 'distressed', eight cases were noted as 'normal' in demeanour and two

cases were affected by acute illnesses.

The next three sections of the Report examine the 32 deaths in three broad

categories: the natural causes and medical cases; the self-inflicted/hanging cases

and the cases involving violence where the custodial authority was apparently

involved. In these sections I identify and attempt to explain some of the common

threads and patterns found in each of the categories.

107

3.3 ANALYSIS OF THE NATURAL CAUSES/MEDICAL

CASES

Nineteen of the deaths investigated in Western Australia fall within the category

of cases described as the natural causes and medical cases which I will discuss

under two classifications. Firstly those who died as a result of physical injury or

the gross effect of alcohol misuse. Secondly those which resulted from some

underlying process of disease.

3.3.1 BACKGROUND

This general category of cases involved the deaths of two females and seventeen

males. The ages of the deceased ranged from 29 years to 62 years, but only six

of them were over 30 years of age and only four over 40 years. The mean age

was 33.8 years.

These deaths occurred at various places throughout the State, some whilst the

deceased was still in custody and had not received medical assistance, others after

the prisoner had been removed to hospital for treatment and died in hospital. I

have stated elsewhere and need not elaborate why it is that the Commission had

jurisdiction to hear cases, where injury suffered whilst in custody has been held

to have caused or contributed to the death in hospital.

3.3.2 INJURY

Five persons were taken to police lockups in an insensible state, unable to be

roused and were later found to have been suffering life threatening injury which

was masked by signs of intoxication.

I refer to their deaths in order of event: Wayne Dooler 1980, Albert Dougal

1980, Roy Walker 1981, Faith Barnes 1982, Ginger Samson 1988. I need not

repeat the circumstances of their detention and the fatal consequences which are

described in section 5.2.3 where I examine what the cases have shown

108

concerning the detention of unconscious persons. These were part of a common

pattern in which an Aboriginal person found by the police unconscious was

assumed to be drunk and was arrested. In most cases it was more probable than

not that the detainee would have survived if he/she had been taken for medical

attention. In section 5.2.3 I have referred to amendments to Routine Orders to

deal with the assessment of intoxicated and insensible persons but as shown in

the case of Ginger Samson they are regarded by police as guidelines only.

Further lockup deaths are dealt with under this 'injury' classification because

death related to the extensive use of alcohol by the deceased.

Kim Polak, was arrested for street drinking. He was a chronic alcoholic with

other serious health problems and was at the time of arrest in an extremely poor

state of health. For 48 hours from the time of his arrest Polak could not retain

any food or fluids. Police officers knew that he was ill but did not appreciate that

his condition was so serious. His death in the lockup probably resulted from

alcoholic hepatitis. Police recorded his condition simply as 'intoxicated'.

Misel Waigana was a Torres Strait Islander. He too had a history of alcohol

abuse which directly contributed to his premature death in Central (East Perth)

Lockup as a result of delirium tremens. He had received treatment over the

previous ten years as a result of alcohol's effects, leading ultimately to brain

damage which was a catalyst giving rise to epilepsy.

He was arrested twice on the day of his death. After his first arrest he appeared

vague and uncomprehending and his condition was noted as 'affected by

alcohol'. He was released and rearrested after an hour at which time he was

exhibiting signs of extreme agitation. No assessment was attempted but his

condition was noted as 'good (intox)'. He continued to exhibit signs of agitation

and disorientation but those who observed him were unable to appreciate that

these were the signs of a seriously ill man. No effort was made to obtain medical

attention and he was later found dead in a cell. Cases like this tend to show what

100

little is known by the police of the serious effects of alcohol and withdrawal from

alcohol.

The cases which fall within the group covering deaths from injury and the di rec t

effects of alcohol show a recurring theme in which a person is taken into custody

because he cannot look after himself yet having deprived him of his liberty his

custodians failed to provide the care and attention that may have averted the

person's death.

3.3 . 3 DEATH FROM DISEASE OR UNDERLYING CAUSE

The most striking feature of the Aboriginal deaths occurring in custody was the

generally poor health of many of the deceased. The section on Health (5.4)

illustrates the risks of death in custody and the general poor health of those

whose deaths were investigated.

A remarkable illustration of this was the death from ischaemic heart disease of

Darryl Garlett, Ronald Ugle, Dixon Green and Steven Michael.

These deaths have confirmed evidence of low life expectancy amongst Aboriginal

men due to the high incidence of heart disease. Garlett and Michael di ed

prematurely in metropolitan hospitals where they were taken from prison. They

were 26 years old. Ugle and Green were prisoners at Broome. In 1983 Ugle

died aged 53 in Broome Regional Hospital. Two years later, to the consternation

of members of his family, Green had a fatal heart attack in Broome prison when

he was only 25 , was active in sport and had no previous indication of heart

disease.

The results of autopsies left no doubt that each of these deaths resulted from acute

myocardiac infarction and each deceased showed evidence of ischaemic heart

disease in atherosclerotic changes.

110

A common issue in these cases was the method of assessing the health of

prisoners on intake and transfer to other prisons. There is a standard procedure

providing that each prisoner is subjected to a medical examination by nursing

staff and an examination by a doctor. There is provision for medical records to

accompany a prisoner on transfer. A standard examination is not likely to

diagnose ischaemic heart disease which would require more active and expensive

procedures and is unlikely to be considered unless a particular prisoner is

suspected of heart trouble.

The following deaths were attributable to the effects of epilepsy:

1. Robert Anderson was arrested whilst drunk and found dead in the Wiluna

Lockup two days after his original arrest. His condition was not assessed

at the time of his arrest because of his drunkenness and on the following

day two cell checks were carried out seven hours apart. He was known

within the community to be an epileptic and police ought to have been

aware of this. In any event he should have been released on bail when he

had sobered up but was retained in a cell without adequate supervison and

no means of obtaining anti-convulsant medication should he have needed

it.

The pathologist had difficulty determining the cause of death but finally

decided it was attributable to epilepsy.

Investigation of this case produced medical evidence from a specialist in

neurology of interaction between epilepsy and a heavy intake of alcohol

which may produce epileptic seizure.

The deceased had a history of non-compliance with his medication. While

in the lockup he was prone to suffer an epileptic attack due to his prior

history, a state of alcohol withdrawal, and the absence of anti-epileptic

medication.

111

The case again raised the question of the need for police to follow

procedures for assessment and care of detainees.

2. As late as December 1988 there occurred a similar death which appeared to

have resulted from epilepsy. Donald Chatunalgi died in the lockup at Halls

Creek Police Station while serving a default term for non-payment of fines.

Some eight hours after being placed in the lockup and after prisoners had

been locked into a cell block detached from the station, he suffered a fit.

There was no alarm system but a fellow prisoner was able to attract the

attention of a civilian who alerted the police. The deceased was found to

be dead.

No attempt was made to resuscitate him and it is unlikely he could have

been revived. A forensic pathologist was unable at first to decide the cause

of death but after reviewing the deceased's medical records he determined

that the cause of death was epilepsy. Chatunalgi had a history of epileptic

seizure and was last known to have consumed alcohol 5 or 6 days before

his death.

These cases demonstrate the need for police to make active inquiries to ascertain

whether a detainee is vulnerable in a lockup. My individual reports examined the

inadequacies of the custodial care practices of police in remote areas with

significant Aboriginal populations.

The remaining cases in this category which involve death in relation to police

custody concern Milton Wells and Jimmy Njanji.

Milton Wells was taken into custody at Kalgoorlie, one of the bigger country

police stations. His death was an indictment on the deficiencies of lockup

practice. On the evidence before the Commission he should not have been taken

into custody in the first place. He protested his innocence of the charge of wilful

damage but this was ignored. He was not permitted to go to bail but was put in a

112

cell when the state of his health warranted medical assessment and treannent. His

condition deteriorated and his worsening condition should have been discovered

during periodic cell checks, but it was not. He was not sent to hospital until 8.30

the following morning and later died of lobar pneumonia and acute meningitis.

The death of Milton Wells highlighted issues so frequently raised about the

deficiency of custodial care and its tragic effects. It also revealed serious

inadequacies concerning the investigation of the death for the purpose of a

Coronia! inquest.

Jimmy Njanji died in Port Hedland Hospital where he was admitted after

completing a sentence of imprisonment and being released. However his death

resulted from a terrible infection which caused him to eventually become

asphyxiated and choke to death. The infection was a direct result of a head injury

which was inflicted by a fellow prisoner while Njanji was in custody. [Hence

the case was investigated.] Hampered by inability to communicate with the

patient, doctors failed to recognise the nature of his illness and its inexorable

progress brought about his death from largyngeal oedema. The circumstances of

this death were highly unusual.

Njanji was from traditional desert people. He was virtually an outcast who lived

in deprived conditions unable to communicate in English. His death raised

questions about the professional competence of those who were required to treat

him and about inadequate investigation of the circumstances of his assault whilst

in prison custody. Those were matters which were not the subject of

investigation in the Coronia! inquiry.

The propensity to underlying disease has been borne out in my findings in the

last four cases in this category in which four prison inmates died of natural

causes in or following custody in prison. The cases also demonstrate the need

for expert medical management of those suffering disease.

113

I. Nita Blankett was a 40 year old Aboriginal woman who suffered from

chronic asthma. On the day of her death she had a bad attack but those

responsible for her care failed to send her for medical treatment until it was

too late. She died en route to the medical centre. The urgent need for

medical was not understood by nursing and prison staff. Her

death could have been prevented if those responsible had known of the

potentially fatal nature of an asthma attack. There were also further

problems of delay when the decision to seek medical help was finally

taken. The case illustrates the inadequacy of using a prison van instead of

an ambulance to remove her.

A competent inquest in this matter led to recommendations for the

treatment of asthmatic prisoners which recommendations were adopted by

prison authorities.

2. Bobby Bates was a young traditionally oriented Aboriginal who died in

hospital of broncho-pneumonia which apparently developed whilst he was

in Eastern Goldfields Regional Prison. Witnesses spoke of the possible

influence upon his death of traditional Aboriginal practices but he was

found to have died of natural causes. His treatment in custody and his

medical and hospital treatment was reasonable and proper.

3. Donald Harris, developed a fatal condition, pancreatitis, whilst in Canning

Vale Prison. His general treatment by prison officers and medical

treatment by prison medical staff left no room for complaint. He was

promptly moved to hospital where medical treatment failed to avert his

death.

4. The remaining death from natural causes concerned An Aboriginal Man

Who Died at Sir Charles Gairdner Hospital. He was convicted of a

serious offence in the north of the State and was sent away to serve

imprisonment at metropolitan prisons. Apparently during this time he

114

contracted a rare and virulent fonn of tuberculosis which was not

diagnosed or treated. In the area of his medical diagnosis and treatment at

the prison the evidence was complex and I had to consider the

responsibility of prison authorities and others who were involved in caring

for him. I found that the medical care afforded him by the prison medical

authorities was deficient. He should have been admitted to hospital,

notwithstanding failure to make a definitive diagnosis and, I found that the

Prison Medical Officer should have acted on his own assessment and

initiative to arrange earlier hospitalisation. However, I did not consider

that there were shortcomings sufficiently grave to give rise to charges

against individuals.

These last three deceased died in hospital having been transferred from prison

custody for treatment. The investigation of their cases concerned the role and

perfonnance of the prison medical service and health professionals outside the

prison system. I found in the case of Bates and of Harris that every reasonable

effort was made to diagnose and treat the prisoner's condition. Those who

treated the Sir Charles Gairdner Hospital case were confronted with a condition

which is rarely found today in the general community. This may have adversely

affected their efforts to avert his death. Those cases, also, raised the matter of

the use of restraints on dying prisoners and illustrated an over-emphasis by

custodial authorities on security over humanitarian considerations.

I have referred in a summary way to the main features of the cases that fall into

this category. They illustrate the general poor health of many of the deceased and

the prominence of alcohol as a factor exacerbating the debilitated condition in the

case of deaths in police custody. In appropriate sections of this Report I have

considered the responsibilities of custodial authorities and measures to reduce the

incidence of further deaths.

115

3.4 ANALYSIS OF THE HANGING/SELF HARM CASES

3.4.1 CHARACTERISTICS

In this section I have attempted to describe and analyse the relevant cases in a

manner which highlights the immediate causes (where apparent) and suggests

possible explanations for those deaths found to have been self-inflicted. I refer to

the opinion of several psychiatrists who gave evidence before the Commission.

Details of those psychiatrists and the matters in which they gave evidence or

provided reports to the Commission are contained in section 5.4.5 of this Report.

1. Background

Nine Aboriginal people died in custody, by their own hand, during the period

covered by my tenns of reference. These people share many similarities in

background and the similarities far outweigh the differences:

Eight of the nine were separated from their families during childhood,

brought up in a Mission or detained at a juvenile institution (or both).

Eight of the nine had orders made committing them to the care of the Child

Welfare Department.

Every one had convictions recorded against them while they were

juveniles.

All had convictions for alcohol-related offences (with one exception,

although he had a history of excessive drinking when out of custody).

Every one of the nine was either single or had separated from their partner

at the time of death. Only two had recently separated.

Each of the deceased was unemployed. None had been in regular

employment either at all or for many years.

116

While there are many similarities, it should not be thought that the deceased were

in any simple sense, an homogenous group. Some of these deceased adhered to

traditional culture and practices, although this was more difficult for others due to

separation from family and relations as a result of their mission upbringing and/or

detention at juvenile institutions. Another contrast could be made between Hugh

Wodulan who lived at Broome at the time of his death but had a rural upbringing

in a very distant part of the State and Edward Cameron or even Bernard McGrath

both of whom lived in large regional centres and lived pretty much an urban

lifestyle. Again by contrast Stanley Brown was an important 'lawman' in his

area (the Western Pilbara). He played an important part in the revival of

traditional ceremonies.

2. .I&ath

Commissioner Muirhead and I have already found that all 9 deceased died by

their own hand. In only one case was it established that other persons were

involved in the death. That case was the death of Bernard McGrath. I have

already reported that in my opinion the involvement of another prisoner was

limited to assistance, therefore none of the deaths was a homicide.

Seven of the nine were under thirty-five years of ag{ at their death. Four were

between twenty and twenty-four years old. There was only one female,

Christine Jones.

The method used in each of the nine cases was as follows:

Hanging by partial suspension (7);

Self-strangulation, i.e. no suspension point (1 );

A razor cut to the throat (1).

Christine Jones used the sleeve of her cardigan; Hugh Wodulan employed a

bandage which had been used 1.0 dress a burn; Paul Farmer used a razor blade

concealed in his clothing; Stanley Brown used a mattress cover; Bernard

117

McGrath used a Government issue towel, tom into a strip; Ben Morrison used a

strip of government issue blanket; Edward Cameron used one of his own

shoelaces; Graham Walley used his prison issue belt; and Wongi strangled

himself with a bandage used to dress a laceration. With the exception of Bernard

McGrath, each of the prisoners was alone in a cell at the time of death.

Each of the deceased died within three hours of being taken into custody or, in

the case of the prison deaths (Walley and Farmer), within three hours of their

confinement following disturbed behaviour.

CHRISTINE 18 minutes from lodgement, 11 minutes from last check JONES

HUGH discovered dead less than three hours from confinement, body WODUlAN cold.

PAUL discovered within three hours, last check one hour 15 minutes FARMER earlier.

STANLEY discovered within three hours. Last check two hours earlier. BROWN

BERNARD died within a halfhour oflodgement, probably within 15 McGRATII minutes.

BEN died about one hour from lodgement, 10 minutes from the last MORRISON cell check.

EDWARD discovered three and a half hours from lodgement. Body cold CAMERON and early signs of rigor mortis. Forensic Pathologist estimated death within minutes of lodgement.

GRAHAM one and a half hours from final lodgement. 20 minutes from w ALLEY last cell check.

WONGI died about a half hour from lodgement and 15 minutes from the last cell check.

Each of the seven people who died in police custody was under the influence of

alcohol. The post-mortem blood alcohol levels were as follows:

118

Christine Jones (0.250%);

Edward Cameron (0.2%);

Wongi (0.162%).

Ben Morrison (0.195%);

Hugh Wodulan (0.264%);

Stanley Brown (0.270%);

Bernard McGrath (0.223%);

It is disturbing to compare the above figures with the police assessment that

Christine Jones, Bernard McGrath, Ben Morrison, Edward Cameron or Wongi

were not drunk or heavily affected by alcohol.

The community perception, unfortunately shared by the police, is that a person

who is suicidal will be depressed and show signs of sadness. The only one of

the deceased in that category was Bernard McGrath. Christine Jones, Ben

Morrison, Edward Cameron, Graham Walley and Wongi were all considered to

be agitated at the time or shortly before their lodgement in police cells. Hugh

Wodulan was considered to be his usual self although slightly quieter. Stanley

Brown appears to have given no sign of his emotional state, at the time of arrest

or lodgement in the lockup.

The Criminology Research Unit of the Royal Commission considered all reported

incidents of self-inflicted harm (short of death) in custody in Australia for a six

month period, 1 April 1989- 30 September 1989. The results of their survey

was published in Criminology Research Unit Research Paper No. 16 entitled:

'Self-Inflicted Harm in Custody'. Data for that study was provided to the Royal

Commission by police and prison authorities in each Australian State and

Territory.

A total of 375 cases of self-inflicted harm in prison and police custody were

reported as having occurred during the six months period. 223 cases occurred in

prison custody and 152 cases in police custody. I note areas of similarity with

the circumstances of death of those who died by self-inflicted means in police

custody in Western Australia: 73% of reported attempts in police custody took

119

place within the first three hours of custody. Further, in 86% of the reported

incidents, people were alone at the time of the attempt.

That six of the nine who died by their own hand were in a high emotional state,

considered by the police to be agitated or aggressive, bears out the evidence heard

from psychiatrists that the typical suicide in custody is impulsive rather than a

result of prior planning and I can confirm the following excerpt from the

submission of Cawte that agitation frequently precedes suicide. 'Its [suicide]

signs include (a) high tension, (b) high anxiety and (c) strong emotions of guilt,

rage or revenge' (Rowan, 1990:293). I have heard evidence that the typical

suicide out of custody will occur after weeks or months of depression and

follows hints, threats or attempts.

From my investigations I can say that four of the deceased had a history of

previous suicidal behaviour or self-harm. Christine Jones had a history of self­

mutilation by cutting herself on her non-dominant arm. Paul Farmer had

previously slashed his ann with a razor on more than one occasion. Ben

Morrison had been caught in the act of attempting suicide by hanging at a lockup,

some years before his death and Graham Walley had discussed suicide both

before and after his final arrest. Bernard McGrath had previously threatened

suicide and had stolen some of his father's medication. In the months before his

death he had openly discussed suicide and engaged in morbid behaviour i.e.

visiting his sister's grave and mourning her loss (she had been dead for some

years).

Seven of the deceased did give hints or make threats shortly before their death:

Hugh Wodulan told a relative'you will miss me, you won't see me again' ; Paul

Farmer threatened to kill himself shortly before being placed into an Observation

Cell; Stanley Brown said he was 'going to do himself up' a few days before his

death, after his wife refused to return to him; Bernard McGrath told friends two

weeks before his death that he was thinking he might 'end it all' ; Ben Morrison

threatened to kill another prisoner at a lockup and then kill himself (and he was

120

overheard by a prisoner, shortly before his death, to be talking about Jesus and

about 'going home'); Graham Walley was heard by a prison officer to say 'You

will be answering to my people. I am going to hang myself I've had enough.'

before he was apparently calmed by the Superintendent and locked alone in his

cell; Wongi had earlier on the day of his death threatened to kill himself and also

tied a sock around his neck.

3.4.2 IS AN EXPLANATION POSSIBLE?

As the psychiatrists have so frequently said, it is never possible to know with

certainty why a person takes their own life. The best assessment I can make for

the reason(s) behind these deaths is as follows. I am conscious of my limitations

in doing so.

Christine Jones

I do not believe that Christine Jones was suicide when she was

arrested. She was a person capable of extreme or explosive emotional reactions

which even friends found would take twenty minutes or more to control. In the

opinion of Professor German she suffered from brain damage principally as a

result of her alcohol consumption which commenced when she was a teenager.

She had a history of slashing her non-dominant arm during episodes of extreme

frustration.

When she gave herself up to police she expected to be taken immediately to

prison. Upon being informed that this would not occur she became extremely

upset and agitated. When placed in a cell by herself she kicked a bucket,

breaking the handle and then began kicking the mattress. She was expressing

uncontrollable frustration and anger. She had nothing in the cell with which she

could harm herself, apart from any item which could be used as a ligature. I

consider that her death was impulsive and arose out of her uncontrolled emotional

state rather than depression, much less any depressive illness. She may have

also been frightened by her surroundings as she had very little experience with

121

police custody and had previously expressed her fear of the police. In this

respect she is quite different from most of the other deceased. Hugh Wodulan,

Paul Farmer, Stanley Brown, Ben Morrison, Graham Walley and Wongi were all

very familiar with police custody.

Hugh Wodulan

My inquiry revealed no single or overriding reason for Hugh Wodulan to take his

own life. However, it is also possible that from his perspective he felt that he

had no particular reason to go on living. He had been separated from his family

and relations because of his mission upbringing and detention in juvenile

institutions. He had no wife or children of his own. His life was a cycle of

drinking, a record of petty crime, police custody and short prison sentences. A

way to break the cycle was to give up alcohol. He had been unsuccessful at his

first attempt and had been refused re-admission to the local alcohol rehabilitation

centre in Broome as his behaviour was considered too disruptive. Those who

knew him considered that his behaviour and psychological state had deteriorated

in the weeks before his death, he may very well have appreciated that this was

happening.

Approximately three weeks before his death he was admitted to Broome Hospital

with a diagnosis of alcoholic hallucinosis. In many respects his lifestyle would

be similar to that of Ben Morrison and Wongi. I cannot say whether he had been

contemplating suicide for any significant period before his final arrest. I accept

the evidence of the psychiatrist for the Kimberley Region, Dr McLaren, that

people rarely commit suicide for a single reason. His death surprised the police

on duty as he was known to be a gentle soul who 'had the run of the lockup'.

The sadness of the case is difficult to convey in a few words.

122

Paul Fanner

Paul Fanner had a history of diagnosed mental illness and of prior suicide

attempts. There was evidence that he may have ceased taking his anti-psychotic

medication. Commissioner Muirhead found it probable that he had been

dispensed this medication but had failed to take it on the days prior to his death.

Paul Fanner had spent approximately 13 of the last 18 years of his life in prison.

He had first been sentenced to adult imprisonment at the age of 15 years. In the

Report of his inquiry into this death, Commissioner Muirhead stated:

He wished to die . For him life, largely spent in prisons, no longer had any meaning; he had attempted to kill himself on previous occasions. Throughout his life he had been proud of his Aboriginality, conscious of traditional culture and tied by bonds of affection to his family. It may be said, without undue emotion, that

he felt impelled to die. For him death held no fear; it was a passing over to join his deceased relatives. He was not proud of the crimes that resulted in his incarceration ... (Report page 1)

Stanley Brown

Shortly before his death Stanley Brown had unsuccessfully attempted to reunite

with his wife. He had recently suffered what must have been a very unpleasant

episode of alcohol withdrawal and at the time of his death may have been about to

experience the same ordeal. To find himself once more in the lockup on a charge

of drunk with nothing in particular in the future to hope for and the possibility of

another dreadfully unpleasant experience of alcohol withdrawal only a few hours

away, may have been more than he was willing to bear. I should emphasise that

he would not be thinking clearly, rationally or reasonably with a blood alcohol

content of .270%. His thinking would be disordered and his perceptions would

be affected. He would be much more vulnerable to suicidal impulses.

123

Bernard McGrath

Bernard McGrath had been expressing suicidal thoughts for some weeks before

his death. He also often complained of harassment by the Kalgoorlie police.

One week before his death he received injuries whilst at the Kalgoorlie Police

Station Lockup. On the night of his death he appeared to have been singled out

by two police officers, one of whom was the principal subject of his complaint of

police harassment. He was lawfully arrested on an outstanding warrant. To add

to his dismay of being arrested he may have believed he was facing six months

imprisonment because that had been the sentence handed down for an earlier

offence of a similar description.

Bernard McGrath was crying at the police station following his arrest and after

being placed in the lockup he rushed into a cell and began to tie a towel around

one of the window bars. Two other persons saw this but did not attempt to

dissuade him and one indeed even assisted him to commit suicide. Although he

was no doubt unhappy at the time, I believe the catalyst for his death was the

arrest, and further that the prospect (arising from his misconception of the

charge) of six months imprisonment may have been a significant factor.

Ben Morrison

Ben Morrison suffered from two mental conditions at the time of his death:

mania a potu which is a transient drug induced psychosis which causes abnormal

behaviours, and the early stages of Alzheimer's disease i.e. dementia. The

former condition is brought on through alcohol consumption and the latter

condition is exacerbated by alcohol consumption. One expert psychiatric opinion

was to the effect that, under the influence of alcohol, Morrison's behaviour

would be affected to the extent that 'anything could happen'. Shortly before his

arrest he was considered by a civilian to be senile. In short, he was a mentally ill

person under the influence of alcohol distressed by the circumstances of his

arrest.

124

Edward Cameron

A combination of factors in this case may provide an explanation for the death of

Edward Cameron. He was a well-known and popular local figure chiefly

through his football prowess. He and several other males had been accused of

what amounted to a 'pack rape' (subsequently, all of his co-accused were found

not guilty at trial). The allegation was published in the local press and seemingly

believed by relatives and friends alike. Cameron suffered a dreadful fall from

grace. His wife left him taking his only child. On the night of his death he

became heavily intoxicated and committed a break and enter. He was arrested

and denied bail and the offence if proven would have amounted to a breach of

probation. I would not find it surprising if, upon being placed alone in a cell,

Cameron reached the depths of despair.

Graham Walley

Again, in this case, there were a number of factors which may explain Walley's

death by his own hand. While he was in prison, his wife had taken up with

another man. She had declined to arrange for any visits from his children which

deeply distressed him. The Department of Corrective Services had made an error

in calculating his parole and shortly before his death informed him of their

mistake which meant that he was to serve several more months in prison than he

had expected. He had an outstanding assault charge against a prison officer

when he died.

On the day of his death, under provocation from another prison officer, he lost

control, barricading off the maximum security section of Greenough prison and

threatening prison officers. He also threatened to take his own life. As I have

stated, he was subsequently locked alone in his cell. His correspondence with

other family members reveals he was deeply depressed and had been

contemplating suicide for some time.

125

Wongi 's death has some parallels to that of Hugh Wodulan. Both were in thei r

late twenties, both had unsuccessfully attended an alcohol rehabilitation

programme, they each had an extensive criminal record for minor offences, a

severe drinking problem and they were both loners without much social support.

They were both 'institutionalised' and consequently unable to function effectively

outside prison (they would have this in common with Graham Walley). Wongi's

parole plan had failed because of his unsuccessful attempt at al cohol

rehabilitation, although that was mostly due to poor execution of the plan on the

part of the Department of Corrective Services. Wongi had committed a number

of blatant offences and was expecting to return to prison which he literally

regarded as home.

On the night of his death he had been arrested three times within twenty-fou r

hours. After the second arrest he had threatened suicide and behaved in a suicidal

manner as a means to obtain bail. After his third arrest it seems that he no longer

cared whether his suicidal behaviour was successful in obtaining bail or resulted

in his death. Again, my strong impression is that he was a person who had

reached the end of the road, not for any single reason, but because he was sick of

his life and he could see no prospect of changing it.

In summary this Commission received evidence that at least five of the nine were

suffering a recognisable mental illness (in terms of western psychiatry) at the time

of or shortly before their death:

Christine Jones

Hugh Wodulan

Paul Farmer

Stanley Brown

Ben Morrison

(Organic Brain Disorder)

(Alcoholic Hallucinosis)

(Schizophrenia, depressive disorder)

(Alcohol Withdrawal)

(Mania a Potu, Alzheimer's disease)

126

Two had revealed clear expressions of suicidal ideation and depression weeks

before their death (McGrath and Walley).

Edward Cameron's life had been shattered as a result of the allegation of rape (of

which he was innocent).

Wongi's death has a number of elements which make it difficult to classify:

accident; manipulative behaviour; protest; despair.

3.4.3 DISCUSSION

Although there are demonstrably significant personal factors in most of these

cases which may explain the reasons for the individual deaths, there remains the

question of why six of the eight hanging deaths occurred in an eighteen month

period (June 1987 to December 1988). The explanation put forward by the

Police Officers' Union is that the individual deceased were affected by media

publicity of deaths in custody at the time. Such an explanation is not to be

dismissed lightly. Each case was carefully considered for the possible

significance of media publicity i.e. suggestion as an explanation for the death.

Commissioner Dodson has also examined the possible significance of media

publicity in his report.

I also note that the Police Department have provided the Royal Commission with

their own records of attempted suicide in police custody between I January 1980

and 1 September 1988 (attachment to GO/W/31). Police records revealed that,

similarly with successful incidents of suicide/self-inflicted death, there was a

dramatic increase in attempts in 1987 and 1988. In 1987 it was noted that almost

all Aboriginal attempts were by hanging.

I do not believe that any of the deaths was a protest or attempt to embarrass police

or prison authorities. It is true that newspaper clippings of Aboriginal topics,

including deaths in custody and also concerning the death of Edward Cameron,

127

were found in the cell of Graham Walley. However at that time he was

concerned with Aboriginal issues. More importantly he was already clearly

thinking about suicide, as revealed in his correspondence. I have heard

psychiatric evidence that people contemplating suicide are often very interested in

the deaths of others, so rather than the publicity encouraging Walley to think of

suicide I believe it was more likely that Walley was already thinking of suicide

and the newspaper clippings were simply an expression of his suicidal thinking -rather than instruments of suggestion upon an otherwise healthy mind.

So one is left with the choice of publicity as the catalyst for the deaths to explain

the frequency or coincidence as the explanation for so many deaths in such a

short period. Neither explanation is especially compelling.

I have not found any of the explanations that have been put forward as being

particularly satisfactory. I consider that all of the Aboriginal people who died by

their own hand in custody within the period, were suicide risks whether there had

been media publicity or not at the time.

At least two other deaths which were due to natural causes could, I believe,

almost as easily have been hanging cases. Kim Polak, who was a chronic

alcoholic, had a previous history of psychotic behaviour including episodes in

prison where he heard voices telling him to kill himself by hanging. Ginger

Samson, also a chronic alcoholic, had expressed thoughts of suicide when in

custody.

There is much evidence before the Commission on alcohol acting as the catalyst

to suicide, in a multiplicity of ways. At initial high levels the subject loses touch

with reality. Alcohol also exacerbates the impulsive behaviour. As the alcohol

level falls the subject can experience 'a morbid and unpleasant state of alcohol

withdrawal which is associated with feelings of fear and anxiety; nightmarish

thoughts of death and pain; and frequent active suicidal ideation.' (German).

128

It has already been noted that arresting alcoholics and placing them in a police

lockup is 'Concentrating a suicide vulnerable,population' in custody.

This leads me to conclude that the chronic alcoholic who dies of natural causes or

as a result of trauma (head injury) is not necessarily part of a distinct population

from that group which dies by hanging, although the ultimate cause of death may

be different. The populations overlap.

Two other points need to be made about alcohol as a factor in the hanging deaths.

The first is that the police in this State seem to have had no appreciation that a

person who is heavily intoxicated is ill. If the same person was brought to the

police station in a similar condition but the explanation was that they had taken an

overdose of recreational drugs or prescription medicine then I have no doubt that

the police would act on the basis that the prisoner needed medical attention. But

it does not seem to matter how intoxicated the prisoner is, medical attention is not

sought if the person is just drunk.

The second point is that the sort of behaviours which a prisoner in an advanced

state of intoxication will often display have been by the police dealing

with the prisoner to be normal for a person of that race, or less commonly,

normal for a drunk. This point is made by Professor German during the

Morrison Inquiry:

The third point I would make is that if you have a population, like an Aboriginal population, about whom there are stereotypes, behaviours which might be regarded as very abnormal in a white Anglo-Saxon resident of Nedlands, may be disregarded and I think

that is another factor that has to be borne in mind, that one has to have some sort of awareness that these behaviours are abnormal in any population. They are not culturally characteristic. They are characteristic of pathology, and I would see that as the most important lesson that I would perceive as requiring to be absorbed from the cases I have been involved with.

Seven of the nine died in a police lockup and the remaining two died in prison.

What I find especially significant about the location of death, at least in the case

129

of police custody, is that every death occurred at a large police station in a heavily

populated area: Broome (2); (2); Perth (2); and Kalgoorlie (1). I

regard this as a surprising result. It cannot be due to the larger regional police

stations having a much greater detention rate than any of the smaller country

towns. Small centres such as Halls Creek and Fitzroy Crossing have arrest and

detention rates per head of population as high or higher than any regional centre.

One of the most significant factors in custodial deaths, that has been identified by

research, has been the post mortem level of alcohol of the deceased. Yet Halls

Creek and Fitzroy Crossing, which are communities in which literally thousands

of arrests or detentions for drunkenness have been made per year, have not had

one hanging death in custody. Conversely Geraldton, a community which I am

informed by the police does not have a public drinking problem (and which

records confirm has few arrests or detentions for drunkenness), has had two

hanging deaths in police custody.

This has not led me to doubt that alcohol is a very significant factor in custodial

deaths, but it emphasises that it is only one of a number of inter-related factors

and that due attention must be given to the lockup environment. By that I mean

the combination of cell conditions and custodial care.

I gained the strong impression, during my visits to lockups throughout the State,

that some of the most 'primitive' lockups in terms of facilities were also among

the least conducive to suicide. In the smaller lockups such as Wiluna the

prisoners had the run of the grounds of the police compound (of which the

lockup was only a part) during the day and provided they informed the Officer­

in-Charge, could leave the lockup to visit the nearby store or nursing post. While

in the lockup they could be visited by their friends or relatives. There was a

minimal feeling of confinement. This system depended upon mutual respect and

trust.

130

This lockup could be contrasted with that of South Hedland: a modern brick

structure with internal cells, none of which are open to the elements. In summer

the heat is so unbearable that the Officer-in-Charge has no choice but to leave the

prisoners in the corridor outside their cells.

Police lockups are discussed in more detail later in the Report.

The other factor of relevance that I have mentioned is the standard of custodial

care. This has many aspects, most of which are discussed in other sections of

this Report. But one aspect, which must be mentioned in the context of the

hanging cases, is whether the police on duty or those who deal with prisoners

have a caring attitude.

I could not help but notice the difference in the way Aboriginal people in the

smaller country centres spoke about the police compared to the regional centres.

In the former there was a degree of mutual respect. In the latter this was rarely

the case. A local Aboriginal arrested in one of the smaller country towns may

have little fear of the lockup. He will usually know the policeman who arrests

him or at least some of the officers on duty including the Officer-in-Charge. He

will likely be among friends in the lockup and knows that he will be able to talk

to friends or relatives outside the lockup. I do not mean to suggest that such an

Aboriginal would be pleased to be in the lockup, but rather it is less likely to be a

place of terror.

This can be contrasted with the regional centres and metropolitan stations where

the lockup is a place to be feared. Many of these centres have a rostered police

complement of 30 to 50 officers. The arrestee is not likely to know many or any

of the officers on duty and the attitude of the officers is palpably impersonal

compared to the smaller lockups. Let me give an example drawn from one of the

cases. Christine Jones was agitated, aggressive, and complaining. None of the

police officers on duty at Midland Police Station attempted to calm her down or L

131

deal with any of her complaints. She was put in the lockup to 'calm down' by

herself.

The attitudes of the police officers on duty in the cases of Morrison, Cameron

and McGrath were illustrative of a similar lack of care. I repeat the caring attitude

is much more readily found in the smaller country centres. Further discussion

about the attitude and responsibility of police officers is found later in the Report.

3.4.4 PREVENTION OF DEATH IN CUSTODY

This subject is dealt with elsewhere in the Report. However, it is convenient at

this point to stress what I consider to be the most important measure to prevent

self-inflicted death in custody and that is placement. Any prisoner, especially an

intoxicated or emotionally affected individual (whether the signs are of agitation,

distress, aggressiveness or frustration etc.) should not be placed alone in a cell.

The person must be constantly under observation by another prisoner or a

custodial officer. Only one of the self-inflicted deaths occurred in the presence of

other prisoners, and that case must be considered unusual in that the prisoners

instead of alerting the authorities, either stood by or assisted the death.

I regard placement of a prisoner either with other prisoners or subject to constant

supervision as far more important than placement in a mesh modified cell i.e. a

cell modified to eliminate any suspension points, which is the preferred choice of

the Western Australian Police Force. Wongi easily demonstrated how ineffective

such modifications are, even to prevent a death by asphyxia. Indeed the only

successful Aboriginal suicide in police custody since the cell modification

program was substantially implemented, was in such a cell.

132

3.5 OTHER CASES INYOLYING YIOLENCE

The deaths that I have included in this category are those of John Pat, Charles

Michael, Robert Walker and Ricci Vicenti. The reasons for examining these

deaths separately are largely because of the violent nature of the deaths which

resulted in concerns in the community that unnecessary force may have been

used against the deceased by custodial authorities. The public outcry about these

deaths were very much a part of the impetus in the call for a Royal Commission.

John Pat, Robert Walker and Charles Michael all died following a fight or

struggle involving custodial authorities. Ricci Vicenti died after being shot in the

head by a prison officer. Allegations of unnecessary use of force by custodial

officers have not been substantiated in two of the cases (Charles Michael and

Ricci Vicenti). In the inquiry into the death of Charles Michael, Commissioner

Muirhead was of the view that there was insufficient evidence to find a

connection between the struggle between Charles Michael and prison officers and

the death. In the inquiry into Ricci Vicenti's death I found that the lethal shot

fired by the prison officer was justifiable according to law. However in the

individual report into Ricci Vicenti's death and later in this Report I examine the

adequacy of the current statutory provisions in this regard. In the inquiry into

Robert Walker's death Commissioner Wyvill has made findings that excessive

force was used to restrain Robert Walker during his struggle with prison officers

and that the application of batons to Robert Walker by some prison officers was

unreasonable and unnecessary. Commissioner Johnston had not reported on the

inquiry into the death of John Pat at the time of writing this Report so I am

confined to a fairly perfunctory examination of the issues in that matter.

Below I set out very brief summaries of each of the deaths for the benefit of

those unfamiliar with the circumstances of these cases.

133

Charles Michael

Charles Michael had been suffering a depressive illness for which he was treated

for some years. Some days, possibly a few weeks prior to his death, Charles

Michael suffered a silent myocardial infarct. There was no previous confirmed

evidence of heart disease. He made no complaint of symptoms calling fo r

treatment for heart disease. On the day of his death, Charles Michael was

distressed by hearing of the death of a relative. At tea time he was observed to be

acting strangely. Hi s depression intensified and he reached the stage of agitated

psychotic depression. He visited the prison office probably for help. It was

suggested that he be breathalised which he found threatening. He clutched at the

officers not intending any hostility but his actions were interpreted as such. A

struggle ensued during the course of which he was handcuffed with his hands

behind his back, his ankles were secured with a belt. These two restraints were

secured by a further belt running between the handcuffs and the ankle belt and it

was tightened by a baton being twisted. The officers, varying from five to three

used their body weight and their own limbs to force Charles Michael to remain

still. He was not kicked or struck in the process. The struggle commenced at

about 9.50 pm and continued until 10.25 pm when it was observed that Charles

Michael had urinated. He was placed on his side and his airway cleared. It is

probable that Charles Michael was then dead, the consequence of a heart attack.

In his finding, Commissioner Muirhead was not prepared to find that there was

any connection between the struggle and the death.

There is insufficient evidence to enable me (or perhaps anyone) to predict events had there been no struggle. He may have died at any time. Had the true situation been known, major treatment may have perpetuated life - but to predict his future involves speculation.

Robert Walker

Walker was permitted to stay in his cell for three days, approximately three

weeks before his death because he was feeling uptight. Four days before his

death he was behaving oddly according to his cell mate, pacing up and down and

134

mumbling. From then on the mumbling became almost continuous. On the

evening before his death he did not eat his meal, he paced up and down,

mumbling, playing guitar, turning his radio up and playing louder. He was told

to turn the music down on several occasions. A further complaint was made

about loud noise at 11.10 pm. At this time, it appeared to the officer that he was

under the influence of alcohol or drugs. The Chief Officer was called. The

power to the cell was cut off. There was no further noise and the prisoner was

not inspected. At 1.00 am and 2.00 am noise was coming from his cell but

there was nothing unusual about Walker's appearance.

Shortly before 4.00 am, further noise 'was observed and Walker was seen to

have bloodied strips of sheet wrapped around his wrists. He was talking about

phantoms. Three officers and the medic went to the cell, he was reluctant to

allow examination by the medic, continued to talk of phantoms, was sweaty and

tense. He was reassured by the medic and was to be taken to the hospital for

treatment to his cut wounds. Walker agreed to go but appeared reluctant to leave

the cell. He observed a firearm and yelled 'Murder, murder'. There was a

struggle on the stairs and the medic was kicked and fell. The other officers

rushed Walker to the ground floor. Walker and two officers left the division and

once outside Walker knocked an officer to the ground and then moved further

along the pathway. He was charged by one of the officers and grappled until

they fell on the grass and the other officers came to the assistance. Up to five

officers restrained Walker with various holds and he was hit with a baton by one

officer in the arm and by another officer on one or both legs. Watching

prisoners alleged a severe beating which was discounted by Counsel Assisting in

final submissions.

An injection of largactil was administered to Walker after the struggle had been in

progress for some time. Walker calmed very quickly, stopped struggling and

went limp. He was handcuffed and carried to New Division and placed in an

observation cell. It was observed that his breathing was shallow and his pulse

was weak. A doctor was summonsed and resuscitation equipment obtained from

135

the hospital and commenced. He was dead within seconds of the ani val of the

doctor.

John Peter Pat

The following summary is very brief due to the nature of the Royal Commission

inquiry into John Pat's death. Many of the factual issues surrounding the death

were contentious and no findings have yet been made. The bald outline of fac ts

is as follows.

John Pat died at the Roebourne Police Lockup on the night of 28 September 19 83

following an incident at the hotel involving three off-duty police officers and a

police aide fighting with a number of Aboriginal youths. Pat was involved in the

fight and blows were exchanged between Pat and one or more police officers.

When the police van arrived at the scene John Pat was on the ground. He was

put into the back of the police van.

At the police station John Pat was taken to the cell by the police. Some time later

he was found dead by the police. The post mortem results showed that he di ed

of closed head injuries. In addition he was found to have fractured ribs, a tom

aorta and other minor injuries consistent with being in a fight.

Ricci Vicenti

Ricci Vicenti died in the Royal Perth Hospital on the evening of 31 March 1982.

Ricci Vicenti was a remand prisoner at the C.W. Campbell Remand Centre,

Canning Vale. On the evening of28 March 1982 Ricci Vicenti climbed onto the

roof of the Remand Centre. He ran along the rooftop and then jumped down

onto the lawn area surrounding the building and ran towards the perimeter. Then

he scaled a low inner perimeter fence and began to negotiate his way through the

razor wire marking the outer boundary. While he was doing this he was struck

in the back of the head by a .22 bullet. He fell backwards to the ground where he

remained until a prison officer anived at the scene. He died three days later in

136

hospital. The Commission was unable to detennine the precise reasons for his

attempted escape.

The issues raised by the John Pat case can be considered separately from the

three other deaths. John Pat was in police custody at the time of his death

whereas Charles Michael, Robert Walker and Ricci Vicenti were in prison

custody.

The deaths which occurred in prison raised a number of issues associated with

policies and practices in relation to prison and prisoner management which have

been examined in detail by the Royal Commission in Western Australia. I refer

particularly to section 5.3 of this Report on Prevention of Death in Prison

Custody.

Some of the issues raised in the Inquiry into John Pat's death are discussed

below. I have not included some of the more controversial issues which were

canvassed during the inquiry due to the denial by police officers and the lack of

findings by the Commission.

However, the issues involving police policies and practices that arose in this

matter could be broadly described as:

(a) very poor police/community relations in Roe bourne;

(b) police involvement in the fight at the hotel;

(c) whether there was adequate, if any, assessment of the condition of the

prisoners detained at the police station;

(d) quality of the police investigation.

Many of these issues arose generally in the inquiries into the other deaths in

police custody and are discussed in more detail elsewhere in the Report.

137

However, the issue highlighted by the three deaths discussed in this section is the

emphasis that consistently has been placed on prison security over and above the

welfare of the prisoners. The deaths of Charles Michael and Robert Walker

demonstrate the way in which prison officers reacted to an emergency situation

involving a prisoner who was in a distressed and mentally disturbed state. In

both instances the perception was that security concerns demanded that the

prisoner be restrained at all cost by whatever means were available without any

consideration of the well-being of the prisoner and the effects of their action upon

the prisoner.

Ricci Vicenti 's case also demonstrated the primary concern of the government

policies in relation to escaping prisoners was on security. Evidence before the

Royal Commission showed that the Minister of Prisons at the time of Ricci

Vicenti 's death regarded the need to protect the public as outweighing all other

considerations relating to the rights and welfare of prisoners. This policy

resulted in the lethal shooting of a prisoner who was remanded in custody and

may not have received a sentence of imprisonment.

138

PART FOUR

OVER-REPRESENTATION OF ABORIGINALS

IN CUSTODY

Part 4 of the Report looks at the overwhelming extent of the over-representation

of Aboriginals in custody in Western Australia. The level of over-representation

illustrates the extent to which the criminal justice system in this State has worked

against the poor and disadvantaged, and more particularly Aboriginal people.

The first section of this Part, 4.1, examines the nature of this over-representation,

the reasons why Aboriginal people are detained, the offences for which they are

detained, the extent of the disproportion of Aboriginal people in police and prison

custody and, finally, how the juvenile justice system contributes to the massive

over-representation of Aboriginal in custody.

The second section in this part, 4.2, examines how the level of over­

representation of Aboriginals in custody may be reduced. In examining the

avoidance of custody I have focused on aspects of the criminal justice system

which are particularly oppressive of Aboriginal people and which contribute to

their over-representation in police lockups and prisons. I have identified the

changes that should be made to policies and practices in relation to arrest, use of

summons, warrants, bail, the legal system, and sentencing, that may reduce the

number of Aboriginal people in custody. I urge the Government to accept that

the investigations of the Royal Commission have shown a need for changes to

the criminal justice system to bring about a more just and equitable treatment of

people who become involved in the criminal justice system, and to make the

necessary commitment to bring about the changes I have identified.

139

4.1 NATURE OF THE OYER-REPRESENTATION IN

WESTERN AUSTRALIA

4.1.1 THE OFFENCES

The reasons why people end up in custody are many. The underlying issues

which result in Aboriginal people becoming involved in the criminal justice

system and ending up in police or prison custody are largely examined by

Commissioner Dodson in his Report. Obviously, one of the major reasons

Aboriginal people are apprehended and detained is because of behaviour and

activities classified as offences against law. In the following section I examine

the offences which resulted in the 32 deceased being apprehended and detained in

police and prison custody, during their lives and prior to their death. I then look

more generally at the offences for which Aboriginal people are detained in

custody in Western Australia.

4.1.1.1 Offence Histories of Individuals

The offence histories of the 32 Aboriginal deceased reveal a number of

similarities in their offence histories and the fact that many of the deceased were

continually involved in the criminal justice system for the same offences. Many

commenced involvement with the criminal justice system at a young age. Most

of the deceased did not commit serious offences, although six of the deceased

were convicted of rape during their lives.

Juvenile Offence Histories

Twenty-four of the deceased were convicted of offences as juveniles (between

the ages of nine and seventeen years). The common offences that the deceased

committed as juveniles were dishonesty offences such as theft and break and

enter (13 of the deceased), unauthorised use of motor vehicle (8), no motor

driver's licence (6), and behavioural offences such as drunkenness, and

disorderly conduct (7). Many of the dishonesty offences committed were

140

committed in the company of other children and often involved the theft of small

amounts of money or food. There was also a pattern of the children breaking

into schools and stealing items such as coloured pencils or musical instruments.

Three deceased were convicted of sexual offences as juveniles.

Eight of the deceased spent considerable time in juvenile institutions. The three

persons (Farmer, Robert Walker, Walley) convicted of sexual offences as

juveniles, spent a considerable period in their youth incarcerated and inevitably

suffered the effects of institutionalisation. These three spent lengthy periods

throughout their lives in prison and were all in prison custody at the time of their

death . Two of the three committed suicide (Farmer and Walley). The other five

who spent time in juvenile institutions were Wodulan, Polak, Bates, Steven

Michael and Wongi. Polak, Steven Michael and Wongi had extensive juvenile

records, Polak being convicted of 43 offences, Michael of 89 offences and

Wongi of 27 offences. Bates and Wodulan had more minor records, being

convicted of ten and six offences respectively. Of the five, four had extensive

involvement with the criminal justice system as adults. Wodulan had 76 prior

convictions at the time of his death, Polak 120, Steven Michael187 and Wongi

107. They all had problems with alcohol and spent a considerable amount of

time in and out of police and prison custody.

Adult Offence Histories

The extent of involvement of the deceased in the criminal justice system varied

considerably. Some persons had very minor offence histories, having been

convicted of only a handful of offences, whereas others had extensive criminal

records with over 100 convictions. Despite this variation, there were consistent

similarities in the offence histories of the deceased, the sorts of offences which

brought the deceased into contact with the legal system, the involvement of

alcohol in the lives of the deceased and the offences which they committed. The

significance of alcohol is discussed in more detail in section 5.5 of the Report

dealing with alcohol.

141

The range of offence histories is illustrated in Table 4.1 below which sets out the

number of prior convictions of each of the deceased.

TABLE 4.1: NUMBER OF PRIOR CONVICTIONS OF DECEASED

No. of prior No. of convictions Deceased

0-9 4

10-19 4

20-29 6

30-39 5

40-49 3

50-69 1

70-99 3

100-149 3

150 + 3

TOTAL 32

Name of deceased

Dougal (2), Jones (9), Vicenti (9), Pat (7)

Dooler (10), Garlett (12), Cameron (14), Chatunalgi (12)

Ugle (24), Farmer (27), Robert Walker (25), Green (20), Waigana (26), McGrath (26)

Blankett (31), Anderson (30), Njanji (31), Wells (37), Bates (32)

Roy Walker (45), Barnes (48), Harris (43)

Charles Michael (63)

SCGH case (90), Wodulan (76), Brown (72)

Polak (120), Samson (128), Walley (145), Wongi (107)

Steven Michael (187), Morrison (275)

Table 4.2 shows the most serious offence for which the deceased was convicted

during his of her life. It should be kept in mind that the most serious offence of

the deceased is not indicative of the offence histories and patterns of many of the

deceased as will be illustrated in the discussion below on the individual offence

histories.

142

TABLE 4.2: MOST SERIOUS OFFENCE OF THE DECEASED IN LIFE

Offence

Good Order Offence

Drink Driving

Theft offences

Assault

Robbery

Manslaughter

Sex Offence

TOTAL

No. of Deceased

2

2

5

14

2

1

6

32

Name of Deceased

Dooler, Jones

Garlett, Chatunalgi

Dougal, Roy Walker, Vicenti, Steven Michael, Cameron

Blankett, Barnes, Anderson, Wodulan, Pat, Polak, Njanji, Wells, Bates, Waigana, Brown, McGrath, Harris, Samson

Morrison, W ongi

Ugle

Farmer, Robert Walker, Charles Michael, Green, Walley, SCGH case

Four of the five persons who had committed up to ten offences were aged up to

21 years (Jones, Vicenti, Pat, Dooler). All five were under 25 years of age. The

most serious offences which had been committed by these five deceased were

behavioural (Dooler, Jones), theft (Vicenti, Dougal) and Pat had been convicted

of assaulting a police officer. The other common offences committed by these

five were offences involving alcohol such as drunkenness, disorderly conduct,

re-enter licensed premises, driving under the influence and petty dishonesty

offences. Four of the five were in police custody prior to, or at the time of their

death. Vicenti was the only one in prison custody.

Garlett, Cameron and Chatunalgi were each convicted of between twelve to

fourteen offences. They were aged between 23 and 27 years when they died.

Again the common thread in their offence patterns was alcohol and the petty

nature of their offences. Garlett's early convictions were for disorderly conduct

and he later received four convictions for driving under the influence with high

143

blood alcohol levels. Cameron and Chatunalgi both had committed a variety of

petty offences involving dishonesty offences (break, enter and steal,

unauthorised use of motor vehicle), drinking offences (drunkenness, reserve

drinking) and driving offences (No MDL, DUI). Cameron had also twice been

convicted of assault.

In the category of persons with 20-29 convictions a variety of offence patterns

are represented by the deceased. Farmer and Robert Walker as discussed earlier

were both convicted of sexual offences as juveniles which led to lengthy periods

of incarceration and institutionalisation. They both spent much of their adult life

in prison and when not in prison had a history of problematic alcohol and drug

usage. The offences committed in adult life generally involved dishonesty

offences and offences against other persons. Both were serving sentences for

sexual offences at the time of their death.

The offence histories of Waigana and Ugle, who had 24 and 26 prior convictions

respectively, are again illustrative of problematic alcohol usage leading to

involvement with the criminal justice system. Both had numerous convictions

for drunkenness, disorderly conduct and assaults associated with intoxication.

U gle however was convicted on two counts of manslaughter when he killed two

pedestrians whilst driving under the influence of alcohol.

Green had a history of committing dishonesty offences when young. As an adult

his primary involvement with the criminal justice system was as a result of

driving offences such as DUI and no MDL. However Green was convicted of a

sexual offence in 1984 for which he received a five and a half year sentence of

imprisonment.

McGrath was only 20 years old when he died and had been convicted of 26

offences. The offences were all of a petty nature and included dishonesty

offences, disorderly conduct, damage, DUI and no MDL.

144

Five of the deceased committed between 30 and 39 offences (Bates, Wells,

Anderson, Njanji and Blanken). They were aged from 26 years to 55 years

when they died. The most serious offence committed by each of the deceased

was for assault, some of the assaults were aggravated assaults upon police

officers and women, mostly in domestic disputes. Most of the offences

committed by each of the deceased were of a relatively minor nature and the

offences usually involved alcohol. The offences which most frequently appear in

the adult criminal histories of each of the deceased are drink related offences such

as drunkenness, disorderly conduct, DUI and street drinking. The number of

assault offences is minor in comparison to the balance of the offence histories

with Bates being convicted of four assaults, Wells of two, Anderson of two,

Njanji of four and Blanken of two. It is clear from Blanken's offence history that

many of her offences arose because of lack of cooperation with the police with

numerous convictions for resist arrest and refuse/false name and address. Bates

was the only one in this group with any extensive involvement with the criminal

justice system as a juvenile. He was placed in juvenile institutions in Perth and

Esperance for five years from the age of thirteen years.

Roy Walker, Barnes and Harris each committed between 40 and 44 offences

during their lives. Roy Walker was aged 62 years, Harris was 29 years old and

Barnes was 27 years old at the time of death. For each of them, their extensive

involvement with the criminal justice system was a result of problematic alcohol

use. They were all from the Kalgoorlie area. Walker and Barnes were both

regularly convicted for drunkenness, with drunkenness offences comprising 34

of Walker's 45 offences and 40 of Barnes. Harris was convicted of a variety of

offences during his life, all of a petty nature, including dishonesty offences,

damage, drink related offences, unauthorised use of a motor vehicle and

disorderly conduct. Each of the deceased spent considerable amounts of time in

police and prison custody during their lives. Walker and Barnes often served

periods in police lockups for fine default arising out of their drunkenness

charges.

145

Charles Michael, the Sir Charles Gairdner Hospital case, Wodulan and Brown

were convicted of between 63 and 90 offences. Their ages ranged from 25 to 42

years. Charles Michael and the Sir Charles Gairdner Hospital case, had juvenile

criminal histories which mostly involved petty dishonesty offences such as theft

and unauthorised use of a motor vehicle. In adult life the Sir Charles Gairdner

Hospital case was convicted of drunkenness 51 times and, on numerous

occasions, for disorderly conduct, assault and other minor offences. Charles

Michael's involvement in the criminal justice system, whilst also lengthy, was

mostly for dishonesty offences, unauthorised use of a motor vehicle and driving

offences. Both the Sir Charles Gairdner Hospital case and Charles Michael, until

convicted of the offences for which they were serving sentences of imprisonment

at the time of their death, had offence histories which although very extensive and

involving numerous terms of imprisonment were for offences of a relatively

minor nature. However both Michael and the Sir Charles Gairdner Hospital case

were serving sentences for sexual offences at the time of their death. These

offences were quite uncharacteristic of the rest of their criminal history.

Wodulan and Brown were both regarded as chronic alcoholics by the medical

professionals who reviewed their histories. Their involvement with the criminal

justice system was extensive. Brown's offences were all directly related to

alcohol consumption with many convictions for drunkenness, disorderly

conduct, driving under the influence, no motor driver's licence, re-enter licensed

premises and assaults. The majority of assaults were committed upon his de

facto wife and on several occasions resulted in severe injuries. These assaults

resulted in Brown serving several sentences of imprisonment.

Wodulan's offence history was lengthy and varied. The majority of offences

were also dishonesty offences of a petty nature (break and enter, unauthorised

use of a motor vehicle, interfere with motor vehicle), driving offences (driving

under the influence, no motor driver's licence) and other offences arising directly

out of his drinking behaviour (drunkenness, disorderly conduct, street drinking

and refuse to leave licensed premises).

146

Polak, Samson, Walley and Wongi had offence records of 100 to 145 offences.

Polak, Walley and Wongi were involved in the criminal justice system from a

early age and all were placed in juvenile institutions for lengthy periods of time

during their youth. All four had problems with alcohol which was involved in

most of their offences. Walley was the only one of the four in prison custody at

the time of his death. He had been imprisoned for break and enter. Polak and

Samson were both in police custody for for drink related offences, street drinking

and drunkenness respectively. Wongi had been arrested for an attempted break

and enter.

The offences which led to their final period of imprisonment are perhaps

indicative of their offence histories. Walley had an extensive juvenile record

mostly for dishonesty offences. As an adult, the majority of offences he

committed were related to driving (driving under the influence, no motor driver's

licence, false plates, unlicensed vehicle) and petty dishonesty offences.

Polak's offences as an adult were generally alcohol related and were mostly

dishonesty offences, offences related to drinking such as drunkenness,

disorderly conduct, re-enter licensed premises and offences arising out of conflict

with the police, such as insulting words (police), resist arrest, and aggravated

assault (police).

Samson also had an extensive record of offences which were all alcohol related.

Throughout his adult life he was regularly convicted of drunkenness,

street/reserve drinking, re-enter licensed premises, driving under the influence

and no motor driver's licence, and assaults committed whilst intoxicated.

As mentioned above, Wongi had an extensive juvenile history involving

dishonesty offences and unauthorised use of a motor vehicle. He was

institutionalised as a child and as an adult tended to be convicted of similar

offences i.e. dishonesty offences and unauthorised use of a motor vehicle. He

147

also had numerous convictions for alcohol related offences such as drunkenness

and street drinking.

Steven Michael had 187 prior convictions at the time of his death and Benjamin

Morrison had approximately 275 convictions. Although both criminal records

arc extremely lengthy, with many convictions for petty offences, there were

considerable differences in their involvement in the criminal justice system.

Steven Michael, despite the size of his criminal record, was relatively young at

the time of his death. He was 29 years old. He was only nine years old when

his first criminal charge was recorded. He had an extensive juvenile record

appearing in children's courts on 33 occasions to answer some 89 separate

charges. Thirty-seven of his juvenile offences were for stealing and 40 related to

unauthorised use of a motor vehicle or no motor driver's licence. He served

periods in juvenile detention centres and was largely institutionalised by the time

he reached adulthood. He trod a similar path in adult life being convicted of 60

dishonesty offences (break and enter, break, enter and steal, stealing, stealing

and receiving), 51 times for unauthorised use of motor vehicle, many driving

offences (no motor driver's licence, driving under the influence, careless and

unauthorised driving) assault offences and damage charges. It is no surprise that

Steven Michael spent much of his adult life in prison. Steven died in prison

custody.

Benjamin Morrison was 55 years old when he died. He was a chronic alcoholic.

The majority of his offences related to alcohol with 121 convictions specifically

related to drinking (drunkenness, street/park drinking, receiving liquor, re-enter

licensed premises). He was convicted for disorderly conduct 30 times and for a

variety of other minor offences. The more serious offences of which he was

convicted were robbery, aggravated assault and assault occasioning bodily harm.

He was regularly in police and prison custody and, at the time of his death, was

in police custody having been arrested for disorderly conduct.

148

4.1.1.2 Offences for which Individuals detained at time of Death

Prison Custody

The thirteen persons in prison custody had been convicted of a total of

38 offences.

One person had been convicted for ten offences, one person had been convicted

of eight offences, two persons had been convicted of four offences, two of three

offences, three of two offences and four of one offence.

One prisoner was in custody with four charges outstanding.

The 38 offences for which people were imprisoned were:

TABLE 4.3: OFFENCES OF 13 DECEASED DETAINED IN PRISON CUSTODY

Offence No . of

Offences

Sexual Offence 5

U.U .M .V. 6

Break and Enter 4

Stealing or B. E. & S. 4

Assault (serious) 3

D.U.I. 4

No M.D.L. 6

Breach of Recognisance 1 Manslaughter 2

FalseName 1

Escape Legal Custody 1

Deprivation of Liberty 1

TOTAL 38

Most Serious Offence

5

2

1

1

3

1

13

The most serious offences for which people were imprisoned were sexual

offence (5), DUI/No MDL (3), UUMV (2), B&E with Intent (1), B&E & Steal

(1), Manslaughter (1).

149

Two people were imprisoned for DUI and No MDL only. They had previously

committed alcohol related traffic offences. One person was imprisoned for DUI

only. He had been fined $822 but was imprisoned when he defaulted. The

fourth person convicted of DUI and sentenced to imprisonment was involved in a

motor vehicle accident in which two people were killed. He was also convicted

of two charges of manslaughter.

The people in prison custody who had been convicted and sentenced to

imprisonment for minor offences (e.g. breach of recognisance, false name) were

also serving sentences for other more serious offences.

The four people in prison custody for the 14 theft offences, i.e. B&E, Stealing

and UUMV, had previously been convicted of similar types of offences. Only

one of the four had been convicted of only one such offence at the time of his last

detention.

Given the range of offences for which people were in prison custody, it is not

surprising that the sentences ranged from 41 days to 6 years. The five people

convicted of rape were all serving sentences of 4 years or more. Those serving

sentences for DUI were serving periods from 41 days (the person being in

default of fines of $822), to 6 months, (the person having previously 3 DUI

offences with blood alcohol levels of .23%, .223% and .301 %). The breakdown

of global sentences to be served by the 13 people in prison custody is as follows:

150

TABLE 4.4: LENGTH OF SENTENCES OF 13 DECEASED DETAIN ED IN PRISON CUSTODY

Length of Sentence

Unsentenced( a) 0 - less than 8 days 8 days to less than 1 mth 1 month to less than 2 mths 2 months to less than 3 mths 3 mths to less than 6 mths 6 mths to less than 12 mths

12 mths to less than 2 yrs 2 yrs to less than 3 yrs 3 yrs to less than 5 yrs 5 yrs plus

No. of Deceased

2

Nil Nil 1

Nil 1

1

2

Nil 3

3

13

(a) One prisoner had been convicted but had not been sentenced and one prisoner had not been convicted but was remanded in custody

Police Custody

Nineteen persons were or had been in-poHee-eust0dy-aH:he-time-oftheirdeaLh.

The offences for which they were detained were as follows:

T ABLE 4.5: TYPE OF O FFENCE FOR WHICH PERSONS IN POLICE CUSTODY WERE DETAINED

Offence No. of Most Serious

Offences Offence

Drunkenness 9 9

Stealing 5 2

Disorderly Conduct 4 2

DUl 2 2

No MDL 1

BreachCSO 1 1

Street Drinking 1 1

Assault Police 1 1

Damage 1 1

TOTAL 25 19

151

Only three persons were arrested for more than one offence. One person was

arrested for four stealing offences and one disorderly conduct, and one person

was arrested for assault police and disorderly conduct, and one person was

arrested for DUI and No MDL. The other 16 persons in police custody had been

charged with one offence only, nine for drunkenness, two for disorderly

conduct, one for breach of the Liquor Licensing Act. Only two persons were

arrested on warrants; one arrest on warrant was for fine default having been

previously convicted of DUI. The other was arrested on warrant for breach of a

Community Service Order.

4.1.1.3 Offences for which Aboriginal People are Detained in Western Australia

In the sections above I have discussed the offence histories of the individuals

who died in custody and the offences for which they were detained at the time of

their death. In this section I examine the offences for which Aboriginal and non­

Aboriginal people are detained in Western Australia in police and prison custody,

and compare this information with the national and interstate picture.

The information presented in this section is quite detailed and may not be of

interest to all readers. The following summary provides an outline of the

information in the section.

Summary

•

The Royal Commission August 1988 survey shows that in Western

Australia public drunkenness accounted for 29% of all detentions in police

custody during the survey period.

During August 1988 'other good order offences' accounted for 20% of all

detentions in police custody. This was almost double the national level of

detention for this offence.

152

In Western Australia during August 1988 almost half (48%) of Aboriginal

people were placed in police cells for drunkenness compared to 7.7% of

non-Aboriginal people. Drunkenness and other good order offences

accounted for 70% of all Aboriginal offences leading to police custody.

In Kalgoorlie the proportion of Aboriginal people arrested for the offence of

drunkenness has decreased from 66% in the 1987 survey period to 5% in

the 1990 survey period (shortly before the offence of drunkenness was

decriminalised).

In Western Australia during the August 1988 survey period 78% of

Aboriginal female custodies were for drunkenness or other good order

offences, compared with 68% of Aboriginal male custodies. 97% of all

female detentions for drunkenness were Aboriginal women.

• Aboriginal people are over-represented in Western Australian prisons for

the offences of assaults, unauthorised use of motor vehicle, other property

offences, offences against justice and good order offences.

• A greater proportion of Aboriginal women are imprisoned for drunkenness

and other good order offences than all other male and female prisoners.

• Following a dramatic decrease in the number of Aboriginal persons

imprisoned for drunkenness and disorderly conduct from 1980 to 1986,

imprisonment for drunkenness has continued to decrease whereas there has

been an increase in the number of Aboriginal people imprisoned for

disorderly conduct. This needs to be closely monitored, in view of the

recent decriminalisation of drunkenness.

Western Australia has a greater proportion of Aboriginals imprisoned for

offences against the person and for traffic offences than the national

Aboriginal proportion for these offences.

153

Police Custody

If anything can be inferred from a sample of only 19, the offences committed by

the 19 persons detained in police custody prior to or at the time of their death,

suggest that the offences for which Aboriginal people are detained in police

custody are of a relatively minor nature and that they have usually committed only

one offence.

The material available from which one can draw a more accurate picture of the

offence patterns of persons detained in police custody is fairly limited. The

Royal Commission has carried out studies which help to provide more

information about police custody and the offences for which people are detained.

In August 1988 the Criminology Research Unit of the Royal Commission with

the cooperation of all Police Departments in Australia conducted a survey of all

persons who were taken into police custody during the month of August 1988

and lodged in the police cells anywhere in Australia. (McDonald,1988) Note that

not all persons arrested were included in the survey. Additional data collected in

Western Australia during the survey period, but not reported upon, was also

made available by the Criminology Research Unit to my office of the Royal

Commission in Western Australia.

The Criminology Research Unit also assisted my office by carrying out an

analysis on arrest and bail data collected from police records of Kalgoorlie Police

Station for two periods, one in October/November 1987, the other in March/April

1990 (Biles, 1990; McDonald, 1990).

The Kalgoorlie studies provide an example of marked changes to the arrest,

custody and bail patterns in one country town in Western Australia, particularly

in relation to arrests for the offence of drunkenness.

154

The following tables set out details of what were reported to be the most serious

offence that led to a person being in police custody during the August 1988

survey period. Table 4.6 sets out the offences for which Aboriginal and non-Aboriginal persons were detained in Western Australia and Table 4.7 sets out the

national data.

TABLE 4.6: NATIONAL POLICE CUSTODY SURVEY AUGUST 1988 MOST SERIOUS OFFENCES BY ABORIGINALITY (WA)

Aborig_inal Non-Aborig_inal

Offence M F Total % M F Total % Tot a/a) %

Homicide 3 0 3 .14 3 4 .2 7 .17

Assault 107 30 137 6. 19 98 6 104 5.2 241 5-:-1-2

Sex Offences 9 2 11 .5 22 0 22 1.1 33 .78

Oth Ag Person 0 .05 .02

Robbery 4 0 4 . 18 8 0 8 .4 12 .28

B&E 83 13 96 4.34 115 6 121 6.05 217 5.15

Fraud 6 3 9 .41 49 17 66 3.3 76 1.78

MY Theft 74 12 86 3.89 68 4 72 3.6 159 3.75

OthB &E, F, T 81 26 107 4.84 144 39 183 9. 15 291 6.88

Property Damage 31 11 42 1.9 69 9 78 3.9 120 2.85

Justice Proc 47 22 69 3.12 135 19 154 7.7 223 5.29

Drunk 798 268 1066 48 .19 147 7 154 7.7 1227 28 .96

Oth Good Order 311 180 491 22 .2 294 48 342 17.09 842 19.77

Posses Drugs 5 6 .27 91 22 113 5.65 119 2.82

Other Drugs 0 .05 38 11 49 2.45 50 1.19

Drink Driving 52 4 56 2.53 355 54 409 20 .44 469 11.04

Other Traffic 23 4 27 1.22 112 2 114 5.7 141 3.35

Other Offences 8 0 8 .4 8 .19

1UTAL 1636 576 2212 100 1756 245 2001 100 4236 100

(a) The total includes. 23 persons for whom Aboriginality is unknown or not stated therefore may not equal the total of Aboriginal and non-Aboriginal persons listed for each offence.

155

Table 4.6 shows that in Western Australia public drunkenness was the most

frequently reported offence for all persons accounting for 29% of the cases. It

was followed by other good order offences at 20%. These two categories were

followed in frequency by an aggregate of the offences of Break and Enter, Fraud,

Motor Vehicle theft and other theft offences (18%), drink driving (11 %), assault

(6 %) and justice procedures (5%).

TABLE 4.7: NATIONAL POLICE CUSTODY SURVEY (AUG 1988) MOST SERIOUS OFFENCE LEADING TO DETENTION IN POLICE CUSTODY (AUSTRALIA)

Offence Aboris_inal Nm-A/xrifini Total

No. % No. % No.

Homicide 17 0.4 139 1.1 156

Assault 393 8.5 919 7.0 1 312

Sexual Offences 38 0.8 201 1.5 239

Qh Ag Peml 34 0.3 35

Robbery 18 0.4 201 1.5 219

%

0.9

7.4

1.3

0.2

1.2

Bk & Et/Fd & T 668 14.4 2 896 22.0 3564 20.0

Prop Damage 91 2.0 296 2.0 387 2.2

Justice Proc 198 4.3 705 5.4 903 5.1

Drunkenness 2 153 46.4 3 081 23.4 5 234 29.4

Oth Gd Ord Off 804 17.3 1 180 9.0 1 984 11.2

Drug Offences 25 0.5 1 024 7.8 1 049 5.9

Drink Driving 170 3.7 1 650 12.6 1 820 10.2

Oth Traffic Off 56 1.2 733 5.6 789 4.4

Oth Offences 7 0.1 84 0.6 91 0.5

TOTAL 4 639 100 13 143 100 17 782 99

The major difference that existed in the most serious offence reported in Western

Australia compared to the national picture was that good order offences other than

public drunkenness were more common. In Western Australia nearly 20% of all

156

detentions were for 'other good order offences' whereas nationally 11.2% were

in this category.

The tables also allow us to compare the offences for which Aboriginal people

were detained in Western Australia with those of non-Aboriginal people.

Aboriginal people were markedly over-represented in the category of public

drunkenness. They were also over-represented, although to a lesser extent, in

the categories of other good order offences, assault and motor vehicle theft.

Compared with its distribution of offences of non-Aboriginals they are under­

represented in the categories of homicide, sexual offences, robbery, break and

enter, fraud, other break and enter, fraud and theft offences, property offences,

justice procedures, drug offences, drink driving and other traffic offences.

In Western Australia almost half (48%) of the Aboriginal people placed in the

cells for an offence were in custody for drunkenness whereas only 7.7% of non­

Aboriginal people were detained for drunkenness. The national figures provide

an interesting contrast with a similar proportion of Aboriginal people being

detained for drunkenness (46%) but with a much higher proportion of non­

Aboriginal people also being detained for this offence (23.4%).

In Western Australia a further 22% of Aboriginal people were in custody for

other good order offences, many of which would be alcohol related. The

corresponding non-Aboriginal data for other good order offences is 17%.

Nationally 17% of Aboriginal people were detained for other good order offences

but only 9% of non-Aboriginal people were detained for this offence. This

suggests that in Western Australia both Aboriginal and non-Aboriginal people are

detained for other good order offences at a greater rate than they are nationally.

The two offence categories of drunkenness and other good order offences

account for 70% of all Aboriginal offences leading to police custody in Western

Australia. They account for only 25% of non-Aboriginal offences, a little more

than a third of the Aboriginal proportion. Nationally these two offence categories

157

accounted for 64% of all Aboriginal offences whereas the corresponding non­

Aboriginal data was 32%, half the Aboriginal proportion.

The information provided by the August 1988 survey supports the hypothesis

that Aboriginal persons to a large extent are detained in police custody for very

minor offences.

There was also an interesting difference in the Western Australian data relating to

the offence of drink driving. In Western Australia 20% of the non-Aboriginal

persons in custody were detained for drink driving offences whereas only 2.5%

of Aboriginal persons were detained for this offence. Nationally 13% of the non­

Aboriginal people were detained for this offence and 4% of Aboriginal people.

This suggests that the non-Aboriginal level of over-representation for the offence

of drink driving is significantly higher in Western Australia than the non­

Aboriginal level nationally.

Kalgoorlie

The Kalgoorlie studies provide an interesting example of changing arrest,

custody and bail patterns in one region in Western Australia, and in particular the

changes in the offences for which people are detained. A comparison between

the 1987 and 1990 period shows that the proportion of arrests of Aboriginal

people had fallen substantially from 61% of all arrests in the 1987 period to 46%

in the 1990 study period. The reduction is explained almost entirely by the

changes in the number of Aboriginal people arrested for drunkenness. In the

1987 study period 66% of Aboriginal persons were arrested for drunkenness in

contrast to 9% of non-Aboriginal people. Whereas in the 1990 study period 5%

of Aboriginal persons were arrested for drunkenness and 3% of non-Aboriginal

people were arrested for the offence. In the 1987 period arrests of Aboriginal

persons for drunkenness accounted for 40% of all arrests whereas in the 1990

only 2% of all arrests were of Aboriginal persons for drunkenness.

158

The following taken from Criminology Research Unit Research Paper No. 18

(Table 4 page 8) shows the most serious offence for which Aboriginal and non­

Aboriginal people were arrested during the 1990 Kalgoorlie study period.

TABLE 4.8: MOST SERIOUS OFFENCE FOR WHICH ABORIGINAL AND NON-ABORIGINAL PERSONS ARRESTED IN KALGOORLIE 1.3.1990 . 14.4.1990

Offence Aboriginal Non-Aboriginal Total

No. % No. % No. %

Assault 13 8 10 5 23 7

Sexual Offences 5 3 3 2 8 2

Break and Enter 15

10 }

10 5

}u

25 7

Fraud 1

1i 30

2 1 3 1

MN Theft 17 5 3 22 6

Other Theft 12 11 6 23 7

Property Damage 10 6 4 2 14 4

Justice 6 4 5 3 11 3

Procedures

Drunkenness 8 5 5 3 13 4

Other good order 43 28 41 22 84 25

Drug offences 2 10 5 12 4

Drink driving 20 13 59 32 79 23

Other traffic 3 2 17 9 20 6

Other offences 2 1 2

Not stated 15 13 28

'TUTAL 178 100 197 100 367 100

Note: Percentages exclude cases where relevant data are not stated.

As noted above, the table shows that only 5% of Aboriginal persons and 3% of

non-Aboriginal persons were arrested for drunkenness.

159

Substantially higher proportions of Aboriginal people compared with non­

Aboriginal people were arrested for an aggregate of the offences of break and

enter, fraud, motor vehicle theft and other theft accounting for 30% of offences

for which Aboriginal people were arrested and only 15% of the offences for

which non-Aboriginal people were arrested.

Aboriginal people were also over-represented in categories of 'other good order',

accounting for 28% of Aboriginal offences, the corresponding non-Aboriginal

rate being 22%. The Aboriginal proportion for assault offences was 8%, the

non-Aboriginal proportion being 5%. The Aboriginal proportion for property

damage offences was 6%, the non-Aboriginal proportion being 2%. Higher

proportions of non-Aboriginal people were arrested for drink driving (32% ), as

compared to the Aboriginal proportion of 13%; the non-Aboriginal rate for other

traffic offences was 9% compared to the Aboriginal proportion of 2%, and drug

offences accounted for 5% of offences compared to the Aboriginal proportion of

1%.

These figures compared to the West Australian figures in the August 1988 survey

show that in Kalgoorlie at least there was a marked reduction in the number of

Aboriginal persons being detained for drunkenness. However the proportion of

Aboriginal people detained for other good order offences (28%) in Kalgoorlie

was higher than the proportion in the August 1988 survey. In Western Australia,

Aboriginal custodies for this offence were 22% and nationally, they accounted

for 17% of offences committed. The corresponding non-Aboriginal data (22%)

in the 1990 Kalgoorlie study is also higher than the August 1988 figures for

Western Australia (17%) and Australia (9%).

Another significant difference is that in the August 1988 survey Aboriginal

people were under-represented for the aggregate offences of break and enter,

fraud, motor vehicle theft and other theft offences. In Western Australia, the

Aboriginal proportion for these offences was 13% whereas the non-Aboriginal

proportion was 22% and nationally the Aboriginal proportion was 14% with the

160

non-Aboriginal proportion at 22%. In the 1990 survey period in Kalgoorlie these

offences accounted for 30% of offences for which Aboriginal persons were

detained, double the non-Aboriginal proportion (15%).

It is of interest to note that Aboriginal people in Kalgoorlie also appear to be

'catching up' with the number of non-Aboriginal people arrested for drinking

driving. In the August 1988 survey in Western Australia 20.5% of non­

Aboriginal people were detained for this offence whereas only 2.5% of

Aboriginal people were. In Kalgoorlie in the 1990 study period although a

significantly larger proportion of non-Aboriginal people were detained (32%) a

significantly increased proportion of Aboriginal people were also arrested for this

offence (13%).

It is also interesting to note that in the 1990 study period in Kalgoorlie, 60% of

the people were arrested for one offence only, there being no significant

difference in this respect between Aboriginal and non-Aboriginal people.

Offences - Gender

The national and Western Australian data collected during the August 1988

survey showed significant differences in the proportion of offences for which

males and females were detained. Nationally males had higher than expected

proportions for most offences and females had higher than expected proportions

for the offences of drunkenness and other good order offences only. More than

seventy-five percent of the female drunkenness cases (78%) were Aboriginal.

In Western Australia higher proportions of females, compared with males were

placed in the cells for good order offences, including drunkenness. 61% of

females were placed in the cells for these offences whereas 46% of males were

detained for these offences. This pattern was particularly marked among

Aboriginal people with 78% of the Aboriginal female custodies being for

drunkenness or other good order offences, compared with 68% of the Aboriginal

161

male cases. In fact almost all the female drunkenness cases were among

Aboriginal women (97%) and more than seventy-five percent of the female other

good order offences were also Aboriginal (79% ).

Prison Custody

The statistical information provided in the Department of Corrective Services

Annual Report is of great assistance when examining the offences for which

Aboriginal and non-Aboriginal people are imprisoned in Western Australia. The

Department provides information on the major offences of each sentenced

prisoner received during each financial year. The Department also provides the

Western Australian data collected during the National Prison Census on 30 June

each year. In presenting the information on offences for which people are

detained in prison custody in Western Australia I have drawn on both sets of

data. The receival data provides a more accurate picture of the offences for which

prisoners are detained in Western Australian prisons for each year as it shows the

offences of all sentenced prisoners received whereas the census data presents a

picture of one night only in Western Australian Corrective Services institutions.

The census data may under-represent the numbers of prisoners received for

offences which attract relatively short sentences e.g. good order offences but

receival data under-represents the serious offences for which people are actually

in prison. However to compare the situation in Western Australia with the other

states it is necessary to rely on the census data as statistical data on prisoner

receivals is not available from all States.

Table 4.9 (Major Offence of Each Sentenced Prisoner Received in Western

Australia year ending 30 June 1989, Department of Corrective Services Annual

Report 1989) shows that the offences for which Aboriginal people tend to be

over-represented are serious and minor assaults, unauthorised use of motor

vehicle, other property offences (arson, damage and other), offences against

justice (peijury, escape legal custody, hinder police, breaches, miscellaneous),

drunk, disorderly conduct, other good order offences, and Licensing Act

162

offences. Aboriginal people are under-represented in the categories of homicide,

sexual offences, robbery, fraud and drug offences.

TABLE 4.9: MAJOR OFFENCE OF EACH SENTENCED PRISONER RECEIVED IN WESTERN AUSTRALIA YEAR ENDING 30 JUNE 1989

Nature of Male Female Totals

Offence

Abl Other Abl Other Abl Other

No % No % No % No % No No

Homicide 5 0 .29 16 0.90 0 0.00 0 0.00 5 16

Sexual 37 2 . 19 70 3.96 0 0.00 0 0.00 37 70

Offences

Assault: Serious 118 7 .03 56 3. 17 18 5.11 0 0.00 136 56

Minor 178 10.58 80 4 .52 25 7.10 2 1.16 203 82

Robbery 11 0 .65 40 2.26 0.28 4 2.3 12 44

Oth Ag 10 0 .59 8 0.46 1 0.28 0 0.00 11 8

Person

UUMV 94 5 .58 42 2.37 20 5.68 3 1.72 114 45

Oth Theft 263 15.63 263 14 .87 41 11.65 17 9 .77 304 280

Fraud 11 0 .65 80 4 .52 5 1.42 33 18.96 16 113

Oth Off Ag 50 2.97 38 2. 15 26 7.39 5 2.87 76 43

Prop

OffAg 225 13 .39 212 11.99 77 21.87 35 20.11 302 247

Justice

Drunk 31 1.85 3 0.18 16 4.55 0 0.00 47 3

Disorderly 116 6.89 33 1.87 44 12.5 4 2.3 160 39

Oth GdOrd 59 3.5 25 1.42 9 2.56 2 1.16 68 27

Offences

Drug Off 12 0 .71 183 10.35 4 1.14 23 13.22 16 206

Lie Act 12 0 .71 0.06 9 2.56 0.58 21 2

Traff Ale 214 12.71 228 12.90 27 7.67 '16 9.19 241 244

Related

Oth Traff 210 12 .48 336 19.0 22 6.25 20 11 .49 232 356

Mise Off 27 1.6 54 3.05 7 1.99 9 5.17 33 63

TOTAL 1683 100% 1768 100% 352 100% 174 100% 2035 1942

163

Offences and Gender

The receival statistics for 1988/1989 show that in Western Australia the offence

patterns for Aboriginal and non-Aboriginal females are similar to the offence

patterns of male prisoners.

However in several offence categories the female proportions are higher than the

male proportions. It is marked in relation to offences against justice which

account for 21% of all female offences and only 3% of male offences, with both

Aboriginal and non-Aboriginal female prisoners having high proportions (21 %)

and disorderly conduct with the female proportion being 9% and the male being

only 4%. The difference in the disorderly conduct rates is explained to some

extent by the high level of Aboriginal women imprisoned for this offence (12%).

Female prisoners also have higher proportions than males for fraud offences,

especially non-Aboriginal female prisoners. Female prisoners also have slightly

higher proportions for the offence categories of unauthorised use of motor

vehicle, other offences against property (damage, arson, other) drunkenness, and

Licensing Act offences. Males have higher proportions than females in all other

offence categories (homicide, sexual offences, assaults, robbery, other offences

against person, other theft offences, drug offences, traffic-alcohol related and

other traffic).

164

N 600

0

500

0

f

400

p

r 300

s 200

0

n 100

e

r

s 0

FIGURE 4.1

MAJOR OFFENCES OF EACH SENTENCED PRISONER RECEIVED 1980 - 1989 OFFENCES INVOLVING ALCOHOL DISORDERLY - DRUNK - LICENSING ACT

1980 1981 1982 1983 1984 1985 1986 1987 1988 1989

III Aboriginal Disorderly

£21 Aboriginal Drunk Ill Aboriginal

Licensing Act

Because the criminal histories of the deceased persons investigated by the Royal

Commission also showed a large number of offences in which alcohol was

involved, I was interested in examining the imprisonment patterns for the

offences of drunkenness, liquor licensing act offences (street/park drinking etc)

and disorderly conduct. Although disorderly conduct is not strictly alcohol

related it may be presumed that many arrests for this offence would result from

the intoxicated state of the offenders.

Figure 4.1 (Major Offences of Each Sentenced Prisoner Received 1980-1989 for

Offences of Disorderly Conduct/Drunk/Licensing Act) based on data in

Department of Corrective Services Annual Reports 1980-1989, shows the pattern

of imprisonment rates for these offences over a ten year period. From 1980 to

1986 there was a dramatic decrease in the number of Aboriginal persons

165

imprisoned for drunkenness and disorderly conduct. From 1986 to 1987 there

was a slight increase in the level of Aboriginal imprisonment for drunkenness

with a subsequent decrease from 1987 until 1989. Drunkenness has since been

decriminalised as is discussed elsewhere in the Report. Figure 4.1, also shows

an increase in the number of Aboriginal people imprisoned for disorderly conduct

from 1987 to 1989. This increase needs to be closely monitored by the

Government because of the potential for further increases with the

decriminalisation of drunkenness (see discussion elsewhere the Report).

The level of imprisonment of Aboriginal persons for Liquor Licensing Act

o ffences is significantly lower than for the offences of drunkenness and

di sorderly conduct and has gradually decreased over the ten year period. The

level of imprisonment of non-Aboriginal offenders in each of these offence

cate gories is significantly lower than the level of Aboriginal offenders. The

numbers of non-Aboriginal imprisonments for Liquor Licensing Act offences are

minimal (3 in 1989).

National and Interstate Comparison

When comparing the offences for which Aboriginal people are imprisoned in

Western Australia with the other States in Australia I have used the data from the

National Prison Census 30.6.89 found in Walker. Walker's figures include the

number of prisoners who have not been convicted and sentenced and measure the

numbers on one night only in contrast to the data used in the previous section

which examined the offence rates of all sentenced prisoners received in Western

Au stralian prisons. Tables 4.10 and 4.11 show the Number and Percentages of

Aboriginal Prisoners by Most Serious Offence/Charge and Jurisdiction. Table

4.12 gives the national picture with number and percentages of prisoners by most

serious offence/charge and Aboriginality.

Western Australian Aborigines are over-represented in the offence category of

offences against the person (assault, sex offences, other against the person) with

166

35% of Aboriginal offenders imprisoned for this offence. Western Australia

(together with the Northern Territory) has the second highest proportion of

Aboriginal prisoners in this category, following South Australia with 37%, the

national average for all Aboriginal prisoners being 33% and non-Aboriginal

prisoners being 18%. Western Australia also has a higher proportion of

Aboriginal offenders imprisoned for traffic offences with an imprisonment rate of

9% for this offence category. The Western Australian rate is higher than the

Aboriginal rate in other States except Tasmania in which three of the nine

Aboriginal prisoners are detained for this offence. The national Aboriginal and

non-Aboriginal rates are both 6%.

TABLE 4.10: NUMBER OF ABORIGINAL PRISONERS BY MOST SERIOUS OFFENCE/CHARGE AND JURISDICTION

(NATIONAL PRISON CENSUS 30.6.1989)

NSW VJC

Offence

Homicide

Other Violence

Robbery/ Extortion

No .

26

123

43

Property Off 161

Justice/ Security 22

Other Good Order 4

Possess Drugs

Traffic Drugs

Motoring Off.

Other

Unknown

WfAL

13

22

0

0

415

No .

9

24

4

31

8

3

0

2

4

0

86

No.

59

137

35

130

10

11

3

3

21

3

0

412

WA

No .

34

196

18

184

32

25

2

50

15

558

167

SA

No.

8

38

11

30

10

4

0

0

0

0

102

TAS

No.

0

2

2

0

0

0

3

0

0

9

NT

No.

29

84

5

76

29

7

0

0

12

0

243

Total

No.

166

602

117

614

113

54

5

20

113

6

15

1825

TABLE 4.11: PERCENTAGES OF ABORIGINAL PRISONERS BY MOST SERIOUS OFFENCE AND JURISDICTION

(NATIONAL PRISON CENSUS 30.6.1989)

NSW VIC QJJJ WA SA TAS Nf

Offence

% % % % % % %

Homicide 6 10 14 6 8 11 12

Other 30 28 33 35 37 35

Violence

Robbery/ 10 5 8 3 11 11 2

Extortion

Property 39 36 32 33 29 22 31

Off

Justice/ 5 9 2 6 10 22 12

Security

Other Good 3 3 4 4 3

Order

Possess .2 .2

Drugs

Traffic

3 2 .4

Drugs

Motoring 5 5 5 9 33 5

Offences

Other 1 .2 .4

Unknown 3

TOTAL<•> 99.2 99 100 99.8 100 99 100.4

(a) Percentage totals do not all totallOO percent owing to rounding of figures.

168

Total %

9

33

6

34

6

3

.3

6

.3

.8

99.4

TABLE 4.12: NUMBER & PERCENTAGES OF PRISONERS BY MOST SERIOUS OFFENCE/CHARGE AND ABORIGINALITY • AUSTRALIA

(NATIONAL PRISON CENSUS 30.6.1989)

Offence/Charge

Abl T.S .I Other Unknown Total

No. % No. % No.% No. %

Homicide 161 8.8 1167 10.6 24 14.0 1352 10.4

Assault 322 17.6 760 6.9 10 5.8 1092 8.4

Sex Offences 256 14.0 1046 9.5 16 9.3 1318 10.2

Other Against Person 24 1.3 119 1.1 0 143 1.1

Robbery 114 6.2 1375 12.5 28 16.3 1517 11.7

Extortion 3 .2 22 .2 0 25 0.2

Break & Enter 352 19.3 1620 14.8 20 11.6 1992 15.4

Fraud & Misappropriation 20 1.1 504 4.6 10 5.8 534 4.1

Receiving 14 .8 226 2.1 1 0.6 241 1.9

Other Theft 179 9.8 993 9.1 9 5.2 1181 9.1

Property Damage 49 2.7 177 1.6 2 1.2 228 1.8

Environmental 0 5 .05 0 5 .04

Government Security 0 8 .1 0 8 .06

Justice Procedures 113 6.2 587 5.6 11 6.4 711 5.5

Prostitution 5 .3 32 .3 6 3.5 43 .3

Offensive Behaviour 9 .5 22 .2 1 0.6 32 .3

Possession of Weapon 8 .4 35 .3 0 43 .3

Other Against Good Order 32 1.8 88 .8 3 1.7 123 .9

Possession, Use of Drugs 5 .3 180 1.6 4 2.4 189 1.5

Trafficking Drugs 18 1.0 947 8.6 8 4.7 973 7.5

Manufacture Drugs 2 .1 133 1.2 0 135 1.0

Driving Offences 65 3.6 270 2.5 8 4.7 343 2.6

Administrative Offences 11 .6 152 1.4 1 0.6 164 1.3

Other Traffic Offences 37 2.0 179 1.6 6 3.5 222 1.7

Other Offences 6 .3 258 2.4 3 1.7 267 2.1

Unknown 20 1.1 62 .6 1 0.6 83 .6

TOfAL 1825 100 10967 100 172 1002 12964 100

169

4.1.2 ABORIGINALS IN POLICE AND PRISON CUSTODY

The over-representation of Aborigines in police and prison custody throughout

Australia is widely recognised. The extent of over-representation of Aboriginals

in Western Australia has been highlighted in the Criminology Research Unit

Research Papers Nos 6 'Aboriginal Imprisonment - A Statistical Analysis',

13 'National Police Custody Survey August 1988 - National Report',

17 'Methodological Issues in the Calculation of Over-representation and

Exposure to Risk in custody' and 19 'Aborigines in Prisons and Non-Custodial

Corrections'.

In the sections below I examine the level of over-representation of Aborigines in

police and prison custody in Western Australia. I will also look at the

characteristics of Aboriginal and non-Aboriginal prisoners/detainees. In some

instances this data will be contrasted to the National Prison Census data.

I have some hesitation about setting out extensive statistical information about

Aboriginal imprisonment rates in police and prison custody in Western Australia

in view of the number of times this information has been presented elsewhere and

the number of times the disproportionate rate of Aboriginal imprisonment in this

State has been condemned. I really wonder whether it all needs to be said again.

However in this section I have attempted to bring the statistical information

gathered by the Royal Commission together with statistical information supplied

by the relevant custodial authorities.

As some readers may not feel inclined to read 30 pages of statistical data I have

set out below a summary of the key points raised in this section.

170

4.1.2.1 Summary

The Royal Commission August 1988 survey of people detained in police

custody revealed that 54.2% of police custodies in Western Australia were

Aboriginal persons. Aboriginal persons account for only 2.69% of the

population in Western Australia. Nationally Aboriginal people accounted

for 28.6% of all police custodies.

Aboriginal people were over-represented in police custody, a rate 43 times

that of non-Aboriginal people. Nationally the level of over-representation

of Aboriginal people in police custody was 27.

In Western Australia 86.9% of sentenced prisoners serving their sentences

in police lockups during 1989 were Aboriginals.

In Western Australia 72% of female custodies in police lockups were

Aboriginal. (August 1988 survey)

74% of all Aboriginal juveniles aged 0-14 years detained in police custody

throughout Australia were held in police lockups in Western Australia.

Only 16.5% of the national Aboriginal population aged 0-14 years live in

Western Australia. (August 1988 survey)

51% of all sentenced prisoners received in Western Australian prisons

during 1988/89 were Aboriginal.

43% of distinct persons received in Western Australian prisons during

1988/89 were Aboriginal.

35.6% of prisoners in Western Australia counted in the National Prison

Census on 30 June 1989 were Aboriginal.

Aboriginal people are over-represented in prison in Western Australia by a

level ranging from 26.3 to 42.7 depending upon the data used. Whatever

171

figures are used this level of over-representation is outrageous and totally

unacceptable.

A survey of sentenced prisoners conducted during April 1989 showed the

level of over-representation of Aboriginals in Western Australian prisons to

be 61.6 (calculated on adult population figures). The corresponding

national level of over-representation was 23.4.

The proportion of Aboriginal female prisoners received into Western

Australian prisons has decreased from 84.4% of female prisoner receivals

in 1980 to 65.9% of female prisoner receivals in 1989.

90% of Aboriginal prisoners received into prisons in Western Australia

have less than three years secondary education in comparison to 71.2% of

'other' prisoners, according to a Prison Census on 30 June 1989.

62.8% of Aboriginal sentenced prisoners received are in prison for

sentences of less than three months. 11.7% are in prison for less than

eight days according to the Department of Corrective Services Annual

Report 1988/89.

The National Prison Census of 30 June 1989 indicates that Aboriginal

prisoners in Western Australia are generally serving shorter sentences for

most offences than non-Aboriginal prisoners.

44.4% of all sentenced prisoners received were received for default of fine

only according to the Department of Corrective Services Annual Report

1988/89.

51.6% of these fine defaulters received were Aboriginal.

172

4.1.2.2 Sources of Data

As discussed in the section dealing with offences, the data available on custodial

rates in prisons varies from State to State. In this section, when focusing on the

custodial rates in Western Australian prisons, I will use the receivals data

published by the Department of Corrective Services. Some comparison will be

made between that data and the National Prison Census data.

When comparisons are made with the interstate and national imprisonment rates

the National Prison Census data will be used.

The main source of information available to examine the detention rates of

Aboriginals in police custody is the National Police Custody Survey August 1988

conducted by the Royal Commission Criminology Research Unit. This is

supplemented by the Royal Commission Kalgoorlie research papers. Both of

these studies look at receivals into police custody over a limited period of time.

4.1.2.3 Police Custody

The National Police Custody Survey August 1988 -National Report provides a

breakdown of the number of Aboriginal and non-Aboriginal people in police

custody during August 1988 throughout Australia. As noted above, the survey

examined the number of persons who were actually lodged in the cells in police

stations during the survey period. It does not show the total number of arrests.

Some concerns have been expressed as to how representative the survey period

was of the police custodial rates generally. For this reason the Western Australia

Police Department was asked if there was any reason that the survey figures for

Western Australia might be significantly different to any other month or year in

the last five years. The Department's response was that the number of custodial

incidents could be significantly different. They said: 'A comparison or

presumption cannot be made on one statistic. Many factors could have a bearing

173

on the number of police custodies in a particular month or year' (Commissioner

of Police, 1990:Ql.l). When asked to clarify the factors that could have a

bearing on the number of police custodies the Department said:

1 . Seasonal Factors -August is a winter month and there is a tendency for people to stay indoors or to remain at home. The result may be a reduction in arrests particularly of public order offences.

2 . Population increase.

3. Increased staffing levels at Police Stations.

4. General increase in crime and lawlessness throughout the community.

5. Increased unemployment. [Police Department, 1990:Q 1.1.]

The Police Department appears to be suggesting that the number of police

custodies in August 1988 may in fact under-represent the level of custodial

incidents in Western Australia.

Perhaps optimistically I was of the view that the number of police custodies may

have decreased in the last two years. This view was held for a number of

reasons. The evidence of a number of officers in charge from country police

, stations such as Broome, Geraldton, Wiluna and Kalgoorlie was that the number

of custodies had significantly decreased over the last couple of years. The study

of detentions at the Kalgoorlie Police Station for two periods, one in 1987 and

the other in 1990, showing a significant reduction in the number of detentions

provides support for this view. In addition, in Halls Creek, August is the month

in which the race meeting is held, which results in an enormous increase in the

number of people in town and consequently the number of detentions. Also,

since the August 1988 survey bail legislation has been introduced which should

have reduced the number of detentions. One would also hope that the level of

awareness of the dangers of imprisonment would have resulted in significant

reduction of custodial rates since the commencement of the Royal Commission.

174

The Department was also of the view that the proportions of Aboriginal/non­

Aboriginal detentions had probably remained unchanged and that the type of

offences involved would have remained similar over the period.

Given the possible limitations of the survey discussed above the results of the

survey nevertheless present a startling picture about detentions in police custody.

The total number of Aborigines in police custody during August 1988 throughout

Australia was 8056. Aboriginals accounted for 28.6% of all people held in police

custody, whereas Aboriginal people account for only 1.1% of Australian

population 15 years and over. Aboriginals were placed in cells at a rate over 20

times Non-Aboriginals. However the picture painted by the survey of the number

of Aboriginals in custody in Western Australia was particularly grim.

Tables 4.13 and 4.14 below, taken from the Criminology Research Unit

Research Paper No. 13, Table 1 page 5, shows that Western Australia had third

highest number of Aboriginal and Non-Aboriginal custodies (5416) following

Queensland (6143) and NSW (5582).

Western Australia was the State with the largest number of Aboriginal people

held in police custody (2921) followed by Queensland (1740), and Northern

Territory (1659), dropping dramatically to New South Wales (774).

In contrast, the number of non-Aboriginal custodies in Western Australia was

fifth highest at (2464), following Victoria (4677), NSW (4697), Queensland

(4295) and South Australia (2494).

175

TABLE 4.13: STATE AND ABORIGINALITY

NSW Vic Qld WA SA Tas NT ACT Aust

Abl 774 198 740 2921 697 43 1659 24 8 056

Non- Abl 464 7 4 679 4295 2464 2494 530 515 460 :!)004

Not Known 161 59 108 31 26 17 17 7 426

TOTAL 5582 4 936 6143 5416 3 217 590 2191 491 28 566

TABLE 4.14: STATE AND ABORIGINALITY: PERCENTAGES

NSW Vic Qld WA SA Tas NT ACT Aust

Abl 14.3 4.1 28.8 54.2 21.8 7.5 76.3 5.0 28.6

Non- Abl 85 .7 95.9 71.2 45.8 78.2 92.5 23.7 95.0 71.4

TOTAL 100 100 100 100 100 100 100 100 100

When we look at the proportion of Aboriginal and Non-Aboriginal people in

custody in each jurisdiction, (as shown in Table 4.15, taken from Criminology

Research Unit Research Paper No 13, Table 2, p.6) Western Australia had

second highest proportion of Aboriginal custodies at 54.2% although Aboriginal

population is only 2.69% in Western Australia. Northern Territory had the

highest proportion of Aboriginal custodies, at 76.3%, however, in the Northern

Territory 22.43% of the population is Aboriginal.

176

TABLE 4.15: ABORIGINES IN POLICE CUSTODY, ST ATE(a)

Aboriginal % Aborigines Aboriginal %Aboriginal State Pol!_ulation inState custodies custodies

NSW 59 011 1.09 774 14.3

VIc 12 611 0.31 198 4 .1

Qld 61268 2.37 1470 28.8

WA 37 789 2.69 2 921 54.2

SA 14 281 1.06 697 21.8

Tas 6 716 1.54 43 7.5

Nf 34 739 22.43 1 659 76.3

ACf 1220 0.49 24 4.9

Aust 227 645 1.46 8 056 28.6

(a) Population data derived from the Census of Population and Housing, 30 June 1986.

Another way of looking at the figures shows the level of over-representation by

comparing the ratios of Aboriginal custody rates to non-Aboriginal. (See Table

4.16 below, taken from Criminology Research Unit Research Paper No 13,

Table 3, page 7).

TABLE 4.16: CUSTODY RATES(a)

Non- Level of over-

State Aboriginal Aboriginal Total rel!_resentation (JJ) NSW 1 312 87 103 15

VIc 1570 117 123 13

Qld 2 840 170 237 17

WA 7730 180 385 43

SA 4 877 187 239 26

Tas 640 123 135 5

Nf 4776 429 1415 11

ACT 1967 185 197 11

Aust 3 539 131 183 27

(a) Police custodies August 1988 per 100,000 population at the 1986 census (b) Rate ratios , ie, ratios of Aboriginal custody rates to non-Aboriginal rates

177

Aboriginal people in Western Australia were held in police custody at a rate 43

times that of non-Aboriginal people. This must surely be seen as one of the most

distressing findings of the whole inquiry. The next highest level of over­

representation was South Australia at 26.

Queensland was third highest with Aboriginals held in police custody at 17 times

the rate of non-Aboriginals.

Data supplied by the Department of Corrective Services shows the number of

Abo_ riginal persons who are sentenced prisoners and are serving their sentences

in police lockups. During the eleven months to 31 May 1989, of7361 convicted

persons received into lockups, 6398 or 86.9% were Aboriginal. 47% of the

Aboriginal prisoners were held in lockups in the Kimberleys.

Gender

In Western Australia 25% of Aboriginal police custodies were female. The

situation was the same in Queensland but contrasts markedly with New South

Wales where only 9% of Aboriginal custodies were female. Nationally 21% of

Aboriginal custodies were female.

Of non-Aboriginal custodies in Western Australia 12% of the custodies were

females and 88% were males.

In Western Australia 72% of the female custodies in Western Australia were

Aboriginal. The corresponding national proportion is 49% and other

jurisdictions are as follows:

NT - 88%, Queensland - 57%, SA - 32%, NSW- 17%, ACT- 16%, VIC- 7%,

Tasmania- 6%.

178

Age.

In Western Australia the mean age of people taken into police custody during

August 1988 was 27.7 years. Ninety percent of the cases were aged 42 years or

less and the ages ranged from 10 to 93 years. The medium age was 25 years and

the most frequently reported age was 18 years (5.9% of custodies).

Table 4.17 below shows the age distribution for Aboriginal and non-Aboriginal

custodies in Western Australia during the survey period. Table 4.18 provides a

comparison with the data for Australia

TABLE 4.17: NATIONAL POLICE CUSTODY SURVEY AUGUST 1988 (WA) BY AGE AND ABORIGINALITY (a)

A8e Abori8inal Non-Aborig_inal Totals

No % No % No %

0-14 76 2.6 45 1.8 121 2.3

15 80 2.8 65 2.7 145 2.7

16 118 4.1 111 4.5 229 4.3

17 147 5.1 152 6.2 299 5.6

18 136 4.7 176 7.2 312 5.6

19 103 3.6 165 6.7 268 5.0

20-24 615 21.3 625 25.6 1240 23.3

25-29 457 15.8 438 17.9 895 16.8

30-34 354 12.3 238 9.7 592 11.1

35-39 271 9.4 166 6.8 437 8.2

40-44 173 6.0 96 3.9 269 5.0

45-49 159 5.5 68 2.8 227 4.3

50-54 108 3.7 30 1.2 138 2.6

55-59 36 1.2 38 1.6 74 1.4

60-64 29 LO 22 0.9 51 1.0

65+ 23 0.8 10 0.4 33 0.6

'IOTAL* 2885 99.9% 2445 99.9% 5330 99.8%

* Percentages may not total 100 percent owing to rounding of figures

(a) Police custodies August 1988 per 100,000 of the total population at the 1986 Census.

179

TABLE 4.18: NATIONAL -POLICE CUSTODY SURVEY, AUGUST 1988 (AUSTRALIA) BY AGE AND ABORIGINALITY

Age Aborig_inal Non-Aborig_inal Totals

No % No % No %

0-14 103 1 199 1 302 1

15 130 2 217 1 347 1

16 216 3 385 2 601 2

17 352 4 728 4 1080 4

18 413 5 1211 6 1324 5

19 376 5 1264 6 1640 6

20-24 1840 23 5701 29 7541 27

25-29 1427 18 3902 20 5329 19

30-34 974 12 2289 12 3263 12

35-39 714 9 1415 7 2129 8

40-44 483 6 920 5 1403 5

45-49 379 5 585 3 964 4

50-54 235 3 325 2 560 2

55-59 126 2 254 1 380 1

60-64 64 1 148 1 212 1

65+ 48 1 102 1 150 1

7 880 100% 19645 100% 27 525 99%

(a) Percentages may not totallOO percent owing to rounding of figures

The infonnation on hand suggests that the number of young people detained in

police custody in Western Australia is higher than it is nationally, e.g. Nationally

302 x 0 -14 year olds were in police custody which was 1% of the total number

of people detained. In Western Australia 121 x 0-14 year olds were detained

being 2.3% of the total number detained in Western Australia and 40% of the

total number of 0-14 year olds in police custody Australia wide. Of these, 76

(62.8%) were Aboriginal and 45 (to 37.2%) were non-Aboriginal, whereas

nationally 34.1% of 0-14 year olds in police custody were Aboriginal and 65.9%

were non-Aboriginal.

180

Of the total number of Aboriginal juveniles aged 0-14 years held in police

custody in August 1988, 74% were held in Western Australia. According to the

1986 census 16.5% of the national Aboriginal population aged 0-14 years live in

Western Australia.

Length of Time Spent in Police Custody

Criminology Research Unit Research Paper No. 13 (McDonald,l990:32) shows

that in respect of all incidents of custody where detained persons were held in

cells for less than 48 hours, in Western Australia the average time for holding

Aboriginal detainees was 9.9 hours, whereas non-Aboriginal detainees were held

for approximately half the time (5.1 hours). The national average for length of

time spent in the cells was 9.7 hours for Aboriginal detainees and 7.6 hours for

non-Aboriginal detainees.

4.1.2.4 Prison Custody

The over-representation of Aboriginals in Western Australia's prisons has been

well documented over the years. The extent of the over-representation has

variously been described as 'gross' 'abhorrent' 'profound' and 'unfathomable'.

Comprehensive discussions as to the levels of Aboriginal imprisonment in

Western Australia are found elsewhere, 1 therefore in this section I provide a brief

description of the current level of imprisonment of Aboriginals in Western

Australia based on Department of Corrective Services receival data for year

ending 30 June 1989 and compare the Western Australian picture with the picture

elsewhere in Australia. I will also provide a thumbnail sketch of the profile of

prisoners in Western Australia (sex, age, education level, employment status) and

the length of time for which they are imprisoned.

Finally I will examine the number of prisoners detained for fine default only.

1 Broadhurst; Biles; Walker; Parker; Eggleston.

181

Proportion of Aboriginal Prisoners

The Department of Corrective Services Annual Reports provide figures for the

number of' Aboriginal' and 'other' prisoners received. The category of 'other'

includes non-Aboriginal persons as well as persons for whom Aboriginality is

unknown. The inclusion of 'unknowns' in the category of 'other' makes

comparison between Aboriginal and non-Aboriginal persons slightly inaccurate

so this should be kept in mind when comparisons are made between Aboriginal

and non-Aboriginal prisoners.

In the year ending 30 June 1989 of the 3977 sentenced prisoners received in

Western Australian prisons 2035 were Aboriginal and 1942 were classified as

'other'; ie. 51% of sentenced prisoners received were Aboriginal. Of the 1409

unsentenced prisoners received, 501 were Aboriginal and 908 were 'other', ie.

36% of unsentenced prisoners received were Aboriginal. Aboriginals accounted

for 2536 or 47% of the total number (5386) of prisoners, sentenced and

unsentenced, received. Table 4.19 below sets out the numbers of prisoners

received in Western Australian prisons for the year ending 30 June 1989.

TABLE 4 .19: PRISONERS RECEIVED AND DISTINCT PERSONS YEAR ENDING 30 JUNE 1989(a)

Aboris_inal Other Total

No % No %

Sentenced Receivals 2035 51 1942 49 3977

Unsentenced Receivals 501 36 908 64 1409

Total Receivals 2536 47 2850 53 5386

Distinct Persons 1758 43 2375 57 4133

(a) Adapted from Table 4 in Statistical Report 1988-1989 Department of Corrective Services, Western Australia

The total of 5386 prisoners received refers to all admissions into prisons during

the period. A person may have been received more than once during the period

so it is interesting to compare the number of receivals to the number of distinct

182

persons admitted during the period. 4133 individuals were received during the

year ending 30 June 1989. 1758 or43% of those prisoners were Aboriginal and

2375 or 57% were 'others'.

The response of the Department of Corrective Services to the Underlying Issues

Paper (19.3.90) states that the over-representation of Aboriginal persons received

into prisons in Western Australia is increasing as a proportion of all receivals, all

unsentenced receivals and distinct persons.

Their receivals figures from 1985/86 to 1988/89 show that the proportion of

Aboriginals in each of the said categories has increased over the four year period.

It is interesting to note that a submission of National Aboriginal and Islander

Legal Services Secretariat (NAILSS) on Western Australian Prisons expressed

concern as to whether departmental figures accurately reflected the size of the

Aboriginal prison population. In New South Wales, NAILSS were given access

to the official figures showing the number of Aboriginal prisoners in each prison

and the names of the prisoners so were able to ascertain if all Aboriginal

prisoners had been identified. They found that up to 20% of the Aboriginal

prison population were unidentified.

The 1989 National Prison Census data provides a comparison of the proportion

of Aboriginal prisoners in Western Australia to the proportion in other

jurisdictions in Australia. Table 4.20 below shows the number of Aboriginal and

non-Aboriginal prisoners in each Australian jurisdiction form 1982 to 1989 and

Table 4.21 shows the percentage of Aboriginal and non-Aboriginal prisoners in

each jurisdiction over the same period.

183

TABLE 4.20: AUSTRALIAN PRISONERS, 1982 TO 1989 BY JURISDICTION AND ABORIGINALITY

NSW Vic Qld WA SA Tas NT ACT Aust

1982 Aboriginal 216 71 441 118 5 198 - 1049

Non-Aboriginal 3476 1547 909 668 232 114 5 695 1

Unknown 27 135 1638 26 - 1826

Total 3719 1753 1638 1350 812 237 312 5 9826

1983 Aboriginal 236 72 523 116 9 162 - 1118

Non-Aboriginal 3394 1916 980 630 198 105 2 7225

Unknown 103 8 1709 18 2 13 1853

Total 3733 1996 1709 1503 764 209 267 15 10196

1984 Aboriginal 242 47 492 88 22 127 - 1018

Non-Aboriginal 3047 1615 - 1051 416 216 122 17 6484

Unknown 65 183 1881 60 3 - 2192

Total 3354 1845 1881 1543 564 241 249 17 9694

1985 Aboriginal 304 44 489 93 8 214 1153

Non-Aboriginal 3726 1789 - 1006 644 187 120 - 7472

Unknown 85 46 1999 46 33 10 2219

Total 4115 1879 1999 1495 783 228 334 11 10844

1986 Aboriginal 338 42 517 112 15 289 - 1313

Non-Aboriginal 3763 1879 - 1095 635 217 140 17 7746

Unknown 129 34 2186 63 26 - 2438

Total 4230 1955 2186 1612 810 258 429 17 11497

1987 Aboriginal 369 52 354 503 147 7 334 - 1766

Non-Aboriginal 4105 1877 1985 1124 727 241 133 14 10206

Unknown 77 27 6 2 32 144

Total 4551 1956 2345 1627 876 280 467 14 12166

1988 Aboriginal 385 65 431 528 114 10 276 - 1809

Non-Aboriginal 4097 1984 1930 1121 723 259 104 14 10232

Unknown 209 22 13 7 28 1 280

Total 4691 2071 2374 1649 844 297 381 14 12321

1989 Aboriginal 415 86 412 558 102 9 243 - 1825

Non-Aboriginal 4839 2156 1855 1010 761 215 109 22 10967

Unknown 7 14 122 8 21 172

Total 5261 2256 2389 1568 871 245 352 22 12964

184

TABLE 4.21: PERCENTAGE OF ABORIGINAL AND NON-ABORIGINAL PRISONERS IN EACH JURISDICTION, 1982 TO 1989

NSW Vic Qld WA SA Tas NT ACT Aust

% % % % % % % % %

1982 Aboriginal 5.8 4.1 - 32.7 14.5 2.2 63.5 - 10.7

Non-Aboriginal 93.5 88.2 - 67.3 82.3 97.9 36.5 100.0 70.7

Unknown 0.7 737 100.0 3.2 - 18 .6

1983 Aboriginal 6.3 3.6 - 34.8 15.2 4.3 60.7 - 11.0

Non-Aboriginal 90.9 96.0 - 65.2 82.5 94.7 .39.3 13.3 70.9

Unknown 2.8 0.4 100.0 2.4 1.0 - 86.7 18.2

1984 Aboriginal 7.2 2.5 - 31.9 15.6 9.1 51.0 - 10.5

Non-Aboriginal 90.8 87.6 - 68 .1 73.8 89.6 49.0 100.0 66.9

Unknown 1.9 919 100.0 - 10.6 1.2 - 22.6

1985 Aboriginal 7.4 2.3 - 32.7 11.9 3.5 64 .1 9.1 10.6

Non-Aboriginal 90.6 95.2 - 67.3 82.3 82.0 35.9 - 68.9

Unknown 2.1 2.4 100.0 5.9 14.5 - 90.9 20.5

1986 Aboriginal 8.0 2.1 - 32.1 13 .8 5.8 67.4 11.4

Non-Aboriginal 89.0 96.1 - 67.9 78.4 84.1 32.6 100.0 67.4

Unknown 3.0 1.7 100.0 7.8 10.1 - 21.2

1987 Aboriginal 8.1 2.7 15.1 30.9 16.8 2.5 71.5 14.6

Non-Aboriginal 90.2 96.0 84.7 69.1 83.0 86.1 28.5 100.0 84 .2

Unknown 1.7 1.4 0.3 0.2 11.4 1.2

1988 Aboriginal 8.2 3.1 18.2 32.0 13 .5 3.4 72.4 14.7

Non-Aboriginal 87 .3 95.8 81.3 68.0 85.7 87.2 27.3 100.0 83.0

Unknown 4.5 1.1 .5 .8 9.4 .3 2.3

1989 Aboriginal 7.9 3.8 17.2 35.6 11.7 3.7 69.0 - 14.1

Non-Aboriginal 92.0 95 .6 77.6 64.4 87.4 87.8 31.0 100.0 84.6

Unknown .1 .6 5.1 .9 8.6 1.3

The number and percentages of prisoners in Western Australia are di fferent to the

receivals figures given above because the census data measures only the number

185

of prisoners in prison on the particular night of the census i.e. 30 June 1989, ie.

the 'stock' of prisoners on that night whereas the receivals figures measure the

'flow' of prisoners through the prison system.

These tables derived from National Prison Census data show that although the

number of prisoners in Western Australia (1568) was less in 1989 than the

previous three years (1649, 1627, 1612) the number of Aboriginal prisoners was

the highest it had been during the period covered (1982-1989). Table 4.22 also

shows that the percentage of Aboriginal prisoners in Western Australia on

30 June 1989 (35.6%) was the highest it had been from 1982 to 1989 (the

proportion of Aboriginal prisoners in the census figures is less than the

proportion indicated by the receivals data, i.e. 47%).

The proportion of Aboriginal prisoners on 30 June 1989 in Western Australia

(35.6%) also contrasts markedly with the proportion of Aboriginal prisoners in

other Australian jurisdictions. Western Australia has the second highest

proportion of Aboriginal prisoners following the Northern Territory (69%). The

jurisdiction with the next highest proportion of Aboriginal prisoners is

Queensland (17.2%) which has less than half the West Australian percentage.

The proportion of Aboriginal prisoners found throughout Australia is 14.1 %.

Over-representation of Aboriginals in Western Australia Prisons

Although the exact size of the Aboriginal and Torres Strait Islander population in

Australia is a matter of debate (see discussion in Commissioner Dodson's

Report) the 1986 population census conducted by the Australian Bureau of

Statistics found that Aboriginals (including Torres Strait Islanders) comprised

1.46% of the national population total and 2.69% of the West Australian

population.

The level of Aboriginal over-representation in Western Australian prisons is

calculated by comparing the ratio of Aboriginal custody rates for prisoner

186

receivals to non-Aboriginal custody rates (based on data in the Dept of Corrective

Services Annual Report 1989). The table below shows the level of over­

representation of Aboriginals in prison in Western Australia to be 32.3.

TABLE 4.22: OVER-REPRESENTATION OF ABORIGINALS IN PRISON IN WESTERN AUSTRALIA, 1989(a)

Aboriginal Imprisonment Bill£. (incidence per 100 000 Abl population)

6710.3

Non-Aboriginal lmvrisonrnent Rate (incidence per 100 000 non­ Abl population)

208.0

Level Q[

Over revresentation

32.3

(a) Police custodies August 1988 per 100,000 of the total population at the 1986 Census

These figures are conservative as the whole community is taken into

consideration whereas if only the adult community were considered then higher

levels of over-representation would be indicated. When the imprisonment rate

per 100 000 is based on population figures for persons seventeen years and over

from the Australian Bureau of Statistics census data for 1986 the level of over­

representation of Aboriginal imprisonment increases to 42.7 times the rate of

non-Aboriginal imprisonment.

At the request of the Criminology Research Unit of the Royal Commission, all

Australian Corrections Departments agreed to collect data of sentenced persons

received during the month of Aprill989. The one month reception rates for all

ages and for adults, along with over-representation levels are set out in Table

4.23 below (taken from Criminology Research Unit Research Paper No. 19,

Table 9, p.15).

187

TABLE 4.23: SENTENCED PRISONER RECEPTION RATEs,(a) ALL AGES AND ADULTs,(b) APRIL 1989

All Ages Adults

Jurisdiction Aboriginal Non- Over- Aboriginal Non- Over-

Aboriginal reeresentation Aboriginal re[!_resentation

NSW 74.6 7.8 9.6 137.9 10.6 13.1

Vic 87.2 5.4 16.2 153.7 7.3 20.9

Qld 89.8 12.9 6.9 165.3 17.8 9.3

WA 325.5 6.9 46.9 587.6 9.5 61.6

SA 321.9 12.2 26.5 578.9 16.3 35.2

Tas 163.9 17.2 9.5 315.5 23.9 13.2

NT 135.3 18.3 7.4 245.9 25.1 9.8

Australia 148.0 8.5 17.3 270.5 11.6 23.4

(a) Rates per 100,00 (b) Aged 17 years and above

April 1989 receptions show an Aboriginal over-representation level of 17.3

nationally and 46.9 in Western Australia. The corresponding over-representation

levels calculated on an adult population basis is 23.4 nationally and 61.6 in

Western Australia.

TABLE 4.24: ABORIGINAL AND NON-ABORIGINAL ADULT(a) IMPRISONMENT RATES AND LEVEL OF OVER­ REPRESENTATION, BY JURISDICTION, 30 JUNE 1989

Jurisdiction Aboriginal Non- Level of Over-

Aboriginal ree.resentation

NSW(b) 1300.4 118.1 11.0

VIc 1201.3 73.2 16.4

Qld 1238.4 100.8 12.3

WA 1665.6 101.5 26.3

SA 1270.4 76.5 16.6

Tas 258.2 69.3 3.7

Nf 1271.5 124.5 10.2

Australia 1464.9 97.2 15.1

(a) Prisoners per 1 00,000 of the relevant adult ( 17 years and above) population at 1986 Census of Population and Housing (b) Including ACT

188

It is clear that the 30 June 1989 National Prison Census data indicates a lower

level of over-representation of Aboriginals in Western Australia prisons (26.3)

than the 1989 receivals data which shows the comparative level of over­

representation to be 42.7. The receivals data for April 1989 shows an even

higher level of over-representation with Aboriginals being over-represented at an

extraordinary 61.6. The differences between the estimates of over-representation

levels using (stock) data and receival (flow) data, reflect the fact that Aboriginal

people have, on average, shorter sentences than non-Aboriginal people. This is

borne out in the latter section dealing with the duration of imprisonment.

Whichever data is used it is clear that the over-representation of Aborigines in

prison in Western Australia remains far higher than the rest of Australia. The

imprisonment rates of Aboriginals in Western Australia over the past eight years

suggest that the situation is getting worse rather than improving. It is no wonder

that this shamefu1level of over-representation has been described as 'gross and

abhorrent' given the figures discussed above. The level of over-representation is

outrageous and totally unacceptable.

Gender Difference

In both Aboriginal and non-Aboriginal populations there are many more males in

prison than females. In the year ending 30 June 1989 there were 2098

Aboriginal male prisoners and 438 Aboriginal female prisoners received in

Western Australia prisons. Aboriginals comprised 44.4% of all male prisoners

and 65.9% of all female prisoners received.

189

TABLE 4.26: NUMBERS AND PERCENTAGES OF ABORIGINAL PRISONERS RECEIVED IN WA PRISONS 30.6.1980 -30.6.1989 BY GENDER(a)

&21. Mflk dl21 &21. Total

No % No % No %

1980 1716 50.4 369 84.4 2085 54.4

1981 1956 53.3 367 85.0 2323 56.6

1982 1578 46.7 289 77.5 1867 49.7

1983 1964 45.1 397 80.7 2361 48.7

1984 1665 41.7 308 70.3 1973 44.5

1985 1921 38.5 374 62.0 2295 41.0

1986 1890 37.6 346 62.7 2236 40.1

1987 2036 38.3 392 64.4 2428 40.9

1988 2040 40.2 469 64.0 2509 43.2

1989 2098 44.4 438 65.9 2536 47.1

(a) Receival numbers extracted from Department of Corrective Services Annual Reports from 1980 - 1989

Figure 4.2 shows the percentage of Aboriginal male and female prisoners

rccei ved over the period 198 0 to 1989.

90

80

70

p

e 60

r 50

c

e 40

n 30

20

10

0

FIGURE 4.2

PERCENT AGE OF ABORIGINAL PRISONERS RECEIVED BY GENDER 1980 - 1989

1980 1981 1982 1983 1984 1985 1986 1987 1988 1989

13 Abl Male [2J Abl Female

190

Again the picture presented by the Western Australia receivals data contrasts

markedly with the National Prison Census Data 30 June 1989 (Walker, 1989).

TABLE 4.26: PERCENTAGES OF PRISONERS BY JURISDICTION, SEX AND ABORIGINALITY

Aboriginality NSW Vic Qld WA SA Tas NT ACT Aust

Abl, Torres St 7 .7 3.5 17 .3 35 . 1 11.7 3.8 69 .0 .0 14 .0

Other 92.2 95.8 77.5 64.9 87.6 87.7 31.0 100.0 84.7

Unknown . 1 .7 5.3 .0 .7 8.5 . 0 . 0 1.4

Total 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0

Females

Abl,.Torres St 11.4 8.6 16.8 42.9 12.5 .0 100.0 .0 16 .3

Other 88 .6 91.4 81.5 57.1 82.5 88 .9 .0 100.0 82 .9

Unknown .0 .0 1.7 .0 5.0 11.1 .0 . 0 .7

Total 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.00

Total Persons

Abl, Torres St 7.9 3 .8 17.2 35.6 11.7 3 .7 69.2 .0 14 . 1

Other 92.0 95 .6 77.7 64.4 87 .4 87 .8 30.8 100.0 84 .6

Unknown .1 .6 5.1 .0 .9 8.6 .0 .0 1.3

Total 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0

The prison census data 30 June 1989 shows that 35.1% of male prisoners and

42.9% of female prisoners in Western Australia were Aboriginal. This contrasts

with the comparative proportions of 44.4% and 65.9% respectively based on the

receivals data.

191

Western Australia is second to only the Northern Territory in its high proportions

of male and female Aboriginal prisoners. In the Northern Territory 69% of male

prisoners and 100% of female prisoners were Aboriginal. On a nationa11cve1

14% of male prisoners and 16.3% offemale prisoners were Aboriginal.

Age Distribution

The Department of Corrective Services Statistical Report 1988-1989 provides us

with the ages of distinct persons received.

TABLE 4.27: AGES OF DISTINCT PERSONS RECEIVED, YEAR ENDED 30 JUNE 1989

Age at Receival Aboris_inal Other Total

Male Female Male Female

Under 16 years 1 1 2

16 to 17 years 43 1 20 64

18 to 19 years 231 31 323 28 613

20 to 24 years 453 85 624 51 1213

25 to 29 years 322 73 440 43 878

30 to 34 years 194 40 276 36 546

35 to 39 years 95 35 193 17 340

40 to 44 years 67 16 136 14 233

45 to 49 years 28 5 66 5 104

50 years and over 25 9 92 11 137

Age unknown 2 1 3

TOTALS 1461 267 2170 205 4133

192

TABLE 4.28: NUMBERS AND PERCENT OF AGE OF DISTINCT PERSONS RECEIVED YEAR ENDING 30 JUNE 1989

Age at Receival Aboriginal Other Total

No % No % No %

Under 16 years 2 0.1 2 0.1

16 to 19 years 306 17.4 371 15.6 677 16.3

20 to 24 years 538 30.6 675 28.4 1213 29.3

25 to 29 years 395 22.5 483 20.3 878 21.2

30 to 34 years 234 13.3 312 13.1 546 13.2

35 to 39 years 130 7.4 210 8.8 340 8.2

40 to 44 years 83 4.7 150 6.3 233 5.6

45 to 49 years 33 1.9 71 3.0 104 2.5

50 years & over 34 1.9 103 4.3 137 3.3

Age unknown 3 0.2 3 8.1

TarAL(a) 1758 100% 2375 99.8% 4133 99.8%

(a) Percentage may not total 100 percent owing to rounding of figures

The above tables show that the ages of Aboriginal and non-Aboriginal persons

received into Western Australia prisons are similarly distributed. However there

are proportionately more Aboriginal prisoners in the age groups sixteen to

nineteen years (17.4% compared to 15.6%), twenty to twenty-four years

(30.6% compared to 28.4%), twenty-five to twenty-nine years (22.55%

compared to 20.3%), and thirty to thirty-four years (13.3% compared to 13.1 %).

In the age groups over thirty-five years there are proportionately more non­

Aboriginal prisoners (19.4% compared to 16.1%). Nearly half (48%) of

Aboriginal prisoners are under the age of twenty-five years and 91% are under

the age of forty years. The comparative proportions for non-Aboriginal prisoners

are 44% and 86% respectively. Research by NAILSS (1990) tends to confirm

the accuracy of the Departments figures relating to age of prisoners. The

NAILSS survey of 319 Aboriginal prisoners found that 84.4% of respondents

193

were aged less than thirty four years. The Department's figures indicate that

84% of Aboriginal prisoners are thirty-four years or less.

Criminology Research Unit Research Paper No. 6, Aboriginal Imprisonment- A

Statistical Analysis, July 1989, provided comparative data of the mean age of

prisoners in jurisdictions with sufficiently large numbers of Aboriginal prisoners

to make calculations meaningful. The table below shows that the mean age of

Aboriginal prisoners was between two and four years lower than the mean age of

non-Aboriginal prisoners.

TABLE 4 . 29: MEAN AGE IN YEARS OF ABORIGINAL AND NON-ABORIGINAL PRISONERS, 1985

Aboriginal Non-Aboriginal

NSW 27.7 30.4

Vic 26.7 30.8

Qld 27.4 30.4

WA 27.1 29.4

SA 26.7 29.5

NT 24.1 26.3

By way of contrast the NAILSS survey found that in Western Australia the

average age of Aboriginal survey respondents was 25.9 years.

Education Level

Biles (1990) said that the information collected in annual census of prisoners as

to the level of education of prisoners at the time of reception into prison

supported the general proposition 'that persons who go to prison in Australia are

generally grossly inadequately educated (with much lower levels of achievement

than the broader community) and the situation with regard to Aboriginal prisoners

ie even more disturbing' . He presents the 1987 National Prison Census results

which showed that only 3.1% of non-Aboriginal prisoners had attempted any

194

tertiary, technical, trade or other post secondary education and only 6.2% had

completed high school. He said the equivalent figures for Aboriginal prisoners

were even lower at 1.4% and 2.7% respectively. He also gave the proportion of

Aboriginal prisoners with no formal education as 31.6% and the equivalent figure

for non-Aboriginal prisoners as 8.3%.

The Department of Corrective Services Statistical Report 1988-1989 provides a

table of Census of Prisoners on Night of 30 June 1989 showing educational

qualifications at receival. A summary of the table is set out below.

TABLE 4.30: CENSUS OF PRISONERS ON 30 JUNE 1989 SHOWING EDUCATIONAL QUALIFICATIONS AT RECEIVAL

Educational Level Aborig_inal Other Total

No % No % No %

Less than 3 yrs secondary 505 90.0 728 71.2 1233 77.7

3 yrs secondary 39 6.9 95 9.3 134 8.4

5 yrs secondary 4 0.7 41 4.0 45 2.8

Partial tertiary 4 0.4 4 0.3

Tertiary 10 1.0 10 0.6

Trade 10 1.8 122 11.9 132 8.3

Partial trade 3 0.5 12 1.2 15 0.9

Business & 1 0.2 3 0.3 4 0.3

technical

Other 5 0.5 5 0.3

Unknown 2 0.4 2 0.2 4 0.3

TarAL(a) 564 100.5% 1022 100% 1588 99.9%

(a) Percentage may not total 100 percent owing to rounding of figures

Although this table does not show how many prisoners have no formal education

it indicates that 90% of Aboriginal prisoners have had less than three years

secondary education whereas the equivalent figure for non-Aboriginal prisoners

195

is 71.2%. No Aboriginal prisoners had any tertiary education and only fourteen

non-Aboriginal prisoners (or 1.4%) had this level of education. Very few

Aboriginals had any trade or partial trade qualifications (2.3%) whereas 13.1% of

non-Aboriginal prisoners had educational qualifications in this area.

The NAILSS survey of Aboriginal prisoners in Western Australia presented a

slightly different picture of the education level of Aboriginal prisoners. NAILSS

found that 84% of prisoners had an education level of less than ten years and that

9.1 % of Aboriginal prisoners had no formal education. Although they found that

the education level of respondents was a little higher than that presented by

Walker or Biles, NAILSS found that the education level of Aboriginal prisoners

was still lower than the non-Aboriginal prison population of Western Australia

and that the educational level of Western Australian Aboriginal prisoners was a

lot lower than the overall level of education for prisoners throughout Australia

based on Walker (1990).

Section 5.3.7 of the Report examines the educational programmes available in

Western Australia prisons and the needs of Aboriginal prisoners in this regard.

As noted in that section, it is clear that the above figures indicate that educational

programmes are an essential requirement in the Western Australia prison system,

especi ally for Aboriginal prisoners.

Employment Status

The Census of Prisoners 30 June 1989 shows the usual occupation group of

prisoners at the time of receival. The table below provides a summary of the

findin gs set out in the Department of Corrective Services Statistical Report 1988 -1989.

196

TABLE 4.31: CENSUS OF PRISONERS ON 30 JUNE 1989 SHOWING USUAL OCCUPATION GROUP

Occupation Aborig_inal Other Total

No % No % No %

Professional 22 2.2 22 1.4

Self-employed 5 0.9 40 3.9 45 2.8

Oerical 7 1.2 50 4.9 57 3.6

Technical 3 0.5 16 1.6 19 1.2

Skilled manual 14 2.5 201 19.7 215 13 .6

Semi skilled manual 66 11.7 217 21.2 283 17.8

Un skilled manual 334 59.2 358 35.0 692 43.6

Protective setvices 2 0.2 2 0.1

Other 1 0.2 5 0.5 6 0.4

Not work force 22 3.9 46 4.5 177 11.2

Unknown 112 19.9 65 6.4 177 11.2

TarAL 564 100% 1022 100.1% 1586 100%

(a) Percentage may not totallOO percent owing to roundings of figures

The census data provided by the Department does not indicate the number of

prisoners who were unemployed at the time they were admitted into prison in

Western Australia. The data only shows the usual occupation of all prisoners.

The table above indicates that 2.6% of Aboriginal prisoners and 12.6 percent of

all 'other' prisoners had occupations categorised as professional, self-employed,

clerical or technical. 73.4% of Aboriginal prisoners and 75.9% of all other

prisoners indicated that their usual occupation group involved manual work

(skilled, unskilled, semi-skilled).

Only 14.2% of Aboriginal prisoners compared with 40.9% of all other prisoners

were skilled or partially skilled manual workers whereas 59.2% of Aboriginal

197

plisoners compared with 35% of other prisoners were in the unskilled manual

category.

However, the reliability of the usual occupation figures for Aboriginal prisoners

is doubtful given that the usual occupation is unknown for 20% of Aboriginal

prisoners.

According to Walker (1989), only 3.5% of all prisoners in Western Australia

were employed at the time they were admitted into prison in contrast to 32.6% of

the general Australian prison population (excluding NSW which does not record

employment status).

The results of the NAILSS survey questions the accuracy of the Walker findings

as they found that 30.8% of the Aboriginal prisoners surveyed were either

employed or involved in CDEP at the time of admission to prison. Broadhurst

and Maller (1990) found that 8% of Aboriginal prisoners were either employed or

part of a CDEP at the time of admission. The accuracy of Broadhurst's data is

also doubted by NAILSS (1990:32) because it relies upon Department of

Corrective Services figures.

Of the prisoners who responded to the NAILSS survey that they were employed

or part of a CDEP, the type of employment in which they were involved is

shown in the table below:

198

TABLE 4.32: TYPE OF EMPLOYMENT PRIOR TO ENTERING PRISON

Emp_loy_ed CDEP Total

No % No % No %

Unskilled 22 28.2 8 44.4 30 30.9

Rural 28 35.9 4 21.2 32 33.0

Semi-skilled 9 11.5 3 15.6 12 12.4

Skilled 8 10.2 2 11.11 10 11.3

Oerical 7 8.9 1 5.3 8 8.2

Artist

No answer 4 5.1 1 5 4.1

TOTAL 78 100% 19 100% 97 100%

The results of the NAILSS suiVey show that 76.3% of Aboriginal prisoners were

engaged in unskilled or semi skilled work of a rural or non-rural nature.

As noted by Biles (1989) and discussed in section 5.3.7 of this Report, the low

level of employment of prisoners at the time of admission to prison and their lack

of employment skills suggests the need for appropriate training programmes,

particularly for Aboriginal prisoners.

Duration of Imprisonment

Table 4.33 and Figure 4.3 below, based on Department of Corrective SeiVices

Statistical Report 1989, suggest that the sentences imposed on Aboriginal

prisoners form a different pattern from that found for non-Aboriginal prisoners.

Proportionately there are more Aboriginals in all sentence categories up to one

year but above that figure non-Aboriginal prisoners become more prevalent.

39.8% of Aboriginal prisoners are in prison for less than one month and the

comparative proportion of non-Aboriginal prisoners is 35.8%. 62.8% of

Aboriginal sentenced prisoners are in prison for sentences of less than three

months. The equivalent non-Aboriginal proportion is 54.9%. 11.2% of

199

Aboriginal prisoners are serving sentences more than one year in duration

whereas 24.3% of non-Aboriginal prisoners are in the comparative category.

TABLE 4.33: DURATION OF SENTENCES OF PRISONERS RECEIVED IN WA PRISONS IN YEAR ENDING 30 JUNE 1989(a)

Length of Aboriginal Other

Sentence

No % No % Total %

Under 8 days 237

11.7

182 9.4 419 10 .6 8 days< 1 mth 571 28 .1 2.8% 511 26.4 4.9% 1082 27.3 9% 1 mth< 3 mths 467 23 .0 369 19 . 1 836 21.1 3 mths< 6 mths 354 17.4 246 12 .7 600 15.1

6 mths< 1 yr 177 8.7 157 8.1 334 8.4

1 year< 2 yrs 148 7.3 191 9.9 339 8.5

2 years< 3 yrs 35 1.7 97 5.0 132 3.3

3 years< 5 yrs 26 1.3 112 5.8 138 3.5

5 years+ 12 0.6 59 3.1 71 1.8

Life - 7 years (b) 2 0.1 3 0.2 5 0.1 before review Life - 12 years before review Life - 20 years before review Governor's Qleasure 5 0.2 6 0.3 11 0.3

TOTAL(c) 2034 100.1 1933 100 3967 100

(a) Duration of sentence represents the longest period that a person may be detained under sentence in the current term of imprisonment. Remissions, non-parole periods and charges pending that may extend the current term are disregarded. (b) Legislation proclaimed on 15 June 1989 changed mandatory review periods for life

sentences from 'life- 5 years before first review' and 'life- 10 years before first review' to 7 and 12 years respectively. (c) Percentages may not total 100 percent owing to roundings of figures.

200

70

60

p 50

e

r 40

c

e 30

n

20

10

FIGURE 4.3

DURATION OF SENTENCES OF PRISONERS RECEIVED IN W A PRISONS IN YEAR ENDING 30 JUNE 1989

< 3 mths < 6 mths < 1 yr < 2 yrs < 3 yrs < 5 yrs 5 yrs +

l!J Aboriginal rJ Other

It is interesting to contrast the receival figures for year ending 30 June 1989 with

the prison census data for 30 June 1989. Table 4.34 below shows the Census of

Prisoners 30 June 1989 showing length of sentence. Table 4.35, contrasts the

receival and census data percentages of Aboriginal and other prisoners showing

length of sentence.

201

T ABL E 4.34: CENSUS OF PRISONERS 30 JUNE 1989 SHOWING LENGTH OF SENTENCE (W A)

Length of Aborig_inal Other Total

Sentence

No % No % No %

Unsentenced 59 10.5 129 12.6 188 11.9

Under 8 days 5

0 .9} 3 0.3} 8 0 .5} 8 days>1 mth 15 11.8 20 i:g 5.1 35 7. 3 1 mth- 2 mths 23 19 42 2 mths - 3 mths 23 4.1 9 0.9 32 2.0 3 mths - 6 mths 67 11.9 47 4 .6 114 7.2 6 mths- 1 year 86 15.2 71 6.9 157 9.9 1 yr - 2 yrs 98 17.4 111 10.9 209 13 .2 2 yrs - 3 yrs 29 5. 1 66 6.5 95 6.0 3 yrs- 5 yrs 47 8.3 157 15.4 204 12 .9 5 yrs + 77 13.7 297 29. 1 374 23.6 Life 5 (7)(a) 17 3.0 37 3.6 54 3.4 Life 10 (12) 1 0.2 12 1.2 13 0.8 Life 20 2 0.4 17 1.7 19 1.2 Governors 15 2.7 27 2.6 42 2.6 Pl easure TOfAL 564 100.2 1022 100.2 1586 100 (a) Five prisoners included under life five years are really life seven years since they were sentenced after am ending legislation was proclaimed on 15 June 1988. 202

TABLE 4.35: COMPARISON OF LENGTH OF SENTENCE DATA FOR PRISONERS RECEIVED IN YEAR ENDING JUNE 1989 AND CENSUS OF PRISONERS 30 JUNE 1989 IN WA PRISONS

Length of Receivals Data Census Data

Sentence

Abl Other Abl Other

< 8 days

"'} 94 } 09} 03}

8 days to 1 mth 28.1 62.8 26.4 54.9 2 .7 11.8 2.0 5.1

1 mth- 3 mths 23 .0 19.1 8 .2 2.8

3 mths - 6 mths 17.4 12.7 11.9 4 .6

6 mths - 1 year 8.7 8.1 15 .2 6.9

1 yr- 2 yrs 7 .3 9.9 17.4 10.9

2 yrs- 3 yrs 1.7 5 .0 5 .1 6.5

3 yrs- 5 yrs 1.3 5.8 8.3 15.4

5 yrs + 0.7 3.3 17 .3 35 .6

Governors Pleasure 0.2 0.3 2.7 2 .6

TOTAL (a) 100.1 100 100.2 100.2

(a) Percentages may not totallOO percent owing to rounding of figures

The receivals data clearly indicates that the proportion of Aboriginal and non­

Aboriginal prisoners serving short sentences (less than 3 months) is markedly

higher than is shown in the census data. This must be kept in mind when using

the National Prison Census data to compare the duration of sentences imposed on

Aboriginals in other Australian jurisdictions.

Table 4.36 below shows the average time expected to be served by sentenced

prisoners for the most serious offence for which imprisoned. It is taken from

Table 35 in J Walker 'Australian Prisoners 1989, Results of National Prison

Census 30 June 1989'.

203

TABLE 4.36: NUMBER OF SENTENCED PRISONERS BY MOST SERIOUS OFFENCE AVERAGE TIME EXPECTED TO SERVE AND JURISDICTION

Most Serious NSW VIC QW WA SA TAS NT TOTAL

Offence Average time to serve (mthsi

Homicide 115.8 111.6 115.4 122.3 124.4 142.3 66.1 ll5.4

Assault 36.6 18.8 20.7 15.4 21.8 35.8 12.9 26.8

Sex Offences 39.0 38.2 56.3 40.4 43.5 25.2 39.2 44.3

Olh Ag Person 57.9 30.5 51.4 22.4 21.9 19.0 39.3

Robbery 56.7 45.5 53.1 42.4 52.0 38.3 39.6 51.7

Extortion 44.9 - 100.7 50.5

Break & Enter 36.8 14.9 24.6 15.8 17.7 17.6 12.6 26.3

Fraud/Misappr'n 23 .6 11.4 20.5 10.6 21.5 21.1 17.2 19.6

Receiving 28.2 7.1 20.3 4.5 18.7 28.0 5.8 21.9

Other Theft 30.4 10.0 16.3 7.4 10.3 11.2 9.9 20.8

Prop Damage 26.4 14.7 12.9 15.9 17.0 14.3 8.2 17.3

Environmental 14.5 1.5 11.3

Gov Security 31.6 11.5 25.9

Just Procedures 24.5 15.6 6.6 14.9 22.9 6.7 10.4 17.3

Prostitution 15.1 11.1 1.2 20.3 1.9 12.7

Off Behaviour 27.0 1.8 24 .8 2.7 5.5 3.0 26.5 21.3

Pass of Weapon 26.5 3.5 14.6 .2 16.7 21.7

Oth Agt Gd Ord 24.3 ll.8 11 .8 9.0 15.5 3.0 2.2 12.9

Pass, Use Drugs 38.4 28.2 25 .8 13.9 48.1 8.7 29.8

TraffDrugs 36.9 31.5 61.4 39.0 27.1 12.0 16.1 38.0

ManufDrugs 26.1 18.6 32.6 39.0 21.4 46.6 29.4

Driving Offences 15.9 3.4 3.0 4.0 2.0 5.2 6.2 9.8

Admin Offences 15.2 11.7 16.2 12.9 3.0 14.0

Oth Traff Off s 5.2 4.9 5.4 .1 1.6 5.0

Other Offences 57.7 13.8 25.4 21.9 91.6 .4 44.1

Unknown 57.5 .3 32.1

TOTAL 43.5 33.9 40.9 30.5 39.4 38.6 22.6 38.8

204

Table 4.36 shows that in Western Australia the average time expected to be

served by sentenced prisoners is shorter for all offences except for homicide,

prostitution, trafficking and manufacturing drugs and other traffic offences, than

the national average for all offences.

Table 4.37 below shows the average time expected to be served by Aboriginal

sentenced prisoners for the most serious offence for which imprisoned. It is

based on Table 35a in Walker, Australian Prisoners 1989, Results of National

Prison Census 30 June 1989.

TABLE 4.37: NUMBER OF ABORIGINAL SENTENCED PRISONERS BY MOST SERIOUS OFFENCE AVERAGE TIME EXPECTED TO SERVE AND JURISDICTION

Most Serious NSW VIC QLD WA SA TAS NT TOTAL

Offence Average time to serve (mthsl

Homicide 85.9 72.0 97.1 129.4 139.2 156.2 52.0 96.3

Assault 28.9 11.7 13.9 11.3 20.1 11.1 16.9

Sex Offences 44.3 45.2 49.5 37.4 36.7 39.5 42.7

Oth Ag Person 50.5 16.9 9.4 21.8 15.6 17.1

Robbery 52.7 56.8 35.6 28.6 36.7 80.1 36.3 41.3

Extortion 51.0 51.0

Break & Enter 27.6 12.7 18.6 14.6 15.8 19.5 13.2 18.4

Fraud & Misappropriation 14.1 9.1 15.5 7.7 34.0 13.1

Receiving 32.6 1.3 3.4 4.6 6.7 5.8 11.8

Other Theft 25.3 5.4 9.1 6.4 5.1 9.3 12.4

Prop Damage 19.7 4.0 4.8 3.2 6.3 6.0 6.9

Just Procedures 17.9 12.7 6.6 11.7 12.0 12.6 9.0 11.7

Prostitution 1.3 1.2 4.0 2.9

Off Behaviour 1.8 9.7 2.7 5.5 6.0

Pass of Weapon 4.1 3.5 1.6 16.7 6.7

205

TABLE 4.37 CONTINUED:

Most Serious NSW VIC QW WA SA TAS NT TOTAL

Offence Average time to serve (mthsl

Oth Agt Gd Ord 34.5 1.5 3.6 3.4 5.8 2.2 5.8

TraffDrugs 35.2 8.0 5.4 9.4 22 .2

ManufDrugs 9.2 9.2

Driv Offences 22.4 3.3 2.9 4.5 2.5 5.6 5.8 8.4

Admin Offences 12.6 7.7 I1.6

Oth Traff Off s 7.2 2.8 6.6 2.3 5.4

Other offences 21.3 29.I .4 I8.7

Unknown .I . I

TOTAL 33.5 20.9 32.5 21.4 30.I 39 .0 I9.I 26.9

Table 4.37 shows that in Western Australia the average time expected to be

served by Aboriginal sentenced prisoners for most serious offence is generally

less than both the average time expected to serve for all Western Australia

prisoners for the offence and the average time expected to serve for all Aboriginal

prisoners Australia wide. The offence of homicide, other traffic offences and

other offences are the only offences for which Aboriginal prisoners have a greater

average time to serve than the Western Australian average and the national

Aboriginal average. The average time that Aboriginal prisoners expect to serve

for receiving and drinking offences is slightly higher than the Western Australian

average.

The figures would appear to indicate that although Aboriginal prisoners are

grossly over-represented in Western Australian prisons they are generally serving

shorter sentences for most offences than non-Aboriginal prisoners throughout

Australia. One possible explanation for this is that Aboriginal persons may be

convicted on minimal or insufficient evidence especially in the minor courts, and

are consequently given shorter sentences. The evidence before the Commission

206

is insufficient to come to any positive conclusions in this regard but the

inadequacy of checks and balances in the Western Australian criminal justice

system (discussed in more detail in section 4.2 Avoidance of Custody) do little to

remedy practices in the system which work against the poor and disadvantaged,

particularly Aboriginal people.

Fine Default

Table 4.38 below, based on data in Department of Corrective Services Annual

Reports 1985-1989, shows the number of Aboriginal and non-Aboriginal

prisoners received for fine default only for years ending 30 June 1985 to 30 June

1989.

TABLE 4.38: SENTENCED PRISONERS RECEIVED FOR FINE DEFAULT ONLY 30 JUNE 1985 - 30 JUNE 1989

Aboriginal Non-Aboriginal WA

M F Total % M F Total % Total %of Total

NIA Receivals R eceivals

1985 471 166 637 35.4 1046 114 1160 64.5 1797 39.7 4532

1986 478 156 634 38.6 925 84 1009 61.4 1643 37.8 4344

1987 574 194 768 40.4 1032 98 1130 59.6 1899 41.4 4583

1988 562 222 784 44.2 881 110 991 55.8 1775 40.3 4408

1989 964 217 911 51 776 78 854 49 1765 44.4 3977

Of the 3977 sentenced prisoners received 1765 (44.4%) were received for default

of fine only.

Of that number (1765), 911 Aboriginals were received for fine default (51.6%).

Aboriginal fine defaulters comprised 23% of all sentenced prisoners received.

854 non-Aboriginals were received for fine default being 21% of all receivals.

2(J7

0 f the 911 Aboriginal fine defaulters, 694 were male and 217 were female.

Aboriginal males comprised 39% of all fine defaulters, 47% of male fine

defaulters, 41% of Aboriginal male sentenced prisoners received (1681) and 17%

of total sentenced prisoners received.

Aboriginal females comprised 12% of all fine defaulters, 74% of female fine

defaulters, (295) 41% of all sentenced female receivals, (527) 61% of Aboriginal

female sentenced prisoners receivals (353) and 5% of all sentenced receivals.

The table above shows that there has been a gradual increase in the proportion of

fine defaulters being admitted to prison over the period 1983 to 1989. In 1985

fine defaulters accounted for 39.7% of all prison receivals. In 1989 as noted

above the proportion had increased to 44.4%.

It is also important to note that the proportion of Aboriginal fine defaulters has

also increased over the same five year period. In 1985 Aboriginal prisoners

accounted for 35.4% of all fine defaulters admitted to prison. However by 1989

Aboriginals represented 51% of all fine defaulters. Figure 4.4 below shows the

increase in number of Aboriginal fine defaulters and accompanying decrease in

number of non-Aboriginal fine defaulters received by Western Australia prisons.

208

70

60

p 50

e

r 40

c

e 30

n

t 20

10

0

FIGURE 4.4

SENTENCED PRISONERS RECEIVED FOR FINE DEFAULT ONLY 1985 - 1989

1985 1986 1987 1988 1989

lil Aboriginal 1:21 Non-Aboriginal

The imprisonment of people who cannot or do not pay fines imposed upon them,

without proper regard to their ability to do so, emphasises the injustice of existing

sentencing policies in relation to poor people, of whom Aboriginal people f01m

such a large sub group. The statistics bear out the disproportionate impact the

imposition of monetary penalties have upon Aboriginal people given their high

rate of imprisonment for fine default.

Imposition of fines is discussed in more detail in section 5.2.6 dealing with

Sentencing. The legislation introduced in 1988 to divert fine defaulters from

imprisonment is also discussed in section 5.2.6.

209

4.1.3 CAUSES OF HIGH ARREST/DETENTION RATES

In this section I have attempted to identify several factors which appear to affect

the high arrest and detention rates of Aboriginal people. The issues I have

focused upon are police resources and the exercise of police discretion in relation

to Aboriginal people and the role of alcohol in high arrest and detention rates. I

have singled out these issues because of the frequency with which they were

raised in evidence in the hearings and in submissions received by my

Commission in Western Australia.

4.1.3.1 Police Resources

In examining the affect that police resources have on the arrest and detention

rates of Aboriginal people, one issue that arises is to what extent the number of

police officers stationed in a particular area affects the apprehension rates of

Aboriginal and non-Aboriginal people.

It has been suggested that an increase in police numbers results in increased

policing of Aboriginal people and consequently high arrest rates of Aboriginal

people. The hypothesis is difficult to test and the issues involved are complex.

The discussion that follows to a large extent raises issues rather than comes to

conclusions as it is an area which needs much closer examination, particularly by

Police Departments which must ensure that their policing practices are not

discriminatory in their result. In an effort to understand how the Police

Department determines the distribution of their police members the Department

was asked to ,explain to the Royal Commission

a) the process by which the Department determines the number of police

officers needed by each police station, and

(b) the process by which the Department determines that an increase or

reduction in police numbers in a particular police station was needed.

210

The Response of the Commissioner of Police to Specific Questions raised by

RCIADIC contained the following explanation.

The criteria set down by the Police Department to assess the need for staffing at Police Stations are based on the following: (a) Existing staff (b) Work load at station, section or unit

(c) Work load comparison with other similarly situated areas. (If similarly situated areas exist) (d) Work load trends (e) Traffic Accident Rates (f) Traffic Density Rates (g) Traffic Contact Rates (h) Population change and trends (i) Population type, e.g. Aboriginal, tourist (j) Tourist rates (k) Industrial development (l) Information supplied by Regional and Divisional Officers (m) Any other relevant information. (Q8.2(a)(b)&(c), pp 29-30)

The Department was asked to clarify how the workload and workload trends

were measured and what difference was made by the population types of

'Aboriginal' and 'tourist'. Their responses are as follows:

Police stations submit a quarterly return of specific tasks which have a pre determined work value, that are performed at that particular station for each month of the quarter. E.g., number of arrests, complaints, traffic accidents, etc. Increases/decreases are continually monitored to determine work load variations.

Tourist population normally influxes at specific times of the year -e.g., Broome during 'Shinju Matsuri Festival', Rottnest during Public and School holiday periods, which can be catered for by temporary increases instead of permanent staff allocations.

Similarly Aboriginal population can be nomadic and affect different areas as they move from town to town (Responses by the Police Dept which the Royal Commission would like clarified Q.8.2(b)-(d)). .

The Police Department have also provided me with apprehension statistics for

each police station in Western Australia for the period from 1985 to 1990. These

statistics are broken down into offence and Aboriginality of persons

211

apprehended. Unfortunately the apprehension statistics provided to date do not

include apprehensions for the offences of drunkenness. I expect that the

inclusion of drunkenness figures would considerably increase the Aboriginal

apprehension rates presented in the statistics. An indication of the impact that this

omission will have on the general picture of Aboriginal apprehensions can be

gained by examining the difference in the number of police apprehensions for the

year ending 30 June 1990 in particular towns and comparing it to the number of

charges heard in the Court of Petty Sessions in the same town for the same

period. Clearly the two sets of figures do not correlate exactly but they do tend to

give an indication of any significant difference between the two. In Halls Creek

the figures provided by the Police Department as to apprehensions during the said

period indicate a total of 621 apprehensions whereas the number of charges heard

in the Court of Petty Sessions for the same period total 3781. This leaves an

unexplained shortfall of about 3000 charges in the police figures. To a large

extent the difference in the figures would be explained by the non-inclusion of

apprehensions for drunkenness in the police figures. In Carnarvon the number

of apprehensions total 1048 and the number of charges heard in the Court of

Petty sessions total 1349. In Roebourne the number of police apprehensions

total 530 yet the number of charges heard in the Court of Petty Sessions total

1728. It should also be noted that the Court of Petty Session figures do not

include charges heard in the Children's Court whereas the police apprehension

figures given include juvenile apprehensions. If juvenile apprehensions were not

included the disparity between the police figures and the court figures would be

even greater.

Because of the volume of statistical material provided in relation to

apprehensions, the lateness of its provision and the lack of time available to

properly analyse the material, I have concentrated on examining the situation in

the country towns where the Aboriginal deaths in police custody occurred during

the period of inquiry i.e. Broome, Halls Creek, Carnarvon, Geraldton, Wiluna,

Kalgoorlie and Roebourne.

212

The Police Department have also provided me with statistics showing the

distribution of police officers for the period from 1985 to 1989. Table 4.39

below sets out the police strength compared to the population in each of the

selected towns.

TABLE 4.39: POLICE STRENGTH TO POPULATION IN SELECTED WESTERN AUSTRALIAN TOWNS

Police Strength Population Police Strength/ Aboriginal (30June 1989) (ABS 1986) Population Population % (ABS 1986)

WA 3564 1406929 1:395 2.69

Broome 28 5781 1:206 20.3

Halls Creek 6 1177 1:196 61.3

Carnarvon 21 6846 1:326 17.6

Gerald ton 65 21727 1:334 5.9

Wiluna 4 284 1:74 62.7

Kalgoorlie 79 22233 1:281 4 .2

Roe bourne 10 1268 1:127 47.3

These figures suggest that in towns with a high proportion of Aboriginal people

the ratio of police officers to population is higher than in towns with a small

Aboriginal population e.g. Wiluna which has a large Aboriginal population

(62.7%) has a very high ratio of police to population (1 police officer to

74 citizens). Roeboume and Halls Creek which also have large Aboriginal

populations have much higher ratios of police to population than the Western

Australian average of 1:395.

However there are problems in drawing conclusions from these figures. It is

widely argued that the ABS population statistics are not particularly accurate in

relation to the size of the Aboriginal communities. There is also the problem

created by the difference between the geographical areas covered by a police

station and the ABS statistical area. It should also be noted that a comparison is

being made between towns with moderately sized police stations with towns with

213

very small police stations. In addition the number of Aboriginal police aides in

each town have not been included in the police strength figures.

There is also the difficulty in detennining whether the number of apprehensions

increases according to the number of police officers, that is, the more police

officers there are in a town the more apprehensions there will be, or whether the

police, in fact, only respond to the crime rate that already exists and an increase in

apprehensions merely reflects an increase in lawlessness or alternatively an

increase in information supplied to the police about offences which have been

committed. No doubt the Police Department could argue that in areas with high

Aboriginal populations there is a need for more police or a higher ratio of police

to population because of higher offence rates. It has also been suggested that

Aboriginal people more frequently request police assistance therefore in areas

with large Aboriginal populations there will be a high demand for police services.

There has been little evidence of this before my Commission. In fact I have

heard the opposite from Aboriginal people, that is, that they have difficulty

obtaining assistance from police if they have a complaint to make.

However one also needs to look at the offences for which Aboriginal and non­

Aboriginal people are being apprehended to determine how people are being

policed. Unfortunately, on the basis of the statistical material supplied to the

Royal Commission such an exercise would be rather meaningless because of the

omission of most apprehensions for drunkenness and other minor offences.

The previous sections of the Report have examined the over-representation of

Aboriginals in police and prison custody. Table 4.40 below sets out the rate of

apprehensions of Aboriginal people by police in the selected country towns.

Table 4.41 sets out the level of over-representation of Aboriginals in relation to

apprehensions (compared to non-Aboriginal apprehension rates) in selected

country towns.

214

TABLE 4.40: RATE OF ABORIGINAL APPREHENSIONS BY POLICE IN SELECTED WESTERN AUSTRALIAN TOWNS 1985-1990

Town 1984185 1985186 1986187 1987188 1988189 1989190

Broome 322.3 352.1 337.6 416.9 535.4 637.7

Halls Creek 448.8 563.7 669 651 782.5 804.7

Carnarvon 392.7 446.6 452.4 464.8 553.4 562.6

Gerald ton 316.6 427.7 422.6 484.5 668 625.4

Wiluna 820.2 1089.9 1825.8 2337.1 zmJ 'l2ffJ.7

Kalgoorlie 550.8 664.1 801.3 626.3 839.1 792.7

Roebourne 550 626.7 770 1026.7 783.3 788.3

TABLE 4.41: LEVEL OF OVER-REPRESENTATION OF ABORIGINALS IN POLICE APPREHENSIONS IN SELECTED WESTERN AUSTRALIAN TOWNS 1985-1990

Town 1984185 1985186 1986187 1987188 1988189 1989190

Broome 3.8 3.1 2.8 3.6 3.7 4.4

Halls Creek 3.9 4.4 4.7 5.1 5.9 8.6

Carnarvon 5.8 6.0 5.5 6.3 9.2 8.6

Gerald ton 9.4 8.9 9.2 10.5 11.6 10.1

Wiluna 10.9 57.7 16.1 24.8 13.5 7.1

Kalgoorlie 10.3 11.5 13.8 8.6 11.5 12.4

Roe bourne 4.3 5.3 4.4 6.8 6.4 9.2

With the exception of Wiluna it appears that in each town the rate of Aboriginal

apprehensions and the level of over-representation of Aboriginal apprehensions

has generally increased from 1985 to 1990. Table 4.42 below shows that the

staffing levels at each of the police stations in the towns have also increased over

the same time period.

215

TAULE 4.42: STAFFING LEVELS OF SELECTED POLICE STATIONS 1985-1990

Numhe.r Q,[Polic.e. a.l Polic.e. S.ta.tiQll

Year Broome Halls Cr Carnarvon Gera/dton Wiluna KalB,oorlieRoebourne

1984/85 21 5 19 53 3 46 8

1985/86 21 5 19 53 3 48 8

1986/87 22 6 20 56 3 52 8

1987/88 22 6 21 57 4 56 8

1988/89 28 6 21 65 4 65 10

1989/90 33 8 23 74 7 88 10

The correlation between the increased police levels and the increased level of

over-representation of Aboriginals being apprehended by the police raises the

issue of whether increasing the number of police officers stationed in areas with

significant Aboriginal populations will result in discriminatory policing of the

Aboriginal community. This could result in a continuation of the high arrest and

custodial rates of Aboriginal people.

The first stated goal of the Police Commissioner in the Police Department's 1988,

1989 and 1990 Annual Reports is 'to increase the visual presence of police

officers performing operational duties within the community'.

In 1989 to assist in this goal the police employed 100 civilians in non-operational

positions so that sworn police officers could be re-deployed to the field .

The numbers of police officers employed have also been increased and the Police

Department argues for further increases to combat the increasing incidence of

crime.

Table 4.43 below shows the changes in the number of offences reported,

Western Australia's population and police strength.

216

TABLE 4.43<•>: TOTAL OFFENCES TO POPULATION TO POLICE 1984-1989

Total Offences Population

Reported % % (est.) % Police %

Year to Police Change Cleared Cleared (Source ABS)Change Stength Change

1984 lOS 550 34 487 32.68 1 379 000 3.15 2 887 2.23

1985 113 870 7.88 37 554 32.98 1 400 300 1.54 2 975 3.05

1986 125 955 10.61 39 189 31.12 1 421 600 1.52 3 121 4.91

1987 153 624(b) 21.90 46 224 30.09 1 496 059 3 287 5.30

1988 149 914 2.41 46 062 30.72 1 519 900 10.20 3 242 1.37

1989 168 222 12.21 45 392 26.98 1 568 700 3.2 3 564 9.9

% increase from 47.7 12.02 19.8

1985-1989

(a) Table adapted from Tables in Apendices in Annual Reports of Western Australian Police Service 1988 1989. (b) 1987 offence report figures include about 6000 offence reports carrried over from 1986.

The Police Department Annual Reports for 1987/88 and 1988/89 provide

performance indicators which are divided into two categories:

A. Broad Programme Indicators - provide an overview of Police Force's

corporate performance

B. Provide additional information and indicate degree to which

Commissioner's operational goals are being implemented.

The Annual Report examines the extent to which the Crime Programme leads to

apprehension of criminal offenders and reductions in crime. It examines

workload, effectiveness and efficiency.

The Broad Programme Indicators of effectiveness use crime clearance rates.

Efficiency is measured by number of reported offences divided by total police

force strength and number of cleared offences divided by police force strength.

217

One sub-programme relating to the Anti-theft Squad (Armadale) measures

effectiveness by % change in targeted crime rate in operational area and %

contacts leading to arrests. The Report indicates that the efficiency of the

programme is measured by number of charges per officer and number of arrests

per officer.

The use of number of charges and arrests per officer as an indicator of efficiency

is very questionable.

The number of arrests and charges per officer does not necessarily indicate that

crimes have been cleared or that police are preventing further crimes from being

committed.

In fact it is disturbing that the Police Department considers them to be useful

measures especially given the submission of the Police Commissioner to the

Royal Commission that members have been instructed to use the option of arrest

with caution (p.14) and that it may be possible within the promotional system to

enhance the use of summons of arrest 'by acknowledging as departmental policy,

the quality of decision making in this regard, at operational level.' (page 15, see

also Police Gazette No. 27 12.7.89 of the Police Annual Report).

Again in the Financial Report 1988 the number of arrests, summonses and

charges are presented as indicators of performance. The Assistant Commissioner

(Operations) makes these comments on the Metropolitan Policing Programme:

Metropolitan Policing Programme

In keeping with an effective and comprehensive policing policy the Warwick Mobile Patrol structure implemented in September 28, I987, is currently under review following an extensive trial period. The final concept is expected to achieve the best in reactive and proactive policing. During the period under review the Patrol/aid

I ,044 charges, made 431 arrests and issued 102 summonses.

In April 1988 the Regional Patrol was re-named the Metropolitan Patrol and received a staff increase to 10 personnel. The Patrol's brief is to curb anti-social behaviour in the Perth city area and

218

concentrate on known trouble areas. Its effect is becoming noticeable especially in the city and since its inception has preferred 2,917 Court of Petty Sessions charges and 349 Children's Court charges.

It says nothing of whether there has actually been any decrease in number of

crimes committed or whether reported crimes have been cleared.

It is encouraging to note that the 1990 Police Annual Report uses arrest/charge

rates to a much lesser extent as indicators of effectiveness and efficiency. The

performance indicators found at page 53 of the 1990 Report calculate

effectiveness on the basis of percentage change in offences per 100 000

population and changes in clearance rates. It calculates efficiency on the basis of

reported or detected offences divided by police strength, number of offences

cleared and the cost of the Crime Programme. In the body of the 1990 Report in

the discussion on the various aspects of the Crime Programme the emphasis is on

clearance rates rather than the number of arrests and charges. However,

discussion of assaults, stolen motor vehicles, drug offences and gold stealing still

focus on number of arrests and charges.

Financial Resources

As the size of the Police Force increases so too of course does the expenditure of

the Police Department. Table 4.44 below sets out the expenditure of the Police

Department for the year ending 30 June 1985 to year ending 30 June 1989. The

table is based upon the financial statements in the Police Department Annual

Reports from 1984-1985 to 1988-1989.

219

TABLE 4.44: EXPENDITURE OF POLICE DEPARTMENT 1985-1989

Salaries

1985 $101 791 788

1986 $114 526 457

1987 $124 950 119

1988 $131 836 116

1989 $153 683 993

% Increase in expenditure 1985-1989

Total Expenditure

$125 974 383 $147 740 517 $160 591 833 $174 056 176 $220 244 920

%Increase in Expenditure

17 9

8

27

75

The table indicates that there has been a 75% increase in the total expenditure of

the Police Department from 1985 to 1989 (figures have not been adjusted for

infl ation).

However, as the foll owing section 4.2.5 on the Legal System notes, there has

been nowhere near the same level of increased funding to legal aid bodi es. These

bodies are re ponsible for providing adequate legal representation to those who

do not have adequate fi nancial resources to obtain private legal representation.

The cales of j ustice become unfai rly weighted when government resources are

nea r I y all placed on the ide of policing and pro ecution of the population. Legal

aid bodie have been tarved of fund o that the protection afforded to those

who come into contact with the criminal ju lice y tern i totally inadequate.

The level of over-representation of Abori ginal people in police apprehen ion rates

and lice and pri on cu todial rate raj e the question of whether the operation

of the criminal ju tice y tern in W tern Au tralia continu es to oppres the poor

and di advantaged. It eem clear to me that if increase to police re ources

re ult in di riminatory policing of Aboriginal people, then it i extremely

important that the con equence of uch funding deci ion are clo ely

crutini ed. It i aJ o ential that legal aid bodi are provided with sub tantial

increa e in funding to help balance the ituation. It would appear that a

coordinat d appro ch to criminal ju ti ce planning i required in We te rn

220

Australia. If the Western Australian government continues to concentrate the

financial resources on the law enforcement side of the justice scales then it must

accept full responsibility for the continue-d oppression of the poor and

disadvantaged in this State.

4.1.3.2 Police Discretion

The way in which police officers exercise their discretion in relation to policing

and to arrest, charging and bail practices has the potential to have an enormous

impact on the arrest and detention rates of Aboriginal and non-Aboriginal people.

The nature of police powers and police discretion are described by the Police

Department in the 'Submission of the Commissioner of Police and the Western

Australian Police Department to the RCIADIC' May 1990 at pages 3-4. The

Submission state :

The Police Act 1892 provides the statutory authority for the existence of the Police Force and for the powers, duties and responsibilities of sworn police officers, including the Commissioner.

Daily operations of the Police Force are principally concerned with law enforcement fun ctions under the powers of the Criminal Code, Road Traffic Act, Firearms Act, Uquor Ucensing Act and the Police Act.

In addition to statutory powers, certain obligations, duties and powers are conferred on police by virtue of the oath of office . The existence of an independent discr,etio n flowing directly from appointment as a Constable at common law is the principal

explanation for th e form of decision-making at opera tion level. This incorporates a discretionary authority to apply the law according to individual perceptions and the circumstance pre vailing at the time.

This discretion preserves the unique character of the office of Constable at common law and further defines th e nature of th e relationship between police officers and the Commissioner.

The view that no mas ter/servant relationship exists has been judicially recognised and endorsed. Accordingly the Commissioner is not vicariously liable for th e ac tions of individual police officers when these officers act within th e scope of their discretion . (My

emphasis)

221

However Armstrong (1990) in her paper prepared for the Royal Commission on

police accountability states that

It now generally accepted that in exercising discretionary powers police are subject to review and direction within the police hierarchy (Lustgarten 1986 page 12; Hawkins v Bepey [1980] 1 AllER 797}

She then states that this just recognises the managerial reality within a large

organisation without any significant restraint of a police officer's degree of choice

in a particular situation. (Armstrong: 1990)

There are many points in the criminal justice system that police officers have the

opportunity to make discretionary decisions. The police officer must decide how

laws will be policed and enforced, whether to arrest or not, what charges should

be laid, whether to grant bail or not, whether to allow the detainee contact with

someone outside the police station or not, whether to proceed with the

prosecution of an offence or not. These are but a few examples which have

arisen during my inquiries.

It became apparent to me that the exercise of discretion by police officers is rarely

the subject of scrutiny by their superior officers, the Commissioner of Police or

the courts, however the everyday discretionary decision making power of police

officers has a profound influence upon the operation of the entire criminal justice

system.

A police officer has a discretion whenever the legal limits on his/her power leave

him/her in a position where he/she is free to make a choice about what action or

inaction to take. It is my view that the current prescribed limits on the exercise of

police discretion do not provide effective controls against abuse. Time and again

throughout the course of my inquiries I found the way in which police officers

had exercised their discretion in relation to arrest, charge, bail and custodial

practices was not justified, was contrary to Routine Orders and in most instances

had gone unnoticed at least at an official level, until the Royal Commission

inquiry. However in each instance the exercise of police discretion had had a

222

profound effect on the life, the liberty and in some cases the death of the

deceased.

Constraints on the Exercise of Discretion

The constraints that exist on the exercise of discretion are as prescribed by

legislation, and instructions and orders promulgated by the Police Department.

The legislative constraints include provisions found in the Police Act, and

regulations made pursuant to the Act, The Bail Act and The Criminal Code.

Internal constraints provided through Police Department orders and instructions

include guidelines found in the Police Routine Orders, Police Gazette notices,

executive circulars and instructions, the Police Manual, Regional Orders and

Station Orders. However I note that internal police orders and instructions are

generally regarded as guidelines only with few, if any, mandatory instructions. I

have been advised by both the Police Department and the Commissioner of Police

that these orders leave 'scope for discretion and flexibility where possible'. It

became apparent to me that disciplinary action for breach of internal instructions

and orders was rarely taken. This results in a situation where the police

guidelines as to the exercise of police discretion are themselves discretionary. In

my view the current level of accountability of police officers exercise of

discretion is unsatisfactory. The discretionary nature of Routine Orders is

discussed in more detail in section 5.2.8 of my Report.

The following section of the Report, 4.2, Avoidance of Custody, deals with

Arrest and Bail procedures. The exercise of discretion in relation to arrest on bail

will be discussed in that section, with particular attention being paid to the way in

which the discretion was exercised in relation to the deceased.

Training in Relation to Discretion

It appears that police recruits receive some training on the exercise of their

discretion, particularly in relation to powers relating to arrest, charging and bail in

223

the legal studies unit of their training course. This training is supplemented by

use of these powers on the job and under supervision. In relation to arrest

powers the Police Department has advised that options other than arrest are

emphasised as part of recruit and in-service training. However the police do not

receive training to avoid arrests for minor offences (see Response of

Commissioner of Police Western Australia to Specific Questions Raised by

RCIADIC July 1990 pages 7 and 9 Questions 2.4 (a) and 2.9). The Response

goes on to say:

The exercise of the discretion is an individual responsibility and whilst there is a general reluctance to place unnecessary restraints at operational level the Commissioner of Police may do so and has done when this action is desirable in the interest of either the community or the police themselves.

However the exercise of police discretion in relation to the deceased illustrates

that restraints at operational level are sorely needed. The effectiveness of the

current level of restraint on police discretion is questionable. Further training as

to the exercise of police discretion, particularly in relation to arrest, bail and

custodial procedures, is indicated.

Discretion in Relation to Policing and Cbarging Practices

In addition to the exercise of discretion in relation to bail, arrest and custodial

practices discussed elsewhere in the Report, I found in a number of cases that the

way in which police discretion was exercised in relation to policing and charging

of the deceased persons was cause for concern.

In the Inquiry into the Death of Benjamin Morrison I found that the facts that

were inserted by police officers on the face sheet of the police prosecution brief

were knowingly misrepresented and that a charge of disorderly conduct based on

those facts was not justified.

In the Inquiry into the Death of Misel Waigana I found that the deceased was

behaving in a bizarre way at the time of his arrest. He was yelling out 'Don't

224

touch me, don't kill me' and was waving his anns about. One of the arresting

officers noted on the face sheet of the police prosecution brief:

The defendant at the time was not swearing, only yelling and screaming to himselfwhich would suggest that he may need to be assessed in Graylands [a psychiatric hospital].

If the matter had proceeded to trial it is unlikely that the deceased would have

been convicted. The situation was one of a man who was seriously ill and in

need of medical attention yet the police exercised their discretion and proceeded to

arrest, charge and detain Waigana for disorderly conduct. As Counsel Assisting

noted in her Final Submissions it would be interesting to compare the reaction of

the police to a non-Aboriginal person wearing a suit and tie and exhibiting the

same behaviour.

Milton Wells was arrested and charged with wilful damage after a car window

was broken in a motel carpark and he was located in the general vicinity. There

were no witnesses to the breakage; the evidence identifying the offender was

seriously deficient; Wells strenuously denied the charges and he was not

interviewed at all by the police. The charge against him was insupportable.

However he was arrested, charged with wilful damage, and placed in the

Kalgoorlie Police Lockup. Bail was not considered. Throughout these criminal

justice procedures the police exercised their discretion in relation to Wells. At

every point in the process i.e. in relation to arrest, charge, bail and detention, it

appears that there was a failure to exercise the discretion in an adequate or

appropriate manner. Wells happened to be an Aboriginal in the vicinity of a

broken car window. One must wonder whether in the eyes of the police the only

cause for suspicion was his Aboriginality rather than any concrete evidence.

This raises the issue of the exercise of police discretion in relation to policing

practices overall. The police have a wide discretion in relation to their law

enforcement duties. They may selectively enforce certain laws and selectively

police certain groups of people.

225

In the section of this Report with Liquor Licensing Laws I discuss the way in

which the police selectively enforce certain sections of the Liquor Licensing Act.

The great majority of Liquor Licensing Act offences are brought against the

consumers of liquor, juveniles and those who are found drinking in the street and

parks. Those who sell and supply liquor to juveniles and drunken persons

continue to offend without apprehension or prosecution. The selective law

enforcement practices are an example of the exercise of police discretion which

results in the continued oppression of Aboriginal people, usually living in

extremely disadvantaged conditions.

Policing practices in relation to youths are another illustration of discretionary

policing practices which may discriminate against a particular group in society,

leading to high arrest and detention rates of that group. In my Inquiry into the

deaths that occurred in Geraldton, (Cameron, Wongi, and Walley), I heard

evidence that the police and police aides would stop and ask the name and

address of any juvenile they did not know and would stop any child suspected of

truancy.

The justification for these practices was that children found truanting would be

returned to school. Anti-theft Truancy Patrol were concerned with preventing

offences being committed by youths during school hours. The reason given for

all officers questioning unknown juveniles was because the police were

'responsible for their moral welfare' (RCIADIC W21:83-149,458)). It is

interesting to note that the Police Gazette 27.9.89 advised police officers that the

power to demand the name and address of any person pursuant to section 50 of

the Police Act is only exercisable where there is a reasonable suspicion that the

person has committed an offence or is witness to an offence. It would appear

that for the police and police aides in Geraldton a reasonable suspicion exists if

the person happens to be aged 17 years or younger.

I also received a considerable amount of evidence during my inquiries that

Aboriginal youths regarded police practice of regularly stopping them and asking

226

for their names and addresses as intimidatory and a form of harassment. Their

perception raises the issue as to whether the exercise of police discretion in this

regard is discriminatory. It would appear in some places that to be an Aboriginal

youth is also cause for reasonable suspicion.

In conclusion, I have found throughout my inquiries that police discretion has

regularly been exercised in a manner that is unacceptable. It is my view that the

police need to be made more accountable in relation to exercise of their discretion.

It would seem that further constraints need to be placed upon police discretion,

particularly in relation to arrest, bail and custodial practices. The current police

orders instructing police in the exercise of their discretion are inadequate in both

their content and by the very fact that they are only guidelines. At the very least

requirements of police in relation to certain aspects of arrest, bail and custodial

procedures should be mandatory rather than discretionary and the subject of

further training, close supervision and monitoring. I refer to the sections of the

Report dealing with arrest, bail and custodial practices in this regard.

4.1.3.3 Alcohol as a Cause of High Arrest/Detention Rates

In the previous section I have examined the way in which the allocation of police

resources, policing practices and the exercise of police discretion may lead to

high rates of arrest and detention of Aboriginal people.

In this section I examine the role that alcohol plays in the high arrest and

detention rates of Aboriginal people. In focusing on alcohol in this way it needs

to be pointed out initially that alcohol should be regarded as a symptom of the

cultural, social and economic conditions in which Aboriginal people survive. It

appears to me that at all points in the criminal justice process this is insufficiently

understood. It needs to be taken into account particularly in the interaction of the

police with Aboriginal people.

227

The following extracts from evidence before the Commission reflect in an

anecdotal way, the close connection between alcohol and arrest/detention rates.

About 90 percent of the offences in my opinion - and /' m only giving my opinion now - would be when under the influence, to some degree of alcohol .. .If you took alcohol away you'd virtually be able to close down the police station ... there'd be basically no offences (RCIADIC Wl9:4309)

During my time as a Justice of the Peace in Wiluna I dealt with approximately 6,500 charges in five and a halfyears. The type of offences that most frequently came before me were drunkenness, disorderly conduct and assaults ... Alcohol was a factor in 99.9% of all offences (W/16/58).

Every offence committed by Aboriginal people, juvenile or adult in this area is alcohol related (RCIADIC W8:278) .

.. . the great majority of people who come to prison have been convicted for an offence which was committed when people were intoxicated- when the person was intoxicated. (RCIADIC W12:228)

... in the Pilbara there is a general preponderance of alcohol and domestic violence related offences (W/12/36)

Prior to initiating the establishment of a refuge group in Broome we conducted a three month survey in town. We asked for the co­ operation of the police, Department for Community Services, Aboriginal Medical Service and the hospital to fill out surveys for

each incident [of domestic violence] that come before them ... When the information came back in we found that in almost 100 per cent of cases alcohol had been a factor; either the perpetrator was intoxicated or perpetrator and victim were intoxicated at the time of the incident so alcohol was a strong factor in that. (RCIADIC Wl2:301)

Where facilities for Aboriginal drinkers are inadequate and unpleasant, drinking becomes an out door activity, street or park activity as well as a group activity. Aboriginal drinkers are thus more readily exposed to police attention and more often apprehended by police [Fagan and Swan in Report and Recommendations prepared by an Expert Working Group for the RCIADIC. Edited by Greeley and Gladston, page 135 .]

Well, the amount of arrests ... if we' d go back ten years [ie 1971] there was two police officers in this town [Roebourne] and that was pre-liquor, now there's ten and I think there's more now, so they're there for a purpose and the purpose was the alcohol that this town

had to suffer, there was two officers here before that and now there's ten, so ... (RCIADIC W19:2348)

228

Q._

A.

What would be the common reasons that most people are in the [Halls Creek] lockup?

The majority would be alcohol related, mainly disorderly, street drinking, park drinking, refusing to leave licensed premises or re-entering licensed premises. (RCIADIC W29:60)

There would be 250 arrests per week, 90% of which were of Aboriginal people.

The Aboriginal population of the town numbers only approximately 800-900;

although arrest would include residents of surrounding communities.

David Indermaur and Kathy Upton (Research Officers with the Western

Australian and South Australian Departments of Corrective Services) have

produced a Report entitled 'Alcohol and Drug Use Patterns of Prisoners in

Perth'. Their objective was to measure the extent and nature of substance use

and abuse among offenders entering Perth metropolitan prisons. The sample for

the study consisted of all persons received as prisoners at the seven metropolitan

prisons during the period June to September 1987. Prisoners interviewed

numbered 1184. Results included the following figures on the areas of alcohol

use, alcohol dependency and alcohol and crime:

30% of men and 36% of women in the sample consumed hazardous

amounts of alcohol (according to National Health and Medical Research

Council criteria, based on 'consumption' questions of the interviewer;

see page 9 of the Report).

20.3% of males and 29.8% of females were classified as current alcohol

dependents (using Michigan Alcoholism Screening Test, see page 11 of

the Report).

65.2% of the sample were indicated as having an alcohol and crime

disability (that is if the prisoner reported consuming more than ten drinks

before committing their last offence or reported having one or more

drink/driving charge, see page 11 of the Repo1t). However in the

229

analysis the authors only considered those prisoners WHO had reported

hazardous levels of consumption. According to this criteria 25% of the

sample were classified as demonstrating an alcohoVcrime association.

However Aboriginals were found to be twice as likely to fall into the

alcohoVcrime group compared with non-Aboriginals as were those who

had been in prison before (see page 20 of the Report).

The authors concluded that 'The over-representation of Atorigines in all

alcohol abuse categories stands out' . (Indermaur, D.&K. Upton,

1990:25)

In section 4.1.1.3 I have discussed the offences for which Aboriginal people are

detained in Western Australia. The August 1988 Police Custody survey revealed

that public drunkenness was clearly the most frequently reported offence leading

to detention of Aboriginal people by police. As an offence category it accounted

for 48% of total detentions. Good order offences (often alcohol related) followed

at 22%, with drink driving accounting for only 2.5%. These three offence

categories represented 72.5% of total Aboriginal detentions by police in Western

Australia in that month (see section 4.1.1.3). I also discussed the Criminology

Research Unit papers concerning 'Arrest, Bail and Custody at Kalgoorlie in 1987

and 1990'. The Kalgoorlie material revealed a marked reduction in detentions for

drunkenness in that centre when compared with the 1988 police custody survey

figure: from 48% to 5% in 1990. However the proportion of Aboriginal people

detained for 'other good order offences' in 1990 in Kalgoorlie was higher than

the 1988 survey figures (from 22% to 28%). Drink driving offences were

substantively higher (from 2.5% to 13%). These three offences accounted for

48% of Aboriginal offences in Kalgoorlie between March and April 1990 (see

section 4.1.1.3).

The Western Australian Department of Corrective Services receival rates for

1988/89 are also reviewed in section 4.1.1.3. The offences of drunk, disorderly,

other good order offences, Liquor Licensing Act offences, and traffic alcohol

230

related offences accounted for 25.66% of male Aboriginal prisoner receivals and

29.85% of female Aboriginal receivals.

The criminal records of the deceased have been discussed in section 4.1.1.1. In

this section I will briefly review the criminal histories from the perspective of

alcohol as a cause of arrest and detention.

The number of 'alcohol offences' as a proportion of all convictions is listed in the

summary chart incorporated in Appendix 1 to the Report. These 'alcohol

offences' include the following: drunk, road/street/park/reserve drinking, drink

liquor in townsite, take liquor onto/under influence of liquor on reserve,

provide/receive liquor, refuse to leave/re-enter/prohibited person/juvenile on

licensed premises and DUI. The following table presents the information from

the Appendix including 'alcohol offences' as a percentage of total offences.

231

TABLE 4.45: ALCOHOL OFFENCES OF DECEASED AS PERCENTAGE OF TOTAL OFFENCES

d l.c.ahal o.fk.ac.e.s.llatiJ.l .1lc.ahal o.fkac.e.s.Uo.lal

Qjfeac.e.s Dec.e.ased oJ!eac.e.s.

Numbers Name Percentage

0/2 Dougal 0

0/9 Vicenti 0

0/27 Farmer 0

8/187 S Michael 2

3/145 Walley 3

4/63 C Michael 6

2/26 McGrath 8

2/20 Green 10

3/25 Robert Walker 12

15/120 Polak 12

4/31 Blankett 13

2/14 Cameron 14

7/43 Harris 16

2/12 Chatunalgi 17

21/107 Wongi 20

22n6 Wodulan 29

10/32 Bates 31

12/37 Wells 32

5/12 Garlett 42

121/275 (approx) Morrison 44

4/9 Jones 44

13/26 Waigana 50

16/30 Anderson 53

13/24 Ugle 54

4/7 Pat 57

43n2 Brown 60

88/128 Samson 69

22/31 Njanji 71

73/90 SCGH case 81

40/48 Barnes 83

39/45 (approx) Roy Walker 87

9/10 Dooler 90

Even this bald comparison between alcohol offences and total convictions shows

that alcohol offences accounted for over fifty percent of convictions for thirty­

three percent of the deceased.

232

However closer examination of the criminal records and the police apprehension

sheets (Form P18) reveals a far more extensive connection between alcohol and

arrest/detention rates.

Dougal is included in the seven deceased whose alcohol offences comprised

under 10% of total offences. However his record shows only two trivial

offences, one for stealing a sausage when 'He had enough money to buy the

sausage but told police he wanted to spend it on grog' and a disorderly conduct

charge following being observed by police urinating in public. He was noted to

be affected by alcohol at the time.

At the other end of the scale is the record of Benjamin Morrison, who

accumulated approximately 275 convictions. About half of these were 'alcohol

offences' (mainly drunk, street/park drinking, receive liquor). In addition he was

often convicted at the time of an alcohol offence of other offences including

disorderly conduct (of which he had 33 convictions), false name, stealing, resist

arrest, interfere with motor vehicle, No MDL, indecent language, wilful damage,

idle and disorderly, beg alms and assault.

Although only four of Nita Blankett's 31 convictions were alcohol offences the

records of at least twelve additional offences note the involvement of alcohol.

The details of offences committed on one occasion in September 1980 (disorderly

conduct x 2, aggravated assault (police), refuse name and address, wilful

damage) are illustrative. They show the probability of alcohol a cause or at least

a contributing factor to offences which may not on their face appear to have a

connection with alcohol. The following is extracted from her criminal

convictions and imprisonment summary:

At 2.20 pm on 22.5.80 plain clothes police were on duty in a car park ... and had been speaking to five juveniles, the defendant was walking ... towards police and shouted out at police. Words spoken could be clearly heard ... she .. . continued to use obscene language

refused to desist. Had been drinking but was not drunk (p. 265).

233

And at 2.40 pm on 22.5.80,plain clothes constables were escorting defendant under arrest to lockup ... deft was seated in the rear r/ h seat of vehicle - bucket seats - and deft kicked the police officer in the back of the shoulder causing him to lose control of the vehicle ... (p. 266).

And at about 2.50 on 22.5.80 while being interviewed ... refused to give name and address ...

At 3.00 on 22.5.80 at EP lockup the deft became abusive to police and started to shout obscene language ... there were women present at the time (p 268).

And while in police custody the deft removed one of her boots and using it as a hammer, demolished the china pedestal pan (p 269).

Examination of the records and circumstances of the offences support the strong

connection between alcohol and good order offences such as disorderly conduct

charges. For example, Christine Jones' three disorderly conduct charges

involved threatening people and fighting in hotels. Dooler's 'unseemly

behaviour' charge arose from his screaming and shouting behaviour while in a

drunken condition. Garlett's five disorderly conduct charges include references

to fighting and 'had been drinking but not drunk'.

Similarly when one looks behind assault and aggravated assault charges there is a

common link with alcohol. All of Pat's three aggravated assault charges involved

police with the deceased kicking or swinging at officers. On two occasions it

was noted 'the accused had been drinking however was not drunk' and the third

offence arose following arrest on a disorderly conduct charge following fighting

in a hotel bar. Waigana's aggravated assault offences arose from attacks upon de

facto wives while intoxicated. Stanley Brown's record includes some eleven

convictions for assault. These were mostly upon his de facto wife and police

records of the offences include references to assaults occurring out side a hotel,

the use of a bottle as a weapon, to the deceased and his wife drinking prior to the

assault and 'admitted offence, said he was sorry, it was the drink'.

234

There is also the familiar incidence of stealing offences involving thefts of liquor.

For example six of Wodulan's eight stealing or break, enter and steal offences

involved taking alcohol from residences, hotel store rooms or a shop. Similarly

five of Harris's seven stealing convictions involved taking alcohol usually from

the cool room of the local hotel. This type of offence or the commission of

stealing offences while intoxicated appear in the offence histories of Wongi,

Cameron, Farmer, Waigana, Anderson, Polak, Samson, Green, S Michael,

Vicenti and Wells.

The other main category of offences which is often linked to alcohol consumption

is motor vehicle offences. Convictions of other offences may often accompany a

DUI charge e.g. No MDL (see Garlett's and Brown's Criminal Records) or false

name (see Nita Blankett's Record of Criminal Convictions), dangerous driving

and UUMV (see Wodulan's Criminal Record Summary). There are also

references in the criminal histories to the taking of motor vehicles from outside

hotels (see Donald Harris).

It is clear from the anecdotal material, the statistical data and most profoundly

from the lives of the deceased that alcohol has been and continues to be a potent

force in the contact that Aboriginal people have with the criminal justice system.

It is a cause of high arrest and detention rates of Aboriginal people. However,

little will be achieved by continuing to focus on alcohol without addressing the

underlying issues of which alcohol ·is but a symptom. These issues are

addressed more thoroughly by Commissioner Dodson in his Report.

4.1.4 JUVENILE JUSTICE SYSTEM

4.1.4.1 Introduction

In dealing with children and juveniles who may have offended against the law what is needed is not merely discretion and common sense. We have been travelling a road long discarded as a failure virtually everywhere else in Australia and throughout the advanced world. We must get away from the debate about whether child offenders are bad or sad, depraved or deprived. The announcement

235

[of a cautioning scheme for juveniles] is a step in answering the question : Is our system of dealing with children who offend against the law by arresting them, charging them, bringing them to court in vast numbers and in some way or other imposing a sanction doing far more harm than good in very many cases. I repeat : The

approach adopted in this State up to now has been abandoned elsewhere, especially for younger and less serious offenders. The facts are that we in this State have for too long been asking the wrong question - Are the punishments hard enough. The real

questions lie elsewhere. In essence they are whether or not our whole approach is misplaced (Jackson, H.H.,1990)

During the period covered by the Royal Commission only one Aboriginal

juvenile died in custody in Western Australia and there were no deaths in juvenile

institutions. However 24 of the 32 Aboriginals (75%) who died commenced

their involvement with the criminal justice system as juveniles and for many their

involvement with the courts as juveniles was extensive. Two of the deceased

were only nine years old when they first came into contact with the juvenile

justice system and nine of the deceased were sentenced to detention in juvenile

institutions.

The juvenile records of the deceased reveal the limited sentencing options used in

relation to the deceased. In the main they were fined, committed to the care of the

Child Welfare Department, or detained in juvenile institutions.

An order committing a child to the care of the Department transferred the

guardianship from the parents to the State. Twenty of the deceased were

committed to the care of the Department at some time during their childhood. In

some cases it was as a result of a conviction for an offence and in other cases it

was as a result of a finding that the child was 'destitute' or 'neglected'. This is

illustrative of the inter-meshing of the 'welfare' function with the 'justice'

function of the Child Welfare Department (now the Department for Community

Services).

236

Des Semple, the Director General of the Department for Community Services

described the recent history of juvenile justice in Western Australia in the

following tenns:

During the 1970's and early 1980's juvenile justice in Western Australia was characterised by an over emphasis on welfare discretion. It was an era in what has now become known as the 'child caring movement' gained full impetus. The use of

euphemisms was common place, particularly in relation to maximum security institutions. For example these institutions were called Centres and the cells were called cabins. This had the effect of desensitising welfare workers in the field of juvenile justice to the harshness of maximum security institutions for reasons of their considered well being rather than normal principles of justice

(Semple, 1990)

Many of the deceased were affected by the system of juvenile justice which

operated during this period. It resulted in their involvement in the criminal justice

system at a relatively young age and by the time many of them reached adulthood

they had become well-known to the police and the courts and eight of the

deceased had become highly institutionalised (Hugh Wodulan, Paul Farmer,

Robert Walker, Kim Polak, Bobby Bates, Steven Michael, Graham Walley and

Wongi).

Over the past eight years the juvenile justice system in Western Australia has

undergone a major review with the current policies and programmes of the

Department for Community Services reflecting the shift from 'welfare' to

'justice' treatment of young offenders. Many of the reforms which have been

instituted stem from recommendations made by Professor Edwards (1982) in his

Report 'The Treatment of Juvenile Offenders'. The change in philosophy has

largely been effected by the Act Amendment (Children's Court) Act 1988 which

was proclaimed in December 1989. The major changes brought about through

this legislation include:

• The appointment of a President of the Children's Court who has the status

of a District Court Judge. He has considerable powers of administrative

and judicial review in the Children's Court.

237

Transfer of responsibility for the Children's Court from the Department for

Community Services to the Crown Law Department.

Provision of the court with power to order finite custodial sentences or

community based supervision whereas previously the court only had

power to place offenders under the control of the Department with a

recommendation that they be detained for a specific period of time.

• The adult offenders jurisdiction has been removed from the Children's

Court.

Appeals on questions of fact have been introduced.

The commencement of the age of criminal responsibility has been amended

from seven to ten years.

The legislative changes have also been accompanied by a change in the policies of

the Department for Community Services and new programmes have been

implemented to try to reduce juvenile offending and develop preventative

measures in the community. The programmes provide improved sentencing

options with an emphasis on diversion from custody, support for offenders when

they are released from custody and preventative programmes in the community.

These programmes will be discussed in more detail later in the section. The

initiatives rely upon inter-departmental coordination, particularly between the

Department for Community Services, the Ministry of Education and the Police

Department; the involvement and cooperation of community and non-government

organisations and the success of the Department for Community Services in

community development. Commissioner Dodson addresses many of these issues

in his Report, particularly in relation to the consultation and involvement of

Aboriginal communities and the relevance of the Department's initiatives to

Aboriginal youths.

238

This of course raises the issue of the extent to which Aboriginal youths are

involved in the juvenile justice system, for what reasons and the way in which

the system affects them. It is no surprise that Aboriginal youths are grossly over­

represented in the juvenile justice system in Western Au'itralia and in all other

States and Territories in Australia. The following section examines the extent to

which Aboriginal youths are over-represented in the juvenile justice system in

Western Australia.

4.1.4.2 The Extent of the Disproportion of Aboriginal Youths in the Juvenile Justice System

Aboriginal youths are over-represented at every level of the juvenile justice

system. Aboriginal over-representation increases with progression through the

juvenile justice system. The following statistics present a brief summary of the

picture in Western Australia:

Aboriginal youths represent 4.1% of the population of Western Australia

(ABS 1986)

Aboriginal youths accounted for 54% of youths detained in police custody

(Biles, 1990)

87% of youths detained for drunkenness in police custody were Aboriginal

(Biles, 1990)

70% of detentions of Aboriginal youths in police custody were for

drunkenness and other good order offences (Biles, 1990)

Aboriginal youths account for 13% of children appearing before the

Children's Panel (DCS, 1989/90)

Aboriginal youths account for 17% of the children appearing before the

Children's Courts (DCS, 1989!90)

239

• Aboriginal youths committed 35% of all offences heard by the Children's

Court or Panel during 1989/90 (DCS, 1989/90)

Aboriginal youths accounted for 50% of the offenders who had six or

more appearances before the Children's Court (DCS, 1989190)

• Aboriginal youths account for 65% of children admitted to Department

detention centres and 62% of those sentenced to imprisonment (in adult

prisons) (DCS, 1989/90)

Aboriginal youths accounted for 49% of those admitted to Longmore

Remand Centre following arrest (DCS, 1989/90)

Aboriginal youths accounted for 61% of youths admitted to Longmore

Remand Centre for fine default.

The following figure provides a snapshot of the extent of Aboriginal youths

involvement in the juvenile justice system.

240

A p

b e

0 r

r c

i e

g n

t

n a

a g

1 e

70

60

50

40

30

20

10

0

, FIGURE 4.5

ABORIGINAL OFFENDERS AS A PROPORTION OF TOTAL OFFENDERS IN VARIOUS CATEGORIES OF THE JUVENILE JUSTICE SYSTEM IN WA 1988/89

Total panel Total court Total Total Total Total

appearance appearance appearance appearance admissions admissions in court >6 in court to DCS to prison

times > 11 times custody

Sources of Statistical Infonnation

The extent of the involvement of Aboriginal youths in the juvenile justice system

is difficult to detennine in some areas because of the lack of available statistics.

Police statistics provided show the number of juveniles for whom offence

Reports are submitted, the number of juveniles apprehended and the offences for

which they are apprehended however they do not show whether the offender is

Aboriginal or non-Aboriginal. The Police Department has also provided statistics

showing the number of juveniles apprehended by way of arrest or by way of

summons and the offences for which they were arrested or summonsed, however

241

these statistics are incomplete as not all apprehensions for minor offences are

recorded on the police computer. These statistics are also unable to be broken

down into the Aboriginality of the offender. The Report of the Department for

Community Services produced a Report in August 1987 on 'Juvenile Arrest and

Summons' which shows the extent of utilisation of arrest procedures by the

police, however this study also does not indicate the Aboriginality of the

juveniles.

The survey conducted by the Royal Commission Criminology Research Unit on

police custodies in August 1988 is able to provide some information about

Aboriginal and non-Aboriginal children detained in police custody during the

survey period. The lockup meal returns of the Department for Community

Services also provide information about where children are being detained in

police custody throughout the State although they do not indicate Aboriginality of

the detainee.

The Department for Community Services also provided the Royal Commission

with statistics showing the number of youths appearing before the Children's

Court and Children's Panel, the offences which they have committed and the

disposition they receive from the court or panel. These are broken down into

Aboriginality of the offender. The Department has also provided us with

statistics on the number of Aboriginal and non-Aboriginal offenders detained in

juvenile institutions.

These statistics are examined in more detail below.

Police Custody

The statistics provided by the Police Department on the number of apprehensions

of juveniles have some serious deficiencies, the major one being that they do not

provide a breakdown of Aboriginal and non-Aboriginal juveniles. Secondly the

figures do not include all apprehensions for minor offences. Apparently in about

242

1983 a decision was made by the Police Department not to record all

apprehension information on the computer because of limited resources and

apprehensions for minor offences such as drunkenness, Liquor Act offences,

disorderly conduct, etc. were only included if the offence resulted in a sentence

of imprisonment. Clearly the police apprehension statistics present a distorted

picture of the level of apprehensions given that the National Police Custody

Survey August 1988 conducted by the Royal Commission Criminology Research

Unit found that in Western Australia, 48% of Aboriginal adults and juveniles

were arrested and detained for the offence of drunkenness and 70% of juveniles

were detained for good order offences (drunkenness, disorderly conduct).

The table below indicates that from 1985 to 1990 there has been a small increase

in the number of juveniles apprehended by the police but the proportion of

juvenile apprehensions hovers at about 25% of all police apprehensions.

Juveniles aged 0-17 years account for 13.6% of the total population of Western

Australia so it would appear that juveniles account for a disproportionate number

of police apprehensions.

TABLE 4.46: POLICE APPREHENSIONS OF ADULTS AND JUVENILES 1985-1990(a)

Year No. Adult %Adult No.Juvenile %Juvenile

1984/85 45 360 75.8% 14472 24.2%

1985/86 52 201 76.2% 16 344 23.8%

1986/87 58 071 75.6% 18 766 24.4%

1987/88 58 184 75.4% 18 937 24.6%

1988/89 58 605 73.8% 20 841 26.2%

1989/90 59 377 73.9% 20930 26.1%

(a) Table derived from apprehension statistics provided by the Police Department to the Royal Commission.

The Royal Commission's Police Custody Survey August 1988 found that

juveniles accounted for 15% of all police custodies in Western Australia.

243

However to be included in the Royal Commission survey as a police custody the

detainee had to be placed in a police cell. This may account for the difference.

Of the total number of juveniles detained (794), 421 or 53% were Aboriginal. As

noted at the beginning of this section Aboriginals account for only 4.1% of all

juveniles aged 0 to 17 years. Nationally 34.4% of all children aged 0 to 17 years

detained were Aboriginal and juveniles in this age group (Aboriginal and non­

Aboriginal) accounted for only 8% of all custodies (in contrast to 15% in Western

Australia).

As mentioned in section 4 .1.2, the proportion of 0-14 year olds detained in police

cu tody in Western Australia during the survey period was also higher than the

national level.

Of the total number of juveniles aged 0- 14 years (Aboriginal and non-Aboriginal)

detained throughout Au tralia, 40% were detained in Western Australia. Sixty­

three percent of the juvenile aged 0- 14 years detained in Western Au tralia were

Aboriginal, whereas nationally 34% of juvenile in the arne age group detained

in police custody were Aboriginal. Of the total number of Aboriginal juveniles

aged 0-14 years held in police cu tody throughout Au tralia, 74% were held in

Western Au tralia. Only 16.5% of the national Aboriginal population aged 0-14

yea Jive in We tern Au tralia (ABS 1986 cen u ).

In We tern Au tralia 25% of all juveniles were in cu tody for les than one hour,

50% for le than two hour , 1% for le than ix hour and 90% for le than

thirteen hou . The length of time pent by A riginal children in cu tod y were

omewhat longer than non-Aboriginal children with the median time for

Aboriginal children being three hou wherea the median time for non­

Aboriginal children w only 1.5 hou .

The Police Lockup Meal Return tali Li al o give an indication of the num r of

juvenil being held in police Joe up in the Perth metropolitan and country

are . The e tati ti ho the number of meal which ha e been pro ided to

244

juveniles in police lockups for which the Department for Community Services

has been required to reimburse the Police Department.

TABLE 4.47: POLICE LOCKUP MEAL RETURN STATISTICS FOR JUVENILES 1989 METRO TRENDS BY MONTH

No Held No Held

No of No of No Held on Good on Default

Month Persons Admissions >3 Da'f.S Order Vehicle Rei (Wq

January 22 24 0 5 6 1

February 9 9 0 1 5 0

March 38 39 0 1 13 1

April 49 54 2 2 15 0

May 41 65 2 I 10 3

June 26 31 3 0 1 4

July 43 50 0 I 5 2

August 43 49 0 I 11 6

September 45 52 0 0 22 5

October 46 50 0 I 0 11

November 53 57 I 4 4 12

December 32 34 0 I 4 3

As at 2 Apri11990

TABLE 4.48: POLICE LOCKUP MEAL RETURN STATISTICS FOR JUVENILES 1989 COUNTRY TRENDS BY MONTH

No of No of No Held No Held No Held Default

Month Persons Admissions >3 Days on Good on (WC)

Order Vehicle Rei

January 182 220 7 48 37 21

February 144 175 14 46 20 10

March 196 228 24 23 53 34

April 120 148 14 34 20 29

May 176 233 33 56 23 30

June 132 167 10 56 9 28

July 127 155 13 46 8 36

August 153 219 13 94 18 29

September 146 171 15 51 15 23

October 140 179 22 62 20 17

November 147 200 24 44 10 30

December 156 189 14 59 14 13

As at 2 April 1990

245

TABLE 4.49: TEN HIGHEST TOWNS BY TOTAL NUMBER OF INDIVIDUAL JUVENILES 1989

Total No of Persons

Halls Creek 172

Meekatharra 137

Geraldton 133

Roebourne 118

Derby 117

Carnarvon 113

Kalgoorlie 102

South Hedland 90

Wiluna 88

Fitzroy Crossing 86

Total No of Admissions

290 186 154 134 156 132 120 122 106 115

Total No >3Days

5

27 7

10 5

43 7

33 15 6

The above tables show that juveniles are held in country lockups in much greater

numbers than are held in metropolitan lockups. The tables also indicate that

significant numbers of juveniles are being held for good order offences in

country lockups. Towns with particularly high numbers of juvenile detentions

are Halls Creek, Meekatharra, Geraldton, Roeboume and Derby. However the

Department for Community Services has advised the Royal Commission that the

number of meal returns for police lockups over the last three years indicate a

gradual decrease in the number of juveniles being held.

Children's Panel and Court

Appearance before the Children's Panel or the Children's Court is usually the

next step in the juvenile justice process for a juvenile offender. Aboriginal

children are over-represented in both, although to a greater extent in the

Children's Court which has more serious consequences in terms of criminal

record and dispositions available. The tables below show the number of

individual juveniles appearing before the Children's Court or Panel in Western

Australia from 1986 to 1989 and the number of offences dealt with by the

Children's Court or Panel for the same period.

246

The Children's (Suspended Proceedings) Panel deals with a child aged ten

(previously seven) to fifteen years who is a first offender, admits a less serious

first offence and is able to pay restitution if ordered. The Children's Panel is

comprised of an officer of Department for Community Services and a senior or

retired police officer. The Children's Court deals with children aged ten to

seventeen years.

TABLE 4.50: NUMBER OF INDIVIDUAL JUVENILES APPEARING BEFORE THE CHILDREN'S COURT OR PANEL FROM 1985/86 TO 1988/89

1985186 1986187 1987188 1988189

Children's Court 7 957 8 658 8 659 8 305

Children's Panel 3 909 3 775 3 310 3 100

Either Court or Panel 11 554 11 934 11 658 11 106

TABLE 4.51: NUMBER OF OFFENCES DEALT WITH BY THE CHILDREN'S COURT OR PANEL FROM 1985/86 TO 1988/89

1985186

Children's Court 24 795 Children's Panel 5 367

Either Court or Panel 30 162

1986187 1987188

28 525 27 936

5167 4445

33 692 32 381

1988189

30364 4166 34 530

These tables show that there has been an overall decrease in the number of

individual juveniles and the number of offences dealt with by the Children's

Panel from 1985/86 to 1988/89 but there has been an overall increase in the

number of individual juveniles and the number of offences dealt with by the

Children's Court over the same period. However the figures for 1989 show a

decrease in the number of individuals appearing before the Children's Court

during the year although there has been an increase in the number of offences for

the same period.

247

The table below shows the Aboriginality and age of juveniles appearing before

the Children's Panel during 1989/90.

TABLE 4.52: ABORIGINALITY OF INDIVIDUAL JUVENILES APPEARING BEFORE THE CHILDREN'S PANEL 1989/90

Age of Non-

Child Abl % Abl % Unknown Total

Unknown 0 0% 0 0% 1 1

7 2 0.5% 5 0.2% 0 7

8 13 3.4% 10 0.4% 0 23

9 12 3.2% 19 0.8% 1 32

10 32 8.4% 70 2.8% 4 106

11 43 11.3% 138 5.6% 4 185

12 61 16.1% 234 9.4% 5 300

13 57 15.0% 498 20.1% 11 566

14 74 19.5% 737 29.7% 10 821

15 68 17.9% 603 24.3% 14 685

16 16 4.2% 165 6.7% 8 189

17 1 0.3% 0 0% 0 1

TOTAL(a) 379 99.8% 2479 100% 58 2916

13% 85% 2% 100%

(a) Percentages may not totallOO per cent due to rounding of figures

This table shows that non-Aboriginal children (2479) accounted for 85% of

children appearing before the Children's Panel during 1989-90 and Aboriginal

children (379) accounted for 13%. Aboriginal children appeared before the Panel

3.6 times the rate of non-Aboriginal children. Relatively more Aboriginal

children were brought before the Children's Panel at a younger age than non­

Aboriginal children. 43% of Aboriginal children appearing before the Children's

Panel were twelve years or younger, whereas 19% of non-Aboriginal children in

the same age group appeared before the Panel.

The table below shows the Aboriginality and age of juveniles appearing before

the Children's Court during 1989/90.

248

TABLE 4 .53: ABORIGINALITY AND AGE OF INDIVIDUALS APPEARING BEFORE THE CHILDREN'S COURT 1989/90

Age of Non-

Child Abl % Abl % Unknown Total

Unknown 0 0% 0 0% 4 4

2 0 0% 1 0.02% 0 1

7 2 0.1% 5 0.08% 1 8

8 19 1.1% 10 0.2% 2 31

9 23 1.3% 23 0.4% 8 54

10 58 3.2% 76 1.3% 6 140

11 82 4.5% 158 2.8% 25 265

12 117 6.5% 282 5.0% 17 416

13 171 9.5% 597 10.5% 46 814

14 255 14.1% 951 16.7% 101 1307

15 298 16.5% 1020 17.9% 162 1480

16 325 18.0% 881 15.5% 690 1896

17 355 19.7% 1279 22.5% 1730 3364

18+ 101 5.6% 408 7.2% 332 841

TafAL(a) 1806 100.1% 5691 100.1% 3124 10621

17% 54% 29% 100%

(a) Percentages may not total 100 per cent due to rounding of figures

This table shows that during 1989/90, 5691 non-Aboriginal children (54%) and

1806 Aboriginal children (17%) appeared before the Children's Court.

Aboriginal children appeared before the Children's Court at a rate 4.9 times the

rate of non-Aboriginal children. As with the Children's Panel, a greater

proportion of Aboriginal children appeared before the Children's Court at a

younger age than non-Aboriginal children with 16.7% of Aboriginal children

appearing before the court aged twelve years or younger whereas 10% of non­

Aboriginal children were in the same age group.

Information from the Department for Community Services states that over the last

six years there has been an increasing number of youths appearing in the

Children's Courts and a steady decrease in the number appearing before the

Panel. The Department also states that the number of youths who had appeared

before the Children's Court or the Panel on six or more occasions appears to be

gradually increasing with 16% of juvenile offenders appearing during 1988/89

249

having appeared on six or more occasions. (In 1986/87 it was 13% and in

1987/88 it was 15%.) In 1989/90 50% of the youths appearing before the

Children's Court with six or more prior appearances were Aboriginal.

4.1.4.3 The Offences

Table 4.53 in the section above shows the number of offences being dealt with

by the Children's Panel have decreased over the period from 5367 offences in

1985/86 to 4166 offences in 1988/89. During the year 1989/90 the Children's

Panel dealt with fewer offences again (3883).

Table 4.54 below shows the offences dealt with by the Children's Panel during

1989/90. It should be noted that the Children's Panel does not have jurisdiction

to deal with serious offences such as homicide, serious sexual offences, robbery,

etc. (See 4th Schedule of Child Welfare Act for list of offences with which the

Children's Panel has no power to deal.)

TABLE 4.54: OFFENCES DEALT WITH BY THE CHILDREN'S PANEL DURING 1989-1990

Non-

Offence Type No. Abl Abl % Unknown Total

No

Assault 13 2.5% 52 1.6% 3 68

Drugs 6 1.2% 100 3.1% 4 110

Explosives 3 0.6% 12 0.4% 0 15

Fraud 0 72 2.2% 2 74

Good Order 61 11.8% 193 5.9% 11 265

Homicide Justice 5 1.0% 58 1.8% 2 65

Liquor 1 0.2% 7 0.2% 1 9

Property 39 7.5% 167 5.1% 9 215

Robbery Sexual 2 0.4% 8 0.2% 2 12

Theft 348 67.1% 2328 71.3% 56 2732

Traffic 35 6.7% 261 8.0% 8 304

Other 6 1.2% 8 0.2% 0 14

TOTAL 519 100.2% 3266 100% 98 3885

13.4% 84.1% 2.5%

250

Theft was the most common offence dealt with by the Children's Panel for

Aboriginal and non-Aboriginal offenders, comprising 67.1% of all Aboriginal

offences and 71.3% of all non-Aboriginal offences. Good order offences

accounted for 11.8% of all Aboriginal offences but only 5.9% of non-Aboriginal

offences.

The table below shows the offences dealt with by the Children's Court duting

1989-90. As noted above the number of offences dealt with by the Children's

Court has increased during the period 1985/86 to 1988/89 from 30 162 offences

to 34 530. There was a further increase during 1989/90 with a total of 35 205

offences being dealt with by the Children's Court.

TABLE 4.55: OFFENCES DEALT WITH BY THE CHILDRENS COURT DURING 1989-1990

Non-

Offence Type No. Ab/ Ab/ % Unknown Total

o/ce No.

Assault 508 3.8% 428 2.9% 128 1064

Drugs 130 1.0% 705 4.7% 434 1269

Explosives 20 0.2% 33 02% 12 65

Fraud 32 0.2% 359 2.4% 366 757

Good Order 1439 10.9% 1263 8.4% 678 3380

Homicide 0 1 1 2

Justice 1829 13.8% 1321 8.8% 496 3646

Liquor 112 0.8% 112 07% 98 322

Property 830 6.3% 657 4.4% 236 1723

Robbery 68 0.5% 29 02% 9 106

Sexual 34 0.3% 35 02% 23 92

Theft 6075 45.9% 6144 41.0% 1980 14199

Traffic 2086 15.8% 3820 255% 2473 8379

Other 62 0.5% 72 05% 67 201

TOTAL 13225 100% 14979 999% 7001 35205

r/.6% 425% 19.9% 100%

This table shows that 37.6% of the offences dealt with by the Children' s Court

were committed by Aboriginal children and 42.5% of the offences being

251

committed by non-Aboriginal children with the Aboriginality of the offender

unknown for nearly 20% of the offences.

Aboriginal children are convicted of offences at a rate of 1715.7 per 1000

Aboriginal children aged 10-17 years, whereas offences committed by non­

Aboriginal children and children for whom Aboriginality is unknown is at a rate

of 119.6 per 1000 non-Aboriginal juvenile population. This means that offences

for which Aboriginal children are convicted is at a rate fourteen times that of

offences of non-Aboriginal and 'unknown' children.

Again, theft offences accounted for the greatest proportion of offences committed

by Aboriginal and non-Aboriginal children accounting for 45.9% of all

Aboriginal offences and 41% of all non-Aboriginal offences. A higher

proportion of Aboriginal children than non-Aboriginal children were convicted of

justice offences (13.8% compared to 8.8% of non-Aboriginal offences) good

order offences (10.9% compared with 8.4% of non-Aboriginal offences) and

property offences (6.3% compared to 4.7% of non-Aboriginal offences). Non­

Aboriginal children were convicted a significantly larger proportion of drug

offences (4.7% as compared to 1% of Aboriginal offences) and traffic offences

(25.5% as compared to 15.8% of Aboriginal offences).

4.1.4.4 How are Youths Dealt with by the Courts?

In Western Australia, legislation has been enacted enshrining the principle that

imprisonment is a sanction of the last resort. The Children's Court of Western

Australia Act (No.2) 1988 makes specific reference to detention orders and

imprisonment.

Section 26 (2) of the Act provides that

The court must not impose a sentence of imprisonment or make a detention order unless

(a) the court is satisfied that there is no other option appropriate in the particular case; and

252

(b) written reasons for imposing the sentence of imprisonment or making the detention order, as the case may be, are recorded by the court.

However as Table 4.56 below shows although only 2.5% of non-Aboriginal

youths are sentenced by the courts to detention or imprisonment 12% of

Aboriginal youths receive the most severe of available dispositions. Aboriginal

youths account for 65% of all youths sentenced to detention and 62% of all

youths sentenced to imprisonment in an adult prison.

At the other end of the scale proportionately more non-Aboriginal youths have

their matters dismissed with 28% of their offences dismissed, whereas 20% of

Aboriginal offences are dismissed.

TABLE 4.56: FINALISED OUTCOMES FROM THE CHILDRENS COURTS DURING 1989-1990

Non-

Abl % Abl Total

Outcome No Abl No % No %

Dismissed 886 20% 2961 28% 3847 25

Fine 1074 24% 4347 4.1% 5421 36

GBB 354 8% 1206 11% 1560 10

cso 799 18% 989 9% 1788 12

Probation 342 10% 419 94% 851 6

Adult Probation 432 2% 267 2.5% 338 2

AdultCSO 71 0.5% 30 0.3% 51 0.3

PUC 21 3% 63 fRo 182 1

CRO 155 3.5% 104 1% 259 2

Detention 429 10% 229 2% 658 4

Imprisonment 71 2% 43 Q5% 114 1

Other 17 32 Q3% 49 Q3

TOTAL 4428 101% 10690 100.2% 15118 99.6%

253

4.1.4.5 J uveniles in Institutions

There are four detention centres in Western Australia for juvenile offenders.

These are Longmore Remand Centre, Longmore Training Centre, Riverbank and

Nyandi.

Longmore Remand Centre is a maximum security facility providing detention for

children on arrest from the police, on remand from the court, who have been

sentenced and are waiting to go to a training centre and those on fine default.

Longmore Training Centre and Riverbank are maximum security institutions for

male offenders only.

Nyandi was originally designed to hold female offenders only but now holds

boys and girls. All facilities are located in the Perth metropolitan area.

Western Australia has almost double the rate of detention of juveniles in

institutions compared to the national rate. The table below shows that Western

Australia also has the highest rate of incarceration of juveniles of all the States of

Australia, having a· significantly higher rate of incarceration than New South

Wales which has the next highest rate.

TABLE 4.57: PERSONS AGED 10-17 IN jUVENILE CORRECTIVE INSTITUTIONS AS AT 30 SEPTEMBER 1989

Detention Status NSW VIC QJJJ WA SA TAS NT ACT AUST

Not Awaiting M 202 79 56 101 16 6 20 4 484

Hearing [!] F 6 II 5 5 0 2 I 0 30

Awaiting M Ill 42 34 32 22 5 8 4 258

Hearing [2] F 24 12 6 2 3 0 2 0 49

Total M 313 121 90 133 38 II 28 8 742

F 30 23 II 7 3 2 3 0 79

Rate [3] M 88 .0 44.9 47.6 130.0 45.0 37.5 W.5 41.5 69.9

F 8.8 9.0 6.1 7.2 18 7.1 21.6 0.0 7 .8

Population M 355.8 X9.6 ISJ .! 102.3 845 21.3 11.3 19 .3 1051.2

[4] F 340.5 255 .3 119.8 96.7 79.7 28.3 IQI 18.3 lffi8.8

254

The high level of incarceration of juveniles in Western Australia is not a new

development and the Department for Community Services acknowledges that its

previous policies and practices did much to contribute to the situation. The

Department's current policies and practices are designed to reduce the current

levels of incarceration. The degree of success of their initiatives in this regard

need to be monitored closely, particularly in relation to Aboriginal offenders.

The current level of incarceration of juveniles in this State is totally unacceptable .

and every effort must be made to ensure that it is reduced.

The following table shows where Aboriginal and non-Aboriginal youths admitted

to Longmore Remand Centre during 1989/90 came from, i.e. metropolitan or

non-metropolitan areas. The table shows that a large proportion of Aboriginal

youths admitted to detention are from country areas with 45% of admissions

being from non-metropolitan areas. This raises the issue of the appropriateness

of detaining Aboriginal youths from country areas, particularly Aboriginals from

remote communities, in juvenile institutions in the city.

TABLE 4.58:(a) WHERE THE OFFENDERS CAME FROM

Admissions

Metro Country Total

Aboriginal 400 788 1188

Non- Aboriginal 498 117 715

Unknown 126 25 151

1DTAL 1124 930 2054

55% 45% 100%

%

58%

35%

7%

(a) Table derived from infonnation provided by Department for Community Services

The deterrent effect of incarceration on youths has been questioned for many

years now. Several reasons presented as to why detention does not have a

deterrent effect are:

255

exposure to other offenders may lead to increased criminogenic behaviour;

once detention has been utili ed the deterrent effect of the fear of the

unknown aspect of imprisonment i minimised;

juvenile in titutions may provide some young people whh access to

facilities and services that would be unavailable outside;

Commi ioner Dod on examines the lack of deterrence offered by incarceration

in more detail in hi Report.

Aboriginal people have al o rai ed concern with my Commis ion about the

detention of their youth • particularly from country areas, in in titution in Perth .

Many Aboriginal people have aid that they want Aboriginal offenders to remain

in their own area, o that the offenders can maintain contact with their familie

and communi tie . Aboriginal people have al o indicated that they want to retain

re pon ibility for the puni hment of Aboriginal offenders them lves, o that the

puni hment admini tered may be more effective and appropriate (e.g. ee

Submi ion of Concerned Individual Aboriginal People to the Cabinet Sub­

Committee on Crime Prevention January I 90 G0/29).

The ubmi ion of on emed Individual A riginal People upported the

Submi ion of the Department of Correcti e S rvice to the Cabin t Sub­

Committee on Crime Prevention, ovem r 19 , in which th y argue for the

tran fer of re pon ibility for correctional in titutio and pro ramme for

convict d juvenile from th Department for ommunity Servic to the

panmcnt of orrccti ervicc . Th of u h tra fer Li ted in the

Su mi ion of the partm nt of includ :

a by hil ren' ourt to the of pre- ntn re

urrem.l pro id in t of ult of[!

25

juvenile offenders would have access to a wider range of custodial

placement options;

in a number of cases, juvenile offenders of Aboriginal descent could

remain at or be transferred on a temporary visiting basis to prisons close to

their family and community (Wyndham, Broome, Roebourne, Greenough,

Eastern Goldfields);

juvenile offenders would have access to educational and other

developmental programmes specifically designed to meet their particular

needs;

coordination of juvenile and adult CSO projects would improve efficiency

and. remove competition for projects;

group workers would have access to expanded career and staff training

opportunities thereby improving their morale and their effectiveness;

Corrective Services has unique expertise in the management of offenders;

Corrective Services has unique expertise in the design of custodial facilities

which provide a safe secure, humane and, as far as possible, constructive

environment;

significant improvements in economy and efficiency could be achieved;

introduction of innovative programmes for the division of juvenile

offenders from custody (see pages 8-9).

The Northern Territory is the only State or Territory in Australia where the

juvenile justice system is administered by the corrections systems.

The Department for Community Services has expressed strong reservations about

the transfer of responsibility to Corrective Services. Mr William Budiselic,

257

Director of the Eastern Metropolitan Region of the Department for Community

Services, expressed the Department's position in this way:

... I have a strong reservation about the notion, given the training emphasis we have for our officers which is around stages of child development, managing adolescents. It is a far more interactive model. I guess also that part of our proposition is based on an argument that juveniles should only be detained as a measure of last resort and that if the offence is sufficiently serious to warrant detention, then it ought to be detention in some form of secure institution. The fact that the secure institution is in Perth creates problems for families and whatever, but if we were using the facilities in the regional areas more there would be an increased

incarceration rate for juveniles for one thing (RCIADIC W21:410-411)

Mr Budiselic and Mr Michael Hepburn, also at the Department for Community

Services, argued that more efforts should be put into the division of juveniles

from institutions through developing effective community options across the

State. They stressed that the incarceration rate of juveniles in Western Australia

needed to be reduced significantly rather than expanding the infrastructure to lock

more up. (RCIADIC W21:412)

The current policies and programmes of the Department for Community Services

are focused on developing alternative sentencing options, emphasising the

diversion of offenders from custody. These are discussed in more detail later,

but it is my view that the further expansion of the current programmes of the

Department for Community Services is the preferable option. I, too, have very

strong reservations about the expansion of institutional facilities for youths,

especially given the extremely high level of incarceration of juveniles in Western

Australia.

The high level of juveniles, particularly Aboriginal juveniles who are involved in

the juvenile justice system from arrest through to detention in juvenile institutions

calls for an examination of the policies and practices at different points in the

criminal justice process to determine the areas where changes may be made to

reduce the level of juveniles in police and Departmental custody.

258

The areas which have arisen during my inquiries which require closer scrutiny

are police policies and practices; legal services available to youths; the operation

and practices of the Children's Court and Panel; sentencing options and practices.

4.1.4.6 Police Policies and Practices

The policies and practices of the Police Department which appear to have a

significant impact on the arrest and detention of juveniles include policing

practices, use of arrest and summons, introduction of a system of formal cautions

and court attendance notices, bail and the questioning of juveniles.

Policing Practices

The Police Department has informed the Royal Commission that the initiatives it

has taken to address juvenile crime and its prevention include Police and Citizens

Youth Clubs, Blue Light Discos, Neighbourhood Watch Schemes, Minor

Lecturing Programme, School Based Police Officers and the Safety House

Programme. They are part of the overall policy of community policing which has

been embraced by the Police Force in Western Australia. (See Response of

Commissioner of Police to Specific Questions by RCIADIC July 1990.)

Commissioner Bull further explained the operation of police initiatives in regard

to juveniles in his evidence to the Royal Commission. He said:

The whole community - the whole community has got to work with the different projects that will offer an alternative. And, certainly, the police force has to accept its share of responsibility, and is doing so. In fact, I am firmly convinced we are doing more than our share. We have initiated many of these. For instance, you know, at Roebourne, two of my officers have engaged- including an Aide, an officer - in both instigating and running Aboriginal basketball

teams, to get the young Aboriginals away from crime, away from drink--- trying to show them a better way of life. In fact, it turned out that the year before last, they both fought the grand final, the two teams. Now, I can relate this statewide. My officer at Shark Bay instigated a project to develop leisure centre largely for Aboriginal juveniles- mini golf and other alternatives - trampoline. He got the

259

town together and they built this to show the kids, you know, a better way of life.

My Police and Citizens Youth Clubs are taking their buses and, with the cooperation of Aboriginals, are going to areas and picking up Aboriginal youths and taking them to the Police and Citizens Youth Clubs. We are running Aboriginal blue light discos. That provides

an alternative for the youth to show that they can have a good time without the necessity of alcohol, bad behaviour or even smoking, because they are not even allowed to smoke in blue light discos. So, you know, I could just go on relating these projects that the police

are involved in statewide, and I believe that is the answer to the problem - is encouraging and helping these people, showing them that there is a better way, away from the alcohol.

The Police Department has also developed Truancy Patrols as part of the 'Anti­

Theft concept' which have the major objectives of identifying children who are

committing offences during school hours, whilst absent from school and

developing and implementing programmes aimed at preventing offences being

committed by juveniles in the school system. (See Response of Commissioner

of Police to Specific Questions Raised by RCIADIC Q15:16.) The Truancy

Patrols are administered by the Anti-Theft Units which are part of the CIB.

During the year 1989/90 the Truancy Patrols in the metropolitan area stopped

2348 children during school hours. Of that 1387 or 59% had legitimate reasons

for not attending school. 971 children or 41% of children stopped were

truanting. Aboriginal children accounted for 336 or 14% of children stopped

whereas they account for 2.6% of the school population. (Responses of

Commissioner of Police p.65). Of the children stopped 627 were classified by

the police as 'offenders' and 1509 charges were laid against the offenders.

Many Aboriginal people have a perception that the police target Aboriginal youths

in their policing practices by stopping them frequently to ask their name and

address, and in arrest and detention procedures. (See for examples transcript in

Polak, McGrath, Geraldton cases; also see AIU Report. Commissioner Dodson

also discusses this issue in his Report as does the Report of the Commissioner

for Equal Opportunity reviewing Police Practices.)

260

It is difficult to evaluate whether the police do discriminate against Aboriginal

youths in their policing practices because of the highly discretionary nature of the

police decision making process in this regard and the lack of reliable statistics.

Information provided by the Department for Community Services compares the

rate of official police contacts per 1000 juveniles in 1986 in Western Australia

with other states in Australia. The table below shows that with the exception of

the Northern Territory, Western Australia had a far higher rate of police contact

with juveniles than the other states, the rate of contact (96.4) being almost double

the rate of South Australia which has the next highest level (52.7).

TABLE 4.59: OFFICIAL POLICE CONTACTS PER 1000 JUVENILES (1986)

State No.

Western Australia 96.4

Queensland 38.6

Tasmania 29.8

South Australia 52.7

Victoria 28.6

New South Wales 25.5

Northern Territory 160.0

Australia 38.8

When one examines the level of police contact with youths coupled with specific

police policies aimed at stopping children during school hours in an effort to

prevent thefts, it is perhaps not surprising that Aboriginal juveniles may have a

perception of harassment by the police.

I have insufficient evidence to come to any conclusions as to whether or not

police practices do discriminate against young people, particularly Aboriginals. I

suspect that they do and the level of over-representation of Aboriginal juveniles

261

appearing before the Children's Court and Panel and detained in juvenile

institutions provide support for such suspicions. It is my view that the

government needs to further evaluate police policies and practices which may

have a discriminatory impact on young people, particularly Aboriginal youths,

which result in their being further disadvantaged by the criminal justice system.

The extensive use of arrest to apprehend juveniles by the police in Western

Australia requires closer examination. The arrest process commences the

juvenile's entry in the juvenile justice system.

The United Nations Standard Minimum Rules for the Administration of Juvenile

Justice (The Beijing Rules) serve as the guiding principles by which juvenile

justice should be administered. The following principles are relevant to the

discussion of police practices in relation to arrest, bail, questioning and detention

of juveniles.

5. Aims ofjuvenilejustice

5.1 The juvenile justice system shall emphasise the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence

7. Rights of juveniles

7.1 Basic procedural safeguards such as the presumption of innocence, the right to be notified of the charges, the right to remain silent, the right to counsel, the right to the presence of a parent or guardian, the right to confront and cross-examine witnesses and the right to appeal to a higher authority shall be guaranteed at all stages of proceedings.

10. 1nitialcontact

10.1 Upon the apprehension of a juvenile, her or his parents or guardian shall be immediately notified of such apprehension, and,

262

where such immediate notification is not possible, the parents or guardian shall be notified within the shortest possible time thereafter.

10.2 A judge or other competent official or body shall, without delay, consider the issue of release.

10.3 Contacts between the law enforcement agencies and a juvenile offender shall be managed in such a way as to respect the legal status of the juvenile, promise the well-being of the juvenile and avoid harm to her or him, with due regard to the circumstances

of the case.

13. Detention pending trial

13.1 Detention pending trial shall be used only as a measure of last resort and for the shortest possible period of time.

The commentary on Rule 10.3 provided by United Nations states:

Involvement injuvenilejusticeprocesses in itself can be 'harmful' to juveniles, the term 'avoid haun' should be broadly interpreted, therefore, as doing the least harm possible to thejuvenile in thefirst instance, as well as any additional or undue harm. This is especially

important in the initial contact with law enforcement agencies which might profoundly influence the juvenile's attitude towards the State and society.

A survey conducted by the Department for Community Services for three periods

totalling nine weeks between 30.6.86 and 1.5.87 indicated that 74% of children

appearing before the Perth Children's Court during this period were proceeded

with by way of arrest.

Statistics supplied to the Royal Commission by the Police Department indicate

that an even higher proportion of juveniles are proceeded with by way of arrest.

The table below shows that during the year 1989/90, 78% of juvenile offences

were proceeded with by way of arrest with only 22% of juveniles being

summonsed. However it must be kept in mind that these statistics do not include

police apprehensions for minor offences which did not result in a sentence of

imprisonment. Therefore many drunkenness, liquor licensing and disorderly

conduct offences are not included. These offences would mainly be proceeded

263

with by way of arrest. However the table shows a significant improvement over

the previous five years where the proportion of juveniles arrested hovered around

85%.

TABLE 4.60: NUMBER OF JUVENILES PROCEEDED WITH BY WAY OF ARREST AND SUMMONS 1985-1990(a)

Arrest Summons

Year No % No %

1984/85 12569 87% 1903 13%

1985/86 13647 83.5% 2697 16.5%

1986/87 16114 86% 2652 14%

1987/88 16111 85% 2826 15%

1988/89 17518 84% 3323 16%

1989,00 16337 78% 7196 22%

(a) Table derived from statistics provided by the PoliceDepartment to the Royal Commission

Despite the decrease in 1989/90 the current level of use of arrest as opposed to

summons is unacceptable. The Department for Community Services has stated

that Western Australia has the highest arrest rate in Australia. Statistics from

Adelaide for the year 1983/84 indicate that 82% of juveniles who appeared before

the Children's Court and Children's Aid Panels were proceeded with by way of

summons or notice.2 . This figure is in stark contrast to the figures for Western

Australia for 1984/85 which indicate that only 13% of juveniles were

apprehended by way of summons.

The use of arrest as the major means of apprehending juveniles results in

juveniles then having to be 'processed' by a system which requires bail, possible

surety, finger-printing and photographing and the possibility of detention

regardless of the nature of the offence.

2 Gale & Wundesizt 'Police and Black Minorities: The Case of Aboriginal Youth in South Australia

264

Data presented in the Department for Community Services Report on Juvenile

Arrest and Summons August 1987 shows that only 12% to 25% of children

detained in maximum security remand actually receive maximum security

recommendations post-court. As the Department for Community Services Report

points out (at p.9)

This means that at least 75% of the children locked up pre-court received a community-based disposition ( dismissal,fine, probation, good behaviour bond, CSO) which indicates that their offending behaviour did not pose a significant threat to the community.

The Youth Legal Service, a service established by welfare agencies to assist

youth who are disadvantaged in the legal system and particularly youth in the

juvenile justice system, suggested in their submission to the Department for

Community Services Legislative Review the following standard should be

introduced in relation to the arrest process.

Arrest should only be used when community protection is an issue. No child should be arrested unless the offence for which they are about to be arrested carries a jail term (the general principles of the criminal code).

The Police Department was asked its view of this submission of the Youth Legal

Service The Department's response is as follows:

The power of arrest is exercisable for the purpose of maintaining the peace and order in the community. It is a discretionary power that should be left to the judgement of the officer at the particular time and considering all circumstances (Response of Commissioner of

Police to SpecificQuestions Raised by the RCIADIC p.58 Q15.8).

The current level of use of arrest raises the question whether police officers

receive adequate direction as to the way in which the discretionary power of

arrest should be exercised. Although the Police Department advised the Royal / Commission that 'no special instructions exist with respect to the exercise of

powers of arrest in relation to juveniles .. .' (Responses of Commissioner of

Police Q.15.3) it would appear that Police Routine Order 3-2.28 is specifically

directed to the arrest of juvenile offenders. It provides:

265

3-2.28 It is not desirable that children should be arrested, however, the member dealing with a matter should arrive at a decision as to whether an arrest should be made by having regard to:-( 1) the nature of the offence;

(2) the necessity to prevent the continuation or repetition of the offence or of other offences;

(3) the welfare of the child, other persons, or property;

(4) the likelihood of the loss or destruction of evidence if the child is not arrested; and

(5) the possible need to establish the identity of the child by fingerprints or photographs.

These Routine Orders are simply guidelines to police officers and their discretion

to arrest is authorised under s43(1) of the Police Act. The police perspective on

the use of arrest in relation to juveniles is presented in the Department for

Community Services Report on Juvenile Arrest and Summons. It states at p.15:

In reality the officer dealing with situations involving emotion, drink, drugs and welfare has little option but to effect an arrest to re­ establish peace in the area though the offences are more often than not of a nature which would attract a monetary penalty or less.

The Royal Commission received evidence that police officers frequently made

use of arrest in preference to summonses because the summons procedure was

complicated and involved too much paperwork. The Police Department was

asked for its view in this regard. The Police Department's response was:

Summons procedures may be perceived by some officers as complicated although it may be that they are administratively inconvenient. If an offence is to be dealt with by the judicial process and it is not proceeded with immediately by arrest, other work commitments tend to intrude upon the summons procedures at a later stage.

The police perspective presented in the Department for Community Services

Report on Juvenile Arrest and Summons confirms the view that arrest is used in

266

preference to summonses because it is less complicated and time consuming,

stating:

... the arrest procedure is desirable to conserve time. (p.15)

The Department for Community Services Report on Juvenile Arrest and

Summons recommended that the following changes be introduced to remedy the

situation:

Introduction of a citation system (or court attendance notice) whereby a

police officer dealing with an offending child could issue the child with a

form signed by the police officer advising the child of the charge and the

court hearing date.

Introduction of a formal cautioning system by which a police officer be

given the authority to caution a child for a minor offence rather than

proceeding with the matter by way of arrest or summons.

The Police Department has indicated its support for the proposed changes.

These recommendations for change were made in August 1987. Three years later

the legislation to implement a court attendance notice system and a formal

cautioning system were introduced into parliament (22.11.90).

The court attendance notice system and use of formal cautioning by the police

have the potential to significantly reduce the number of juveniles proceeded with

by way of arrest.

Judge Jackson, President of the Children's Court, has acknowledged the

potential for the cautioning system to have a big impact on the number of children

brought before the court not just for first offenders or for trivial offences but for a

wide range of offences.

267

Given the current reluctance of the police to use the summons process over

arrests it is essential that the proposed systems are simple and efficient to provide

incentive for officers to use them. Section 33(1) of the Child Welfare Act places

a duty upon an officer to consider whether it would be appropriate to proceed by

way of summons rather than arrest where a child is required to appear before a

court for an offence. This provision does not appear to have received adequate

attention by the police.

I would also suggest that the proposed legislation should include a positive duty

placed upon police officers to consider the options of cautioning or issue of a

court attendance notice prior to effecting an arrest.

A system to monitor an officer's use of arrest also needs to be implemented. I

note that in New South Wales, Victoria and South Australia an officer's decision

to proceed by way of arrest is subject to review by a senior police officer either

prior to the arrest or shortly thereafter. In Victoria and South Australia a police

officer needs to obtain permission from a commissioned officer to arrest a

juvenile. There are currently no procedures in place whereby the use of arrest or

summons by police 'officers are monitored. Given the high rate of juvenile

arrests it is my view that a system of monitoring individual officers' decisions in

this regard is essential and I would support the introduction in Western Australia

of a system of review similar to those in Victoria and South Australia.

Questioning of Juveniles

I have received several submissions expressing the view that police practices in

regard to questioning of juveniles should be changed so that the presence of an

independent third party is necessary prior to an interview commencing (see

Submission of Special Government Committee on Aboriginal/Police and

Community Relations to Commissioner of Police on Interviews of Juveniles,

May 1988; Submission of Concerned Individual Aboriginal Peoples to the

Cabinet Sub-Committee on Juvenile Crime; Submission and evidence of ALS

268

legal representatives to Commissioner Dodson; transcript of Royal Commission

Conference on Juvenile Justice 16 July 1990.)

Children are particularly vulnerable to police questioning, particularly the young,

immature and inexperienced. They need all the assistance that the law can

reasonably afford them.

A lawyer from the Aboriginal Legal Service who regularly represents Aboriginal

children in the Children's Court explained the difficulties in this way:

The way I view it is that there is an inevitable conflict between police obtaining confessions from children, because a lot of the offences which they are dealing with, break and enter offences and car offences, happened in the past and there is no other way that they will prove it except by admission. Conflict is inevitable. Children are vulnerable (Sharratt, 1990:45).

The Western Australian Police Routine Orders provide the following guidelines

to police officers with respect to questioning juveniles:

3-2.20 Generally: The appeal case Dixon and Others v McCarthy and Another (N.S. W.L.R. 1975 p. 617 et. seq.) has established that the interrogation of children under sixteen years of age, whether at school or elsewhere, who are not

in the presence of another person to whom they could turn for support, may render any confession inadmissible.

3-2.21 A parent, guardian, relative,friend, school teacher, or if none of these persons is available, a police officer senior in rank to the interrogator and not connected with the case, should be present.

3-2.22 If the interviewing officer is alone due to isolation or because of the recent nature of the offence, great care must be taken to ensure that any confession is voluntary and the Commissioner's Guidelines for Questioning Suspects are observed. Any admonishment to speak the truth has the same effect as the holding out of a threat, promise or

inducement.

The submissions I have received do not accept that a senior police officer, or for

that matter a school teacher or staff member at a Department for Community

269

Services institution are appropriate third parties to be present at the questioning oi

a juvenile. They often represent authority and their presence would not be

viewed as independent or supportive by the child. I agree with these

submissions.

A Report commissioned by the Youth Legal Service for the Department for

Community Services on Independent Legal Services to Youth detained at

Longmore Remand Centre by McDonald and Kuneen entitled 'Juvenile Justice ...

The Missing Ingredient' May 1988 found that only three out of 52 youths

interviewed by the police had someone other than the police present during

questioning. Half of those interviewed had requested the police to contact

relatives or friends to no avail.

The Police Routine Orders do not require police to notify parents or guardians

before questioning although the Commissioner of Police has advised the Royal

Commission that 'individual police officers may do so in some circumstances'.

(Response of Commissioner of Police to Specific Questions Raised by RCIADIC

p.61 Q.15.11)

It would appear that this is not a frequent occurrence. This is an unsatisfactory

situation and not in accordance with the spirit of the Beijing Rules.

Another matter raised by McDonald and Kuneen was the frequent reports of

youth that the use of physical violence, emotional pressure and harassment of

youth by police. They said (at p.l)

There is a tendency to accept as normal that one can expect to be roughed up by the police, not have friends or family at questioning

The physical and emotional harassment of youths, particularly Aboriginal youths,

was raised frequently by Aboriginal people and was also raised by the legal

representatives who regularly represent children.

270

A lawyer from the Youth Legal SeiVice said:

I mean, there too many young people say that to us and to all our services that, you know, they were given a swift kick there or a bit of rough treatment there, but even accounting for a bit of misinformation from the Abdec, it just happens too much (Boyle, Juvenile Justice Conference 16.7.90:47).

An ALS field officer had even more explicit comments to make in this regard:

... but if the police have had them there for two or three hours prior to me being called in, to mum and dad finding me and taking me to the police station, by that time the child is already bleeding because he has resisted the police and he has wrestled with the police. By that time he is already bleeding. He is already sporting a black eye and grazes. By that time he is ready to say anything (Juvenile Justice Conference 16.7.90:49).

Although these allegations of rough treatment have not been substantiated, the

frequency with which such allegations are made cause me great concern. It is my

view that the current Routine Orders do not adequately protect the rights of

juveniles.

The Submission of the Special Government Committee on Aboriginal Police and

Community Relations proposes the following recommendations in relation to

questioning of juveniles:

Recommendation 1 That a third party, in the role of a support person for the defendant, preferably the parent or guardian or relative, (either classificatory or actual) and if they are not available a next friend should be present at

an interview between police and a juvenile.

Recommendation 2 Where a child is suspected of committing an offence, is in a DCS institution the police should give the authorities of the establishment notice of their intended visit, such notice should be given so that the authorities can advise the child' s parent! guardian, relatives (either

classificatory or actual) or nominated next friend and require them to attend the institution to be present for the interview. Should any suitable third party not be in attendance the interview should not proceed.

271

Recommendation 3 Police should be strongly discouraged from conducting interviews at schools. They should only do so where a child is suspected of committing a serious crime or as a last resort when all other avenues have been exhausted in trying to interview a juvenile out of school hours.

Recommendation 4 Should an interview at a school be deemed necessary or unavoidable then Principals, Deputy-Principals and teachers should not be relied on to act as 'next friends' ass they are likely to be perceived as authority figures in a non-support role.

Recommendation 5 Should an interview at a school be deemed necessary or unavoidable, the procedures should follow those suggested above for interviews at DCS institutions.

I support these recommendations. The Commissioner of Police has indicated that

he does not agree with mandatory requirements being placed upon police officers

in relation to questioning of juveniles and he has stated that the recommendations

in relation to schools and DCS institutions are not always practical from a police

point of view. In an area as fundamental as the protection of the rights of

juveniles, arguments relating to time constraints, unnecessary delays and police

practicalities carry little weight. These are fundamental rights that leave little

room for police discretion.

I also agree with submissions that in defining who is an acceptable third party,

consideration should be given to the cultural differences of Aboriginal people and

the range of responsible adults who could be called upon other than biological

parents should be acknowledged. An acceptable third party in these

circumstances may be an aunt, uncle, brother, sister or a responsible member of

the community.

It is my view that children should have a right to have an independent adult of

their choice (not including a police officer, a staff member of a juvenile institution

or a teacher) present during police questioning. Evidence obtained without

272

adherence to formal guidelines should not be admissible in any court

proceedings.

There should be mandatory notification of the child's parents or guardians of

police arrest, apprehension, detention and intention to interrogate children.

Children must also be clearly told of their rights at police questioning. There is

no room for the exercise of police discretion in relation to these safeguards.

These requirements in relation to the rights of juveniles should have statutory

force. Prior to legislation being passed, police routine orders should be amended

to reflect these principles.

4.1.4.7 Bail

Bail practices and procedures in relation to juveniles appear to be extremely

problematic. The excessive use of arrest in relation to juveniles exacerbates the

situation. The Bail Act provides children with a qualified right to bail.

Paragraph 2 of Part C of the Schedule to the Act provides that a child who is in

custody awaiting an appearance in court before conviction has a right to bail

unless the judicial officer or authorised officer is satisfied that the defendant

may:-

fail to appear in court in accordance with his bail undertaking

commit an offence

• endanger the safety, welfare or property of another person

interfere with witnesses or otherwise obstruct the course of justice,

whether in relation to himself or any other person.

Other factors which may be taken into account are:-

whether the defendant needs to be held in custody for his own protection

273

whether, as regards the period when the defendant is on trial, there are

grounds for believing that, if he is not kept in custody, the proper

conduct of the trial may be prejudiced;

and there is no condition which could be reasonably imposed which would

remove the referred to risks.

The Police Commissioner has issued a direction in the Police Gazette 13.12.89

which provides the only guidance to police officers in relation to granting bail to a

juvenile. The gazette notice states:

Arising out of the review [of the Bail Act] was the concern expressed by certain members of the Force that the Bail Act indirectly contributed to the increase in juvenile crime as once released on bail the tendency was for a number of juveniles to reoffend.

The difficulty is not with the Act itself but with the administrative practices currently employed by some members. The Bail Act whilst expressly providing that a juvenile has a right to bail, limits that right where the authorised officer is satisfied that the defendant may .. .

(Gazette Notice then lists the conditions noted above)

Consequently, members should exercise their discretion when considering the bail of juveniles. Where a tendency of a juvenile to reoffend has been identified, or where sufficient doubt exists as to the welfare of a juvenile, members should firstly consider the imposition of a surety and where such cannot be obtained, bail should be refused.

Juveniles under the age of fourteen years should not be granted bail except in the presence of their parent or guardian.

The tendency of a juvenile to reoffend or the doubt of an officer as to the welfare

of a juvenile are not qualifications placed upon a child's RIGHT to bail by the

legislation, nor is the fourteen year old age limit stated in Commissioner Bull's

instruction, a qualification the legislature saw fit to include in the Bail Act.

Of particular concern is the refusal of bail by police to a juvenile if no surety can

be obtained because they regard the juvenile as having a tendency to reoffend. It

must be kept in mind that denial of bail results in the deprivation of a juvenile's

274

liberty and the limitations placed on the juveniles right to bail should not be

extended by administrative action of the Police Commissioner. The legislature

has imposed limitations on the police officers discretion in regard to bail and the

Police Commissioner's direction illustrates an unacceptable lack of appreciation

of those limitations.

Concerns have also been expressed by legal representatives of young people and

members of the Aboriginal community in relation to the current operation of the

Bail Act. Some of the concerns are as follows :

Children who are released on their own recognisance are sometimes

released without any means of getting home which can lead to further

offences e.g. unauthorised use of a motor vehicle.

The release of children on their own undertaking undermines parental

control. It has been suggested that before juveniles are released to bail a

parent/guardian/community representative should be contacted to undertake

bail and supervision of the child. A parent/guardian should be given the

option to stipulate a condition of bail and a parent/guardian's decision not to

bail a child should be supported. The refusal of a parent/guardian to bail a

child or the failure to contact a parent/guardian should result in the child

being placed in secure hostel accommodation (Submission of Concerned

Individual Aboriginal Peoples G0/29).

• Judge Jackson, President of the Children's Court, has advised me that

there is a significant number of juvenile offenders who simply do not have

adults who take any interest in them. In addition some parents or

guardians either deliberately or because they do not have adequate transport

do not attend the police station to go surety. (Juvenile Justice Conference

16.7.90.) A requirement that a juvenile shall not be released on bail

without an adult surety could create as many problems as the current

situation. It has the potential to further discriminate against the poor,

homeless and disadvantaged.

275

• Many juveniles are not in a position to avail themselves of section 18 of the

Bail Act which provides for bail being dispensed with upon a deposit of

cash. Many juveniles do not have any income, therefore they cannot

provide any cash deposit and must enter into a bail undertaking.

• The requirements placed upon a child entering into a bail undertaking may

be inappropriate. They may place a responsibility upon a child to attend

court on a certain date. Children who have no independent means are often

reliant upon parents/guardians to provide transport, or money to take

public transport, and may have difficulties in fulfilling their bail

obligations.

• If a child breaches bail this results in a warrant being issued for breach of

bail. I was told that there are an extraordinary number of warrants issued

for breach of bail. Legal representatives of the young people and the judge

and magistrates of the Children's Court have advised me that the policing

of breach of bail is very rigid and bureaucratic and that if a child does not

tum up at court then the police charge the child with breach of bail as a

matter of course. This leads to some children having very extensive

records for breach of bail which makes it increasingly difficult for them to

obtain bail.

The Youth Legal Service in its Submission on the Bail Act expressed

concern about conditions that are being imposed on juveniles granted bail.

They noted the increased imposition of curfews as a bail condition. They

regarded this to be not only an infringement of human rights, but difficult

to enforce and placing unnecessary burdens upon young people. The

Submission also questioned the imposition of extremely high sureties upon

juveniles and gave the example of a 14 year old boy being granted bail with

a surety of $10 000. The imposition of high sureties often results in

young people being unable to meet bail conditions and having to be

remanded in custody.

276

Section 33(2) of the Child Welfare Act provides that a child who does not obtain

bail shall be placed in a Departtnental Centre or facility or such other place as it

approved by the Director for Community Services. The effect of this legislation

is that if a child does not obtain bail there is no alternative but to place them in a

juvenile institution, nonnally Longmore Remand Centre, which is a maximum

security facility. This has led to enonnous problems, particularly in relation to

children from country areas who are remanded in custody and then must be

transferred to Perth to be placed in the remand centre. In 1989 the situation of

overcrowding at Longmore Remand Centre was so severe that juveniles were

being accommodated at East Perth Lockup because of insufficient beds at the

remand centre. I have been advised by the Department for Community Services

that there have not been the same problems with overcrowding in 1990.

Nevertheless there appears to be an urgent need for bail hostels for juveniles with

secure facilities in both the country and metropolitan areas.

The evidence before my Commission indicates that urgent action needs to be

taken to remedy the current problems that exist in relation to juvenile offenders

and bail. The recent Review of the Bail Act (Doig et al:1990) did not adequately

address the impact of the Bail Act on juveniles. I am not sure that their

suggestion that 'authorised officers should be encouraged to consider the

imposition of surety conditions for juveniles in order that more parents are

involved in the procedures affecting their children' shows an appreciation of the

complex of issues involved in this area. It certainly shows no appreciation of the

position of juveniles who have little or no support from parents or responsible

adults.

4.1.4.8 Legal Services

The right to adequate legal representation is a fundamental right of juveniles who

are in trouble with the law. The right to counsel is recognised in Rule 7.1 of The

Beijing Rules. The recent changes to the Children's Court so that it operates in

277

accordance with the 'justice' model rather than the 'welfare' model makes it

essential that children's rights are protected through adequate access to legal

services.

Legal services are provided to juveniles by three major services: the youth unit of

the Legal Aid Commission, the Youth Legal Services and the Aboriginal Legal

Service. Aboriginal youths are largely represented by the ALS and the Legal Aid

Commission.

Aboriginal Legal Service

In country areas Aboriginal juveniles are usually represented by the Aboriginal

Legal Service (ALS). The lack of financial resources available to the ALS has

meant that there are insufficient lawyers to provide legal advice and representation

tci all Aboriginal juveniles who appear in the Children's Courts in Western

Australia. This is a particular problem in the non-metropolitan area. The ALS

currently has offices in 13 country towns and has one solicitor in each of the

following towns: Kalgoorlie, Albany, Geraldton, Port Hedland, Derby and

Kununurra. There is also one solicitor in the Perth office who works exclusively

with juveniles. Aboriginal field officers are located in Laverton, Kalgoorlie,

Albany, Narrogin, Roeboume, Geraldton, Carnarvon, Port Hedland, Broome,

Derby, Halls Creek, Kununurra and Perth. Because of the limited availability of

solicitors in country areas Aboriginal juveniles are, on most occasions,

represented in Children's Courts by Aboriginal field officers. Mostly they

represent juveniles who are pleading guilty or wish to obtain bail. Occasionally

field officers will represent juveniles in the Children's Court on defended matters

because there are no lawyers available.

The extensive use of field officers or para-legals by the ALS is not without

problems. Field officers have the right to appear in courts on behalf of

Aboriginal people upon the granting of a certificate under section 47 of the

Aboriginal Affairs Planning Authority Act. However concerns have been

278

expressed both by ALS lawyers and the judge and magistrates of the Children's

Court that the field officers in some cases do not have adequate training and

because of the insufficient number oflawyers, Aboriginal juveniles are receiving

inadequate legal representation. Greg Mcintyre, the former Principal Legal

Officer at ALS, suggested that an accreditation scheme needs to be examined to

ensure that para-legals have the necessary training and skills and to provide

adequate advice. As Mr Stephen Vose, a magistrate with the Children's Court,

formerly a solicitor with the ALS, commented:

It's very difficult because ALS is terribly under-resourced for that sort of thing and there is a lot of pressure on people who are appointed field officers to be put straight into the job. That's what happens and they are not properly trained (Juvenile Justice

Conference 16.7.90:96)

Legal Aid Commission

The Legal Aid Commission (LAC) provides duty solicitors for the Children's

Court at East Perth, Fremantle, Midland and Armadale. It is not know the extent

to which they provide legal services to juveniles in the non-metropolitan area.

The Youth Unit of the LAC also represents juveniles who are granted legal aid

and on defended matters and the Unit's solicitors attend Longmore

Centre to provide advice to children detained there.

Due to the inadequate resources of the ALS and the increasing demand for its

services the ALS has become increasingly dependent on the LAC to provide

services to Aboriginal juveniles (also see section of Report on the Legal System

for discussion on resources of ALS and LAC generally).

The table below shows the number of applications by juvenile offenders for legal

aid in the criminal law division of the LAC and the number and percentage of

applications by Aboriginal juveniles. The figures show an enormous increase in

total applications from 1984/85 to 1988/89 and that the proportion of Aboriginal

applications have doubled from 9% in 1984/85 to 18% in 1988/89 of all juvenile

applications.

279

TABLE 4.61: APPLICATIONS FOR LEGAL AID BY JUVENILE OFFENDERS 1985-1989

Total No. NoAbl %Abl

Period Applications Applications Applications

1984/85 22 2 9%

1985/86 81 10 12%

1986/87 359 58 16%

1987/88 737 128 17%

1988/89 810 147 18%

The above figures do not show the number of Aboriginals represented by the

duty lawyer scheme or the number of Aboriginals advised by the LAC's Legal

Advice Bureaus.

No additional funding has been provided to the LAC to enable it to meet the

increasing demand to provide legal assistance to Aboriginals.

LAC lawyers are not required to have any special qualifications or training in

relation to Aboriginal culture, history or law when employed in positions in

which they frequently have contact with Aboriginal people, nor does the LAC

provide any special training in this regard. However it should be noted that to

date the ALS also does not provide any special training to the lawyers employed

by the Service in relation to Aboriginal affairs.

Youth Legal Service

The Youth Legal Service (YLS) usually only provides legal representation to

Aboriginal youth when the ALS cannot provide representation because of a

conflict. The YLS also attends Longmore Remand Centre to provide advice to

youth detained there.

280

No Representation

Judge Jackson has indicated he has concerns about the complete lack of legal

representations in some large country areas. He also said that 'there is inadequate

representation everywhere'. He, and several Children's Court magistrates, have

noted a particular problem in the Murchison. He has said that the number of

children coming into custody from the Murchison area is appalling. The towns

of Carnarvon, Meekatharra and Wiluna were singled out. (Juvenile Justice

Conference 16.7.90:94-95)

Another magistrate noted that children appearing in metropolitan courts, other

than Perth, are often unrepresented or represented by duty counsel. (Juvenile

Justice Conference 16.7.90:99)

In most circumstances, especially in serious matters, magistrates remand an

unrepresented juvenile so that legal advice can be obtained. This can result in a

remand in custody if the juvenile is unable to obtain bail or unable to meet the

conditions of bail.

In the Perth metropolitan area remands for legal advice are no longer than seven

days however in country areas juveniles may be remanded in custody for up to

28 days. Country youths are then transferred to Longmore Remand Centre in

Perth. I previously noted concerns in the Aboriginal community of their youth

being sent to Perth on remand. The power to remand in custody and to grant or

refuse bail is vested in the President and members of the court. I am not aware of

any particular instance but the power is susceptible of application in the wrong

circumstances.

Remanding country children in custody for legal advice can often be a fruitless

exercise. The submission of YLS to Commissioner Dodson explained the

concerns of legal representatives who regularly visit Longmore Remand Centre in

regard to country children.

281

The Y.L .S. attends Longmore Remand Centre every Tuesday or Wednesday morning to provide legal advice for those juveniles returning to court. The Aboriginal population is enormous, usually about 80-90% of the inmates, and quite a significant number of those are from country areas.

These children are usually remandedfor 1-2 weeks for legal advice, and then returned to the country court. The main difficulty here is that we may be able to advise but there will still be no representation. We can't give that advice without police particulars, and those are still with the police in the country town.

The types of offences are of concern. For example, we recently saw one boy who was remanded in strict custody for 2 weeks for legal advice on a damage charge. Such a minor matter could have been dealt with by the court on the first appearance. We've also recently seen charges of possession of petrol- not a known offence to us, but the juvenile was remanded in custody for one week for advice.

The YLS has established a system of notifying the nearest country office of the

ALS and providing them with the instructions however the legal representative

from the LAC expressed the view that children are likely to return to the court in

the country unable to remember the advice they received in Perth, with no further

representation. (Donovan, Juvenile Justice Conference 16.7.90: 17)

Duty Counsel Scheme

The duty counsel scheme is provided by the Legal Aid Commission who fund

lawyers from the private profession to appear on behalf of unrepresented

juveniles in the Children's Courts. The scheme provides two lawyers for the

Children's Court in Perth and lawyers at the various suburban courts.

Legal representatives appearing regularly in the Children's Court made the

following comments on the quality of duty counsel appearing in the Children's

Court.

I think they are in a difficult position, as all duty counsel are. Say someone in the waiting room with an entire waiting room to appear for and they arrive - the kids often arrive very late if at all. They have two courts - there are the two courts to service. They are

without facts and complaints just like everyone else is. I think they cop a lot of flack, but they are in an incredible position.

282

... I don't think that the training the Legal Aid Commission gives duty counsellors takes enough notice of the Children's Court (Juvenile Justice Conference 16.7.90).

The Report by McDonald and Kuneen commented that the volume of work

before the Children's Court works against the Duty Counsel being able to spend

adequate time with youth appearing. They were infonned (by young offenders

and legal representatives) that many youth get no more than one or two minutes

with Duty Counsel. They note one youth's comment:

You get as long as it takes them to write down the charges. (McDonald & Kuneen,1990:32)

The statement in Freiberg et al on the 1975 Commission of Inquiry into Poverty

is of particular significance in relation to duty counsel in the Children's Court in

Western Australia:

... that the duty solicitor scheme should beware that they do not simply legitimise by their presence an unequal situation without changing it, and provide the illusion of representation without substance.

24 Hour Legal Service

The Submission of Concerned Individual Aboriginal Peoples recommends that

legal aid for young people be decentralised, be adequately resourced and available

24 hours per day.

It appears that there are currently consultations involving the Police Youth

Liaison Committee, the Police Department, the Department for Community

Services and the Youth Legal Services examining the introduction of a 24 hour

advisory service for all young people taken to a police station for questioning.

(See Response of Commissioner of Police to Specific Questions Raised by

RCIADIC Q.15.10 p.59 and Submission of Youth Legal Service to

Commissioner Dodson 5.6.90)

283

The YLS submission explains that it is anticipated that the advisory service would

operate 24 hours a day, seven days a week on a voluntary basis, and would

commence on a twelve month pilot programme at Fremantle. All volunteers

would be screened and undergo an approved training programme before being

included on the roster. They are hoping to utilise the Aboriginal Visitors

Scheme.

The problems with a 24 hour legal service seem to primarily be in relation to

having a sufficiently large roster to avoid individuals suffering from 'bum-out'.

I was advised that in Melbourne and Brisbane the 24 hour services that appear to

have been successful do not rely only on lawyers but have settled for independent

persons who have had some training present at questioning by police, rather than

having a roster for legal advice. (Mr Boyle, Juvenile Justice Conference

16.7.90:41-42)

I was also informed that there is one youth organisation in Balga (a Perth suburb)

which has a roster of people who have been trained, although are not lawyers,

who are making themselves available at police questioning to safeguard young

persons' rights in that process. It appears to have had minimal police cooperation

so the scheme has had a varying degree of success.

I understand that the ALS is hoping to introduce a 24 hour service based at

Girrawheen. It will be staffed by four Aboriginal field officers on a roster. They

hope to have a 008 number to take calls statewide.

There seems to be an abundant need for a 24 hour advisory service and it is

encouraging to see that a number of initiatives are underway in this regard. It is

important that such initiatives receive cooperation from the Police Department and

are adequately funded and resourced to ensure their continued operation.

284

Provision of Legal Services at the Children's Court

There appear to be several significant problems associated with the delivery of

adequate legal services at the Children's Courts. Major problems facing legal

representatives of juveniles include:-

The overwhelming workload which result sin insufficient time to give full

legal advice.

• Lack of access to the charges, facts and particulars and criminal record

held by police prosecutors.

• Inadequate facilities to interview clients.

In relation to the third point, I understand that moves are underway to provide

new facilities for the Perth Children's Court. The current facilities not only put

pressure on the young offenders and their legal representatives but also place

strains upon the judiciary, the court staff, police prosecutors and family and

friends who accompany young persons to court. Hopefully the government

recognises the current strains the Children's Court is operating under and the

promise for a new building and facilities will be realised in the immediate future .

This should resolve some of the difficulties for legal representatives and their

clients if adequate facilities are provided for them at the court.

The problems that legal representatives have with access to the police complaints,

particulars and criminal records appear to be particularly frustrating to the lawyers

trying to provide legal advice under difficult conditions and are quite

unnecessary. I appreciate that police prosecutors are also under considerable

pressure with workloads. I have been informed that in the Children's Court,

because it is a court of summary jurisdiction, the police take the view that they are

not obliged to show the legal representatives the facts.

285

Some of the youth legal representatives were of the view that the President of tt

Children's Court had issued a practice direction in this regard but according t

Judge Jackson this is not the case. To date he has promulgated inform;

administrative directions but they appear to have had little effect.

Rules of Court can be made pursuant to section 38 of the Children's Court o

Western Australia Act (No 2) 1988. I share the view of Commissioner Dodso

that urgent consideration needs to be given to the establishment of Rules of Cou

to ensure that legal representatives of children are provided with all the charge

being faced by their clients as well as the police 'facts' or particulars.

I have difficulty appreciating the position of the Police Department in this regard

The evidence of both the legal representatives of children and the judge anc

magistrates of Children's Court convinces me that there are enormous problem!

in this regard, however the Police Department when asked about this problerr

responded as follows:

The Department is not aware of problems in this area. Requests for particulars of charges are always met (Response of Commissioner of Police to SpecificQuestions Raised by RCIADIC July 1990).

This response appears to indicate either a reluctance to acknowledge the rights of

juveniles in this regard or an appalling lack of awareness of the way in which

police practices at the Children's Courts operate. In either case it indicates an

attitude towards juvenile offenders and their rights which is unacceptable in the

juvenile justice system.

The first mentioned issue of the overwhelming workload of legal representatives

at the Children's Court in many ways appears to be a result of the lack of

procedural safeguards in relation to juveniles in all the areas previously discussed

such as use of arrest, bail practices and procedures, questioning and policing

practices. These are largely dependent on the appropriate exercise of police

discretion.

286

My examination of these matters has led me to agree with Judge Jackson's

comments on the exercise of police discretion in relation to children:

Justice also involves mercy and also commonsense. Police exercise discretion when commonsense requires in the case of motorists and in areas such as prostitution, gambling or homosexual offences. Discretion has not, it seems, been as often exercised with like

enlightenment in the case ofweak groups such as children ('All for Law and Law for All').

4.1.4.9 Children's Court and Children's (Suspended Proceedings) Panel

The introduction to this section discussed the major changes that have been

introduced to the structure and operation of the Children's Court. Here I will

look at other issues that have arisen in relation to the operation of the Children's

Court and the Children's Panel.

Location of Children's Courts

Legal representatives and the Judge and magistrates of the Children's Court

informed me of the difficulties experienced by juveniles in getting to and from the

Children's Court in Perth from the northern suburbs. Aboriginal community

members have also expressed similar concerns.

These difficulties can result in juveniles being unable to attend court on the

correct date, in arriving late and in breaching bail. The consequences may be

severe with juveniles accumulating a record for breach of bail, having warrants

issued for breach of bail and having insufficient time to receive adequate legal

advice. Inevitably in some cases the difficulties result in the child being

remanded in custody.

There seems to be a strong argument for providing a Children's Court in the

northern suburbs.

287

Greg Mcintyre, the former Principal Legal Officer of the Aboriginal Legal

Services, suggested that there was a need to have a decentralised Children's

Court in the Perth metropolitan area, the Perth Children's Court having

inadequate facilities with one judge and three or four magistrates trying to deal

with all the children from all the suburbs throughout the metropolitan area. He

also emphasised the need for a court based in the northern suburbs. It would

appear to me that these suggestions warrant further examination.

The Use of the Children's (Suspended Proceedin&s) Panel

The statistics discussed earlier in the section show that there has been a decrease

in the use of the Children's Panel over the last five years.

There was general agreement amongst the legal representatives and the Judge and

magistrates of the Children's Court that the panel system was not working very

well because the pre-conditions to enable a juvenile to appear before court were

too restrictive. The pre-conditions which apply seem to be too onerous,

particularly in relation to Aboriginal juveniles. They require the juvenile to be a

first offender, the offence has to be admitted, if restitution is involved the ·

offender or his parents/guardians have to agree to restitution and the offender has

to be under 16 years of age. As a consequence a very small proportion of

offenders end up appearing before the Children's Panel.

The issue of restitution is an obvious problem and one that inevitably

discriminates against the poor. One magistrate discussed it in this way:

Many kids appear that haven' t been before the panel and they are little kids because they have done the sort of damage that their parents can't pay for, and it might only be a couple of hundred dollars that their parents can;t or won't pay for. They get to appear

before the court. The problem then is dealing with a very young offender on his or first offence ... it's impossible really to explain to a 10 year old that what he has done isn't on (Juvenile Justice Conference 16.7.90:107)

288

In South Australia the Children's Panel was previously restricted by a number of

pre-conditions but once they were all lifted it resulted in 60% of matters being

dealt with by the panel. In Western Australia about 10% of all offences are

brought before the Children's Panel.

There has been limited discussion on how the Children's Panel and the proposed

cautioning system will operate together. There is an argument that if proper use

is made of the cautioning system then the need to lift the restrictions on the use of

the Panel may not be necessary. This perhaps is too optimistic. In my view the

current restrictions on appearance before the Children's Panel, except in relation

to serious offences, should be removed. In particular the requirement for

restitution should be removed immediately as it effectively discriminates against

the poor and the disadvantaged, of which Aboriginal people form a significant

sub-group. I have been informed that draft amendments to the Child Welfare Act

in relation the cautioning system and court attendance notice system also include

the removal of the sixteen year old age limit. The removal of this restriction is a

step in the right direction however attention also must be given to removal of the

other restrictions.

Police Prosecutors

In the Children's Court of Western Australia the majority of prosecutions are

carried out by uniformed police officers. In other jurisdictions both interstate

and overseas, prosecutions in the Children's Court are carried out by independent

prosecutors rather than by police prosecutors. One major reason for the

introduction of independent prosecutors is that there is a lack of perceived

independence of the police prosecutor. One legal representative described

children's perceptions of the police prosecutor as follows:

I firmly believe that most children do not differentiate between the police prosecutor and the individual policeman who arrested them or at least is bringing the charges against them, who is standing there, who is talking to him, who is wearing the same uniform - a grey

uniform if they are in the country and a blue uniform in the city, but they are obviously identical. The police prosecutors act like

289

policemen. There is no difference as far as most children perceive them. They don't perceive the whole justice system as being that- a justice system - because there is no independence there from their point of view.

One can appreciate children's perceptions of the juvenile justice system being

affected by having police officers arrest them and then police officers

them, then to find that the court orderly is a policeman and the detention centre

run by police.

In my view there is a good argument to introduce appropriately accredited, if not

legally trained, independent prosecutors in the Children's Courts.

Magistrates and Justices of the Peace

In addition to the judge, the Children's Court can be constituted by a magistrate

or not less than two members. Under the Children's Court of WA Act (No 2)

1988 magistrates are required to have the same qualifications as a magistrate

eligible to be appointed a stipendiary magistrate: see section 10. Members are

appointed under section 11 of the Act and although most members are Justices of

the Peace this is not required under the Act.

In effect in the country the arrangements remain basically the same as they were

prior to the legislation being enacted with the stipendiary magistrate sitting in the

Children's Court and where a magistrate is not available members or justices are

used .

The Children's Court of W A Act (No 2) 1988 gives the President of the Court

the same sentencing power as if he was a Supreme Court or District Court Judge

hearing the same offence. Where the court is constituted by a magistrate the court

may not sentence a child to a detention for a period longer than six months or to

imprisonment for a period longer than three months.

290

When the court is constituted by members only the court may not sentence a child

to detention or imprisonment or make an order declaring a child to be in need of

care or protection. Members have the power to determine guilt, to convict the

child and to sentence a child if the sentence does not involve detention or

imprisonment. If the member considers he/she does not have sufficient power to

sentence or deal with the child adequately he/she may refer the child to be dealt

with by the judge or magistrate (section 21).

Members also have the power to grant bail or remand a child in custody. As

noted earlier there are some suspicions that members have misused this power to

remove a child from a community and give the child a short, sharp shock.

In the following section the powers of justices are discussed under the Legal

System topic. In that section I express the view that ideally justices should not be

empowered to preside over courts. I have similar views about the use of

members in Children's Court however I would not go as far as Commissioner

Dodson who expressed the view that they should not sit on bail hearings for a

child. I appreciate the concerns about misuse of members' powers in this regard

but an alternative course would be to closely monitor bail determinations by

members and the use of remands in custody.

The President of the Children's Court has taken initiatives to encourage

Aboriginal groups in communities around the State to nominate Aboriginal

persons who may be suitable members for the Children's Court. There are

currently several Aboriginal members of the Children's Court in various locations

in the State e.g. Wiluna, Port Hedland and there is an Aboriginal magistrate in

Perth.

There is currently no system of special training for magistrates and members of

the Children's Court but stipendiary magistrates attend an annual conference and

Judge Jackson is trying to arrange a system whereby specialised children's

magistrates are invited to the ordinary stipendiary magistrates conference.

291

The magistrates are not given any specialist training in Aboriginal matters but a

number of magistrates because of their background and experience have specialist

understanding.

4.1.4.10 Sentencing Options and Practices

I list below the sentencing options that are currently available to the Children's

Courts and the Department for Community Services programmes which have

been implemented to give effect to the option.

Option

1. Dismissed

2. Parental bond

3. Conditional adjournment

4. Probation

5. Good behaviour bond

6. Fine

Description

Court dismissal without penalty or conviction -usually first offenders

Parents required to give security for good behaviour of child

Matter adjourned to allow parents/child to carry out terms of undertaking given to court

Enforceable conditions on child plus support agreements with child and parents

Child enters monetary bond to be of good behaviour

Court orders fine to be paid by child (Max. $1000.00)

292

Relevant DCS Programmes

- Parent skills training - Family support

- Parent skills training - Family support

- Law education - Alcohol & Drug abuse prevention - Compensation

arrangements

- Probationary supervision - Alcohol & Drug abuse prevention - Employment and training

support - School support - Family support - Parent skills training

- Parents skills training - Family support - Default through CSO or detention

- Parents skills programme - Family support

Option

7. cso

8. Conditional release order

9. Detention

Description

Child makes restitution to Community through supervised work on civic project through local organisations

Child sentenced to detention released conditional upon participation in an approved programme

Court orders period of detention

Relevant DSC Programmes

- Involving local community service organisations and local government

Monitoring and enforcement - Employment and training - Parent skills training - Family support

- Unpaid work order - Aboriginal Community placements - Rural farm/station

placements - Employment and training - School attendance - Family support - Parent skill training

- Riverbank, Longmore, Nyandi - Challenge for Youth - Employment and training - Alcohol & Drug abuse

prevention - After care

10. Imprisonment Sentenced to adult prison N/A

11. Restitution

12. Adult penalties

13. Parental responsibility

Under new legislation it will be possible to enforce restitution as a judgment of a Local Court

The Supreme and District Courts and the President of the Children's Court can order any penalty applicable to an adult

- Required to attend Children's Court - May be ordered to give security for good behaviour

of child - May be fined/ordered to pay restitution in some cases - Involvement of parents in

probation

293

Detention in default

N/A

- Parents skills training - Family support - Alcohol & Drug abuse prevention

One major concern expressed by Aboriginal groups and individuals, the legal

representatives of juveniles and the judge and magistrates of the Children's Court

about current sentencing options is that country areas do not have the same range

of community based options that exist in the metropolitan area. In small

communities such as Warburton, with a largely Aboriginal population, there is no

probation, no community based facilities or personnel, consequently the court

cannot impose community based sentencing options in the community. Juveniles

have to leave the area to participate in community service orders or conditional

release orders.

The other major concern being expressed by Aboriginal groups in communities

around the State is that they would like to have a greater role in supervising thei r

young people, so that the youths remain within the community and are not placed

in institutions in Perth.

The focus of the Department for Community Services programmes for juvenile

offenders is to provide options which divert offenders from custody with

development of the community placement programme and local offenders

programme. There appears to be an appreciation on behalf of the Department of

the need to develop appropriate community based options for Aboriginal

offenders however the current level of available options in the community are

inadequate.

Judge Jackson pointed out that the court has the power to make conditional

release orders or probation orders which can specify that the child will live in a

certain community or on a certain station however the difficulty is finding

culturally appropriate places which will have the child. He said:

I don't think it is the sentencing options in the legislation that are too limited, it's the sentencing options on the ground (Juvenile Justice Conference, 16.7.90:108).

294

He went on to say:

I mean, it's just a matter of resources. I mean, the government has announced that they are trying to expand the station placement programme into things like farms, mining districts ... For instance, if the Aboriginal outstation movement were stronger, we could put

more kids on outstations (Juvenile Justice Conference, 16.7.90:109).

Mrs Gordon, a magistrate of the Children's Court, pointed out, the need for the

Department for Community Services and other agencies to look at better

utilisation of existing Aboriginal organisations, the need to provide them with

adequate resources and not to overload the organisations which are currently

being used. (Juvenile Justice Conference, 16.7.90:110-111)

Mrs Gordon also raised the crucial issue of land needs for Aboriginal

communities in some areas such as the Murchison (an issue which is discussed in

detail in Commissioner Dodson's Report) and said that if Aboriginal communities

could establish a land base then they could run community based programmes for

Aboriginal juveniles that are so badly needed in some areas in the State.

Concerns have been expressed by legal representatives about the inappropriate

use of station placements for urban Aboriginal and non-Aboriginal youths,

however Judge Jackson expressed the view that they were only used for youths

from the area in which the station was situated. Concerns have also been

expressed by legal representatives that the conditions for children on some

stations were inadequate, one Aboriginal field officer describing it as 'slave

labour'. Although the Department for Community Services have informed me

that the stations are carefully selected in consultation with the Aboriginal

community and children are visited at least once a fortnight by the Department for

Community Services staff, the fact that such concerns have been raised

emphasises the need to ensure that the station placement programme is closely

monitored. The concept of utilisation of community options is to be encouraged

however it is essential that the rights of juveniles are adequately protected.

295

Other suggestions that have been made which appear to have merit include tl

provision of honorary or part time probation officers or supervisors in Aborigin

communities to provide supervision of juvenile offenders. The need for sue

supervisors to have culturally appropriate relationships with the juvenile has al:

been raised.

It has also been suggested that more resources need to be put into preventati'

programmes such as the provision of education for younger children ar

Aboriginal youths about the law.

There have also been submissions suggesting that the education system needs 1

address the education needs of Aboriginal children, particularly Aborigim

youths who have had extensive involvement with the juvenile justice system an

have long been removed from the mainstream education system. (I refer to th

discussion in Commissioner Dodson's Report about education and Aborigim

people.)

The Department for Community Services appears to be aware of the need fo

consultation with Aboriginal groups in the community in relation to it

programme development however there appears to be a need for a much greate

commitment of resources to Aboriginal people to provide culturally relevant anc

appropriate community based options for their youth.

4.2 AVOIDANCE OF CUSTODY

4.2.1 ARREST WITHOUT WARRANT/ ALTERNATIVES TO ARREST

Some participants [at community meetings with the AIU] were concerned that, while the police had considerable discretionary power under the Police Act and the Criminal Code, most police officers failed to use it when arresting Aboriginal people (Final

Report of the AIU Western Australia page 8).

296

In section 4.1.3.2 of this Report I have discussed the general issues relating to

the exercise by police officers of their independent discretion, a discretion that

derives from their appointment as a Constable at common law. One of the most

significant areas of exercise of that discretion is the decision to proceed via arrest

or by summons where a police officer has decided to charge an individual with an

offence. In this section 'arrest' refers to an arrest not made pursuant to a

warrant.

The decision to arrest, involving as it does an interference with the liberty of a

citizen, is not a matter to be taken lightly, nor should it be considered as routine

procedure to be followed in each instance where police consider an offence has

been committed. In Western Australia arrest has been the preferred option by

police once a decision to charge has been made.

The power of arrest is exerciseable for the purpose of maintaining the peace and order the community. It is a discretionary power that should be left to the judgement of the officer at the particular time and considering all circumstances (Response of Commissioner of Police to Specific Questions by the Royal Commission July 1990).

Police Routine Order 1-12 dated 2 March 1988 provides guidelines to officers

regarding the exercise of the power of arrest.

1-12. 2 Members are not to apprehend or unnecessarily interfere with any person unless some specific offence has been committed. To deprive a person of his liberty is a serious matter and great discretion is necessary, particularly in minor matters where one person charges another with having committed an offence.

1-12. 3 Where a summons would adequately meet the

circumstances of a case, an arrest should not be made. However, an arrest should be made in every instance where:-(1) loss or destruction of evidence is likely to result if

the offender is not arrested; or

297

(2) it is necessary to ensure that the offender appears before a court, and a summons may not achieve this; or

(3) the prevention of a continuation or repetition of the offence is necessary; or

(4) the fingerprints of the offender may assist in: -

(i) establishing the Commission of other offences, or

(ii) proving his identity in court, or

(iii) establishing a proven record for possible future mandatory punishment.

1-12. 4 Where an arrest is made, the member making the arrest should identify himself and is to inform the person being arrested, the cause of the arrest and the nature of the charge, where this is possible. If the arrest is made on warrant, the warrant should be read to the accused.

Alternatives to proceeding by arrest are the issue of a warning or a caution or the

issue of a summons informing the offender of the nature of the offence with

which he or she has been charged and requiring attendance at court on a specific

date. Counselling is a part of the warning/caution option. As discussed in

section 4.1.4 of this Report, a formal system for cautioning juvenile offenders

has been developed by the Police Department and the Department for Community

Services. The use of such alternatives is strongly supported by this

Commission.

The Police Department has provided the Royal Commission with statistics

concerning the using of arrest/summons at all police stations in Western Australia

for the period 1984/1985 - 1989/90. In section 4.1.4 of this Report I quoted

from those statistics figures relating to the use of arrest and summons in juvenile

apprehensions. The table set out below relates only to adult apprehensions. In

section 4.1.4 I described how the information provided by the department

presented an incomplete picture of the use of arrest and summons procedures in

this state, and it must therefore be treated with a degree of caution. However, I

298

consider that the statistics provide a useful indication of the comparative use of

arrest and summons procedures in this state over the last five years.

TABLE 4.62: COMPARATIVE USE OF SUMMONS AND ARREST PROCEDURES BY POLICE 1985 • 1990

Year Arrest (Adults) Summons (Adults)

1984/84 43580 96.1% 1780 3.9%

1985/86 49462 94.8% 2739 5.2%

1986/87 54734 94.3% 3337 5.7%

1987/88 54169 93 .1% 4015 6.9%

1988/89 53393 91.1% 5212 8.9%

1989/90 52181 87.9% 7196 12.1%

It can be seen that there has been a gradual decline in the percentage of

apprehensions effected via arrest over the period, with a corresponding increase in

the use of summonses from 3.9% of apprehensions in 1984/85 to 12.1% in

1989/90. That change is encouraging, however the extent of the use of arrest

revealed by the statistics can only be considered alarming.

The figures in the above table includes both Aboriginal and non-Aboriginal adult

apprehensions. A breakdown of Aboriginal and non-Aboriginal apprehensions is

set out below:

TABLE 4.63: COMPARATIVE USE OF SUMMONS AND ARREST IN THE APPREHENSION OF ABORIGINAL AND NON-ABORIGINAL ADULTS 1985 - 1990

Year Arrest Summons

Non- Non-

Aborig_inal Aborig_inal Aborig_inal Aborig_inal

1984/84 95% 93.50% 5% 6.5%

1985/86 93 .9% 91.6% 6.1% 8.4%

1986/87 95.10% 91.4% 4.9% 8.6%

1987/88 94.3% 90.5% 5.7% 9.8%

1988/89 93.3% 87.9% 6.7% 12.1%

1989/90 91.2% 83 .2% 8.8% 16.8%

299

It can be seen that the percentage use of arrest is extremely high for both Aboriginal and non-Aboriginal adults, with Aboriginals faring worse. The

percentage increase in the use of summons procedure in the case of non­

Aboriginal adults is more than twice that for Aboriginals.

When one considers that these figures do not include apprehensions for

drunkenness, disorderly conduct other than where a sentence of imprisonment

was imposed or arrests made under warrants of commitment issued in default of

payment of fines, it may be expected that the figures under-represent the extent of

arrest of Aboriginal adult offenders. Drunkenness and disorderly conduct have

been invariably proceeded with by way of arrest being behaviour considered by

police liable to continue unless terminated by the offender being taken into

custody.

I have earlier referred in this Report to information provided by the Police

Department regarding reported incidences of attempted suicide in police custody

between 1 January 1980 and 1 September 1988. Police records revealed that the

majority of the persons considered to have attempted suicide had been arrested

for minor offences. Over 50% were in custody for less than three hours before

their attempt. These figures emphasise the importance that adopting alternative

procedures to arrest for minor offences may have for reducing the probability of

death or attempted suicide/self-inflicted hann in police custody.

The findings of Royal Commission Research Paper No 16. 'Self-inflicted Hann

in Custody' parallels that of the Western Australian police research. That paper

found that 73% of reported attempts in police custody occurred within the first

three hours of custody.

In the Interim Report of the Royal Commission, Commissioner Muirhead (as he

then was) stated:

Recommendation 8 Police officers should receive emphasis in training that arrests for minor offences must be avoided when alternative steps are available.

300

Recruit officers training on the exercise of powers of arrest is included within the

core subject of legal studies. Reference material for the course is taken from

Routine Orders, Police Act, Criminal Code, Justices Act and the Police Manual.

The Commissioner of Police has informed the Commission that additional

training in the use of the power of arrest occurs 'on the job' and under

supervision. The Commissioner has also advised that 'options other than arrest

are emphasised as part of recruit training and in-service training' (Answers by

Commissioner of Police to Specific Questions from RCIADIC July 1990

page 7).

In-service training for police officers in the area of powers of arrest is included in

the N.C.O. promotional courses which target the Senior Constable level. The

nature of that training concentrates on the powers of arrest but alternatives to the

exercise of those powers are referred to in the course.

It is interesting to note that in their commentary on the implementation of the

recommendations contained in the Interim Report of the Royal Commission the

State Government stated that emphasis was given in police training to the use of

alternatives to arrest in the case of minor offence. That statement was

contradicted by the Commissioner of Police in answer to a question by the Royal

Commission. The Commissioner stated:

The content of training course does not specifically emphasise this aspect but Routine Orders and instructions have stressed that arrests should not be made when a summons would suffice (Answers by Commissioner of Police to specific questions by RCIADIC July 1990 page 9).

The incidence of arrest for minor offences has been a matter of concern for the

Commissioner of Police. An instruction published by the Commissioner in the

Police Gazette dated 12 July 1989 referred officers to Routine Order 1 - 12. That

notice stated in part:

It is becoming increasingly difficult to justify arrests in many instances of minor offences, shop lifting is one example, and unless there are other reasons why an arrest should be made, a summons

301

should normally suffice. This not only applies particularly to juveniles, but to adults as well and where a summons should adequately meet the circumstances, an arrest should not be made ...

Arrests are not to be made purely as a means of inflicting a penalty on offenders, or because it is an easier method of process. Depriving people of their liberty is an action to be given careful consideration, as it can have serious repercussions on the police image if it is done without due discretion.

That notice was reinforced by an instruction issued by Acting Commissioner o

Police Zanetti on 17 January 1990. It is therefore surprising that emphasis is no

given in training to the avoidance (where possible) of the use of arrest for mino1

offences. Training courses should be amended to reflect such an emphasis.

In a conference session with myself and Commissioner Dodson, the

Commissioner of Police, Mr Bull, was asked by Counsel Assisting my

Commission whether any concrete steps could be taken to ensure that police

officers do use the summons process more than the arrest process. It was put to

Mr Bull that, at the moment, the Police Department can do no more than 'exhort

officers to use summonses'. The Commissioner of Police replied:

I believe that we're doing as much as we can I mean, considering that the officers do in law have a discretion.

And theres a limit to what I can do to restrict that discretion (Conference with Commissioner of Police, 31 July 1990 pages 597-598).

The case of Milton Wells provides an example of an exercise of the discretion to

arrest which this Commission finds inappropriate. On the night before his death

Wells was arrested on a minor charge (wilful damage of a car window).

He was a local resident of Kalgoorlie and was known to one of the arresting

officers. He was not considered by police to be intoxicated although they

believed that he had consumed some liquor. In such an instance should police

wish to proceed with the charge the appropriate course would have been to take

note of Wells' name and address for the later issue of a summons. There appears

302

no reason why he should have been taken into custody. It was not a case where

there was an indication that, if not arrested, the alleged offender would or would

likely continue with behaviour in breach of the law.

One reason that has been advanced for an apparent preference by police officers

for the use of arrest rather than summons procedures is that the latter procedure is

' administratively inconvenient'. It has been alleged that more paper work is

involved in the issue of a summons and that as the processing of the charge does

not occur immediately (as in the case of arrest and lodgement at a lockup) 'other

work commitments tend to intrude upon the summons procedures at a later

stage'.

Commissioner Bull agreed that that could be one of the reasons but 'certainly not

the main reason' .

If these assertions are correct then review of summons procedures should take

place with a view to simplifying or streamlining procedure as a means of

encouraging its use by police. Supervising police officers need also to be in a

position to review the arrest decisions made by their staff to ensure that citizens

were not being arrested (and thereby deprived of their liberty) as a matter of

convenience for the arresting officer who would rather avoid the 'paperwork' of

issuing a summons.

The Submission by the Commissioner of Police to the Royal Commission dated

May 1990 stated that one of the problems associated with encouraging the use of

summons procedure was an apparent perception amongst officers that once an

arrest has been effected it must be proceeded with at all costs. In commenting on

this perception the Commissioner referred the Royal Commission to the case of

Wiltshire v Barrett (1965) 2 All E.R. 271.

Part of the ratio of Wiltshire v Barrett was that an arrest is not rendered unlawful

by the fact that a person is set at liberty by the police without further action.

303

Consequently if after arrest it is found that the person arrested is innocent or there

is no sufficient case for continuing the arrest then he should be discharged from

custody. The Submission of the Commissioner of Police stated that that option

will be emphasised in future training and procedures.

In this regard I note with approval that the instruction issued by the Assistant

Commissioner of Police on 17 January 1990, and referred to above, includes the

following direction:

When a justified arrest is made, but before the offender is formally admitted to the lockup, circumstances change and it becomes possible to proceed by summons, the arrest is to be discontinued and the matter dealt with by summons.

I also note that in conference with the Royal Commission, the Commissioner of

Police suggested that the proposed citation system for juveniles- where offenders

may be issued with a court attendance notice rather than undergoing fonnal

arrest, charging or summons procedures - be extended to apply to adult

offenders. The proposal in relation to juveniles is discussed in detail section

4.1.4 of this Report. Such a proposal has considerable potential for reducing the

incidence of arrest for minor offences. It requires serious consideration by

government.

There remains the issue of procedures whereby the Police Department may

review the exercise of the arrest/summons discretion by its officers to ensure that

the use of arrest is kept to the minimum necessary. Recommendation 9 of the

Interim Report of the Royal Commission (Muirhead) stated:

Recommendation 9 It should be the duty of officers in charge of police stations to evaluate (with a view to providing guidance for future situations) the decision made by officers engaged on police patrols to arrest, rather than proceed by summons or caution.

304

Routine Order 16-8.5 establishes a procedure whereby the officer in charge of a

lockup is to be satisfied that after a person is arrested and brought to the lockup

reasonable grounds exist for preferring the charge.

16-8 5 Where a person is arrested and brought to a lockup without a warrant, the member in charge of the lockup shall be personally satisfied that: -(1) there are reasonable grounds for preferring the charge

and that a complaint is in existence; or

(2) there is a warrant or other process authorising the detention of the prisoner and of the location of that process.

In the latter case, the arresting officer will provide written verification of the existence of the documentation. If the member in charge is so satisfied the prisoner will be admitted. But, if the member in charge is not satisfied that there are reasonable grounds for preferring the charge or otherwise admitting the prisoner, the person is to be immediately released and a report on the matter submitted to the officer in charge ...

Again, members of the Police Department were reminded of the requirement of

Routine Orders 16-8.5 by the Assistant Commissioners Instruction of

17 January 1990.

This Commission supports the concept of such a review and recommends that the

position descriptions for officers in charge be amended to ensure that they reflect

the requirement for such a review.

A further positive initiative by the Police Department was outlined in the

Submission by the Commissioner for Police: when the current building

extensions at East Perth Lockup are completed provisions will be made for an

Admissions officer who will have the task of (inter alia):

(i) checking the correctness and legality of charges

(ii) consider the need for arrest as opposed to a summons or caution.

305

There is the possibility that an extension of this arrangement will be made to othe1

major lockups in the state.

As an additional incentive to officers to resort to the use of summons whenever

possible, this Commission supports the proposal that the merit principle and

reward concept of promotion include an assessment of the quality of decision

making re arrest/summons at operational level.

Despite the initiatives outlined above this Commission has some reserve

regarding the effectiveness of any such supervisory measures. This concern

arises both from the 'independant discretionary' nature of the arrest procedure

itself and my observation in section 4.1.3.2 of this Report, that internal police

orders and instructions are generally regarded as guidelines only with few, if any

mandatory instructions. There is here, as in other areas of police operation, the

need for clear and enforceable instructions or orders.

Having noted the expressed concern of the Commissioner of Police over the

extent of use of the arrest procedure in this state, the Royal Commission was

surprised to learn that until recently, the Police Department was not in a position

to conduct any broad overview of the use of summons as opposed to arrest by its

members. In answer to a question from the Royal Commission, the

Commissioner of Police stated that, although the department recorded statistics

on the number of arrests made and summonses issued throughout the state, it did

not have an existing computer programmed to enable the retrieval and analysis of

that information (July 1990). At the request of the Royal Commission, the

department devised an appropriate computer programme. Statistics on summons

and arrest figures were finally provided to the Royal Commission by the Police

Department on 20 November 1990.

306

4.2.2 BAIL

4.2.2.1 Function of Bail

The effect of the bail procedure is to allow a person presumed to be innocent but

accused of a criminal offence conditional freedom pending his trial, or the taldng

of some other step in the judicial process. 3 Its purpose is to ensure that the

accused person appears when required at the trial and, where considered

necessary, attempts to ensure compliance by imposing some financial or other

conditions upon him should he fail to answer his bail. The Bail Act also creates

an offence in the event that the accused fail to comply with the conditions of their

bail. The necessity of ensuring that an accused person is present for his trial

must be weighed against the imposition of pretrial imprisonment, which is

incompatible with the presumption of innocence that is the cornerstone of our

system of criminal justice.

The question of bail first arises at the time of arrest. At this point in time, the

custody of the accused will normally be the responsibility of the police, who may

either retain him in custody, or release him, either on bail or, in minor matters,

with a summons to appear in court. In the past little attention has been paid to

police practices in granting or refusing bail for the period between the initial

arrest and the initial court appearance. However the number of persons who

have died in custody during that period and whose deaths have fallen to be

investigated by this Commission has focused attention on the initial period of

custody and the reasons for refusal of bail or failure to grant bail. These are

matters which are also considered in the Report of Commissioner Dodson.

While only a relatively short period of detention will usually be involved, any

interference with the liberty of the subject must be regarded as a serious matter.

His freedom is of great importance to the defendant and his family and

dependents, whether he be rich or poor, Aboriginal or non-Aboriginal, middle-

3 Its operation is presently governed by the Bail Act 1982 (W A) as amended.

307

class or fringe-dweller. The powers of the police in relation to the consideratio1

of bail should be exercised on the same principles as those of the court itself.

In general the police or the court have five choices in deciding what should

happen to an accused person pending his trial.

(1) he might be released at large without any conditions being imposed.

(2) he may be released upon entering into an unconditional recognisances

that is to say upon his own promise to appear at the trial. This i:

known as self bail.

(3) he might be released on a recognisance to which conditions are

attached.

(4) he may be released after being served with a summons,.

(5) he may be held in custody until the hearing is completed.

4.2.2.2 Bail in Western Australia

In 1976 the State Government requested the Western Australian Law Refonn

Commission (W ALRC) to review the law and procedure relating to bail as a

matter of priority. The result was a substantial Report on Bail (Project

No. 64) issued in March 1979. The WALRC published a Working Paper in

November 1977. Prior to that Paper no study of the Western Australian bail

system existed.

In the 'Introduction' to its Report the WALRC observed:

There is a proliferation of bail legislation in this State. The law is to be found in no less than 117 separate provisions in fourteen different statutes, dating from 1679 to the present day, and there are also fourteen relevant regulations in the Criminal Practice Rules.

Furthermore, not all of the law relating to bail can be found in legislation or regulations. Principles relating to the granting of bail can also be found in decided cases and in practice directions. There

308

is no single source of authority either for the power to grant bail, or as to the relevant principles on which the bail decision should be made. There are doubts as to the legality of some practices adopted by bail-decision-makers even though they may be desirable in principle. In some areas there are conflicting views as to the

applicable law. One possible reason for this uncertainty is that the law relating to bail has developed unsystematically as an adjunct to criminal procedure. It has never received systematic treatment either by the legislature or by the courts in Western Australia. (W ALRC, 1976)

This wholly unsatisfactory situation was to some extent rectified by the

enactment of the Bail Act 1982 which incorporated a large number of the

recommendations of the the Law Reform Commission, if in considerably

attenuated form. However section 2 of the Act provided that it would come into

force on a day to be fixed by proclamation. For reasons which are not entirely

clear the Act was not proclaimed until 6 February 1989. Some provisions were

said to be unworkable, and called for amendment. These amendments called for

further amendments in tum. Even so, seven years is a very long to time to have

to wait for such an important piece of legislation. As a result the Act did not

come into force until virtually after the period covered by the terms of reference

of the Commission. The urgency with which it was required will be to some

extent demonstrated by reference to the deaths in custody which the Commission

was called upon to investigate.

A review of the operation of the Bail Act was conducted in 1990 at the direction

of the Attorney General. This move followed a number of perceived procedural

difficulties under the Act being brought to his attention. Some of the

recommendations of that review are considered below.

Over the period with which the Commission is principally concerned the former

unsatisfactory patchwork of legislation remained in force. It is not therefore

altogether surprising that the evidence before the Commission revealed numerous

and substantial injustices. A troubling number of those who died in custody

would not have been in custody if a more intelligent approach had been taken to

3(1)

the application of the admittedly unsatisfactory legislation which was then in

force.

4.2.2.3 The Western Australian Law Reform Commission's Report

The essential matters covered by the W ALRCs Report were:

(a) clarification of the authority to grant bail; (b) creation of a qualified right to bail for all offences; (c) clarification of the grounds for refusing bail; (d) establishment of procedures to enable relevant information to

be made available to--(i) bail-decision-makers; (ii) defendants; (e) clarification of the conditions upon which bail may be granted; (f) a review of the role of sureties; (g) clarification ofproceduresfor the review of bail decisions.

Of these issues, most were raised in some form or another by one or more of the

cases investigated by the W ALRC.

Additionally, the WALRC pointed to a number of other measures which would

in its view, improve the operation of the bail system without there being a need

to enact legislation for their implementation. Among these were an increased use

of the summons procedure rather than arrest, the introduction of bail hostels, and

measures to ensure that pre-trial detention in custody was kept to a minimum and

in improved conditions. The WALRC noted the problems encountered by

certain groups in the community, including Aboriginal defendants, who it found

had difficulty in meeting conditions requiring financial security and sureties, and

in some cases in understanding their bail obligations. These problems have also

been noted by this Commission.

TheW ALRC's Report is a comprehensive review of the law covering bail at the

time it was issued, and which continued during the time frame with which my

Commission is concerned. It raises a number of problems, some of which have

not been fully addressed by the Bail Act 1982 as it was subsequently enacted,

310

and which have been highlighted as continuing underlying issues by the

investigations of the present Royal Commission. It is with those issues that this

present Report is concerned.

4.2.2.4 All Offences Bailable and Authority to Grant Bail

At the time the Law Reform Commission reported, there was no offence in

respect of which jurisdiction to grant bail was excluded as a matter of law. The

Commission recommended that that situation should continue, and provision

should be made for bail for all offences. The Royal Commission has not been

called upon to investigate any case in which the nature of the offence alleged had

precluded the deceased being granted bail by those who had custody of him at the

time.

In Western Australia, bail decisions could be made by members of the police

force, Justices of the Peace, Coroners, Magistrates and Judges of the District

Court, Supreme Court, and the Court of Criminal Appeal. That situation is

essentially continued by the Bail Act, but limited in certain circumstances by the

serious nature of the charge (Bail Act 1982, s.15). Such a situation has not

arisen in relation to the deaths investigated by the Royal Commission in this

State.

Bernard McGrath was arrested for breach of the terms of a Community Service

Order to which he was subject. The warrant upon which he had been arrested

precluded his being granted bail by the police since the terms of the warrant

required that he be brought before the court. He was arrested prior to the

weekend and hanged himself before he could be taken to court. He had however

surrendered to the police on a previous occasion upon learning that there was a

warrant in existence for his arrest, and there was no reason why he could not

have been arrested 'by appointment' the following Monday. In addition, the

matter involved was relatively minor and could equally well have been dealt with

by way of summons rather than warrant. In a rider to his finding the Coroner

311

added a recommendation that the Department of Community Based Correctior

adopt the practice of commencing prosecutions for breaches of Communi!

Service Orders by way of summons rather than warrants in the first instance.

As referred above, section 15 of the Bail Act provides that the power to grar

bail is to be exercised only by a Judge of the Supreme Court for certain seriou

offences including wilful murder and murder. This creates problems wher•

arrests for such offences occur in remote parts of the state. For example ru

Aboriginal person arrested and charged with murder in Kununurra must

brought to Perth for the pmposes of the Act before he may make an applicatior

for release to bail. The logistics of the requirement are costly and impractical.

It is recommended that the Act be amended to allow for an ex-parte hearing f01

the purpose of considering bail where a person accused of wilful murder 01

murder has been arrested in remote areas of the state.

4.2.2.5 Qualified Right to Bail

The Justices Act 1902, s.64, in some circumstances, provides that a defendant

should be granted bail, as for example where he was charged with an offence

which was not of a serious nature and could not be brought before a justice

within twenty-four hours.4 In other cases the defendant is merely entitled to

apply for bail, and the bail-decision-maker is empowered to grant it.

Among the unsatisfactory features of the then existing law and practice found by

the W ALRC is one which has emerged in a number of the cases and has troubled

the present Royal Commission:

4

.. . in cases where the legislation provides that bail may be granted, there could be a tendency for some bail-decision-makers to regard bail as a privilege for which a defendant must apply and, despite existing practice, a defendant could be remanded in custody simply because the question of bail is never raised; ...

Justices Act 1902, s. 64.

312

In a number of cases before this Commission the question of bail was never

considered by the police when the deceased was taken into custody,

consideration was put off for reasons which were not found to be adequate, or

bail was considered and refused without representations by the accused person

having been taken into consideration.

The case of Robert Anderson is representative of this situation. He was arrested

at the weekend in Wiluna on a charge of being drunk. Although he was sober by

the Sunday no proper consideration was given to releasing him on bail. He died

in the course of an epileptic attack that day. As I said in the Report of my Inquiry

into his death:

In my view there was no reasonable ground for retaining the deceased in the lockup on the Sunday. By that time he had no doubt become sober and was entitled to be considered for bail. He was facing a minor charge. His identity was known. He lived and

worked locally and the police had no reason to believe that he would not answer his bail. (Report page 23)

When his death was investigated by the police the Report issued failed to make

clear that he had died in the lockup at a time when, according to Police Routine

Orders then in force, he should have been admitted to bail. In his case, as in a

number of others investigated by the Commission no regular and adequate cell

checks were carried out, and his illness was not detected. If bail had been

properly and and promptly considered, the inadequacy of those cell checks might

not have become an issue, and the prisoner's medical problems detected and

addressed.

Similar considerations applied in the case of Milton Wells who was arrested for

no good reason obvious to this Commission, and charged with damaging

property. Notwithstanding his denial of any involvement in the offence with

which he was charged, he was processed at the Kalgoorlie Police Station. No

consideration at all was given to the question whether he be bailed, although, as I

observed in the Report of the Commission's investigation into his death, his

eligibility for being admitted to bail was, as in the case of Anderson, obvious.

313

He had been charged with a minor offence, which he denied, and his addres

was known. There was no obvious reason for keeping him in custody, since h

was not considered to be drunk. Neither of the arresting officers was able t

give the Commission any reason why he could not have been immediate!:

admitted to bail, which was effectively denied him. He was at the time sufferin

from meningitis. By the time his condition was noticed, it was irreversible, an<

he died in hospital several hours later. As I noted in my Report on his death:

Any suggestion that pressure of work prevented consideration of the question of bail does not bear scrutiny, since station records show that other accused were released to bail during the course of that shift, one within approximately an hour, on a charge of driving under the influence, and a juvenile released almost immediately on charges of stealing and receiving. Various possible explanations were put forward to explain why Wells was not released to bail, but none of them was convincing. (Report page 19)

The bailing of Milton Wells was both possible and practicable. I am left with th(

clear impression that numerous police officers in the State regarded bail as a

privilege to be conferred upon Aboriginal arrestees if and when they felt disposec

to summon the effort to do so.

The WALRC proposed that bail legislation for Western Australia should make it

quite clear that bail is neither a privilege, nor necessarily a matter requiring some

form of application by a defendant. The situation has been to some extent

addressed by section 6 of the Bail Act, which requires the arresting officer to

consider the accused person's case for bail as soon as practicable, ' ... whether or

not an application for bail is made by the person or on his behalf.

It had been argued that any qualified right to bail should not apply to overnight

bail at the lockup. This would have meant that in the overnight bail situation, a

defendant was merely entitled to be considered for bail, but had no right to it. It

was said in the Report:

In the Commission's view, there is no reason either in principle or in practice why a defendant who can be brought before a justice within twenty-four hours of his arrest should not have a qualified

314

right to bail during any delay . Although short in duration, overnight custody can be a traumatic experience and a qualified right to bail in these circumstances should be recognised. The Commission therefore recommends that once the police have completed the charging procedure, their duty should first be to release the defendant on bail, unless there are grounds for refusal, and secondly, if the defendant is not released on bail, bring him before a justice as soon as practicable.

Inquiries conducted by the Royal Commission revealed that overnight or short­

term custody could be more than traumatic, it could and did prove fatal in fifteen

of the cases investigated.5 Of these five involved self-inflicted death. 6

Accordingly the W ALRC recommended that a defendant in Western Australia

should have a qualified right to bail at all stages of the criminal justice procedure

prior to conviction:

This, in effect, would mean that a bail-decision-maker, on each occasion when an unconvicted defendant appeared before him, would be required to -(a) consider the question whether a defendant should be released

on bail without the need for any application;

(b) decide, on the facts before him, or in the light of such additional information obtained at his request as he thinks fit, whether bail should specified in the legislation;

(c) grant bail, with conditions if necessary, unless he is satisfied that, notwithstanding such conditions as he might impose, bail should be refused on one or more of the specified grounds.

The Bail Act as enacted does not in fact go nearly as far as the W ALRC

recommended, and provides for no qualified right to bail, save for children.

Disappointingly, the 1990 review of the Bail Act did not recommend an

amendment to provide for such a right to bail.

5 Dooler, Walker, Barnes, Anderson, Wodulan, Pat, Wells, Waigana, Brown, McGrath, Samson, Morrison, Cameron, Wongi, Polak. 6 Wodulan, McGrath, Morrison, Cameron, Wongi.

315

Even the qualified right of children to bail under the Act may have prove

illusory in practice. According to the Submission of the Youth Legal Service t«

the Royal Commission, substantial numbers of children have, since the Act cam

into effect earlier this year, been unable to obtain bail and have been detained ir

the adult lockup in East Perth because the various community service:

institutions were full and unable to accept them. The Submission refers to mon

than fifteen at one time, and claims this to have been a frequent occurrence.

The Youth Legal Service complained that the intentions of the act have beer

further frustrated by the imposition of onerous conditions by way of sureties,

giving the example of a juvenile of previously good character charged with a

serious offence. He was granted bail with a surety of$ 10 000, but was detainee

in strict custody for two weeks because his mother was unable to demonstrate

assets sufficient to meet the condition. He was released into her care only after

an application to vary his bail had been granted. The granting of bail to juveniles

is considered in more detail in section 4.1.4 of the Report on the Juvenile Justice

System.

Section 5 of the Act goes only as far as providing that a defendant who is in

custody for an offence awaiting his initial appearance in court is entitled to have

his case for bail for that appearance considered as soon as practicable. If his case

is not considered, or if bail is refused, or if he is not released on bail, he must be

brought before a court as soon as practicable.

The question of the consideration of the granting of bail in such circumstances

was raised in some fourteen of the deaths investigated by the Royal Commission

and assumes considerable importance as an underlying issue. It is therefore

appropriate that the present legislation should be examined to see whether it

addresses the concerns raised. As I have stated above, section 5 of the Act

confers upon a defendant a right to have bail considered:

Right of defendant to have bail considered under this Act

316

5. ( 1) A defendant who is in custody for an offence awaiting his initial appearance in court therefore is entitled-(a) subject to sections 9, 10, 12 and 16(2), to have his case for bail for that appearance considered under and in accordance

with this Act as soon as is practicable;

(b) if his case is not considered, of [sic] if he is refused bail or is not released on bail, to be brought before a court as soon as is practicable.

(2) A defendant who is in custody awaiting any appearance in court for an offence, other than an initial appearance, is entitled, subject to sections 7(3), 9 and 10, to have his case for bailfor that appearance considered under and in accordance with this Act.

[Section 5 amended by No. 74 of 1984 s.4.]

That entitlement to have his case for bail considered is accompanied by a duty

imposed by section 6, in the majority of cases upon the arresting officer, to

consider the accused person's case for bail as soon as practicable, whether or not

an application for bail has been made by the accused or on his behalf. If the

person effecting the arrest is not authorised under the Act to grant bail, he must as

soon as practicable bring him before an authority which is. The duty to consider

the case for bail then devolves upon that authority upon the same terms.

The difficulty with that provision lies, in the view of this Commission, with the

el asticity of the expression 'as soon as practicable'. The Commission cannot be

confident that the deaths of those who died while awaiting bail, or pending a

court appearance, bail not having been granted, would have been avoided had the

present legislation been in place at the time. Many were affected by liquor, some

were thought to be affected by liquor, whereas they were in fact seriously

injured. Police officers demonstrated a reluctance to consider bail for those in

that condition.

Throughout most of the period covered by the terms of reference of this

Commission there were in force in Western Australia, Police Routine Orders

which provided that a person arrested for a minor offence 'should be admitted to

317

bail as soon as possible subsequent to arrest'. Virtually all of the fourtee

referred to above came into that category.

In response to questions from the Royal Commission, the Commissioner o

Police has informed me that no specific policy has been drafted to deal with th

Bail Act. No new Routine Orders will be drafted until afterthe review of and an:

subsequent amendment to the Bail Act. Police Routine Orders 2-1.6 and 2-1.·

currently provide :

2-1.6 In all cases where a person is arrested and charged with a minor offence such as refusing name and address, drunkenness , disorderly conduct and the like, provided he is not intoxicated and his true identity is known, he should be admitted to bail as soon as possible subsequent to arrest, if it is considered his release will not result in further immediate offences similar to that necessitating his original detention.

2-1.7 A person held in custody for a minor offence and without the requisite bail money should, in the spirit of the preceding paragraph, be released on his own recognisance without any monies being deposited and the question of his

release should not be wholly dependent on his inability to raise bail money or arrange suitable surety. Regard should be had to the person arrested and the fact that local residents are less likely to fail to appear and answer bail than itinerants.

I also note that the Police Gazette of 13 January 1988 provides (inter alia) :

Where diversionary procedures or facilities are available, Aboriginals should not be detained or remanded in custody for intoxication or other minor offences, unless the offender is violent, or the offence is likely to continue. In cases of detention, bail or surety procedures should be instituted as soon as possible.

In conference with myself and Commissioner Dodson, the Commissioner of

Police, Mr Bull, was asked whether he agreed with the proposition that since the

introduction of the Bail Act there had been a huge increase in the proportion of

people being admitted to bail within a very short span of time. Mr Bull replied:

No, I don't agree with that's as a result of that. I gave that instruction long before the Bail Act ever came out. There was a

318

reduction before the Bail Act came out of people being held. I did all in my power long before the Bail Act to limit the time that people spent in custody, including a direction to my officers that they were not to take monetary bail for drunkenness offences (Underlying Issues Conference with Commissioner Bull 31 July 1990:605).

However, the Commissioner did agree that prior to his instruction regarding bail

more people should have been admitted to bail by police than actually occurred:

Yes, I think that more action should've been taken to remove people and even waive the necessity of bail or, you know, to try and rather than have a sterotype of bail strive to release the person, given the particular circumstances, be more flexible in allowing people to go

to bail (with Commissioner Bull 31 July 1990 Conference:607).

Section 3 of the Bail Act defines 'as soon as is practicable' as meaning 'as soon

as is reasonably practicable'. Whereas 'Possible ' according to the Macquarie

Dictionary, is that which ' ... may or can .. . be done'; 'practicable' is that which

is ' ... capable of being put into practice, done, or effected, esp. with the available

means or with reason or prudence'. In such circumstances the Commission

considers it likely that where a decision was taken that it was not possible to

consider the question of bail because of the accused's condition, the same

decision would be made today, and that accused would, all other factors being

equal, still die in custody.

The Criminology Research Unit Research Paper No. 18 Arrest, Custody and

Bail, Kalgoorlie, 1987 and 1990 found that during both study periods, higher

proportions of Aboriginal people than non-Aboriginal people were held in

custody, rather than being released quickly on bail. It was noted, however, that

the discrepancy between the two groups was much lower in 1990 than in 1987.

The proportion of both Aboriginal and non-Aboriginal people released on bail

increased between the 1987 and 1990 study periods.

The Commissioner of Police was referred to the Royal Commission study and

asked whether anything could be done to ensure that Aboriginal people were

released to bail as quickly as non-Aboriginal detainees. His response was:

319

The detention time for any person in custody is subject to the influence of a number of factors including sobriety and the existence of alternative facilities . Other matters such as urgent work requirements, staff availability, call out time of justices when necessary, number of prisoners and admission times, co-operation of prisoners in enabling police to take identification particulars are some matters that will also be relevant.

Although the data quoted may suggest a discriminatory practice against Aboriginal persons, it may be that a combination of the factors mentioned, which are largely outside the control of police, operate to convey this impression.' (Answers by the Commissioner

of Police to further questions from the Royal Commission 31 August 1990)

On the contrary, I cannot see how the matters referred to in the answers by the

Commissioner of Police should impact on the release of Aboriginal detainees to

any greater extent than on the release of non-Aboriginal detainees. Although

difficult to prove as fact, I am left with the impression that discrimination by

police against Aboriginal detainees in the granting of bail has occurred to some

extent, at least at Kalgoorlie.

4.2.2.6 Bail After Conviction

While the W ALRC recommended that the defendant should have a qualified right

to bail until convicted, it was not recommended that the right extend beyond

conviction, the W ALRC taking the view that different considerations applied

after conviction. That recommendation has been followed in the legislation.

Clause 4 of Part C of the Schedule provides:

When bail is to be granted after conviction

4. In deciding whether or not to grant bail to a defendant who is in custody waiting to be sentenced or otherwise dealt with for an offence of which he has been convicted or awaiting the disposal of appeal proceedings, the judicial officer shall, subject to clauses 5 and 6, consider whether-(a) in the case of a defendant waiting to be sentenced, there is a

strong likelihood that he will impose a non-custodial sentence; or

320

(b) in either case, there are exceptional reasons why the defendant should not be kept in custody;

and shall only grant bail to him if he is satisfied that -(c) in the case of a defendant waiting to be sentenced, at least one of those reasons exists and, in the case of an appellant, the reason mentioned in paragraph (b) exists; and

(d) he may properly do so having regard to the provisions of clauses 1 and 3 or, in the case of a child, clauses 2 and 3.

This situation fell to be considered in only one case before the Royal

Commission. After entering pleas of guilty to several charges Ricci John Vicenti

was remanded in custody for twenty-one days for the preparation of a pre­

sentence report. During that period, for reasons which remain unclear, he

attempted to escape from Canning Vale Remand Prison, and was shot and killed.

In the circumstances, which are outlined in the Report of my inquiry into his

death, there can be no criticism of the Magistrate's decision to remand him in

custody. Even under the present legislation such a remand would have been

justified.

However, it was suggested in the course of my inquiry that the remand may have

been used by the Magistrate as 'a short sharp shock'. Not only is that unlikely,

but as is observed in the Report, this would have been an inappropriate use of the

discretion to deny bail, since recourse to it would have constituted pre-sentence

detention and punishment. That the suggestion could be made, taken together

with other evidence, suggests to the Commission that remands in custody of this

kind have been used in this manner when bail would have been more

appropriate. Such would be the case where imprisonment was not called for,

and was unlikely to be imposed, yet the judicial officer remands in custody

pending a pre-sentence Report. Remands of this kind, which are intended to

punish, are in the view of the Commission not only improper but dangerous.

While there has been no death in this State in the course of such a remand, this

could be entirely fortuitous.

321

4.2.2.7 Grounds for Refusing Bail

Under the law which applied at the time the WALRC reported, and during the

timeframe covered by the inquiries of the Royal Commission, a bail-decision­

maker had a broad discretion whether or not to grant bail. The WALRC

recommended that the grounds for refusal of bail be specified exclusively in the

proposed legislation, and that the factors relevant to the consideration of the

grounds be outlined but not limited. Those recommendations were not followed

by Government.

The W ALRC recommended that there should be a discretion to refuse bail if a

bail-decision-maker considered that, having regard to the conditions that he could

impose, there remained:

(a) substantial grounds for belief that a defendant, if released on bail, will-(i) fail to surrender into custody in answer to bail; (ii) commit an offence which is likely to involve violence or

is otherwise serious by reason of likely consequences; (iii) endanger the safety or welfare of members of the public; or

(iv) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;

(b) a need to obtain more information about the defendant which is relevant either to the bail decision, or to the forthcoming trial;

(c) a need for the defendant to remain in custody for his own protection;

(d) in the case of bail during a trial, a substantial risk that the fairness or integrity of the trial process will be prejudiced.

The WALRC observed that, from a practical point of view, the grounds specified

in paragraph (a) would be the most important to the bail decision. It noted that

there had been some debate as to whether bail should be refused on the ground

that it was believed that the defendant would commit an offence while at large on

322

bail. Having taken into consideration the arguments opposing preventive

detention, that is, detention in custody not for what a defendant has done, but for

what he might do, the W ALRC recommended that this ground for refusal should

apply only in cases where it is likely that the defendant would commit an offence

which is of a serious nature, or involved a risk of injury to a person or property.

That recommendation was not followed in the legislation. Oause l(a)(ii) of Part

C of the Bail Act 1982 provides simply as a ground that the defendant 'may

commit an offence'. To take a case from the experience of the Royal

Commission (e.g. Polak) the police would be justified in refusing bail to an

alcoholic charged with park or street drinking on the grounds that he might re­

offend in the same manner during the period of his bail. This Commission is of

the view that this provision is wholly unsatisfactory, and what is more,

dangerous, and that legislation along the lines recommended by the Law Reform

Commission is to be preferred.

Where a person is arrested on a minor charge unlikely to attract a term of

imprisonment, the fact that if released on police bail he may commit a further

minor offence of the same character is, in my view, a wholly unsatisfactory

reason for depriving him of his liberty until such time as he may be brought

before a court. Too many of those whose deaths this Commission has been

obliged to investigated have died in the course of such short-term custody for

this risk to be acceptable.

4.2.2.8 Factors Relevant to Consideration of Grounds for Refusal

In considering grounds for the granting or refusal of bail, there are factors which

the decision-maker must take into consideration. The Law Reform Commission

recommended that the bail-decision-maker, should consider:

(i) the nature and seriousness of the offence, and the probable method of dealing with it;

323

(ii) the character, antecedents, associations, home environment, background and place of residence of the defendant;

(iii) the history of any previous grants of bail;

(iv) the strength of the evidence against the defendant.

Those recommendations were incorporated in the legislation virtually unchanged,

and are to be found in Clause 3 of Part C.

While this Commission accepts that this represents broadly the approach taken in

other jurisdictions, it entertains serious reservations about some of these factors.

It is difficult to see how 'home environment, background and place of residence of an adult defendant' can be relevant to the grounds set out in Clause 1. (Children come into a different category since, in theory at least, they have a

qualified right to bail, although this may avail them little in practice for reasons

already discussed.) This Commission is of the view the inclusion of such

factors as being relevant to the question of consideration of bail discriminates

unfairly and unacceptably against the poor, among whom Aboriginals number a

disproportionately large group.

It is also likely that the standard against which the defendant will be measured

will be that of middle-class Europeans, enjoyed by or aspired to by the bail­

decision-maker. This will be inappropriate to those who have for reasons of

youth, race, or for cultural, religious, or other reasons chosen an alternative

lifestyle. It is even less appropriate that this should be the standard against which

defendants who have had a different lifestyle imposed upon them by poverty,

race, or illness, including mental disability, are judged, and that they should be

denied the liberty which better-fed, better-dressed, better-housed, and healthier

Australians are entitled to expect as of right. The Commission regards the

inclusion of such factors as wholly inappropriate, and calling for amendment.

Turning to the standard to which the decision-maker should be satisfied, the Law

Reform Commission reached the view, after considerable debate, that the bail-

324

decision-maker should have 'substantial grounds' for believing that the defendant

would abscond or otherwise behave contrary to the public interest before bail

should be refused, and recommended that this standard should be incorporated in

the legislation proposed for Western Australia. The legislation as enacted in

Oause 1 of Part C did not limit the discretion of the bail-decision-maker in this

way. This Commission is of the view that the limitation imposed by the Law

Reform Commission was to be be preferred.

4.2.2.9 Where Pre-Trial Detention Could Exceed the Potential Penalty for the Offence

The W ALRC noted that a refusal of bail in cases where a defendant is charged

with a minor or non-imprisonable offence, or where pre-trial custody has

exceeded the maximum sentence for the offence charged, is a sensitive issue.

Bearing in mind the offensive character of pre-trial detention as a form of

punishment, it concluded:

However, the Commission takes the view that it is not a matter which necessarily lends itself to remedy through specific legislative directions. The decision should be left to a bail-decision-maker who should grant bail unless there are grounds for refusal. If the bail­ decision-maker refuses bail, the defendant should be entitled to appeal, and he should be given the benefit of improved administrative procedures to reduce delays before his trial.

While this Commission has no detailed evidence before it of the working of the

Bail Act 1982 in practice, it has doubts as to whether the right of appeal is in

principle a sufficient safeguard where a defendant is arrested on a minor charge

such as street drinking, not calling for a term of imprisonment, late on a Friday

afternoon, and denied bail pending appearance in court on the following

Monday.

The qualified right to bail recommended by the W ALRC would largely have met

some of the reservations felt by this Commission had it been enacted in

legislation. However, in view of the fact that the Legislature has not seen fit to

325

provide legislative protection in those terms, this Commission feels it essentia

such a qualified right should be enacted, at the very least, in respect of mino

offences unlikely to attract a term of imprisonment.

4.2.2.10 The Need for More Information Relevant to a Bail Decision

The W ALRC saw a need for a form, the contents of which would provide thE

bail-decision-maker with the information required to make an informed decisior

when deciding the question of bail. This would avoid the acquisition oJ

information in a haphazard way, would give guidance to both the defendant anc

the decision-maker as to what was relevant to the decision granting or refusing

bail, and, where the charge was denied, would avoid the possibility of the

defendant being prejudiced by information disclosed in open court.

The latter consideration was not an issue in the case of deaths investigated by the

Royal Commission. The suggestion of the W ALRC was adopted by the

Legislature. Section 8 of the Act provides for the use of such a form, and for

one giving information to a defendant as to his rights under the Act, another

suggestion of the W ALRC which had recommended that there should be a

statutory obligation on the police to give such a form to every defendant taken

into custody.

Its recommendation that a bail record form providing for reasons for a bail

decision was also adopted and enacted in section 26, which provides for a bail

record form to be completed where bail has been refused. However that

provision, as enacted, would appear to this Commission to be defective to the

extent that it does not provide for a record where bail is not considered. This is a

possibility which appears to be contemplated by section 5(b), a decision having

been made by the police to take a defendant before the court as soon as

practicable, rather than admit him to bail or release him with a summons. Such a

decision, it seems, could be made even in the case earlier referred to, as where a

326

defendant is arrested on a minor charge on a Friday afternoon, but is not released

on bail, a decision having been made to bring him before the court the following

Monday. I consider it to be desirable that in such a case the reason for such a

decision should be noted. The necessity to provide a written note of reasons for

an action can itself act as a disincentive to the arbitrary exercise of the power.

This Commission also observes that it would appear that in such a situation the

police would not be obliged to provide the defendant with a copy of the form

advising him of his rights on the basis that the question of bail is not being

considered in terms of section 8. It would seem to this Commission that an

accused person arrested by the police and admitted to a lockup should be advised

of his bail rights at the time he is processed regardless of whether the question of

bail is considered at that time.

4.2.2.11 Conditions of Release on Bail

The W ALRC was doubtful whether the recognisance procedure was a sufficient

incentive for a defendant to answer his bail. This Commission entertains further

doubts whether the purpose of such a condition and consequences of a breach are

sufficiently understood by defendants, particularly many Aboriginal defendants.

The W ALRC preferred the creation of an offence of absconding. It therefore

recommended that a defendant's recognisance should no longer be a condition of

release on bail and that failure to appear in answer to bail, without reasonable

cause, should constitute a criminal offence.

This Commission agrees with those recommendations. However they have not

been adopted in the legislation as enacted. Recognisances have been retained in

clause 1 of Part D and an offence of failing to comply with a bail undertaking

created by section 51. This means that an accused person may now both forfeit

his recognisance and be punished under the penal provisions for breach of his

327

bail. Upon conviction he is liable to a fine not exceeding $3000 or

for a term not exceeding three years, or both. 7

This Commission finds the double jeopardy created by the retention of lhe

recognisance and the creation of the new offence repugnant to accepted princiPes

of law. While it would be open to a court imposing a penalty upon breach of h e

penal provision to take the amount of the recognisance forfeited iq0 consideration in imposing penalty, it would not be necessary to do so. It COL}d

well be that at the time sentence was imposed, no step had been taken in respect

of the forfeiture, leaving the situation unclear. In the case of an Aborigillal defendant, unable to pay the recognisance, the default term of imprisonment a

substantial recognisance could be considerable. Recognisances of $1000 )r

more are, in the experience of the Commission, not unusual.

This Commission is particularly concerned with recognisances which in sone

cases have been found to impact with particular harshness upon Aborigin11

defendants who may not have completely appreciated the nature of ther

undertakings, and the serious consequences of a failure to comply with thef\.

Some of the deceased had the experience of forfeiting substantial

and were then faced with serving substantial terms of imprisonment when unahe

to meet them.

Christine Jones was arrested in connection with the unauthorised use of a motq­

vehicle, often referred to as 'joyriding'. She was bailed in the amount of $500

appear at a later date, but failed to answer her bail. She was accordingly liable t'>

forfeit her recognisance. Three weeks later, after police were called to a

disturbance in which she was involved, she surrendered to the officers whc

attended, telling them that there were warrants outstanding for her arrest and tha:

she owed $600. Inquiries revealed that there were in fact two warrants

outstanding in respect of unpaid fines totalling $127. She was unable to pay

7 Section 51(6) Bail Act 1982.

328

and was arrested. Within an hour of being lodged in a cell at the Midland Police

Lockup she was found hanged.

4.2.2.12 Conditions of Release on Bail Other Than the Defendant's Undertaking

The W ALRC felt that existing law in Western Australia did not adequately deal

with conditions which might be imposed in respect of release on bail other than

the defendant's own undertaking. There had been criticism of certain conditions,

and the Law Society suggested that cash bail should not be required in any

circumstances on the basis that such a requirement was unfairly discriminatory

against the poor. In some centres accused persons had been released on cash bail

equivalent to the fine which would be imposed upon conviction, and no action

would be taken when they failed to appear. Such a procedure, while convenient

to those with sufficient means to take advantage of it, obviously discriminated

against the destitute. Some Western Australians were able to buy their freedom

and avoid the stigma of a conviction, while others, many of them Aboriginals,

were exposed to the full rigour of the law.

Taking into consideration the opposition to cash bail, the WALRC proposed that

there should be a statutory direction to bail-decision-makers requiring them to

release a defendant on the basis of his undertaking alone, unless they considered

that it would be desirable to require further conditions as security for

performance of that undertaking.

That recommendation was not, however, adopted by the Legislature, and enacted

in the Bail Act. The discretion to impose conditions is not fettered in that way.

The kinds of conditions which may be imposed on defendants and sureties are,

however, limited, and are set out in Part D of the Schedule.

Section 18 of the Bail Act is intended to facilitate the early release of defendants

charged with prescribed simple offences by cash deposit. The defendant is given

329

a notice specifying the time and place at which he or she is to appear in court. If

they fail to appear their deposit is forfeited. However, too many people arrestd

for such offences have little or no funds available to allow their release in ths

manner.

The Police Department have recognised this problem and recommended to tle

Attorney General's review panel that an amendment be made to section 18

granting police a discretion to fix an amount for cash bail (including a nomiml

amount such as $1.00) or to dispense with such deposit entirely in such simpe

matters . Recommendation was subsequently made by the Review Panel th;t

police be granted such a discretion and that the limit of the prescribed offences le

raised to $1000 so that more offences come under the section.

recommendations are supported by this Commission.

The W ALRC's recommended requirement that a condition should be no

onerous than is required in the public interest, having regard to the nature of

offence and the circumstances of the defendant was, however, adopted. It is v

be found enacted in section 17(2) of the Act. The intention was to make clea·

that, when imposing a condition, a bail-decision-maker should include in hi:

consideration the ability of the defendant to meet it. This is an extremelr

important consideration.

Examination of the criminal histories of those whose deaths it was called upon tc

investigate leads this Commission to conclude that in the past sureties have been

ordered almost as a matter of course. 8 Many Aboriginal defendants, like most

poor and disadvantaged people, have had difficulty in obtaining satisfactory

sureties, and have been unable to meet the tenms oftheir bail. Since, as must be

the case, they have been detained in custody until such time as they can meet thei1

bail conditions, they have been placed in an almost impossible situation.

8 The Law Reform Commission expressed a similar view. Seep. 68, and the example in footnote 2.

330

Donald Harris admitted a series of offences in the Central Law Courts in Perth.

He was fined a total of $1250, forfeited a recognisance of $1000, and was

ordered to pay costs of $55. He was given no time to pay. Not surprisingly he

was unable to meet the demands made upon him, and was sent to Canning Vale

Prison to serve the default period for non-payment of these substantial amounts.

However, he had denied a charge of breaking and entering. Bail was set in terms

of a personal recognisance of $1000, with a surety in the same amount. A date

was set for the hearing. Harris was to finish serving the default term before that

hearing date. At that time he became eligible for bail, and would have been been

released had he been able to meet the conditions imposed by providing a personal

recognisance of $1000, and finding a surety for the same amount. The date

passed, and Harris remained in custody. He was evidently unable to find a

satisfactory surety, which would have been difficult enough had he been at large,

but must have been almost impossible for an Aboriginal from inside Canning

Vale Prison. His dilemma illustrates the difficulties faced by the poor and the

destitute, whose friends, and acquaintances, and possibly relatives will labour

under the burden of the same class and condition, and will be unacceptable as

sureties.

Donald Harris died in agony from pancreatitis still in custody, initially shackled

to his hospital bed, a victim of his poverty and deprivation.

4.2.2.13 The Requirement of a Surety as a Condition of Bail

Some doubt was expressed before the W ALRC as to whether a requirement of a

surety was desirable as a condition for release in modern conditions. It was

argued that changing social conditions had destroyed much of the effectiveness

of a surety's role, and that what was left was undesirable and could give rise to

considerable hardship. The W ALRC recommended the retention of a surety as a

possible condition, but recommended that a decision-maker should be directed

first to consider the defendant's release on his sole undertaking, and not to

331

impose a condition requiring a surety unless it was considered that this would be

desirable as security for the performance of that undertaking.

The conditions which may be imposed on a grant of bail are set out in Part D of

the Bail Act 1982. Where conditions are considered desirable to ensure the

performance of the defendant's bail undertaking, a judicial officer or authorised

officer may impose any one or more of five conditions. (It is to be noted that the

conditions only have to be considered desirable, amenable to a subjective test,

and not 'necessary', which would involve a more objective test.) These include

a condition that a surety or a specified number of sureties enter into an

undertaking agreeing to forfeit a specified sum of money in the event that the

defendant fails to answer his bail. For the performance of his undertaking a

surety, like the defendant, may be required to deposit security, including the

deposit of a sum of cash, or a bank book or other title document to a bank

account, or enter into a mortgage, charge or assignment which will render the

security enforceable by the Crown.

Both the Aboriginal Legal Service and the Aboriginal Advisory Committee

suggested to the W ALRC that there was a need for a special approach to the

requirement of sureties for Aboriginal defendants. The problem arose because

where they were granted bail with a requirement for a surety, Aboriginals were

more often than not unable to meet that requirement because relatives, and others

whom they might approach, did not have sufficient means to meet the potential

liability, and were for that reason not acceptable as sureties.

While the law existing at that time made no provision in relation to the

qualifications of a surety, in practice the police generally required that a surety

should be a landowner in Western Australia, although that requirement was in

some circumstances waived. The W ALRC recommended that there should be

certain minimum requirements for a proposed surety, one being that he should be

of full age, another that he should have assets to meet his financial commitment.

However, it recommended against any requirement that he must own his own

332

house or land. Those recommendations were accepted and enacted in a negative

form in section 38 which disqualifies certain persons from being sureties. The

legislation is still unsatisfactory in the absence of the provision for quasi-sureties

mentioned above, since it is frequently difficult for the poorer members of our

society, such as Aboriginals, to find a person qualified to act as surety and

willing to do so. The provision again demonstrates the presence on our statutes

of provisions which discriminate against those already poor and disadvantaged.

It was suggested that in cases where the defendant was part of a closely-knit

community or family, and where there was a responsible member of that

community who was willing to undertake that the defendant appeared in court as

required, the defendant should be released on bail on the strength of that

undertaking alone.

The absence of any penalty to support the undertaking posed an obvious

difficulty for the W ALRC. However, it was suggested that the threat of financial

detriment should not be necessary in every case:

The incentive to abide by the undertaking could arise from an Aborigine's sense of duty, arising from the trust placed on him, backed by the knowledge that any failure on his part would result in custody for the defendant with little prospect of further release on

bail, and, for the person who entered the undertaking, a loss of respect by his tribal elders.

The sanction would thus be social rather than legal.

After careful consideration the WALRC reached the conclusion that there might

be cases where a defendant could be released on bail on the formal undertaking

of a third person that he understood and would comply with his obligations. It

accordingly recommended that legislative provision be made for bail to be

granted on the basis of an undertaking from a responsible person to take all

reasonable steps to ensure that the defendant complied with the conditions of

release on bail, including his undertaking to appear in court to answer his bail. A

person who entered into such an undertaking would not be a surety in the strict

333

sense, because no financial forfeiture would result if the defendant faile< to

appear. The provision would not be restricted to Aboriginal defendants. lhat

recommendation, applying as it did solely to the poor and disadvantaged, didnot

commend itself to the legislature and no such provision has been made.

The WALRC considered and rejected automatic review of decisions granting )ail

with conditions attached where the defendant was still in custody twenty-fmr

hours after the grant of bail on administrative grounds. It did, howe\(!r,

recommend that an administrative procedure be introduced whereby what is n:>w

the Department of Corrective Services would make a weekly return advising he

Probation and Parole Service where defendants were still in custody because tley

had been unable to meet the conditions of their bail. That Service would thenbe

able to check to see whether an application for a rehearing to vary the conditicns

imposed should not be made. So far as the Commission is aware no su:h

system has been introduced.

Again, although the 1990 Review of the Bail Act found that the result of oe

inclusion of section 17 of the Act had been that sureties were being required m

frequently than in the past no change to the section was recommended by tle

review panel.

It would have been no easier for Donald Harris to have obtained his release n 1990 than it would under the previous legislation. He would still have died in

custody.

4.2.2.14 Other Reforms

The W ALRC recommended other reforms. The most important of these so far lS

the experience of this Commission serves as a guide was the increased use of tie

summons procedure. The Police Department's Annual Report for 1978 showel

that 69 per cent of adults appearing in court in country areas had been arrestel.

The figures provided by the Police Department to the Royal Commission i1

334

relation to use of arrest and summons revealed that in the year ending 30 June

1990 87.9% of apprehensions proceeded by way of arrest. The proportion of

arrests of Aboriginal people was even higher with 91.20% of Aboriginal people

apprehended for offences being proceeded with by way of arrest.

The W ALRC identified two commonly encountered occasions when a summons

procedure could be used to bring a defendant before a court. The first arose

where the defendant is apprehended for a minor offence, in which case there was

no need to make an arrest. His name and address could be taken, and he could

subsequently be issued with a summons. The second occasion was where the

circumstances were such that the defendant should be arrested, for example to

prevent a breach of the peace, or in the case of a person charged with drink

driving, in which case he could later be released from custody with a summons

to appear in court subsequently to answer the charge, thus avoiding the necessity

for bail.

Useful as the second procedure might be in those cases, it is unlikely to have

avoided any of the deaths in custody investigated by this Commission. A

number of those did, however, fall into the first category, and should not have

been arrested in the first instance. However, once arrested the delays which led

to their deaths would in all likelihood have taken place whether their release was

to have been effected by bail or by release with a summons.

The W ALRC referred to procedures for the use of summonses as an alternative

to arrest and bail provided in the law then existing, but commented that the

procedures favouring a summons in the first instance for persons charged with a

simple offence were not always adopted. Little appears to have changed, and the

evidence before this Commission showed the same resistance to use of the

summons procedure.

335

4.2.2.15 Bail Centres and a Bail Hostel

The W ALRC supported the establishment of bail centres and a bail hostel

further reforms. Bail hostels were set up in England to allow defendants of no

fixed abode to be released on bail. The primary reason for their introduction

to reduce the number of defendants who were held in custody pending trial.

While in Western Australia the absence of a fixed place of residence is not

accorded the same importance in the bail process, it was felt that there were some

defendants released on bail who could benefit from early contact with social

workers associated with a bail hostel. While a bail hostel provided

accommodation, which would be its primary function, there was also a place for

bail centres which would be primarily concerned with the guidance and

supervision of a defendant who had been released on bail. The W ALRC agreed

with the aims of bail centres and bail hostels, and supported their

implementation, in the case of the bail hostel in the form of a pilot project in

Perth. It suggested that one way of introducing a pilot project, without a need

for significant capital outlay, would be to enlist the aid of a voluntary

organisation, such as the Salvation Army, to provide the accommodation in

existing establishments. It therefore recommended that arrangements be made to

establish Probation and Parole Offices as bail centres in Western Australia, and to

establish a pilot bail hostel in Perth.

The Bail Act itself envisages the establishment of such institutions in the

conditions which may be imposed on a grant of bail. Section 67 provides for the

making of statutory regulations which may:

(c) make provision for, or with respect to the management, control, supervision and good order of premises established for the accommodation of persons to whom bail has been granted.9

The Department of Corrective Services acted promptly in the implementation of

the recommendation that a Bail Hostel be tried, and such an institution was set up

9 See also Part D of the Schedule, Clause 2 (6).

336

and opened in Fremantle in July 1983. There have, however, been problems.

Evidence given by the department based on a survey conducted covering the first

four years of its operations tended to show that the facility was under-utilised by

Magistrates during that initial period. The survey also showed that, of around

315 admissions during the four-year period, only 18 offenders had been

Aboriginal. Perusal of court records indicated to the department that the majority

of Aboriginal offenders for whom pre-sentence Reports had been sought and

obtained were appearing on charges which did not generally require long remand

periods.

Without in any way wishing to doubt that evidence, these observations do not

entirely square with evidence revealed in investigations of individual deaths by

this Commission. The experience of Donald Harris cannot be atypical. Had he

survived, and not satisfied the conditions of his bail, he would have spent more

than a month in custody before the charge against him was heard, assuming that

it was possible for the prosecution to proceed on the hearing date set down,

which is not always the case. Had he not been serving default periods for the

non-payment of fines, that period would have been almost three months. Having

regard solely to the offence, and the hearing date, Harris would have been an

obvious candidate for the bail hostel. It may be necessary to look elsewhere for

an explanation of the disproportionately low number of Aboriginal offenders

recommended for and remanded to the bail hostel.

The selection criteria for the bail hostel at the time specified that the offender must

not be known to be substantially affected by alcohol or drug dependence.

Obviously Harris, and on the evidence before the Commission, a large

proportion of other Aboriginal accused and offenders would have been excluded

by alcohol dependence from consideration for the bail hostel on that ground.

Previous criminal record was also a factor taken into consideration, and again a

considerable number of Aboriginal accused and offenders would have been

excluded on that ground. Following a review of the operations of the hostel, the

manager has been given a wider discretion to accept individuals who might

337

earlier have been excluded by alcohol dependence or previous recorl.

Notwithstanding, the hostel had in the year prior to the evidence given to tle

Commission been less than 50 per cent full.

The Commission supports the concept of the bail hostel. It has considerabe

advantages for the kind of remand situation in which Vicenti and Harris died , ard

which other deceased had experienced on previous occasions. The individutl

remanded to the bail hostel can generally retain such employment as may exis,

may continue education where appropriate, can maintain regular contact wit1

family members, and generally live in an atmosphere which is both mor!

pleasant, less removed from the normal, and psychologically less

than living conditions at the C.W. Campbell Remand Centre. It must be borne il

mind that a proportion of remandees, like Harris, will be awaiting trial, and mwt

be afforded the benefit of a presumption of innocence.

All Magistrates in the Perth metropolitan area should be encouraged to consider

and all counsel to suggest, remanding accused and convicted persons

sentence to the bail hostel rather than to the Canning Vale Remand Centre iJ

appropriate cases. There is no reason in principle why alcohol dependence 0 1

alcohol consumption should of itself disqualify an individual from consideration

unless that is likely to lead to disruptive behaviour. If the behaviour of ::

remandee in the hostel does not meet the standards required, the manager can

always cause bail to be withdrawn, in which case the offender may be arrested

and again brought before the court. This should allay the fear of those who

might be disposed to suggest that the bail hostel, like any attenuation of the full

rigour of the criminal law short of incarceration, is a 'soft option'. Like many o1

the so-called 'soft-options', the hostel alternative is also considerably cheaper in

overall economic terms, and in its less serious impact upon the individual subject

who may be able to retain some semblance of normal life while awaiting trial or

sentence. The economic attractions alone should commend it to those who might

otherwise oppose it on traditional conservative grounds.

338

However under-utilisation of the facility by the courts posed a particular problem

even for those Aboriginals who were not otherwise excluded. Because the

numbers at any time are small, more often than not an Aboriginal would find

himself the sole Aboriginal person in the hostel. This would create in him a

significant and in some cases unbearable sense of social isolation. The

department had anecdotal evidence of Aboriginal people having run away from

the hostel within the first couple of days because they were unable to handle the

pressures which this sense of isolation produced. Although numbers in the

hostel had risen after serious under-utilisation in the first year of its operation, in

the period immediately before evidence was taken in May of this year numbers

had fallen off again.

4.2.2.16 Home Detention

The Royal Commission was told that the Government anticipated the introduction

of legislation which would allow for the 'home detention' of some remandees

who would otherwise have been remanded in custody. This option is discussed

in section 4.2.6.2 of this Report.

4.2.2.17 Other Conditions

Clause 2 of Part D of the Bail Act confers wide powers upon a judicial officer or

authorised officer to impose conditions he considers desirable as to the

defendant's conduct while on bail, and where he may reside. Conditions as to

conduct imposed include non-association provisions, curfews, and reporting

conditions. The only restriction upon these conditions is that they must be

imposed to ensure that the defendant answer his bail, does not commit an offence

while on bail, does not while on bail endanger the safety, welfare, or property of

any person, interfere with witnesses or obstruct the course of justice. A judicial

officer may order a medical examination, including a psychiatric examination, or,

where he is of the opinion that a defendant is suffering from alcohol or drug

abuse, impose conditions ensuring that he receives treatment while on bail.

339

4.2.2.18 Conclusion

While the enactment of the Bail Act has effected welcome improvements by

consolidation of the legislation, it is clear that a number of unsatisfactory

remain, which further discriminates against the already disadvantaged poor, Of

whom Aboriginal Western Australians make up a disproportionate number. I

urge that the recommendations of the W ALRC be reviewed, in particular

suggestion of the creation of a qualified right to bail, a concept which I suppon.

The abolition of the condition which penmits the requirement of persona}

recognisances should in the view of this Commission also be seriousl:r

considered, thus removing the potentially anomalous and repugnant situatiO\

where an offender can forfeit a recognisance, and also be convicted of an offenq

under the Act in respect of the same breach of his bail conditions.

4.2.3 REMOVAL OF INCENTIVES TO ARREST OR DET All' IN CUSTODY

In the course of my inquiries the existence of a number of police practices whicl1 may contribute to a rate of arrest and detention that is higher than is either

desirable or necessary became apparent. Practices or policies that may be seen.

as providing an 'incentive' for police to arrest and detain persons in custody

include:

The Meal Allowance Scheme

Arrangements for the search of female prisoners.

Both of these matters are considered below.

4.2.3.1 Meal Allowance Scheme

The supply of meals to persons held in police lockups in Western Australia is

currently the responsibility of the officer in charge of each lockup. The one

340

exception to this situation is the East Perth Lockup where meals for prisoners are

supplied on a contract basis by the Department of Corrective Services.

Under the meal allowance scheme, the officer in charge of the lockup is required

to provide prisoners with three meals per day on each day of the week. Payment

for the food supplied is made initially by the officer in charge (he may also have

an account with a local store). The officer in charge then later claims

reimbursement from the appropriate government department: the Police

Department for unsentenced adult prisoners, the Department for Community

Services for juvenile prisoners and the Department of Corrective Services for

sentenced prisoners (see Police Routine Order 16-8 53).

Although the officer in charge is required to complete and return a standard form

to claim reimbursement for meals supplied, he is not required to forward any

receipts for foodstuffs purchased.

The present rate of reimbursement per meal is :

$4.31 north of the 26th parallel

• $3 .91 south of the 26th parallel

It should be noted that if a prisoner who has been held in a lockup is

subsequently convicted, he may be liable for payment of the cost of any meals

supplied to him - in addition to any other penalty imposed by the court.

I consider that the present meal allowance scheme remains open to abuse in a

number of ways :

police being over zealous in making arrests

police proceeding by arrest where a summons would be appropriate

341

prisoners being held in custody longer than is necessary e.g .. by delayin:

bail until after a meal period has expired

supply of poor or inadequate quantities of food to prisoners

claims for meals that have not been provided

There are no guidelines as to the quantity and type of food to be served to

prisoners other than the instruction in Routine Order 16-8. 51.1 :

Members who are required to provide meals to prisoners are to ensure that such meals are wholesome and free from any feral meat such as donkey meat.

The quantity and type of food supplied is generally at the discretion of the officer

in charge of the lockup. This is contrary to the situation with sentenced prisoners

in Department of Corrective Services institutions. The latter department has

issued a Catering Policy and has advised the Commission that meals are prepared

in accordance with the principles laid down in the Dietary Guidelines for

Australians (Commonwealth Department of Health, 1986) (W/18/43).

It is unacceptable that sentenced prisoners who serve their time in police lockups

are not provided with the equivalent standard of meals and quality of nutrition

than prisoners in Department of Corrective Services institutions.

The situation in Western Australia may also be contrasted with that in the

Northern Territory. Prisoners meals in police lockups at larger regional centres

in the Northern Territory such as Katherine, Nhulunbuy, Alyangula and Tennant

Creek are provided by the Health Department through local hospitals and nursing

posts. Menus for prisoners at those locations are then of the same quality as

meals for patients in hospitals. Meals are supplied to the Darwin and Alice

Springs Lockups under contract.

342

In the smaller centres in the Northern Territory where demand is approximately

80 meals per annum, meals are supplied by tender, the contracts usually going to

wives oflocal police members. It should be noted that in Western Australia it is

not just in the large country centres such as Kalgoorlie, Geraldton or Port

Hedland that that large numbers of meals are required. In small towns such as

Halls Creek, Fitzroy Crossing and Wiluna the demand for meals to prisoners

regularly exceeds 80 per week not 80 per annum. It is noted that a district

hospital or nursing post is located in each of these towns.

An explicit reference to abuse of the meals allowance scheme in this state is

contained in the Broome Police Station Orders tendered as an exhibit in the

inquiry into the death of Albert Dougal. A memorandum from the then

Superintendent at the Broome Regional Police Office to the officer in charge of

the Broome Police Station dated 2 December 1980 stated in part :

Despite police officers being convicted at Port Hedland earlier this year for false pretences in respect to claims for services rendered, serious offences are still occurring.

There is evidence that ... areas are causing concern and among them are:

1. Manipulation of meal periods to enable claims for meal allowance outside specific times.

2 . Not admitting prisoners to bail until after a meal has been claimed.

With regard to bail and prisoners meals as mentioned above, you are to strictly comply with existing instructions. (W/11/10)

This Commission has heard evidence that at the Wiluna Lockup it has been the

practice of Officers in charge to supply prisoners with kangaroo meat shot by

police staff. Reimbursement would then be claimed by the officer in charge for

the 'cost' of the meals provided. Prisoners at Wiluna also participate in the

cooking of their own food. (RCIADIC W16:241-242).

343

A further indication of abuse of the current system occurring is contained in a

memorandum from the Chief Superintendent (Country) to the officers in charge

of all stations dated 17 April 1986. That memorandum stated :

It has come to notice that in some instances donkey meat has been provided to prisoners confined in country lockups.

The memorandum added that such a practice was in contravention of the Health

Act and was to cease 'forthwith' (W/18/15). However, during the inquiry into

the death of Donald Chatunalgi at Halls Creek, Henry Councillor (Administrati ve

Officer with the AMS at Halls Creek) gave evidence of donkey liver having been

served to prisoners in the town's lockup as recently as 1989 (RCIADIC

W29:107). Mr Councillor also stated that he had been informed that the previous

officer in charge of the Halls Creek Lockup had instructed staff on patrol not to

come back without a prisoner- apparently with the intention of being able to

claim additional meal allowance monies (RCIADIC W29:108).

The 1980 Australian Law Reform Commission (ALRC) Report on the

Sentencing of Federal Offenders considered the meal allowance scheme in

Western Australia. That Report concluded :

It is a system which is wrong in principle and open to abuse. It should therefore be terminated and alternative procedures adopted which contain no inducement, or appearance of inducement, to increase the numbers in lockup custody (ALRC Report para 176).

Despite this recommendation, no action was taken regarding reform of the meal

allowance scheme until after the release of the Vincent Inquiry Report in 1988.

Recommendation 26 of that Report advocated the abolition of the meal allowance

system and the establishment of a committee to decide upon an alternative

system.

An interdepartmental committee was subsequently formed, the members of which

were drawn from the Departments of Corrective Services and Community

Services and from the Police Department. The object of the committee was to

344

consider and make recommendations on alternative means of providing meals to

prisoners in police lockups. Regrettably, no alternative scheme has yet been

recommended.

It is understood that alternative schemes for the provision of meals to prisoners in

lockups or watch houses are either in use or are shortly to be introduced in all

other states and (as described above) in the Northern Territory. Alternative

means of providing meals to prisoners include :

provision of meals by the local prison (where reasonably adjacent to the

lockup)

• provision of meals by the local hospital or nursing post

catering contracts to existing food suppliers in towns where lockups are

situated

catering contracts to community groups.

I consider that replacement of the present system of provision of meals by one of

the above schemes would remove suspicion of abuse of the current system and

prevent any further actual abuse occurring. In addition, it may also lead to an

improved and more uniform standard of food being provided to prisoners.

Finally, I note that further consideration of this issue is contained in the Report of

my colleague, Commissioner Dodson.

4.2.3.2 Payment of Wives for Searching Female Prisoners

Police Routine Order 16-8.9 provides :

A prisoner is to be searched by a member of the same sex as the prisoner except in cases of extreme urgency or danger. Where , under normal circumstances, there is no member of the same sex to carry out the search, the member in charge of the lockup is to have

the search carried out by some other person of the same sex as the prisoner.

345

Routine Order 16-8.10 provides:

Where a female is employed to search a female prisoner or to attend a female prisoner in the lockup the following fees may be claimed :-( 1) $3.00 per search; and

(2) $2 .00 on each day that a female prisoner is attended irrespective of the number of female prisoners or the number of times attended.

There are few female police officers stationed in country areas. Police staffing

figures at 30 June 1989 reveal that only three female officers were stationed in

the Kimberley area, all at the Broome Regional Office. Five female officers were

stationed in the Pilbara Region, two at Karratha and three at South Hedland.

Similar situations existed at all other Police Country Regions.

A total of six female Police Aides are employed by the Police Department. Three

are located in the Metropolitan area. In the country, one female Police Aide is

located at the Geraldton, Kalgoorlie and Roeboume Police Stations respectively.

With current levels of female staff in the Department the situation remains that the

great majority of country police stations and lockups are staffed solely by male

officers and aides. Where female prisoners are placed in lockups without female

staff it has been the practice for the search of those prisoners to be conducted by

the wife of the officer in charge of the lockup (where available) or by the wives

of other officers on staff.

As Routine Orders provide for payment to be made for each search conducted by

a non-staff member potential for abuse of police powers of arrest exist : there

being a financial incentive for the officer in charge to detain arrest and detain

female persons.

In addition, there is the possibility that search and attendance fees may be claimed

where no such search or attendance had taken place. In the preceding subsection

346

of this Report I have referred to a memorandum from the Superintendent of the

Regional Police Office at Broome to the officer in charge of the Broome Police

Station. That memorandum also contained the following information:

Recently on two occasions, officers have claimed matron's search fees and attendance money, by certification of official documents, when in fact the matron had not searched the female prisoner or been in attendance at the time.

In both the above instances the offenders were charged, one departmentally and the other by court appearance.' (W/11/10)

It is obviously important that the department continue to increase its level of

female staffing and that female officers and police aides be posted to country

areas. It is appreciated that in the short term shortages of female police staff will

continue to exist at country stations. In the interim, the department should ensure

that claims for search and attendance fees for female prisoners are properly

audited and that a record of each search or attendance is made in the Prisoners'

Property Book and in the station Occurrence Book.

4.2.4 LEGAL SYSTEM

4.2.4.1 Introduction

It is a fundamental principle of our system of justice that the laws of the State and

the Commonwealth apply fairly and equally to all citizens and that all citizens are

entitled to equal protection under the law. It is also a commonplace to observe

that justice must not only be done but must also be seen to be done.

It has been the experience of this Commission, and it is not a new observation,

that in practice instances occur when the principles referred to above are accorded

little more than lip-service in this state. There are indications that the authorities

responsible for the administration of justice in Western Australia are reluctant to

recognise and address areas of inequality where they palpably exist.

347

This section examines aspects of the operation of the legal system in Western

Australia, particularly in the area of Criminal Justice, as it impacts upon

Aboriginal people.

4.2.4.2 The Right to Legal Representation

All citizens should have the right to legal representation when charged with an

offence. In Western Australia representation may be by private legal

practitioners, solicitors from the Legal Aid Commission of Western Australia

(LAC) or by solicitors and court officers of the Aboriginal Legal Service of

Western Australia (ALS). All three alternatives are, at least in theory, available to

Aboriginal defendants.

The ALS was established in Western Australia in 1975. The main function of

the ALS is to provide Aboriginal people in every part of Western Australia with a

legal service which includes legal rights, legal representation, legal advice and

legal education. The LAC was established for the purpose of enabling those

persons to obtain legal advice and representation who could not otherwise afford

to do so. The LAC has always had a policy that Aboriginal people should have

equal access to its legal aid services, notwithstanding that they have an exclusive

entitlement to receive those services from the ALS.

Funding for the LAC is provided by the State Government of Western Australia.

The ALS receives funding from the Aboriginal and Torres Strait Islander

Commission (fonnerly the Commonwealth Department of Aboriginal Affairs).

It has been the experience of legal aid services in this State (both the LAC and the

ALS) that they have been underfunded in relation to the demand for their services

and, as a consequence, understaffed and overworked. The availability of legal

representation is at its lowest in country regions, particularly in the north of the

state. As, proportionately, more Aboriginal people reside in country areas they

are particularly disadvantaged by the shortage oflegal representation. In Western

348

Australia north of Geraldton, there is only one legal practitioner in private

practice, four LAC lawyers (when all positions are filled) and three ALS lawyers.

By way of contrast, the situation in the north of Queensland is considerably better

than in this State. There are three Aboriginal Legal Services in Cairns servicing

Cairns, Cape York Peninsula and the Torres Strait. In addition there are over

100 lawyers living in and around Cairns.

The LAC have offices outside the metropolitan area at Bunbury, Geraldton,

Kalgoorlie, South Hedland and Broome. ALS have offices at thirteen country

locations : Albany, Narrogin, Esperance, Kalgoorlie, Laverton, Geraldton,

Carnarvon, Roebourne, Port Hedland, Broome, Derby, Halls Creek and

Kununurra. ALS solicitors are only located at the offices in Albany, Kalgoorlie,

Geraldton, Port Hedland, Derby and Kununurra. The other ALS country offices

are staffed by court officers (fonnerly known as 'field officers').

ALS court officers are trained as para-legal workers. Pursuant to section 48 of

the Aboriginal Affairs Planning Authority Act they may represent people of

Aboriginal descent in legal proceedings in any court in which those people are

indicted or charged with any crime, misdemeanour or offence. At present most

court officers only appear in courts to enter guilty pleas and pleas in mitigation,

seek remands and arrange bail. However, in Carnarvon and to a lesser extent in

Geraldton they are doing more court work including representing Aboriginal

people on minor defended matters.

It has been a matter of concern to the ALS for several years that the level of

funding provided to it is totally inadequate for it to be able to meet the demand for

its services and to carry out its full functions. One of the results has been that

there has been an increasing demand by Aboriginal people for legal services from

the LAC.

349

In a Submission to the Royal Commission, the Director of the LAC stated:

... there has been a steady increase in the cost to the Commission of providing legal assistance on grants of legal aid to Aboriginal clients .. . for the last full year for which accounts were certified for Aboriginal grants of legal aid namely fiscal1988189 the total cost to

the Commission was $654,000 an increase of 100% over the cost of Aboriginal grants of aid for fisca/1986187, and the figure is still rising.'

It is also noted that the figures quoted above do not include the costs incurred by the LAC in providing legal advice and duty lawyer services for Aboriginals as no

independent costing is done in those areas. Despite this increase in demand by

Aboriginal people no additional funding has been provided to the LAC to enable

it to adequately meet the situation.

The geographical area that ALS country offices are required to service are vast.

ALS officers are responsible not just for the Aboriginal population in the towns

in which their offices are located but also for those people residing on outlying

(often remote communities). For example, in the East Kimberley area ALS has

one solicitor and one court officer based at Kununurra and another court officer

based at Halls Creek. Collectively they are intended to cover an area extending

from Kalumburu, the most northerly settlement in the State, to Balgo on the edge

of the central desert in the south. In addition, with current staffing levels, ALS

officers are overburdened with work in the criminal jurisdiction. Inadequate time

is available to deal with civil matters and legal education.

A study in the early 1980s examined the way in which summary courts in

Western Australia dealt with Aboriginal and non-Aboriginal defendants

comparing seven towns from different regions of the state. The study was

conducted by Margaret Martin and Liza Newby from the Law School of the

UW A. Some of their findings were published in a paper entitled 'Aborigines In

Summary Courts In Western Australia, A Regional Study: Preliminary Report On

Selected Findings' (1980).

350

The study by Martin and Newby was concerned to assess the access of

Aboriginal people to legal advice, to establish whether the presiding judicial

officers were lay Justices of the Peace or Stipendiary Magistrates and whether the

courts were administered independently of the police.

The study examined courts located at Midland, Broome, Kununurra, Wyndham,

Halls Creek, Narrogin and Gnowangerup. Their results showed that despite the

efforts of ALS, 64% of Aboriginal defendants faced summary court proceedings

without any legal assistance at all. Of those who were represented, 72% were

represented by ALS field officers. This Commission has no reason to conclude

that the situation has improved to any great extent since that study was carried

out.

Legal representation is often the key to improving the outcome of charges heard

against defendants. This is of particular importance in the case of Aboriginals

who, as the statistics before this Commission compellingly demonstrate, are far

more likely than their non-Aboriginal fellow Australians to be sentenced to a term

of imprisonment when convicted.

The Executive Committee of the ALS has produced a three year plan to seek

funding to significantly increase staff to better cover the regions throughout the

state. If both the State and Commonwealth Governments are serious in their

commitment to provide the most disadvantaged sections of our community with

the legal services which they so obviously desperately need, they must provide

the organisations charged with supplying them with the funds they require to

recruit and keep qualified staff willing to work in the demanding conditions

outside metropolitan Perth.

If the poor living in the remote parts of the state are to be subject to the sanctions

of the criminal law, including wholesale deprivation of liberty, they are entitled at

least to the protection which a modem developed democracy owes to the weaker

members of the community. Both the Federal and State Governments have a

351

political and moral responsibility to provide funds for legal representation in

Western Australia which will go some way to correct the appalling inequities

which are obvious in the evidence before this Commission.

Further comment on the inadequate provision of legal services to Aboriginal

people and the role and structure of the ALS in Western Australia is to be found

in the Report of Commissioner Dodson.

4.2.4.3 Understanding of Aboriginal Culture, History and Law by Legal Practitioners

There has been a dearth of educational or training courses in this state aimed to

equip legal practitioners with an understanding of Aboriginal history, culture and

law. In some respects the general lack of understanding of these matters amongst

the legal profession is a reflection of a similar lack of knowledge amongst the

non-Aboriginal population of Australia.

I consider that it is essential that practitioners who are employed in positions

where they will frequently have contact with Aboriginal people receive some

special training in Aboriginal culture. The need for such training is of particular

importance where lawyers are required to deal with traditionally oriented people

from the northern and central regions of the State.

Information presented to this Commission indicates that:

no formal training in Aboriginal culture and law is provided to judicial

officers in Western Australia, this includes Justices of the Peace,

Stipendiary Magistrates and Judges of the District and Supreme

Courts. The Crown Law Department has informed the Commission

that the introduction of such training has not been considered.

352

• no special training is provided by the Crown Law Department to

Crown Prosecutors who will encounter Aboriginal defendants in

court.

• it is not current policy of the LAC that staff who may be employed in

positions where they have frequent contact with Aboriginal people

should receive any special training. The Director of the LAC has

stated that an adequate training programme would be prohibitively

costly, although an ideal worth pursuing.

no formal training in Aboriginal culture, history or law is provided to

legal staff of the ALS by that service.

I consider that this situation needs to be addressed as a matter of priority. In

particular the Crown Law Department should ensure that Justices of the Peace

and Magistrates who preside over courts in country areas receive adequate

training prior to their appointment to those areas.

Traditionally, legal training provided at universities in this State has not included

components on cross-cultural issues including Aboriginal law and custom. The

Royal Commission made inquiry of both the Law School at UW A and the new

Law School at Murdoch University as to what treatment, if any, Aboriginal

issues received in their course curriculum.

A response was received from the Murdoch University Law School outlining the

first semester course offered to students. That course included components on :

The reception of English law into Australia including an examination

of the • settled versus conquered' colony debate in the context of

Aboriginal land rights claims.

353

Social, economic, legal and political ramifications of of designating

Australia a 'settled' colony, and how resultant problems specific to

Aboriginals may be remedied.

Recognition of Aboriginal customary law.

The law programme at Murdoch commenced its first year of teaching in February

1990. Inclusion of the topics outlined above is commended by this Commission.

Unfortunately, no response to my inquiry was received from the Law School at

UWA.

4.2.4.4 Aboriginal Peoples Understanding of the Western Legal Process

It should not be necessary to point out that Aboriginal people are not a single

homogenous group. There is considerable variation in the degree to which

Aboriginal people may comprehend the nature of western court procedures and

legal concepts such as 'guilty' and 'not guilty'. A persons understanding may

vary according to factors such as the extent of their exposure to European culture,

the degree to which they adhere to traditional culture and belief, the extent of

formal western education they may have received. This is an area that has been

the subject of extensive commentary in recent years in legal and anthropological

research. In particular I refer to the detailed examination of the issues contained

in the Australian Law Reform Commission Report on the Recognition of

Aboriginal Customary Laws (1986).

My own Commission has heard considerable evidence concerning the difficulty

experienced by many Aboriginal defendants, particularly in country areas , in

fully comprehending the nature of court proceedings. I offer two examples :

Murray Stubbs is the ALS court officer in Kalgoorlie. Some of the clients he has

regular occasion to represent in court are traditionally oriented people living in

354

'fringe camps' on the outskirts of the town. Mr Stubbs stated that on the whole

those people have poor English language skills. He went on to state that :

You see, the situation is that an Aboriginal person goes to court; he is charged with whatever. I make it a policy that when I represent the Aboriginal person, I then go into the holding room ,for example. If he's in custody I then appear for him. I do a plea in mitigation for him. I then go back into the holding room and I then ask the Aboriginal person if he knows what did happen when he went to

court. Most occasions, they don't understand what is happening. They don't even know if they got fined . .. I think it's an

understanding - they are not really understanding this system properly. Whether they are afraid and they're not listening, I don't know. (RCIADIC W18:340)

A perspective from the other side of the court room was provided by William

Lapham who had served on the bench as a Justice of the Peace at Wiluna between

1979 and 1985. MrLapham told the Commission:

The difficulty in dealing with Wongi offenders is in determining the boundaries of Aboriginal/ore (sic) and white man's law. Our laws have been written for white men and are not generally understood by the Wongi people. They have no concept of guilty or not guilty. They have no concept of criminal intention. (RCIADIC W 16:58)

I do not intend to attempt to deal with the full range of matters concerning

Aboriginal accused in courts in Western Australia. That is an important area but

not one that has been a focus of inquiry by this Commission. However I do

make comments on the availability and use of interpreters for Aboriginal accused

and means by which the court may satisfy itself that an Aboriginal accused has a

sufficient understanding of proceedings and the nature of the circumstances

alleged. I also note that the Report of Commissioner Dodson contains a detailed

examination of these matters.

The legislature in Western Australia has attempted to provide some protection for

Aboriginals accused in the provisions of section 49 of the Aboriginal Affairs

Planning Authority Act. Section 49 provides:

(1) In any proceedings in respect of an offence which is punishable in the first instance by a term of imprisonment for a period of 6

355

months or more the court hearing the charge shall refuse to accept or admit a plea of guilt at trial or an admission of guilt or confession before trial in any case where the court is satisfied upon examination of the accused person that he is a person of Aboriginal descent who from want of comprehension of the nature of the circumstances

alleged, or of the proceedings, is or was not capable of understanding that plea of guilt or that admission of guilt or confession.

(2) The provisions of subsection (l) are in addition to , and not in derogation of, any rule of law or practice relating to the admissibility of pleas of guilt or admissions of guilt or confessions.

I note that that section only has application where the offence charged is

punishable by a tenn of imprisonment of six months or more. Although this

includes the offence of disorderly conduct under section 54 of the Police Act,

other minor offences with which Aboriginal defendants have been frequently

charged such as public drunkenness (now repealed), street and park drinking and

first offence for driving without a licence are not covered, because their penalities

do not fall within the provision.

Although the nature of those charges may be comprehended by most defendants

there can be no reason to automatically suppose that the Aboriginal defendant

adequately comprehends the nature of the court proceedings or of the meaning

and effect of entering a plea of guilty or not guilty in such matters to a greater

degree than he or she could be expected if facing more serious charges perhaps

involving complex questions of intent. Many of the same legal concepts and

principles of procedure apply equally in both instances.

In Munro v Sefton Appeal No 38 of 1974 (an unreported decision of the

Supreme Court of Western Australia), Mr Justice Jones considered the

application of section 49 (1) of the AAPA Act. He held that where Justices of the

Peace from their own knowledge of, and experience with, an accused person of

Aboriginal descent, have no doubt whatsoever that he is not such a person as the

section envisages but on the contrary the accused knows only too well the nature

of the circumstances alleged and of the proceedings, there is no need for a formal

examination to be conducted. However, he went on to state that the criterion of

356

lack of comprehension of the nature of the proceedings is much wider than the

mere mechanics of a court appearance. That being so he held that in all but the

simplest and most obvious cases the only safe and proper course is for the

justices to examine the accused in open court. If there is any substantial doubt as

to whether the Aboriginal accused does or does not understand the nature of

proceedings, then a plea of guilty should not be accepted.

With respect, I consider that if there is any doubt an inquiry should be made even

in the 'simplest' cases. The fact that a person is liable to a conviction being

recorded against him/her and thereupon is liable to the sanction of the criminal

law should never be taken lightly, even in the case of the most minor offence. It

appears to me that by confining the application of section 49 to offences carrying

a penalty of six months imprisonment or more the legislature has sought, not to

avoid the possibility of injustice in every instance where an Aboriginal accused

appears before the court but only instances of more 'grave' injustice.

It is unacceptable that distinctions between 'acceptable' and 'unacceptable'

instances of injustice should be made. I consider that section 49 of the AAPA

Act should be amended so that it is applicable to all offences, irrespective of the

potential penalty upon conviction.

I should also briefly mention the provisions of section 631 of the Criminal Code.

That section provides that where an accused person is called upon to plead to an

indictment and there is any uncertainty as to whether he/she is capable of

understanding the proceedings at trial an inquiry is to be made as to his/her

understanding by a jury of twelve. That section is applicable to all accused

persons irrespective of race.

I note that there is no procedure in place to monitor the extent and appropriateness

of use of section 49 of the AAPA Act or section 631 of the Code other than

instances where matters are taken on appeal to the Supreme Court. In Smith v

Grieve (1974) WAR 193, Burt J (as he then was) held that in Petty Sessions

357

Cases, where the power to examine under section 49 is exercised that fact and the

result should be noted on the charge (complaint) sheet. The Crown Law

Department maintains no record of those instances.

In order to limit the possibility of injustice occurring and to increase the

understanding of Aboriginal accused of court processes the provision of

appropriately trained interpreters in Aboriginal languages must be acknowledged

as a necessity.

The Crown Law Department was asked a series of questions by this Commission

relating to the use and availability of Aboriginal language interpreters in Western

Australian Courts. In summary the answers of the department were:

no special arrangements exist for Aboriginal languages

generally the courts rely upon the Commonwealth Government Telephone

Interpreter Service personnel

the department is not aware of the unavailability of Aboriginal language

interpreters

no statistics are maintained on the use of interpreter by courts

interpreters are not departmental staff and there are no departmental

guidelines for their training or accreditation.

As noted elsewhere in this Report, the Commonwealth Government Telephone

Interpreter Service does not cater for any Aboriginal languages. This is not

recognised in the response from Crown Law.

The department was also referred to the South Australian Evidence Act 1929-74

and the Amendment No 107 of 1986 which provides for the provision of an

interpreter for witnesses and the provisions of the South Australian Summary

Offences Act 1953, Amendment No 105 of 1986 which provides for the

358

provision of an interpreter for a person during questioning by an investigating

officer. The Royal Commission asked whether the department was familiar with

the South Australian legislation and whether any steps had been taken to adopt

similar provisions in this state. The short answer from the department was 'no'.

This Commission understands that, at least in country areas, the provision of

Aboriginal language interpreters is haphazard. Where used, it is the general

practice for the 'interpreter' to be a person from or familiar with the language

group of the accused and who has a better command of English than the accused

person. This is far from satisfactory. Court interpreting is a specialist job, the

interpreter needs not simply to be able to converse in the language of the accused

but also to be familiar with court procedure and western legal concepts and

language.

On the evidence before this Commission there has been a failure to address the

need for court interpreters for Aboriginal people in this State. The responses

from the Crown Law Department evince a lack of interest or desire to assess and

remedy this situation. Records should be kept on the use and availability of

interpreters in courts to, at least initially, assess the areas of greatest need. It is

also recommended that the Western Australian government give consideration to

enacting similar legislation to that currently in force in South Australia.

4.2.4.5 Court Staff in Western Australia

Courts of Petty Sessions, particularly in country areas, are liable to deal with

(proportionately) large numbers of Aboriginal people. Training of court staff in

Aboriginal cultural awareness and sensitivity and the employment of local

Aboriginals to staff positions would reduce feelings of alienation by Aboriginal

people in the court environment.

359

The final Report of the Aboriginal Issues Unit commented:

Most participants agreed that, except for the Aboriginal Legal Service, the only Aboriginal participation in the courts was as defendants. Aboriginal people were not sufficiently represented as employees, and thus has limited professional contact within the judicial system (Final Report of Aboriginal Issues Unit, Western

Australia page 13).

The administration of Courts of Petty Sessions and the District and Supreme

Courts is the responsibility of the Crown Law Department. That department has

informed the Commission that at July 1990 only three Aboriginal staff were

employed in courts in Western Australia, all three in Petty Sessions and all at

Levell clerical positions. Although the department stated in answer to questions

by the Royal Commission that it accepted that a larger number of Aboriginal

employees could be advantageous in dealing with Aboriginal people, the

department has no programme or policy directed towards the recruitment of

Aboriginal staff. This is so even where courts are located in areas with

substantial Aboriginal populations.

Crown Law have also informed the Commission that no training is provided to

court staff in Aboriginal cultural sensitivity and awareness. Some training has

been provided on the basis of 'multi-cultural awareness raising' but this has not

been specifically directed towards Aboriginal Australians.

It is recommended that the department positively encourage the recruitment of Aboriginal people as court staff in areas with substantial Aboriginal populations

and that a programme of cultural awareness training be introduced for non­

Aboriginal staff.

Location of Courts - Clerk of Courts

Of the Courts of Petty Sessions located in country areas, twelve are situated

adjoining the local police station whilst 89 are actually located within the police

station. These court facilities were constructed in the 1950s and 1960s when

360

obviously little emphasis was placed on the importance of the judiciary being

seen to be separate and independent from the police. It would be surprising if

many defendants in those areas did not perceive the court and the police as one

agency acting to arrest, charge, convict and sentence 'offenders'.

The Crown Law Department has informed this Commission that there are no

plans or strategies to relocate these courts to achieve their physical independence

from the police, although present policy is to construct courts separate from

police stations.

In addition to the location of courts presenting difficulties in maintaining, at least

the appearance of, police -judicial independence, there are 89 courts in this state

which are administered by a police officer acting in the capacity of Clerk of Petty

Sessions. All other courts are administered by a full time Clerk of Courts

employed by the Crown Law Department. The Crown Law Department has no

plans to appoint Oerks of Courts to take over the administration of those courts

currently run by police officers.

4.2.4.6 Justices of the Peace In Courts of Petty Sessions

The reputation of many existing Justices of the Peace was poor and many had inappropriate backgrounds they were poorly trained in legal and Aboriginal matters or were influenced by society attitudes and (were) prejudicial to Aboriginal defendants. Despite this, some Aboriginals were so intimidated by the courts that they pleaded

guilty to a Justice of the Pease just to get the matter over with. Often sentences were overly harsh or unfair (Final Report of the Aboriginal Issues Unit, Western Australia page 14).

Organisationally, the administration of justice in remote areas of the State often

differs from that in the larger urban centres. In the larger centres the

administration of the courts and the policing are separate functions . In less

populous areas both roles are often performed by the one agency i.e. the officer

in charge of the local police station also acts as the clerk of the Court of Petty

361

A justice has power under the Justices Act to (inter alia) conduct summary trials

where defendants plead not guilty and to conduct preliminary hearings in respect

of indictable offences. They have generally the same jurisdiction as Stipendiary

Magistrates in relation to these matters. In practice justices rarely conduct trials

and preliminary hearings. They generally confine their court functions to

im posing sentence when defendants enter pleas of guilty, setting bail and

re manding matters for the consideration of the district Magistrate.

Where a Court of Petty Sessions is constituted by justices, the general

requirement is that there shall be two or more justices sitting together (Justices

Act s. 29), although in certain circumstances one justice may sit alone (Justices

Act ss.29, 32). It should also be noted that justices rarely sit on the bench in the

Pe rth metropolitan area. Outside the metropolitan area the State is divided into

8 magisterial districts with a resident Stipendiary Magistrate based in one of the

large regional centres : Albany, Bunbury, Geraldton, Kalgoorlie, Northam, Port

Hedland, Broome, (formerly the Kimberley Magisterial District was serviced by

a Magistrate based in Derby. Currently, the Rockingham Magistrate visits the

Kim berley on circuit for two weeks of each month.). The resident Magistrates

attend a number of courts in their district on circuit each month. At other times

those courts are constituted by justices. The composition of Courts of Petty

Sessions is discussed in more detail below.

Following upon a resolution passed by State cabinet on 3 October 1989, new

appoi ntm ents to the Commission of Justice of the Peace are conditional upon the

appoi ntee successfully completing a Justice of the Peace training course either by

co rrespondence through T AFE or by attendance at ten weekly lectures presented

by Magistrates of the Perth Magistrates Court. This must be completed within

eighteen months of the appointment. Following the successful completion of that

course the Justice may sit in court, determine matters and impose sentence upon

conviction. The course run in Perth includes a single lecture covering such

com plex and significant areas as the objects of sentencing, pl eas in miti gation and

all sentencing options.

363

This is to be contrasted with other judicial officers, Magistrates and Judges who

require legal qualifications to obtain their appointments.lO Standard legal training

in this state involves five years of university courses followed by a year as an

(full time) articled clerk. Judges and most Magistrates have extensive practical

experience in the law prior to their appointment.

Prior to 1989 attendance by justices at training courses was not compulsory. One

justice who was appointed in 1979 commented to the Royal Commission:

Just after I commenced as a Justice of the Peace I did a training course run by the Crown Law Department, which comprised a bit of law, but mainly common sense. It was not compulsory. I also did some TAFE courses in relation to law because I felt that the

'prescribed' course was insufficient (W/16/58)

The Royal Commission has been provided with copies of the handbooks for the

Justice of the Peace Course run via T AFE. As I have noted earlier in this section,

Justices in remote areas may have considerable contact with Aboriginal

defendants in court. It is therefore alarming to find the following passage

contained in Part II of the handbook in a discussion of the requirements of

section 49 of the AAP A Act:

.. . quite apart from the fact that aboriginals in their native state were not 'inhabitants' of anywhere, a much better claim to the title of 'original inhabitants' is manifested by the original owner of the Talgai skull and his relatives. What the legislative seems to mean is that any person of what is known as 'aboriginal descent' who considers himself to be an aborigine and who is generally accepted as such comes under the ban of the Act (Justice of the Peace Course Handbook Part II section 7.7).

The lack of capitalisation of the words Aborigine and Aboriginal in the passage

just cited is as appears in the original text. That such a gratuitous and

condescending expression of opinion can be found in an official course for

justices in this State in 1990 is a cause for grave concern. This is of particular

10 Prior to 1986 it was possible for non-lawyers to be appointed as Magistrates following successful completion of a Magistracy Examination.

364

concern given that justices are provided with no training in the area of Aboriginal

culture and law. Review of the course should be conducted at least with a view

to the removal of such blatantly offensive comment.

Finally, on the area of training of justices I note that annual justices' seminars are

held in each magisterial district in the State. These seminars involve some

continuing training for justices. However, attendance at the seminars is non­

compulsory. Mr R. Monger, Assistant Director Court Services with the Crown

Law Department, informed the Commission that absenteeism from these

seminars was 'a problem'. Low attendance at the seminars was a problem also

noted in the 1986 Report of the Law Reform Commission.

Sentencing by Justices of the Peace

Concern has been expressed in a number of Reports and studies over the exercise

of the sentencing discretion by justices. The Dixon Inquiry Into the Rate of

Imprisonment in Western Australia (1981) found that in some areas of the state

justices imposed short terms of imprisonment more than was necessary. The

Law Reform Commission Report into Courts of Petty Session referred to 'a

number of recent cases where the Supreme Court has held that the sentence of

imprisonment imposed by justices was substantially greater than the

circumstances warranted'.

The study of seven courts by Martin and Newby concluded that justices were

more likely to use imprisonment as a penalty than Magistrates and less likely to

use other non-pecuniary community based penalties. Their study also indicated

that Aboriginal defendants were far more likely to appear before lay justices than

were white defendants. 32% of Aboriginal defendants appeared before one

j ustice as opposed to only 4.3% of non-Aboriginal defendants. 24.6% of

Aboriginal defendants appeared before two justices whereas only 13.2% of non­

Aboriginals did so.

365

The following table appeared in the study by Martin and Newby providing an

analysis of sentencing dispositions by the Courts of Petty Sessions under review:

TABLE 4.64: SENTENCE X COURT CONSTITUTION (1980/81)

Sentence Court Constitution

(per charge) JP Magistrate

Imprisonment (389) 12.6% (290) 7.3%

Fine (2413) 78.1% (1932) 74.3%

Other (286) 9.3% (728) 18.4%

TCITAL (3088) 100.0% (3950) 100.0%

The designation 'other' in the above table includes dispositions such as good

behaviour bonds, probation, dismissal of charges without penalty, community

service orders, acquittals, withdrawals and transfers to other courts.

As I have stated earlier, the figures used in the study by Martin and Newby were

taken from a twelve month period ending 30 June 1981. The Law Reform

Commission Report on Courts of Petty Sessions quoted figures from a survey

conducted in March 1984. Again that survey showed that justices were more

likely to imprison than Magistrates and that they were more likely to impose a

longer sentence of imprisonment than those by Magistrates. The following tables

are derived from the 1984 survey referred to by the Law Reform Commission.

TABLE 4.65: IMPRISONMENT RATE BY COURT COMPOSITION (1984)

Court Composition Imprisonment Rate

1 JP 18.46%

2 JPs 10.01%

SM 4.69%

366

TABLE 4.66: LENGTH OF IMPRISONMENT FOR OFFENSIVE BEHA VIOUR(a)

Court < 7 days 7 days- 1-2 months 2-3 months Comf!_osition 1 month 1 JP 37.14% 61.43% 1.43%

2 JP's 57.14% 44.48% 2.38%

SM 78.26% 17.39% 4.35%

(a) 'Offensive Behaviour' included convictions for drunkenness and disorderly conduct.

The Crown Law Department does not maintain statistics on the use of sentencing

alternatives by Judges, Magistrates or justices nor has it commissioned any recent

research into such area. Whilst acknowledging the absence of recent figures this

Commission has no reason to suspect that the position outlined in the study by

Martin and Newby and the 1984 study has altered to any great degree.

Sentencing is a complex area of judicial discretion, it involves far more than

simply, 'a bit of law and a lot of commonsense'. However the use of justices in

Courts of Petty Sessions may be sought to be justified on pragmatic grounds (it

is acknowledged that there is currently an insufficient number of Magistrates to

cover all country courts). I consider it fundamentally unacceptable that under the

'one' system of justices some defendants appear before legally qualified and

experienced judicial officers in the form of Magistrates and Judges whereas

others, most particularly in country areas, appear before and are sentenced by lay

justices with no legal qualifications. As research has shown, those defendants

who appear before justices are more likely to be sentenced to imprisonment and

for longer than their fellow citizens. This inequality impacts most particularly

upon the Aboriginal population of the State.

The Law Reform Commission, whilst recognising the sentencing disparity

between justices and Magistrates, that the justices lack of legal qualifications

meant that they generally did not possess a knowledge of the rules of evidence

367

and the procedures required in conducting trials and preliminary hearings and that

where defendants appeared unrepresented the presiding justices may not be able

to give them the assistance necessary to ensure a fair trial, nevertheless

concluded:

... the Commission acknowledges that justices of the peace make a significant contribution to the administration of justice in dealing with guilty pleas, especially in country areas. It would not be desirable to exclude them from the court system altogether unless there were sufficient Stipendiary Magistrates to deal with cases expeditiously and so avail the delays and inconvenience to defendants (possibly involving lengthy remands in custody) that would otherwise occur. Accordingly the Commission recommends that there should be no change in the jurisdiction of justices (page 26).

I would comment that the 'delay and inconvenience' to defendants must be

considered in the light of the standard and quality of justice being dispensed in

courts presided over by Justices of the Peace. To appear before a non-legally

qualified justice or justices and to risk a more severe sentence upon conviction

then if one were to appear before a Magistrate could hardly not be described as an

'inconvenience' in itself to a defendant. The introduction of the Bail Act and the

proposed further amendments to that Act (discussed earlier in this Part) should

expedite the release of defendants to bail. Remands in custody should occur only

on the rare occasion.

This Commission considers that the continued use of Justices of the Peace as

judicial officers in court proceedings is incompatible with the fair and equal

administration of justice in this State. It is recommended that government

implement a policy designed to phase out the use of justices in courts in this State

with a concurrent expansion in the numbers of Stipendiary Magistrates. I note

that such a recommendation is in accord with the conclusions of the Australian

Law Reform Commission in its Report on the Recognition of Aboriginal

Customary Law (1986) and also with that of my colleague, Commissioner

Dodson.

368

Whilst justices continue to preside over courts in this State it is considered that

statutory limitations on their sentencing powers be introduced as an interim

measure. The Law Reform Commission Report whilst accepting the continued

use of justices in courts recommended as a safeguard against the occurrence of

injustice the following limitations on the powers of justices:

(i) that justices should not be able to impose a sentence of imprisonment

exceeding one month on any one occasion;

(ii) that the maximum fine that a justice may impose be limited to $500 on

any one occasion.

If the justices considered that a penalty in excess of those limits was or may be

justified, it is recommended that the convicted person should be remanded for

sentence before a court constituted by a Stipendiary Magistrate. This Royal

Commission would go further. It is recommended that justices no longer have

the power to imprison in any circumstances. Such authority should only reside

in legally qualified, professional judicial personnel.

The recommendation on a statutory limit being set on the amount of fines that

may be imposed is supported, although the maximum recommended by the Law

Reform Commission four years ago may now require review.

I note that in 1988 a bill was introduced into State Parliament seeking to limit the

sentencing discretion of justices to a maximum of one month imprisonment on

any one occasion. This recommendation was opposed by the parliamentary

opposition and subsequently defeated.

The Law Reform Commission Report noted that under current provisions of the

Justices Act indictable offences triable summarily and preliminary hearings for

those indictable offences which may not be dealt with in the summary jurisdiction

may be heard by two justices and possibly one justice sitting alone. That

Commission recommended that indictable offences only be dealt with before a

369

Stipendiary Magistrate or two justices where both parties consent to their

jurisdiction. This Royal Commission supports that proposal.

One Justice Sitting Alone

Section 29 of the Justices Act provides that generally all matters must be dealt

with by and before two or more justices, although one justice may hear a

complaint with the consent of all parties. However, the provisions of section 29

are modified by section 32 which states:

Section 32

Any one justice may exercise the jurisdiction of two justices under this or any other Act whenever no other justice usually residing in the district can be found at the time within a distance of sixteen kilometres; provided that the justice, on any conviction, certifies in writing, that no other justice can be found within sixteen kilometres

A certificate under this section shall be conclusive evidence of the fact stated.

The Dixon Report (1981) found that there was:

... a tendency for a justice sitting alone to impose penalties which are sometimes inconsistent with those imposed by two justices or by a Magistrate (page 119).

A similar 'tendency' is evident in the findings of the study by Martin and Newby

and the March 1984 survey referred to above.

One Aboriginal Man's Experience: Ginger Samson

It has not proved possible for the Commission to analyse in any depth the

criminal records of those whose deaths it has been called upon to investigate,

beyond scrutinising a list of convictions and charge sheets where available. In

one case, however, it was possible to analyse the background to the terms of

imprisonment to which the deceased had been sentenced over a lengthy period.

370

Ginger Samson was found dead in the Roeboume Lockup on 30 March 1988,

having been arrested for drunk the previous day. Between August 1979 and

March 1988, he had on 21 occasions been sentenced to imprisonment on

29 charges, to terms between seven days and three months. The charges ranged

from being found drunk in a public place to assaulting police. Of these

29 charges, it is likely that all but one were alcohol-related. The remaining

charge, one of escaping from lawful custody, which appears to have been

unrelated to any other charge, may or may not have been alcohol-related.

It is troubling to note that on 20 of the 29 charges he was sentenced to terms of

imprisonment by lay Justices of the Peace, and on 14 of the 20 by a single Justice

of the Peace. The terms of imprisonment involved ranged from seven days to

two months in length. On one of the occasions upon which he was sentenced by

a single justice, the term imposed was two months on a charge of being an

habitual drunkard, and on another to two months for escaping from legal

custody. Both were in the latter part of 1987. At that time there were around

15 justices in Roeboume and the neighbouring town of Wickham.

It is not possible to determine on the evidence before the Commission whether

Samson consented to a hearing by a single Justice, or whether a memorandum

was entered. Bearing in mind the number of justices living in the district and the

number of occasions on which a single justice sat (as reflected in the criminal

record of this one deceased), I find it difficult to accept that the letter of the law,

as set out in the Justices Act, let alone the spirit, was observed.

Moreover, this outline does not give a full picture of Ginger Samson's custodial

history since it does not include terms served in default of payment of fines.

Evidence before the Commission shows that he served such default terms on at

least 47 occasions.

The picture which emerges from this sentencing snapshot of one individual is

disturbingly unsatisfactory. While it would possibly be misleading to extrapolate

. 371

from the experience of a single individual in one region of the State, the picture

which emerges does not run counter to that which emerges from the more general

studies which have been carried out in Western Australia.

I have concluded above that it is undesirable that justices continue to exercise

jurisdiction in Courts of Petty Sessions, it is even more undesirable in instances

of one justice sitting alone. The Law Reform Commission recommended that the

circumstances in which a justice may sit alone be narrowly circumscribed. Their

recommendation was that a justice only be permitted to sit alone where it is

certified that no other justice is available within 50 kilometres of the site of the

court and all parties concerned consent. Further, the justice should explain the

options to the defendant and that the person who actually conducted the search

for another justice (usually the Clerk of Courts) sign the certificate.

Again the recommendations of the Law Reform Commission have not been

implemented by government. As an interim measure in an overall process

designed to phase out the sitting of justices in courts, the recommendations of the

Law Reform Commission are supported.

In concluding their discussion on the jurisdiction of a single justice the Law

Reform Commission commented:

In review of the general undesirability of single justices sitting alone the Commission recommends that the situation be closely monitored to ensure that, where ever practicable, there are sufficient justices in

the area so that two justices are always available for court hearings (LRCW A Report on Courts of Petty Sessions page 44 ).

Four years after that recommendation was made, the Crown Law Department

informed this Commission that no information is collected on the frequency with

which justices sit alone: However the department advised that their Clerks of

Court conduct periodic audits of Courts of Petty Sessions. Charge sheets

(complaints) are examined for endorsements and the proper collection of

penalties. Where significant numbers of complaints are found to have been dealt

372

with by only one justice, the clerks make a Report to the Director, Court

Services. The experience of Ginger Samson referred to above provide no

confidence that such a procedure provides an adequate safeguard against

apparently excessive numbers of sittings by one justice in country courts.

4.2.5 SENTENCING

4.2.5.1 Principles of Punishment

General

The classical principles of sentencing were summed up in a frequently cited

judgment by a judge of the English Court of Appeal, Lawton L.J., in four words:

retribution, deterrence, prevention and rehabilitation. II

Any Judge who comes to sentence ought always to have those four classical principles in mind and to apply them to the facts of the case to see which of them has the greatest importance in the case with which he is dealing.

Examination of the sentences imposed upon those whose deaths the Commission

has been called upon to investigate leaves some doubt as to whether those

responsible for sentencing at the lower levels of the Western Australian judicial

system have had any real appreciation of these principles or the manner in which

they should be applied. It may be helpful to examine these principles in tum.

Retribution

Retribution is the aim of sentencing which has engendered the most heat and

disagreement. There is even confusion over terminology, since sometimes

retribution is intended to denote vengeance, and at others, reprobation.

11 In Sergeant (1974) 60 Cr.App.Rep. 74, C.A.

373

In the first sense the penalty imposed by the State satisfies a wronged

individual's desire to be avenged. In the second sense the penalty it imposes is a

mark of the State's disapproval of the breaking of its laws by the imposition of a

punishment proportionate to the gravity of the offence. Modem penal thought

attributes less importance to retribution in the sense of vengeance.12 However it

is doubtful whether that view has been communicated to the more vocal members

of Western Australian society who express their views in letters to newspapers

and by telephoning radio talk-back shows demanding increasingly harsh penalties

as a solution to the crime problem.

In an extrajudicial pronouncement, British Lord of Appeal, Lord Scannan has

expressed two principles attracting widespread support. Firstly, no offender

should be imprisoned, or subjected to custodial treatment, unless it can be shown

to be essential in the interests of society. Secondly, sentences of imprisonment

should be as short as is consistent with the service of those interests of society

that can be met only by the loss of his liberty. These are principles which may be

and are fully supported by this Commission.

Quite apart from the demands of retribution, a long sentence may in exceptional

circumstances be justified as a measure designed to protect the public by the

incapacitation of the offender.

Deterrence

There are two aspects of deterrence: deterrence of the individual offender before

the court for sentencing, in which case the goal is specific, and deterrence of

other likely offenders, in which case the aim is more general in its scope.

Doubts have been raised about the general effectiveness of deterrent sentencing,

and, in particular, the existence of any greater deterrent effect in long sentences.

As a British Home Office publication observes:

12 Royal Commission into Capital Punishment 1953.

374

The inference most commonly drawn from research studies is that the probability of arrest and conviction is likely to deter potential offenders, whereas the perceived severity of the ensuing penalties has little effect.13

In practice deterrence of the offender by the imposition of lengthy terms of

imprisonment has proved both ineffective and expensive. Underlying the

demand for the shortest practicable sentence is the utilitarian principle that it is

unjust to punish more than is necessary to deter. Deterrence does not threaten

those whose lot in life is already miserable beyond the point of hope.14

So far as the general deterrence of others is concerned, deterrent sentences are of

little value in respect of offences which are committed, as Lawton L.J puts it,

' ... on the spur of the moment, either in hot blood or in drink or in both'. This

would cover over 90% of the offences committed by those whose deaths this

Commission has been called upon to investigate.

Prevention

The preventive goal of sentencing is sometimes also referred to as incapacitation.

When a court sentences a defendant to a term of imprisonment, which is not

suspended, it is, putting aside the questions of remission and parole, taking him

off the streets for the term announced. While he is in prison the defendant will be

prevented from offending against the public at large. There is a group of

offenders for whom neither deterrence nor rehabilitation works. They will go on

committing crimes as long as they are able to do so. Where the crimes are

serious, such as repeated serious sexual offending, the only protection which the

public has is the possibility of locking such persons up, and possibly for a long

period. For such offenders imprisonment is the only appropriate sentence, and

the legislature may take steps to see that it is imposed. Few of the deceased

13 British Home Office, The Sentence of the Court, 4th edition, 1986. 14 Packer, The Limits of the Criminal Sanction (1968) Standford U.P., p. 45

375

whose criminal records were examined by this Commission could be said to have

come into this category.

Rehabilitation

Yet another goal of sentencing is the rehabilitation or reform of the offender. For

the first three-quarters of the twentieth century, not only in England but in the

western world generally, the move was increasingly away from the purely

retributive and deterrent approaches, and towards an emphasis on the reformation

of the offender. Around the middle of the century there was a view widely held

by many in executive authority, that short sentences were of little rehabilitative

value, because not enough time was spent in prison for any kind of refonnative

training to be effective. That view is no longer held as widely or as finnly as

once was the case.

A retreat from the idea of rehabilitation is now evident. While not abandoning the

notion of reform altogether, the trend is nevertheless moving towards the

rehabilitation of punishment as a principal sentencing aim. Underlying this shift

is the finding of empirical researchers that there is little perceptible difference in

the re-offending of accused who have had retributive sentences imposed upon

them, and those who have had the perceived advantage of sentences characterised

by an aim more of rehabilitation or treatment. Disappointingly, no particular

sentence can be shown to have worked demonstrably better than any other. In

particular, longer sentences cannot be shown to be more effective than shorter

ones in preventing recidivism. Moreover, different types of institution seem to

have worked equally well (or badly). At the same time, probationers did no

better than if they had been imprisoned.

However, re-conviction alone is accepted as not being a suitable single criterion

for the assessment of success or failure of penal policy. A sentence, while not

leading to a cessation of offending, may nevertheless improve the conduct of an

offender to the extent that it lengthens the gaps between offences. The courts

376

have come increasingly to recognise this as being relevant to assessing the

success or failure of a sentencing decision.

As the costs of incarceration increase, and in the face of such evidence referred to

above there has developed a readiness to justify non-custodial or semi-custodial

sentences in preference to imprisonment or incarceration, on the grounds that

they cost very much less to implement, and at the same time reduce the risk of

psychological and practical harm to the offender. As what are sometimes viewed

as 'softer' sentences are equally effective when judged by recidivism, and yet still

offer possibility of reduction in frequency of offending, if nothing else they have

come to be seen as preferable by most schools of thought, except perhaps the

retributivist. 15

Reparation

A more recent development is a shift from the punishment principle, whether

retributive or rehabilitative, to one of attempting to undo the harm done by such

means such as restitution, compensation and community service.

A growing concern for the victim has coincided with increasing disenchantment

with the traditional theories of punishment, and more particularly, with a

realisation that they have not succeeded in decreasing the volume of crime to any

significant degree. Whatever doubts one may entertain about other aims of

punishment, nobody doubts the justice of aiding the victim.

While the courts are happy to see victims compensated, they are reluctant to go

along with a scheme which might make it appear that defendants with means are

able to buy their way out of trouble.

15 Brody, The Effectiveness of Sentencing (1976) HMSO No. 35, p. 36.

377

Imprisonment

In an address to a public forum on sentencing organised by the Law Society of

Western Australia, the Chief Justice of this State referred to ' ... the principle,

accepted by the courts for a decade or more, that imprisonment is the sentence of

last resort.'

Recommendation 1 of the Interim Report of the Royal Commission (Muirhead)

stated:

Governments which have not already done so should legislate to enforce the principle that imprisonment should be utilised only as a sanction of last resort.

Since that recommendation was made the Criminal Law Amendment Act 1988

has come into force in this State. It provides legislative authority for the

proposition that in determining sentence, imprisonment should be the sanction of

last resort.

The evidence before the Commission has demonstrated conclusively that if that

notion has been accepted in principle then it has not been applied in practice in the

Courts of Petty Sessions of this State which handle the vast majority of cases in

the criminal jurisdiction. To suggest that this is not the case so far as Aboriginal

prisoners is concerned is simply not possible when confronted with evidence

demonstrating the astonishing imprisonment rates in April 1989 particularly of

Aboriginals in the statistics presented in Criminology Research Unit Research

Paper No . 19 discussed elsewhere in this Report.

Lists of antecedents and supporting evidence before this Commission show

numerous cases in which prison sentences have been imposed inappropriately.

The Aboriginal man who died at Sir Charles Gairdner Hospital was imprisoned

for one month at the age of sixteen for stealing two bars of chocolate. Robert

Anderson was convicted of stealing a chop valued at 80 cents and served nine

days imprisonment in default of payment of a fine and costs. At the age of

378

fourteen Paul Fanner was sentenced to three months detention in a juvenile

institution and detained in Longmore after being convicted on a charge of stealing

two dollars and a packet of cigarettes. Even more common were instances in

which inappropriate fines had been imposed leading to the offender later being

imprisoned in default of payment. In a five month period, while a juvenile and

detained at Riverbank, Steven Michael was fined a total of $720.

It is often overlooked that historically imprisonment did not emerge as a

correctional measure. It was purely custodial and stemmed from the need to

retain control of a prisoner in such time as he could be punished or disposed of in

some other way. The prison was frequently merely a way station between the

court and the gibbet.

New Zealand's Ministerial Committee of Inquiry described imprisonment as :

... a blunt instrument. An instrument which in attempting to maintain total control achieves few of the objectives imposed on it, least of all repentance. We must move beyond believing that prison walls provide us with the only conceivable safeguard and accept that prisons no longer stand as central to containment, but are simply

entry points to an extended system of custody. Physical isolation from the community merely compounds the problem of criminal and antisocial activity and should no longer be seen as necessary in order to punish offenders.

The paradoxical nature of the problem is obvious. It would be bad enough, if

imprisonment did no good, but there is a body of evidence backed by a wide

spectrum of opinion that imprisonment is positively harmful to the character, not

to mention, more properly psychological and physical effects.

The overriding culture of prison is punishment through deprivation and ... this often leads to strong feelings of hopelessness and alienation in inmates and sometimes even in staff.16

It is difficult to tell whether production of this alienation is inherent in

imprisonment, or is rather a product of inadequacies in personnel and facilities.

16 Te Ara Hou: The New Way, p. 35 .

379

As the Criminal Law and Penal Methods Reform Committee of South Australia

observed in 1973:

There is certainly a formidable case for arguing that, however badly adjusted to a society an offender may be, imprisonment will not make him better and is likely to make him worse, so that if a man does notre-offend after imprisonment it is in spite of, rather than because of, the prison system.11

It is not necessary in the context of this part of the Report to examine the reasons

for this, but it is essential to note that the forces which bring about this result will

certainly be more powerful in the case of an Aboriginal prisoner, isolated in an

environment which is culturally alien and possibly hostile by both perception and

in fact.

Whatever the drawbacks of imprisonment, it is obvious that both it and the

problems which it engenders are going to be with us for some time. I see no

prospect of it being abandoned as a correctional measure altogether. What is

important is that it be used only as a measure of last resort, and that its deleterious

effects be reduced to a minimum. Those effects are considered elsewhere in this

Report, my present concern is whether imprisonment is being used as a measure

of last resort in the sentencing of Aboriginal offenders.

Both statistical evidence, and the evidence before the Commission in relation to

inquiries into individual cases leave the clear impression that imprisonment is not

used as a last resort in Western Australia and has been used in circumstances

ranging from the inappropriate to the indefensible. Imprisonment has also been

the inevitable result where fines have been imposed upon individuals in

circumstances where it would have been obvious to anyone with the energy or

wit to inquire that the offender was without the means to satisfy a fine, and

would remain so in the foreseeable future. This question, of default warrants for

the non-payment of monetary penalties will be further discussed in the context of

fines.

17 P. 64

380

Aborigines in Custody

More than any foreign aid programme, more than any international obligation which we meet or forfeit, more than any part we may play in any treaty or agreement or alliance, Australia's treatment of her aboriginal people will be the thing upon which the rest of the

world will judge Australia and Australians ... The Aborigines are a responsibility we cannot escape, cannot share, cannot shuffle off; the world will not let us forget that. IS

So far as Aboriginal involvement in the criminal justice system is concerned,

regrettably little has been achieved since that speech was made and renders it

unlikely that the world's judgment at the present day would be anything but

resounding condemnation. Some years after Mr Whitlam's speech the Sackville

Inquiry appointed by his government to inquire into poverty, observed in

examining the relationship between the legal system and Aboriginals as part of

the poor:

There are no comprehensive statistics in Australia on the experience of Aboriginals with the legal system. The available information suggests that the legal system, far from redressing injustice has magnified it, highlighting the powerlessness of Aboriginals in Australian society. In particular, it appears that a disproportionately

large number of Aboriginals are subjected to criminal sanctions ... 19

The collection and availability of statistics has improved since those words were

written. The situation which those statistics now reflects appears to have

deteriorated rather than improved. I refer to Part 4 of this Report for an analysis

of the over-representation of Aboriginal people in custody in this State.

Analysis of sentences imposed shows a difference in pattern between Aboriginal

and non-Aboriginal prisoners. Proportionately there are more Aboriginal

prisoners sentenced to terms of up to three years, but taper off markedly after

18 The Hon. E.G. Whittam, Q.C., M.P., Australian Labor Party Policy Speech 1972, p. 41 . 19 Sackville, p. 265.

381

two years, non-Aboriginal predominating where the sentences are three yearsor

more.

The most disturbing fact to emerge from studies made by this Commission is he

striking and increasing level of Aboriginal over-representation in prisons. Tle

trend is not encouraging, and it seems likely for demographic and other reaso1s

that the figures will become even worse before any improvement can >e

expected. Aboriginal prisoners are in general younger than others which meats

that individually they are likely to remain in the corrective system for a long!r

period of their lives. They are also imprisoned more frequently than oth1r

Australians.

4.2.5.2 Non-Custodial Sentences

Monetary Penalties

Fines

As the most obvious representatives of the poor and disadvantaged in Westen

Australia, Aborigines, as already noted, make up a disproportionately largt

section of the prison population. The most commonly used penalty, the fine,

imposed with great regularity upon members of the Aboriginal community.

Four of those who died in custody in this state serving default imprisonment a

the time of their death: Christine Jones, Kim Polak, Bobby Bates and Donald

Chatunalgi.

Incidence

In Western Australia the amount of the fine may be determined simply by the

nature of the offence without a parallel consideration of the means of the offender

to meet the penalty. While some Magistrates and justices do attempt to take

account of the offender's means, this is not done in any systematic way and

adequate information is not always before the court in this State. In other

382

jurisdictions there is a statutory requirement that means to pay be considered in

fixing the amount of any fine to be imposed.20

Fines operate in a manner which is obviously unjust towards poor people, since

the impact of any monetary penalty is directly proportionate to the defendant's

income. Taking no account of the level of income of the offender means that

poor people are punished more harshly than the affluent for the same offences,

because the fine has a much greater effect on their modest means. The fact that

the court may not, and usually does not, insist upon immediate payment, and

grants time for the fine to be paid, does not affect the offender's obligation to pay

the fine.

The practice of imprisoning those who do not or cannot pay fines imposed upon

them, without proper regard to their ability to do so, emphasises the injustice of

existing sentencing policies to poor people, among whom Aborigines figure so

prominently. In 1973 one commentator had estimated that about 15 000

Australians were imprisoned each year for the non-payment of fines, at a rate

about equal to one third of the country's prison admissions. 21 He suggested that

on a population basis Australia imprisoned about ten times as many fine

defaulters as most other countries. (At the time of New Zealand's 1989 prison

census there were 16 fine defaulters in custody out of a total prison population of

3,457.)22 The Sackville Report recommended:

We think that urgent consideration should be giver;. to developing procedures designed to ensure that fines are set according to the means of the offender (as by varying the maximum fines set by legislation for each offence in accordance with the defendant's

means) and to abolish the practice of imposing fines with imprisonment in default of payment. The present system exposes offenders to imprisonment simply because their poverty prevents them from paying the fines imposed upon them.23

20 New Zealand's Criminal Justice Act, Section 27 Victorian Penalties and Sentences Act, Section 65. 21 Rinaldi, quoted in Sackville, p. 208. 22 Census of Prison Inmates 1989, Department of NZ . 23 Sackville, p. 209.

383

Nothing was done in Western Australia to implement these recommendations

until 1988, notwithstanding that the problem for Aboriginal offenders was

widespread and acute. Of prisoners received by the Western Australia

Department of Corrective Services over the four-year period to 30 June 1989

some 44% were imprisoned solely for default of payment of fines. Of these,

Aboriginal defaulters comprised 23% of those received. Particularly troubling

was the fact that over the period, whereas receivals for non-Aboriginals showed a

diminishing trend, from 65% to 49%, the trend for Aboriginals rose from 35% to

51%.

This does not of course give a complete picture of those imprisoned for non­

payment of fines, since many would be arrested on warrant and would serve

short periods in a police lockup. The periods of imprisonment served are for the

most part not long, being calculated on the basis of one day per $25 of the fine ,

and where there is more than one fine they may be 'cut out' concurrently rather

than consecutively. However the imprisonment of those whose poverty prevents

them paying fines, in all likelihood imposed with little regard to means to pay, is

grossly offensive in any modern society.

Fine Defaults and Community Work and Development Orders

I have earlier referred to the recommendations of the Sackville Report regarding

the imposition of fines. Commissioner Muirhead (as he then was) also addressed

this matter in the Interim Report of the Royal Commission. Recommendation 2

of that Report stated:

Recommendation 2: Legislation should be introduced to ensure that sentences of imprisonment are not automatically imposed in default of payment of fines . Such legislation should provide alternative sanctions and impose a statutory duty upon sentencers to consider a defendant's means to pay in assessing the appropriate monetary penalty and time to pay, by instalments or otherwise.

384

In 1988 the Western Australian government took legislative action which to some

extent addressed the problem, but which has not proved entirely satisfactory in

practice. Notably, there is still no legislative requirement in Western Australia

that means to pay be considered in determining the amount of any fine to be

imposed.

Corrections Centres) Act 1988 came into force on 1 March 1989. They provide

for the establishment and management of Community Corrections Centres, and

inter alia Work and Development Orders (WOO), which may apply to persons

who default on the payment of a fine, and for whom a warrant of commitment,

which would otherwise result in imprisonment, may be issued.

The purpose of the Work and Development Order is to permit the diversion of

'fine-defaulters' from the imprisonment to which the warrants of commitment

render them liable, and to involve them rather in programmes of unpaid

community work, and where this is appropriate, activities leading to personal

development. The Order has the effect that the offender continues to live in the

community, where he is supervised by a Community Corrections Officer. He

must also comply with a number of set conditions, failure to comply with which

may result in disciplinary action of some kind, or in the suspension or

cancellation of the order.

The offender must contribute a weekly total of fourteen hours to the Community

Corrections programme so long as he remains subject to the Order. Of this total

at least eight hours must consist of community work, and no more than six hours

of personal development activities. The community work component includes

programmes similar to those undertaken under the present Community Service

Order scheme. It encompasses community, voluntary, or charitable work.

During this period the offender will be supervised by a Community Corrections

Officer.

385

The period for which the defaulter is liable to be imprisoned is converted to a

period specified in the Order, which becomes the period of duration of the Order.

This converts on the basis of one (i.e. 14 hours WOO) week for every seven

days of default imprisonment, with periods ofless than seven days default being

converted to one week. The offender retains the option of paying the balance of

any fine and associated court costs at any time. The period on the programme is

limited to twelve months.

The personal development activities are tailored to meet the individual needs of

the offender subject to the Order. They could include counselling or treatment of

those who are drug or alcohol dependent, by way of alcohol education, social

and life skills courses, such as anger management or driver training, and

educational, occupational and personal training courses, such as literacy and

numeracy training.

The current provision for conversion of a period of default imprisonment into

hours of Work Development Order still means that persons may opt to serve

default rather than perform a Work and Development Order. As stated, the

minimum term of involvement for a Work and Development Order is fourteen

hours. For a person that may be fined $25 or for a person that is fined $175 the

minimum term still applies. Some people may choose to serve one days default

in prison for non-payment of a $20 fine than to do fourteen hours work over a

period of seven days.

Aboriginal offenders are frequently fined for minor matters. The amount of those

fines are likely to be amongst those which people may consider 'not worth'

converting into a Work and Development Order. The result is that these people

will still end up in custody. The scheme appears best adapted to those offenders

who have substantial default periods to serve.

Provisions relating to the discipline of an offender who is subject to an order are

set out in sections 20 to 24 of the Act. The offences created include failure to

386

comply with a reasonable direction of a Community Corrections Officer, or using

or being under the influence of alcohol or drugs when participating in the

programme. Penalties for offences, which may be imposed by the Supervisor of

the Centre, range from a reprimand to extension of the Order by up to two

weeks. The Executive Director of the Department of Corrective Services may, in

his absolute discretion, cancel a Work and Development Order and issue a

warrant of commitment in respect of the remainder of the period of imprisonment

for which the offender was liable to be imprisoned. That warrant cannot, of

course, be converted. Where an offender satisfactorily completes the obligations

imposed by the Order, the default period is cancelled as if the term of

imprisonment had been served.

The system as established by the Act Amendment (Community Corrections

Centres) Act 1988 works in the following way:

(i) Upon conviction and a monetary penalty being imposed an offender is given a notice advising them of the out come of the offence

(ii) After expiry of the period of time allowed by the court for payment of the fine a notice is posted to the offender advising that if the amount due is not paid within 21 days the default may be converted to a Work and Development Order.

The notice states that if the offender wishes either to pay by instalments or convert to a Work and Development Order, contact must be made with the Clerk of Courts. The notice further advises that failure to contact the Clerk of Courts will result in the issue of a warrant for the arrest of the offender.

(iii) If the offender attends at the court and states that they wish to convert the default period to a Work and Development Order, they will be given a document which will enable them to attend a Community Corrections Centre where a Work and Development Order will issue.

(iv) If the offender does not take action within the 21 days allowed in the notice a warrant will issue for the arrest of the offender.

(v) Once the offender is arrested and lodged in a prison he may still make application for conversion of the remainder of the default period to a Work and Development Order.

387

The Department of Corrective Services has infonned the Commission that in an

assessment of the fine default scheme it was found that 93% of persons who

elected to convert their default period successfully completed their programme.

Of those who converted from prison after having been arrested the success rate

was 50%.

A number of problems in the operation of the fine default scheme as originally

enacted in this State have become apparent to this Commission. Although no

formal review of the scheme has been undertaken as yet, the Community

Corrections Centres Act provides for a review to take place after the scheme has

been in operation for two years. In the Interim the Community Based

Corrections Division of the Department of Corrective Services is monitoring the

operation of the scheme.

One difficulty with the current scheme is that the only times which may be

converted are those imposed in Courts of Petty Sessions. There is no provision

in the legislation to enable conversion of fines imposed in the District and

Supreme Courts and in the Childrens Court. This requires amendment.

Another problem brought to the attention of this Commission is in the fonnal

nature of the notice sent to a person in default. Mr David Watson, Centre

Manager for the Community Based Corrections office at Geraldton, referring to

the notice stated:

I could be critical of that in the sense that the notice is a very formalised letter which unless you are fairly well versed in literacy skills and can understand exactly what it means you would probably have some doubts about taking advantage of that. I have found that

most of the people who come through our office are people who have found out from other means, like word of mouth or, for instance, they may already be known to our office through probation orders or whatever and ask about this problem and can be

told what the options were. It is not publicised and as I understand it, it is not able to be publicised because ... the courts intention is that a monetary fine be the first option that is available (Gerald ton Hearings 11.4.90:333 - 334).

388

Mr Watson was not aware of any attempts to have the notice rewritten in

'everyday English'. As I have noted elsewhere in this Report, many Aboriginal

people have limited formal English literacy skills. To have the notice written in

other than simple, clear, everyday English can only be seen as an instance of

discrimination against those Australians for whom English is not their first

language.

The issue of and form of the notice is the responsibility of the Crown Law

Department. The Executive Director of the Department for Corrective Services

has informed the Commission that his department is 'aware of some of the issues

with respect to notification of, and information for ,fine defaulters ... officers of

Crown Law and Corrective Services have met to resolve the issue' .

My Commission referred the evidence of Mr Watson to the Crown Law

Department, enquiring as to what, if any, action the government has taken to

ensure that the fine default scheme is more effectively brought to the attention of

defaulters. The short reply from Crown Law was:

Nothing as the notice is written in everyday English (Answers by Crown Law Department to specific questions put by the Royal Commission, 16 July 1990).

Read in the light of the statement of the Executive Director of the Department of

Corrective Services, to say that I find the response of Crown Law surprising

would be an understatement. I can only view such a response as further evidence

of a lack of commitment in the administration of the Crown Law Department to

continuing review of the operation of the Criminal Justice System to ensure a

truly fair and equal dispensation of justice in this State.

Another problem with the scheme, as originally enacted, was that after an

offender has been arrested on a warrant for non-payment of a fine, conversion to

a Work and Development Order may only take place from a prison. An offender

lodged in a police lockup was unable to convert his or her default period to a

389

Work and Development Order until or unless they are transferred to a prison. As

I wrote in the Report of my Inquiry into the Death of Misel Waigana.

This is of particular concern in country areas where the Regional Prison may be such a distance from the place of arrest that it is either not possible or is impractical for police to convey persons arrested on two or three day warrants to the prison. Default would then be served at the lockup (Report page 45).

I note with approval that a Bill has been drafted to amend the existing legislation

by deleting the word 'prison' and substituting the broader term 'custody'.

The Commission is aware of a further problem. Under section 171AI of the

Justices Act an Order may not be made where the Court of Petty Sessions directs

at the time that the fine is imposed that it may not be so converted. The

Commission finds it difficult to imagine circumstances in which such a direction

would be appropriate, and there has been no evidence before it of actual reasons

given at the time of such a direction. However, there was a suggestion in the

evidence given before the Commission in the course of the investigation into the

death of Ricci Vicenti that some Magistrates and Justices had regularly been

giving such directions when imposing fines. (RCIADIC W27:237) If there are

circumstances in which a direction of this kind is appropriate, and the

Commission finds it difficult to imagine what they might be, they should be

unusually, if not rarely encountered in practice. To do so on a regular basis

would be a practice to be deprecated.

Unfortunately the Crown Law Department does not monitor the frequency with

which Courts of Petty Sessions resort to section 171 AI (2), nor, they have

informed me, do they have any intention to do so.

Finally I note that the scheme introduced by the legislature in this state simply

provides an option in lieu of imprisonment for those offenders in default of

payment of a fine. As I have described, the scheme only becomes available to an

390

offender once the period allowed to payment of the fine has expired. It may be

contrasted with the fine option programme in operation in the Northern Territory.

The Northern Territory programme offers offenders who have been fined the

option of immediately attending the office of the Probation and Parole Service

and having the fine converted to a Community Service Order. There are

considerable advantages in such a scheme. I stated in the Report of my Inquiry

into the Death ofMisel Waigana.

It is considered that such an option would be more effective in reducing the number of fine default imprisonments than the scheme currently in place in Western Australia. Offenders have the option of commencing their penalty immediately without the later obligation of attending at a Community Based Corrections Centre or fear of arrest on warrant of commitment. (Report page 46).

An Aboriginal offender may also fall through the cracks in the geographical

distribution of Corrections Centres (this is discussed further below). The

Department of Corrective Services was able to tell the Commission that while the

service was satisfactory in the Kimberley/Pilbara areas, and in the Murchison,

there were some gaps around Carnarvon, and far north-eastern goldfields. Halls

Creek posed a problem stemming from its remoteness. The Commission

acknowledges the existence of such problems which the sheer geographical

enormity of the State present. However, they must be taken into the

consideration in both the provision of correctional services, and pending the

provision of services, in sentencing practices. It is unsatisfactory that there

should be one law applying in Halls Creek and another in metropolitan Perth. It

would be wholly unacceptable if the socially and economically disadvantaged in

remote areas should be further disadvantaged by the delivery of a third-rate legal

system, permitted largely because they were politically powerless and therefore

could be considered 'out of sight, and out of mind'.

391

Community Based Corrections

Western Australia, like all Australian States, has made provision and is

considering further provisions, for a broad range of sentencing options, generally

considered to be alternatives to imprisonment. The majority of these are available

to the courts as sentencing options, while others are in the form of administrative

arrangements designed to reduce the time persons sentenced to imprisonment

actually spend in custody. Both are usually described and referred to as non­

custodial or community-based correctional orders.

When compared with the extreme loss of freedom which incarceration entails,

however modem and enlightened the institution in which it takes place, a

sentence which allows the offender to remain in the community must at least

appear to be less harsh. However, three areas of concern are apparent:

(i) Community programmes may not be used as alternatives to prison but

as alternatives to lesser penalties such as fines. Residential parole

programmes may have the effect of extending the programme of

incarceration.

(ii) There may be a widening of the State's discretionary power. The

informality of community programmes means that there is a 'blurring

of the boundaries' between, for example, voluntary and coerced

participation.

(iii) If most property offenders are dealt with by means of non-custodial

sanctions, then the prison population will largely be composed of

violent and 'recalcitrant' criminals who have to be detained for the

protection of society. This will tend to make prison administrators

more security conscious. It may therefore mean that reformers are less

concerned with such issues such as sentence lengths and prison

conditions which are said to have motivated the move to community

based sentencing options.

392

Anti-institutional penal policy must not be more concerned with cost cutting than

with a genuine commitment to effective refonn. However, community based

sentences may not bring the anticipated and hoped for savings in money tenns.

While the costs per offender detained in prison tend to be considerably higher

than comparable costs for community based sentences,24 the overall costs of the

criminal justice systems of Western countries which have adopted community

based sentencing strategies have not declined, principally because the increased

use of non-custodial measures has not been accompanied by a decrease in the

number of people sent to prison. This reinforces the impression that such

sentences may not always be used as an alternative to imprisonment, but rather in

place of other lesser sentences. They are sentencing extras rather than true

alternatives to incarceration.

However, as two commentators have observed:

.. . the claim to effectiveness of community corrections schemes has never been an extravagant one. It is merely asserted 'we can't do worse' than imprisonment .25

That is not entirely true. Even if the deterrent and rehabilitative effects of

imprisonment are dubious, custodial sentences do protect society by removing

the offender from circulation for a period of time. The question is rather whether

they do not return him to circulation, as inevitably they must, in worse condition

than when he was separated from society. Again it must be a question of

balance.

Western Australia

In Western Australia, responsibility for the supervision of persons serving

community based sentences or orders such as parole, probation and community

service orders lies with the Community Based Corrections Division (CBC) of the

24 The Department of Corrective Services estimates the average cost per prisoner per day as $116.00 or $42,340.00 per year. 25 Cited op. cit., p. 14.

393

Deparunent of Corrective Services. At June 30 1989 there were 17 Community

Corrections Centres throughout the State. Their locations were as follows:

Albany Kalgoorlie Northbridge

Ba1catta Kununurra Perth

Broome Maddington Port Hedland

Bunbury Mandurah Roeboume

Fremantle Midland Rockingham

Gerald ton Northam

Each of those centres was proclaimed under the Community Corrections Centres

Act 1989. In addition there were three CBC Reporting Centres located at

Armadale, Kwinana and Pinjarra.

The following figure shows the number of offenders under community based

supervision as at 30 June for the period 1987-1989. The statistics are taken from

the Deparunent of Corrective Services Annual Report 1988/89.

394

3000

2500

2000

1500

1000

500

0

EJ Parole

FIGURE 4.6

NUMBER OF OFFENDERS UNDER SUPERVISION

30 June 1987 30 June 1988 30 June 1989

1:21 Community service II Probation orders

orders

Criminology Research Unit Research Paper No. 19 entitled • Aborigines in

Prisons and Non-custodial Corrections' produced by the Criminology Research

Unit of the Royal Commission examined the numbers of Aboriginal and non­

Aboriginal persons serving non-custodial correctional orders throughout

Australia at 30 June 1987. That paper found that nationally 8.4% of all such

persons were Aboriginal. However the proportions were higher in Western

Australia and the Northern Territory. In Western Australia the figure was

14.8%.

After a comparison was made of adult Aboriginal and non-Aboriginal

participation rates in non-custodial corrections, Research Paper No .19 found that

395

Aboriginals were over-represented by a factor of 8.3 for Australia as a whole (in

Western Australia the figure was 8.2). This was compared with a level of over­

representation in prison populations of 15.1 (WA 26.3) (National Prison Census)

and 23.4 (WA 61.6) for sentenced prison receptions in April1989.

It has been suggested that this difference may be due to a perception by judges

and magistrates that Aboriginal offenders were less able or less willing than non­

Aboriginal offenders to comply with the conditions of non-custodial orders. If

this were true, it could provide some explanation of the generally shorter prison

terms served by Aborigines as identified in one study (Walker, 1987:106-117).

As an explanation it is necessarily speculative. It is also possible Aboriginal

people may respond to some types of existing non-custodial orders better than

others or that new options need to be introduced into the sentencing spectrum to

accommodate Aboriginal offenders.

It is encouraging to note that the CBC are concerned with the development of

strategies to increase the opportunity for Aboriginal offenders to be supervised in

their own communities and for increasing the scope for input from the Aboriginal

community in respect of the supervision of community based orders (see

Department of Corrective Services Annual Report 1988/89). A staff position has

been created at the Port Hedland office of the CBC to specifically address issues

concerning Aboriginal offenders. In addition, as at 30 June 1989, Aboriginal

Community Corrections officers have been appointed to positions at Roeboume,

Kalgoorlie, Northbridge, Geraldton, Albany, Broome and Kununurra.

Mr David Daley, Regional Manager of the northern section of the CBC gave

evidence before the Royal Commission during the inquiry into the death of Ricci

Vicenti. Mr Daley described the functions of the Aboriginal Community

Corrections officer based in Northbridge:

The general purpose of his engagement was initially because we were aware that there are a lot of Aboriginal offenders in the metropolitan area, particularly living in fringe camps and other parts of the metro area for whom our own staff didn't have the

396

appropriate experience or skills really to reach adequately. Partly he was to be a bridgehead to make contact with Aboriginal organisations and agencies throughout the metropolitan area who work for the welfare of Aboriginal people and where Aboriginal offenders were coming into the system, to liaise with those people

to try to use referral resources and other resources they had available to ensure that supervision of offenders would be made more appropriate to the needs of those Aboriginal offenders, rather than just in the generic thrust of the kind of probation supervision given

to all other offenders. He also acts as a consultant to other staff in the Northbridge office so that,for example, if they are dealing with Aboriginal offenders and they need advice or assistance he is somebody to whom they can turn because of his knowledge of Aboriginal customs and those sorts of matters (RCIADIC

W27:234).

The expanded employment of Aboriginal people in roles such as that outlined by

Mr Daley is strongly supported by this Commission. Mr Daley further informed

me that with positions in the CBC advertised outside the Perth metropolitan area,

the advertisements stipulate that Aboriginal people are encouraged to apply. The

recruitment criteria for the CBC has also been altered so as not to exclude persons

without tertiary qualifications. Mr Daley stated that previously, that requirement

had meant that it had been difficult to recruit Aboriginal staff.

Mr Daley also stated that the CBC was attempting to increase the sensitivity of

staff in the field to Aboriginal issues. There is a two day programme available

throughout the State to CBC officers dealing with questions of Aboriginality as it

relates to people in the criminal justice system. In addition the Training and

Development Officer of the CBC was developing as part of the induction

programme for new staff:

... a module on sensitivity, understanding of Aboriginality and Aboriginal issues in relation to offending and the criminal justice system. (RCIADIC W27:249)

It is also encouraging to note the comment of Mr Daley that to consider

Aboriginal people as not amenable to traditional forms of community supervision

was a 'cop out'. He stated:

397

... one of the things we have learned in recent years is that the problems might rest with the system as much as the offender. After all, we recognise that for some offenders, including some Aboriginal offenders, the formal reporting structure is foreign to

their nature. Time is a cultural concept and it is not an absolute, so therefore officers have to understand that if somebody is told to come in at two o'clock for many people to come in the same day or in the time vicinity approximating when they are told to come in may be regarded as quite normal. There are people ,for example ,for whom time does not mean quite the same as it might mean for a probation officer. I think the issue is really to understand those

sorts of things and to build them into a management regime rather than simply say, 'Aboriginal people shall not be eligible because they do not keep appointments on time or they are mobile or they are not talkative in interviews' (RCIADIC W27:241).

Apart from the initiatives mentioned above, the Department of Corrective

Services has informed the Royal Commission that their only programme

specifically directed toward diverting Aboriginal offenders from prison is the

appointment of two Aboriginal Community Corrections officers in the

Kimberley. In answer to questions from the Royal Commission the Department

stated:

The imprisonment rate of Aboriginals in the Kimberley has been thought to be as high as 500 per 100,000. However, in the absence of reliable information on the size of the general population in the Kimberley the exact rate of imprisonment remains a matter of speculation.

Nevertheless, the Department has recognised the extremity of the problem in the Kimberley and has specifically targeted a reduction in Aboriginal rate of imprisonment in the region. The programme was established at Broome and Kununurrafollowing wide consultation

and in conjunction with the Aboriginal Affairs Planning Authority. Its major thrust is to utilise the co-operation of elders and community councils to better effect the supervision of Aboriginal offenders within their own community. This programme is currently under review (Answers by the Department of Corrective Services to specific questions from the Royal Commission, page 74).

In November 1988 a meeting was held between the Executive Director of the

Department of Corrective Services, senior officers of the CBC and 35 leaders

from eleven Aboriginal communities in the Fitzroy Crossing area. Topics for

398

discussion at that meeting included the Community Corrections Centres

legislation and the prospect of some Aboriginal offenders being given community

based orders which could be served in their home communities. It was proposed

that selected members of the communities take on a supervisory role in relation to

the offenders but under the direction of a CBC officer. As stated above, that

scheme is now in operation.

Mr Donald Webster, manager of CBC for the Kimberley area gave evidence

before the Commission during my inquiry into the death of Hugh Wodulan at

Broome, June 1989. He informed me that there was at that time no difficulty in

arranging community service work for Aboriginal offenders in the region and that

there were more inquiries than offenders to place on projects. He stated that in

his opinion, the community service order was probably the most effective option

av ailable at the moment in the Kimberley region. In the first six months of 1989

four offenders had been offered permanent employment as a result of their

performance of community service work.

Mr Webster also informed me that offenders on probation and parole orders in

the Kimberley could now be supervised in their home communities. In addition

to the use of honorary probation and parole officers in Aboriginal communities,

CBC officers regularly travel throughout the Kimberleys in four wheel drive

vehicles visiting communities. There had been some problem in obtaining the

services of honorary probation and parole officers and a proposal was made that

the honorary officers be appointed 'sessional supervisors' to be paid on a fee-for­

service basis. Such persons would have to be long term residents of the

community of some social standing and responsibility within the communi ty. I

am not aware as to whether this latter proposal has been put into effect in the

Kimberley.

I note that before an offender is placed in a community the views of the

community and family of the offender are canvassed by the CBC, this is

particularly so in the case of parolees.

399

Another proposal discussed by Mr Webster was the concept of nominated

community councils being funded by the CBC to appoint an appropriate person

to supervise particular offenders. The purpose of such a scheme being to avoid

difficulties that may arise for the supervisor should he/she have a kinship or

obligation relationship with the offender.

I consider the initiatives discussed above to be of significant value in providing

viable alternatives to the imprisonment of Aboriginal offenders. It is to be hoped

that an expansion of the scheme operating in the Kimberley to other areas of the

State is envisaged by the Department. Unless this occurs, and particularly in the

more remote areas of the State, judicial officers may feel that when imposing

sentence they have no option other than to order a fine (which may result in

default imprisonment being served) or to order a sentence of imprisonment in the

first instance.

I now tum to a brief examination of the operation of parole, probation and

community service orders in Western Australia, particularly as they involve

Aboriginal offenders.

In 1988 the Offenders Probation and Parole Act was amended to place the onus

upon a sentencing judge to establish the suitability for parole of offenders

sentenced to a term of imprisonment in excess of twelve months. The new

amendments created a fixed formula for calculating minimum or mandatory terms

(section 37 A), set limits upon parole supervision to a maximum of two years and

allowed for the counting of 'clean street time' in the event of re-imprisonment for

breach of a parole order. However, discretion was retained in the Parole Board

for the advice on release and the setting of parole conditions in cases such as

persons sentenced to life imprisonment or the Governor's pleasure.

400

In section 5.3 of this Report I refer in some detail to studies conducted on

recidivism rates of prisoners in Western Australia by Broadhurst (1988) and

Broadhurst and Maller (1990). As I point out in section 5.3 of this Report, the

studies analysed recidivism rates for prisoners released from W A prisons

between July 1975 and June 1987. The following table is drawn from those

studies.

TABLE 4.67: RECIDIVISM BY RELEASE TYPE 1975-87 (MALE ONLY)

Release Type Aboriginal Non-Aboriginal

Parole 67% 32%

Finite Sentence 77% 49%

Fine default 70% 46%

From those figures it can be seen that, even if only marginally, Aboriginal

offenders released on parole (which involves some level of community

supervision) fare better than their fellows released having served a finite sentence

of imprisonment or a period of imprisonment in default of payment of a fine.

In a paper delivered to the Australian Institute of Criminology 'Keeping People

out of Prison' conference held in Hobart in March 1990, Broadhurst referred to

the two studies mentioned above. In relation to parole he concluded:

Data available on the recidivism of Western Australian prisoners shows strong evidence that the failure of parole prisoners (using the re-incarceration definition) is significantly less than for prisoners released unconditionally. Even after statistically controlling for important selection factors [such as race , sex, type of offence and record of prior imprisonment] the differences remained strong. These results tell us that parole works modestly better than unconditional release but we cannot be sure why. Although short term benefits of community supervision plus selection factors appear to account for the differences observed. (R Broadhurst,

1990)

401

Statistics provided to the Royal Commission by the Department of Corrective

Services for the period 1982/83 - 1986/87 record that 562 male Aboriginals were

released by the Parole Board in that period. Of those, 311 (55%) went on to

successfully complete their parole period. Unfortunately, it is not possible at this

stage to compare the old parole system with the system of fixed release dates that

came into operation in 1988.

Probation

Of the community based sentences, the option most widely used by the courts is

probation. In recent years as many as 20 000 individuals have been serving

probation orders or the equivalent throughout Australia at any given time. The

effect of this is that at any one time about twice as many persons are serving

probation orders as are serving terms of imprisonment. (MacDonald, 1990: 16)

In Western Australia the term of a Probation order is between six months and five

years. The number of probation orders (including Commonwealth recognisances

specifying probation supervision and interstate orders supervised in Western

Australia) issued in the five year period from 1 July 1985 - 30 June 1990 is

shown in the table below:

TABLE 4.68: PROBATION ORDERS ISSUED IN WESTERN AUSTRALIA 1985/86 - 1989/90( a)

Male Female

Year Aborig_inal Other Aborig_inal 'other Total

1985/86 164 1231 66 399 1860

1986/87 216 1291 71 403 1981

1987/88 262 1382 58 436 2138

1988/89 285 1286 98 405 2074

1989/90 328 1403 106 412 2249

TOTAL 1255 6593 399 2055 10302

(a) Table derived from statistics provided in the Answers by the Department of Corrective Services to specific questions from the Royal Commission

402

A breakdown of the completions and breaches of those probation orders is

shown in the following table:

TABLE 4.69: PROBATION ORDERS; COMPLETIONS, BREACHES AND CURRENT 1985/86 - 1989/90(a)

Male Female

Aborig_inal Other Aborig_inal Other Total

Issued 1255 6593 399 2055 10302

Completed 586 3663 200 1373 5822

Breached 322 1075 86 172 1655

Current 347 1855 113 510 2825

(a) Table derived from statistics provided in the Answers by the Department of Corrective Services to specific questions from the Royal Commission

Of the 2825 probation orders current at 30 June 1990, 234 have breach actions

pending against them. The information provided by the Department shows that

the breach rates thus far are as follows:

Aboriginal Males: 28%

Non-Aboriginal Males : 19% Aboriginal Females : 23%

Non-Aboriginal Females: 10%

Community Service Orders

The second most widely used court-based option throughout Australia is the

Community Service Order. This is now available in all jurisdictions having been

first introduced in Tasmania in 1971. The Community Service Order scheme

commenced operation in Western Australia on 1 February 1977. The total

number of Community Service Orders issued from the inception of the scheme in

this State to 30 June 1990 is 12 929.

The following table provides a breakdown of Community Service Orders by sex

and race of offenders for the five year period 1 July 1985- 30 June 1990:

403

TABLE 4.7: COMMUNITY SERVICE ORDERS ISSUED IN WESTERN AUSTRALIA 1985/86 • 1989-90(a)

Male Female

Year Aborig_inal Other Aborig_inal Other Total

1985/86 164 1231 66 399 1860

1986/87 216 1291 71 403 1981

1987/88 262 1382 58 436 2138

1988/89 285 1286 98 405 2074

1989/90 328 1403 106 412 2249

TOTAL 1255 6593 399 2055 10302

(a) Table derived from statistics provided in the Answers by the Department of Corrective Services to specific questions from the Royal Commission.

A breakdown of completions and breaches of Community Service Orders for the

same period is set out in the following table:

TABLE 4.71: COMMUNITY SERVICE ORDERS; COMPLETIONS, BREACHES AND CURRENT 1985/86 • 1989/9o(a)

Male Female

Aborig_inal Other Aborig_inal Other Total

Issued

Breached

Percent breached

531

122

23%

2426

383

16%

118

30

25%

561

6

11%

3636

598

16%

(a) Table derived from statistics provided in the Answers by the Department of Corrective Services to specific questions from the Royal Commission

From this table it can be seen that the rate of successful completion of

Community Service Orders for male adult Aboriginals is 77% and for female

adult Aboriginals the rate is 75%.

404

Home Detention

Approval was given in February 1990 for the introduction of a Home Detention

Programme in Western Australia. There is to be a staged introduction of the

programme, beginning with the metropolitan area. At the time of writing this

Report the programme had yet to commence.

The Home Detention programme will operate for:

persons on remand as a condition of bail where a person would otherwise

be remanded in custody.

sentenced prisoners, as a transitional programme for some minor offenders

with an aggregate head sentence of less than twelve months. To be eligible

they must have served a minimum period of one month or one third of their

head sentence, whichever is greater.

The Home Detention Programme will be administered by the Department of

Corrective Services. The Executive Director of the department will have the

authority to consider and approve eligible prisoners for release to the Home

Detention Programme.

Persons on the programme will be required to remain at their approved place of

residence for the period of Home Detention. Absence would only be authorised

for purposes such as employment or seeking employment, urgent medical

attention, essential shopping and engagement in a community corrections

programme. Restrictions on the consumption of alcohol or other restrictions

could also be imposed.

In the case of sentenced prisoners, additional conditions would be imposed as

follows:

405

(i) for those who gain full-time employment, a requirement to devote eight

hours per week to community work and/or personal development

activities.

(ii) for those not employed full-time a requirement that they devote twelve

hours per week to community work and/or personal development

activities.

The supervision of persons subject to Home Detention Orders will be conducted

by staff of the Community Based Corrections Division of the department. This

will entail unscheduled telephone calls and unannounced personal attendance at

the persons place of residence. The use of electronic surveillance is also under

consideration.

Breaches of a Home Detention Order would be dealt with administratively by the

department. They could result in either the suspension or cancellation of the

order resulting in the immediate imprisonment of the offender. Sentenced

offenders who breach a Home Detention Order would serve the balance of their

sentence, less remission. They would not be credited with 'clean' Home

Detention time.

Whilst being supportive of any initiative to reduce the number of persons held in

police and prison custody in this State, I have some reservations regarding the

potential effectiveness of the Home Detention Programme in reducing the level of

Aboriginal incarceration.

The programme appears best suited to serve those offenders who live in the

traditional western style fixed place of residence, generally, with an individual

telephone service connected. This is not the case with many Aboriginal

offenders, particularly those from remote areas who may lead a semi-itinerant

lifestyle. Unless the definition of 'approved place of residence' is broad enough

406

to include modes other than western style housing/unit/flats many Aboriginal

offenders will remain ineligible for inclusion in the programme.

Difficulty may also be experienced in maintaining the requisite degree of

supervision of Aboriginal offenders who reside in remote communities. This

will require the appointment of further sessional supervisors in those areas to

assist full time officers of Community Based Corrections in their supervision of

offenders. It is also of concern that the 'personal development activities'

envisaged as part of the programme may not be readily available to offenders

who do not reside in the large urban centres.

It is hoped that the issues raised above will be addressed by the department in the

process of implementation of the programme.

Court Drug Diversion Programmes

The community based correction division of the Department of Corrective

Services also oversees a Court Drug Diversion Programme. That programme

operates to divert offenders with drug problems into drug and alcohol

programmes.

407

PART FIYE

PREVENTION OF DEATH

In Part 5 of the Report I examine issues relating to prevention of death in IXlice

and prison custody. It should, of course, be quite obvious that while there is

such a high rate of imprisonment in Western Australia, with

numbers of Aboriginal people imprisoned, that deaths will continue to occm. It

is perhaps heartening to note the reduced incidence of custodial deaths in

and 1990 despite the continued high rate of imprisonment.

In the previous section of the Report I have concentrated on addressing to

reduce the current level of imprisonment of Aboriginal and non-Aborigi1al people. It would be unrealistic to expect the current level of imprisonmen1 to

change significantly overnight. Given this scenario it is necessary to examine the

practices and procedures of custodial authorities that affect those detained in

police and prison custody, to highlight inadequacies in those practices 2nd

procedures and to suggest changes where they may lead to a reduction in ihe

likelihood of further deaths occurring in custody.

5.1 PREVENTION OF DEATH -GENERAL ISSUES

As noted above the number of deaths in custody has decreased in 1989 ar1d 1990. I hope that the work of the Royal Commission has contributed to this in

some significant way. In this section I examine the recommendations made in

the Interim Report of the Royal Commission into Aboriginal Deaths in CustoQ y

(the Muirhead Interim Report) and in the Report of the Interim Inquiry inb

Aboriginal Deaths in Custody commissioned by the Government of Western

Australia (the Vincent Report) and the way in which they have been implementf(1

408

in Western Australia. I also look at some of the initiatives that have been taken in

Western Australia in an effort to prevent further deaths in custody. Finally, I

look at the general issue of the duty of care owed by custodial authorities to

prisoners and detainees before going on to examine the practices and procedures

of those authorities in detail.

5.1.1 INTERIM REPORT AND VINCENT REPORT

The Western Australian Government prepared a response for the Royal

Commission discussing which of the recommendations of the Western Australian

Report of the Interim Inquiry into Aboriginal Deaths in Custody (the Vincent

Report) and Interim Report of the Royal Commission into Aboriginal Deaths in

Custody (the Muirhead Interim Report) have been implemented. The

Government of Western Australia made an announcement that it had implemented

52 out of the 56 Muirhead Interim Report recommendations and 30 out of 32 of

the Vincent Report recommendations.

The Royal Commission is of the view that only 15 of the Muirhead Interim

Report recommendations have been fully implemented, 28 partially implemented

and 13 have not been implemented. Of the Vincent Report recommendations 7

have been implemented fully, 19 have been partially implemented and 6 have not

been implemented.

Below I list each of the recommendations with a short commentary on the level of

implementation and whether or not measures taken to implement the

recommendations are regarded as adequate.

Muirhead Interim Report

Recommendation 1 Governments which have not already done so should legislate to enforce the principle that imprisonment should be utilised only as a sanction of last resort. (4.2)

409

This recommendation has been implemented in theory only. The principle was

em bodied in the Criminal Law Amendment Act which was enacted and came into

force in January 1989. However, evidence this Commission has received

suggests that alternatives to imprisonment are not available in some remote areas.

It is therefore impossible to use alternative sanctions to imprisonment in some

places. The preceding section on sentencing discusses the lack of commitment in

W A to the principle that imprisonment is a sanction of last resort.

Recommendation 2 Legislation should be introduced to ensure that sentences of imprisonment are not automatically imposed in default of payment of fines . Such legislation should provide alternative sanctions and impose a statutory duty upon sentencers to

consider a defendant's means to pay in assessing the appropriate monetary penalty and time to pay, by instalments or otherwise. (4.4)

This recommendation has been partially implemented. The fine default legislation

(Community Corrections Centres Act 1988) which has been enacted only

partially satisfies the recommendation. The inadequacies in the legislation are as

follows:

The ability to convert a fine into a work and development order is only

available once a person is in default. The legislation would be more

effective if the option to convert a fine into a work and development order

was available at the time the fine was imposed.

The machinery for conversion to Work and Development orders is

unsatisfactory, however, the Justices Amendment Bill 1990 should

remedy these defects.

A Magistrate or Justice can specify that the fine cannot be converted to a

work and development order. It appears that this option may be regularly

utilised by some JPs and Magistrates.

There is no statutory duty imposed upon sentencers to assess defendants

means to pay. The legislation is inadequate in this regard and needs

amending.

410

Recommendation 3 In jurisdictions where drunkenness has not been decriminalised, Governments should legislate to abolish the offence of public drunkennes. (4.3, 5.2)

The recommendation has been implemented.

Recommendation 4 The abolition of the offence of drunkenness should be accompanied by adequately funded programs to establish and maintain facilities for the care and treatment of intoxicated persons. ( 4.3, 5.3)

The implementation of this recommendation is inadequate.

Decriminalisation of drunkenness has not been accompanied by a properly

funded programme to establish facilities for care and treatment of

intoxicated persons. Four sobering up centres only are to be established at

Perth, Halls Creek, Port Hedland and Fitzroy Crossing. Further facilities

are urgently required.

Recommendation 5 Legislation decriminalising drunkenness should place a statutory duty upon police to consider and utilise alternatives to detention of intoxicated persons in police cells. Alternatives should include the options of taking the intoxicated person home or to a facility established for the care of intoxicated persons. ( 5.2,

5.3)

This recommendation has not been implemented.

The Detention of Drunken Persons Act does not place any duty upon police

to consider and utilise alternatives to police cells. The Western Australian

Police Force resist the imposition of such a duty. The Commissioner of

Police argued that the Canadian experience showed that the police having

such a duty was unworkable. However the New South Wales legislation

initially did not impose such a duty on the police and was subsequently

amended to impose the duty because the legislation was initially ineffective

and saw an increase in number of detentions in police cells.

411

Recommendation 6 In the States and Territories where public drunkenness has been decriminalised, adequately funded alternative facilities for the care of intoxicated persons should be urgently established and maintained to meet the demonstrated needs. (5.3)

This recommendation has not been fully implemented.

Alternate facilities are not adequately funded (see Recommendation 4).

Recommendation 7 All Governments should combine to set up a national task force to examine the social and health problems created by alcohol and confronted by Aborigines in many localities, to assess the needs and the means to fulfil the needs, including legislative action, and the establishment of appropriate facilities for short and

Long-term care, education and training. The Aboriginal Health Services and other medical resources should be well represented in such a project which should be essentially health-oriented. (5.3)

This recommendation has not been implemented, however, Government states its

support for the establishment of a National Task Force.

R ecommentiation 8 Police officers should receive emphasis in training that arrests for minor offences must be avoided when alternative steps are available. (6.2)

This recommendation has been partially implemented.

Police do not receive training not to arrest for minor offences however their

training does emphasise the use of summonses rather than arrest. This is

reflected in Routine Orders 1-12-2 and 1-12.3 and Police Gazette 12.7.89.

However Routine Orders are 'guidelines only' and are not enforceable.

This has had unsatisfactory results in many of the cases examined by the

Royal Commission.

Statistics provided by the Police Department reveal that the vast majority of

apprehensions are proceeded with by way of arrest.

412

In addition it appears that the Police Department in some instances still use

the number of arrests and charges as a measure of efficiency (see Police

Department Annual Reports).

The proposed introduction of official cautions of children by police should

reduce arrests for minor offences.

The Commissioner of Police supports the extension of the caution scheme

to adults.

The results of the study of 1987 and 1990 Kalgoorlie Police Practices

. regarding arrest, custody and bail by the Royal Commission show

reduction in the use of arrest, especially in relation to arrest of Aboriginal

people for offence of drunkenness, in the period shortly prior to

decriminalisation.

Recommendation 9 It should be the duty of officers in charge of police stations to evaluate (with a view to providing guidance for future situations) the decisions made by officers engaged on police patrols to arrest, rather than proceed by summons or caution. (6.2)

The recommendation has been implemented.

• See Police Gazette 12.7.89 and comments above. The Government has

said that position descriptions for officers in charge will be reviewed to

reflect this principle, however the Royal Commission has no evidence of

position descriptions reflecting this change.

Recommendation 10 The operation of bail legislation should be closely monitored by each Government to ensure that the entitlement to bail as set out in the legislation is being recognised in practice. ( 4.5, 6.3)

This recommendation has been partially implemented.

413

The Government completed review of the Bail Act in early 1990.

The legislation is considered inadequate as there is no qualified right to

bail. This is discussed in more detail in the section of the Report dealing

with bail.

There is a current problem in police not being able to release people on

personal undertaking without completing bail documents.

R ecommenciation 11 Where practicable the Aboriginal Legal Service should be notified in all instances of the detention of any Aboriginal person in custody. Where it is not possible to contact an officer of that Service, such notification should be given to a person designated by the local Aboriginal community to receive such advice. (6.3)

This recommendation has not been implemented.

According to the Commissioner of Police, the Aboriginal Legal Service are

only notified on request of detainee. Cf Police Gazette 13.1.88.

The Government regards automatic notification of any other person

without reference to detainee as an intrusion upon civil liberties. However

same argument is not applied in relation to notification of members of

Aboriginal Visitors Scheme.

A possible solution is to require the police to inquire of detainee if they

wish the police to contact Aboriginal Legal Service or any other person.

This recommendation is discussed in more detail in the section of the

Report on the Legal System.

Recommendation 12 1 n no case should a person be transported by police to a lockup or watch-house when that person is either unconscious or not easily roused. Such persons must, if found on a patrol, be immediately taken to a hospital or medical practitioner or, if neither facility is available, to a nurse or other person qualified to assess their health. (6.4, 9.6)

414

This recommendation has not been implemented fully.

Routine Orders 16-3.11.1, 16-3.11.2, 16-3.11.3 reflect the possibility that

' insensible drunken persons' will be placed in the cells without medical attention.

Police regard Routine Orders as guidelines only, e.g. Ginger Samson was carried

into the cells by police on 29 March 1988. He was unable to walk and mumbled

in response to questioning. Samson subsequently suffered an epileptic seizure

and died in the cells.

Recommendation 13 A person found to be unconscious or not easily rousable whilst in a watch-house or cell must be immediately conveyed to a hospital, medical practitioner or a nurse. (Where quicker medical aid can be surrunonsed to the watch-house or cell

or there are reasons for believing that movement may be dangerous for the health of the detainee, such medical attendance should be sought). (6.4, 9.6)

Recommendation has been implemented by the Police Department and the

Department of Corrective Services.

It is reflected in Police Routine Orders and Corrective Service Executive

Directors Rules.

However, implementation is dependent on individual officers maintaining

proper checks on prisoners and detainees to ascertain their state of health.

I have found in numerous cases that police officers when carrying out cell

checks have not adequately checked detainees (e.g. Bernard McGrath­

was dead and not found during a cell check). Again Routine Orders are

guidelines only even when couched in imperative terms.

Recommendation 14 Police officers whose duties may require them to perform watch-house duties should undergo basic training in the recognition of symptoms of head injuries, major illnesses, and in first aid and resuscitation techniques. (6.4 , 8.2.1, 8.2 .2)

This recommendation has been partially implemented.

415

Police Officers receive first aid and resuscitation training. They are not

trained in recognition of head injuries and major illnesses. Lockup keepers

or police with watchhouse responsibilities do not receive any special

training.

Recommendation 15 Persons detained in custody must be closely monitored for the first six hours of detention and the appearance of the person should be recorded. Where persons detained are apparently intoxicated or appear angry or disturbed, very close surveillance must be maintained. (6.4)

This recommendation has been partially implemented.

There is no requirement on police/prison officers to record appearance of

detainee during first six hours of custody.

The current Routine Orders do not contain a requirement to record cell

checks.

The level of surveillance may be inadequate because of the physical nature

of lockups and observation cells in prison in that they are isolated from the

work space.

In many instances there is inadequate manpower to maintain adequate

surveillance. Many country lockups are not staffed 24 hours/day. The

Police Department's costing to provide 24 hour manning to all country

lockups came to $280.5 million for an additional 1753 staff and houses.

Risk of angry/aggressive/disturbed detainees noted in Police Custodial

Care Manual, however the risks do not appear to be fully appreciated by

many police and prison officers.

Recommendation 16 Angry or aggressive detainees (no less than detainees who appear withdrawn or depressed) should be presumed to be potentially suicidal in custody notwithstanding assertions to the contrary made by them. (6.4)

416

This recommendation has been partially implemented.

There has been recognition of symptoms by Police and Prisons

Departtnents. They are emphasised in courses in Custodial Care (police)

and Suicide Prevention (prisons).

However, response of police and prison officers to aggressive behaviours

has been inadequate e.g. recent deaths of Morrison (April '88) and Walley

(October '88).

Recommendation 17 No medication, apparently prescribed for a detainee, should be denied. Any decision not to permit the detainee to take such medication must be made only by a medical practitioner or, in the absence of same, by a duly qualified nurse or

health worker.

This recommendation has been implemented by both Police and Corrective

Services Departtnents.

• The problem of Aboriginal detainees being required to request medication

has not been adequately addressed.

• Trial admission screening form places responsibility on police to ascertain

whether medication is required.

Recommendation 18 In all cases, unless there are substantial grounds for believing that the well-being of the detainee or other persons detained would be prejudiced, an Aboriginal detainee should not be confined alone in a cell. Where solitary incarceration is the only alternative the detainee must thereafter be treated as a person who

requires careful surveillance. (65)

This recommendation has been implemented.

Police Departtnent and Departtnent of Corrective Service practices reflect

this.

417

However the surveillance was inadequate in relation to the deaths of

Morrison and Walley.

The physical location of many police cells pose difficulties in relation to

surveillance.

Recommendation 19 As soon as practicable, all cells should be equipped with alarm and intercom systems which give direct access to custodians. Priority should be given to providing such systems at smaller police lockups where surveillance resources

are limited. (6 .6)

This recommendation has not been implemented.

Re Prisons: New prisons have alarm and intercom systems installed. Only

observation cells in old prisons have been modified.

Re Police lockups: Trial system at Armadale Lockup. Carnarvon and

Derby Lockups have had alarm systems for a number of years. At

Armadale police say alarms have proved disruptive to police and detainees.

They are considering a system of warning lights as an alternative. There

are no problems with alarm system at Carnarvon and Derby Lockups.

The Police Department has made a decision to rebuild the lockup complex

at Halls Creek, however there has been a positive determination !1Ql to

include an alarm system in the new design. This decision is deplorable in

view of Chatunalgi 's death.

Recommendation 20 An Aboriginal detainee should be assisted to communicate with the Aboriginal Legal Service and should be entitled to private visits by a lawyer or field officer from that Service. (6.7)

This recommendation has been partially implemented.

418

However, it is practically impossible in many country areas. This

highlights the inadequacy of funding and resources of Aboriginal Legal

Service.

• The Legal Aid Commission acknowledges the inability of the Aboriginal

Legal Service to meet the demand which has resulted in the Legal Aid

Commission attempting to provide a service to Aboriginal clients.

Recommendation 21 Visits by family members or friends should not be unreasonably restricted. (6.7)

This recommendation has been implemented.

Visits are allowed under Prison Act and Police Routine Orders 16-8.26.

The Royal Commission recognises and encourages open lockup practices

at remote locations e.g. Wiluna, Halls Creek, etc. where family and friends

can visit the Police Station compound and meet prisoners.

The practice of denial of contact visits as punishment in prisons is of

concern and should be examined.

• Problems are experienced by Aboriginal families in relation to contact with

relatives in prison. Aboriginal people may have difficulties with telephone

contact. Geographical location of prisons, lack of money to enable visits

may also pose difficulties for Aboriginal people.

Recommendation 22 In consultation with Aboriginal communities and their organisations, cell visitor schemes should be introduced to service police lockups and watch-houses wherever practicable. (6.7)

This recommendation has been implemented.

419

Aboriginal Visitor Schemes are operating in Perth, Geraldton, Broome,

Kalgoorlie, Fremantle, Warwick, Armadale and Midland. There are plans

to extend scheme to Bunbury, Albany and Narrogin.

There is currently inadequate support for visitors.

The Royal Commission was informed of a problem of overuse (Gerald ton)

and underuse in other locations.

Further expansion of scheme needs to be examined.

Recommendation 23 Governments in all jurisdictions should ensure that all police cells are surveyed and that measures be taken, where necessary, to screen hanging points and to replace equipment or materials which are not suicide resistant. (6.8)

This recommendation has been partially implemented.

Police cells have been surveyed and measures taken to screen hanging

points in many cells however the effectiveness of the measures taken need

further examination.

Mesh screening of cell bars has greatly restricted airflow into cells, causing

them to be hot and stuffy, it has also greatly reduced visibility into cells.

The Royal Commission has no evidence that equipment and materials that

are not suicide resistant e.g. towels, blankets have been replaced. I am

particularly concerned about the continued use of inflammable mattresses

in police cells.

Recommendation 24 Until cells are brought up to what experts regard as a safe standard, surveillance of detainees must proceed on the assumption that they are at risk of death. (6 .8)

The recommendation has not been implemented.

420

It is not reflected in police routine orders or prison orders.

Recommendation 25 A task force should be established among the Police Departments, in consultation with the Australian Institute of Criminology, to establish a standard and program for the upgrading of police cells to a level where the opportunity for death by

suicide is substantially reduced by appropriate cell design and equipment. The task force may consider alarm and communication systems and techniques to minimise the sense of isolation and loneliness which I believe are experienced, particularly by the young. (6 .8)

This recommendation has been implemented in that task forces have been

established.

However, query the extent to which Police Department have recognised

factors discussed in Royal Commission Research Paper No. 7.

Recommendation 26 Police and Prison Departments should re-assess their recruitment policies and liaise with appropriate Aboriginal organisations and educational institutions to ensure that positive encouragement is given to the recruitment of Aborigines:

(8.1)

This recommendation has been implemented.

However, the attitude of the Police Department to positive discrimination

and the lowering of educational levels may limit the effectiveness of

policies.

I refer to section 5.3.2 for further discussion of the Department of

Corrective Services in relation to this recommendation.

Recommendation 27 Appropriate screening procedures should be implemented to ensure that potential officers who will have contact with Aboriginal people in their duties are not recruited or retained by police and prison departments whilst holding racist views which cannot be eliminated by training or re-training programs. (8.1)

421

This recommendation has not been implemented.

Both Police and Corrective Services Departments appear to accept that as

officers taken from community, they will reflect community attitudes.

Both Departments however, said officers would be counselled if they

displayed racist attitudes/behaviours.

However, in Kalgoorlie it was obvious that terms such as 'boong',

'nigger', were frequently used by police to, or about, Aboriginals. Some

police officers even expressed view that some of the terms were not

or offensive.

In the Pat hearing in Roeboume the Assistant Commissioner of Police

referred to Aboriginals as 'coloured people'.

Recommendation 28 Police and prison officers whose work involves the apprehension and/or detention of persons in custody should receive basic training to enable them to identify persons in distress or at risk of death through illness, injury or suicide. (8.2.1)

This recommendation partially implemented.

The Police Department has commented on difficulties in training police to level

where they are able to detect illness and injury (especially head injuries).

However training of recruits in first aid and resuscitation cover these areas.

Recommendation 29 Police and prison officers should receive training in first aid and resuscitation techniques and the use of automatic resuscitation equipment. Regular refresher courses should be provided so that officers' proficiencies are kept up-to-date. (8 .2.2)

This recommendation partially implemented.

The Department of Corrective Services officers do not receive refresher training

in first aid and resuscitation.

422

Recommendation 30 Prison and police officers should receive regular training in restraint techniques, including the application of restraint equipment. (8.2.3)

This recommendation partially implemented.

The Department of Corrective Services provided details of the number of officers

who receive refresher training in restraints. The Royal Commission is not aware

of any refresher training received by police in this regard.

Recommendation 31 Restraint methods which involve constriction of air supply or carotid pressures such as 'choke holds' or 'head locks' should never be used. (8.2.3)

This recommendation has not been implemented.

The Department of Corrective Services: Executive Director's Rule No. 29A does

not prohibit the use of such holds. It states:

"Restraint by use of neck-holds and headlocks is potentially 1£.Jhill. and should be used Ql1]:J. where there is no other alternative."

The Police Department has advised the Royal Commission that these holds have

not been included in training for police officers for many years because of the

potential danger. Members are advised against using such holds. However there

does not seem to be a prohibition against their use.

Recommendation 32 All personnel of police, prison, social welfare or other departments whose work will bring them into contact with Aboriginal people should receive appropriate training or re-training to ensure that they have an understanding and appreciation of Aboriginal history, culture and social behaviour and the abilities to effectively

communicate and work with Aboriginal people. (8.2.4)

This recommendation has been partially implemented.

The Police Department has advised the Royal Commission that it is implemented

in relation to police recruits. However, there is no training programme for

423

serving officers. See comment elsewhere in the Report as to the adequacy of the

training in this regard. [Probationary Officers of the Department of Corrective

Services receive training in Aboriginal issues. There is no in-service training for

serving prison officers.]

Recommendation 33 The Aboriginal component of training courses should be prepared in consultation with representatives from the Aboriginal community. Training courses in Aboriginal issues should be examinable. (8.2.4)

This recommendation has been implemented.

However see comment elsewhere in the Report as to the adequacy of Aboriginal

input and responses of Aboriginal people involved in the provision of the

courses.

Recommendation 34 Aboriginal police aide schemes should be re-examined to ensure their role is not merely to assist the police in everyday duties but rather to advise the police and to operate as a true link between the police and the Aboriginal population. They must be perceived by both the police department and the community as persons not only with understanding, but with a voice. (8.3 .2)

This recommendation has been partially implemented.

Police Aide scheme examined in review 'Law Enforcement or Liaison .. .' . The

Report was never released publicly despite its thoroughness and well­

documented analysis of operation of scheme. Many of its key recommendations

have not been implemented. More recently a review was conducted by a number

of Commissioned Officers on the Police Aide Scheme. They recommended that

Police Aides should become Aboriginal Auxiliary Constables. The Minister of

Police is awaiting the findings of the Royal Commission before implementation.

The two recent reviews are discussed in more detail in the section of the report

dealing with Aboriginal/Police relations.

424

Recommendation 35 Steps should be taken to ensure that Aboriginal police aides have a true career structure and receive proper training and support to enable them to operate in the manner most conducive to effective policing in Aboriginal communities , an

important component of which is to create better understanding. (8.3.2)

This recommendation has not been implemented.

The Police Department has examined the career structure and made

recommendations for change. The extent to which training has been reviewed or

improved is inadequate. I refer to discussion elsewhere in the Report as to

adequacy of recent police recommendations in this regard.

Recommendation 36 Prison Medical Services should be responsible for obtaining comprehensive medical histories for Aboriginal prisoners. This includes records of prior treatment from hospitals, health services and other prisons. Prisoner's medical

history files, or duplicates thereof, should accompany