Download PDFROYAL 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) ...............â¢............................................ 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) ............................. : .......................â¢.. 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 .. ..... .â¢....... ... ....... .. ... . 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
â¢
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<â¢> 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<â¢>: 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 wherâ¢
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 accompan