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Aboriginal deaths in custody - Royal Commission (Hon. E.F. Johnston, QC) - Reports - National report (Commissioner E. Johnston, QC) - Volume 1


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R O Y A L C O M M I S S I O N IN T O ABORIGINAL DEATHS IN CUSTODY

NATIONAL REPORT

VOLUME 1

Commonwealth, New South Wales, Victoria, Queensland, W estern Australia, South Australia, Tasmania and Northern Territory

R O Y A L CO M M ISSIO N INTO A B O R I G I N A L D E A T H S IN C U S T O D Y

NATIONAL REPORT

V o l u m e 1

BY

COMMISSIONER ELLIOTT JOHNSTON, Q C

Australian Government Publishing Service Canberra

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r o y a l c o m m i s s i o n i n t o a b o r i g i n a l d e a t h s i n c u s t o d y

Secretary : Jo h n G a v in Assistant S ecretary : Jill S h ep p ard

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15 April 1991

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

Your Excellency

In accordance with Letters Patent issued to me on 27 April 1989 and subsequently varied and as foreshadowed in my letter of 30 March 1991,1 have the honour to present to you the final report o f my inquiry into the deaths in custody o f Aboriginals and Torres Strait Islanders between 1 January 1980 and 31 May 1989.

The same report is being provided to their Excellencies the Governors o f New South Wales, Victoria, Queensland, Western Australia, South Australia and Tasmania and His Honour the Administrator o f the Northern Territory.

Yours sincerely x

Elliott Johnston COMMISSIONER

ROYAL C O M M IS S IO N IN T O A B O R IG IN A L D E A T H S IN C U S T O D Y

Secretary : Jo h n G av in Assistant S e c re ta ry ': Jill S h e p p a rd

Reference:

45 F lin d e rs S tre e t A D E L A ID E S A 5 0 0 0

G P O Box 1005 A D E L A ID E S A 5001

T e le p h o n e : (08) 22 3 6 2 2 2 F ax : (0 8 ) 22 3 7 8 2 5

15 April 1991

His Excellency Rear Admiral Peter Sinclair, AO Governor of New South Wales Government House SYDNEY NSW 2000

Your Excellency

In accordance with Letters Patent issued to me on 10 May 1989 and subsequently varied and as foreshadowed in my letter of 30 March 1991,1 have the honour to present to you the final report o f my inquiry into the deaths in custody o f Aboriginals and Torres Strait Islanders between 1 January 1980 and 31 May 1989.

The same report is being provided to His Excellency the Governor-General and their Excellencies the Governors of Victoria, Queensland, Western Australia, South Australia and Tasmania and His Honour the Administrator of the Northern Territory.

Yours sincerely

Elliott Johnston COMMISSIONER

ROYAL C O M M IS S IO N IN TO A B O R IG IN A L D E A T H S IN C U S T O D Y

Secretary : Jo h n G a v in Assistant S e c re ta ry ': Jill S h ep p ard

4 5 F lin d e rs S tre e t A D E L A ID E S A 5 0 0 0

G P O B ox 1005 A D E L A ID E S A 5001

Reference: T e le p h o n e : (08) 2 2 3 6 2 2 2

F ax: (0 8 ) 22 3 7825

15 April 1991

His Excellency Dr David McCaughey, AC Governor of Victoria Government House MELBOURNE VIC 3000

Your Excellency

In accordance with Letters Patent issued to me on 26 April 1989 and subsequently varied and as foreshadowed in my letter of 30 March 1991, 1 have the honour to present to you the final report o f my inquiry into the deaths in custody o f Aboriginals and Torres Strait Islanders between 1 January 1980 and 31 May 1989.

The same report is being provided to His Excellency the Governor-General and their Excellencies the Governors o f New South Wales, Queensland, Western Australia, South Australia and Tasmania and His Honour the Administrator o f the Northern Territory.

Yours sincerely

Elliott Johnston COMMISSIONER

■

'

ROYAL C O M M IS S IO N IN T O A B O R IG IN A L D E A T H S IN C U S T O D Y

Secretary : J o h n G a v in Assistant S e c re ta ry : Jill S h e p p a rd

45 F lin d e rs S tre e t A D E L A ID E S A 5 0 0 0

G P O Box 1005 A D E L A ID E S A 5001

Reference: T e le p h o n e : (0 8 ) 22 3 6 2 2 2

F ax: (0 8 ) 223 7 8 2 5

15 April 1991

His Excellency the Honourable Sir Walter Benjamin Campbell, AC, QC Governor o f Queensland Government House BRISBANE QLD 4000

Your Excellency

In accordance with Letters Patent issued to me on 29 June 1989 and subsequentiy varied and as foreshadowed in my letter of 30 March 1991,1 have the honour to present to you the final report o f my inquiry into the deaths in custody o f Aboriginals and Torres Strait Islanders between 1 January 1980 and 31 May 1989.

The same report is being provided to His Excellency the Governor-General and their Excellencies the Governors o f New South Wales, Victoria, Western Australia, South Australia and Tasmania and His Honour the Administrator o f the Northern Territory.

Yours sincerely

/ . '7

Elliott Johnston COMMISSIONER

r o y a l c o m m i s s i o n i n t o a b o r i g i n a l d e a t h s i n c u s t o d y

Secretary : Jo h n G a v in Assistant S ecretary : Jill S h e p p a rd

45 F lin d e rs S tre et A D E L A ID E S A 5 0 0 0

G P O B ox 1005 A D E L A ID E S A 5001

Reference: T e le p h o n e : (0 8 ) 223 6 2 2 2

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15 April 1991

His Excellency the Honourable Sir Francis Burt, 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 and as foreshadowed in my letter of 30 March 1 9 9 1 ,1 have the honour to present to you the final report of my inquiry into the deaths in custody o f Aboriginals and Torres Strait Islanders between 1 January 1980 and 31 May 1989.

The same report is being provided to His Excellency the Governor-General and their Excellencies the Governors o f New South Wales, Victoria, Queensland, South Australia and Tasmania and His Honour the Administrator of the Northern Territory.

Yours sincerely

Elliott Johnston COMMISSIONER

'

r o y a l c o m m i s s i o n i n t o a b o r i g i n a l d e a t h s i n c u s t o d y

Secretary : John G av in Assistant S ecretary : Jill S h e p p a rd

Reference:

45 F lin d e rs S tre e t A D E L A ID E S A 5 0 0 0

G P O B ox 1005 A D E L A ID E S A 5001

T e le p h o n e : (0 8 ) 223 6 2 2 2 F ax : (0 8 ) 22 3 7825

15 April 1991

Her Excellency Dame Roma Mitchell, AC, DBE Governor of South Australia Government House ADELAIDE SA 5000

Your Excellency

In accordance with Letters Patent issued to me on 27 April 1989 and subsequently varied and as foreshadowed in my letter o f 30 March 1991,1 have the honour to present to you the final report o f my inquiry into the deaths in custody o f Aboriginals and Torres Strait Islanders between 1 January 1980 and 31 May 1989.

The same report is being provided to His Excellency the Governor-General and their Excellencies the Governors o f New South Wales, Victoria, Queensland, Western Australia and Tasmania and His Honour the Administrator of the Northern Territory.

Yours sincerely

Elliott Johnston - ' COMMISSIONER

10YAL C O M M I S S I O N IN T O A B O R I G I N A L D E A T H S IN C U S T O D Y

ecretary : J o h n G a v in issistant S e c re ta ry : J ill S h e p p a rd

4 5 F lin d e rs S tre e t A D E L A ID E S A 5000

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lefcrence: T e le p h o n e : (0 8 ) 223 6222

F ax: (0 8 ) 2 2 3 7 8 2 5

15 April 1991

His Excellency General Sir Phillip Bennett, AC, KBE, DSO Governor of Tasmania Government House HOBART TAS 7000

Your Excellency

In accordance with Letters Patent issued to me on 2 May 1989 and subsequently varied and as foreshadowed in my letter o f 30 March 1 9 9 1 ,1 have the honour to present to you the final report o f my inquiry into the deaths in custody of Aboriginals and Torres Strait Islanders between 1 January 1980 and 31 May 1989.

The same report is being provided to His Excellency the Governor-General and their Excellencies the Governors o f New South Wales, Victoria, Queensland, Western Australia and South Australia and His Honour the Administrator of the Northern Territory.

Yours sincerely

Elliott Johnston COMMISSIONER

ROYAL C O M M I S S I O N INTO A B O R IG IN A L D E A T H S IN C U S T O D Y

Secretary : Jo h n G a v in A ssistant S ecretary' : Jill S h e p p a rd

45 F lin d e rs S tre et A D E L A ID E S A 5000

G P O Box 1005 A D E L A ID E S A 5001

Reference: T e le p h o n e : (0 8 ) 223 0 2 2 2

F ax: (0 8 ) 223 7825

15 April 1991

The Honourable James Henry Muirhead, AC, QC Administrator of the Northern Territory Government House DARWIN NT 0800

Your Excellency

In accordance with the Commission o f Inquiry (Deaths in Custody) Act 1987 as amended on 15 June 1988 and 15 June 1989 and as foreshadowed in my letter o f 30 March 1991, I have the honour to present to you the final report o f my inquiry into the deaths in custody of Aboriginals and Torres Strait Islanders between 1 January 1980 and 31 May 1989.

The same report is being provided to His Excellency the Governor-General and their Excellencies the Governors of New South Wales, Victoria, Queensland, Western Australia, South Australia and Tasmania.

Yours sincerely

Elliott Johnsto COMMISSIONER

PREFACE

There are many steps that can be taken to improve the care of persons in custody, A boriginal and non-A boriginal. During the life of the Commission, and particularly since the release of the Interim Report of Commissioner the Hon. J.H. Muirhead, AC, QC, there appear to have

been significant improvements in the standard of care and a reduced number of Aboriginal deaths in custody, particularly police custody.

But a major reason for Aboriginal deaths in custody remains: the grossly disproportionate rates at which Aboriginal people are taken into custody, of the order of more than twenty times the rate for non-Aboriginals. Something can be done to reduce this rate by law reform and changes in policing strategies. In a number of places in Australia, Aboriginal people

and police of goodwill have already worked together to design and put into operation a new relationship with encouraging results at the local level.

However, there are issues underlying the alienation of Aboriginal people and their continuing conflict with the law which cannot be solved by police and Aboriginal people alone. The key is to be found in the hearts and minds of all Australians. It lies in the recognition of the Aboriginal people

as a distinct people, the indigenous people of Australia who were cruelly dispossessed of their land and until recent times denied respect as human beings and the opportunity to re-establish themselves on an equal basis.

As with indigenous peoples in other countries, it is a matter o f great difficulty to work out ways in which, within the framework of the large society, they can retain their identity as a people and exercise a significant degree of control over their lives and futures. If other Australians can, in a

spirit of justice and humanity, accord Aboriginal people this recognition, give them freedom to determine their own future and find their own place as a distinct people within Australian society, and provide them with the resources that are necessary to overcome the handicaps they suffer as a result of what has happened in the past, there can be hope of a freely

negotiated reconciliation betw een A boriginal a n d m on-A boriginal Australians. Then there may be an end to the situation where so many Aboriginal people live and die in custody.

V o ll Page xix

These views form the main thrust of the report, and they are views which all five Commissioners have come to share as a result of their inquiries. W hile the terms of this report are the responsibility of the National Commissioner, most of the recommendations have unanimous support. There are, o f course, specific areas or m atters which particular Commissioners were unable to sufficiently inquire into to reach a final view. Commissioner Dodson whose Commission required that he look only at underlying issues is in close agreement with the report and recommendations.

Patrick Dodson COMMISSIONER

D J. COM iMNftSSlONER

L.F. Wyvill, QC COMMISSIONER

Elliott Johnston, QC COMMISSIONER

P age xx Vol 1

ACKNOWLEDGEMENTS

This report would not have been made but for the deaths of ninety-nine Aboriginal men and women who died in Australian police, prison and juvenile detention custody between 1 January 1980 and 31 May 1989. The Commission wishes to place on record its sympathies to the families

of the deceased.

The report is the culmination of an enormous amount of work by people both within and outside the Commission and I should like to express my appreciation to all those people who have given so much of their time and their effort. I should like to particularly express my appreciation to

Government at both Ministerial and official level for the co-operation shown to the Commission in the course of its inquiries.

I should like to pay particular tribute to the work, dedication and support afforded me by the four other Commissioners viz:

Commissioner P.L. Dodson Commissioner the Hon. D.J. O ’Dea, LLB Commissioner the Hon. J.H. Wootten, AC, QC Commissioner L.F. Wyvill, QC

and to Mr G. Fam es, QC, Counsel Assisting, and Mr John Gavin, Secretary of the Commission.

While responsibility for this report must necessarily rest with me its completion has in the fullest sense been a co-operative effort of all Commissioners, and of course has drawn on their inquiries and experiences during the term of the Commission.

Finally, I should like to place on record my special appreciation of the sound foundations established by the first Commissioner, the Hon. J.H. Muirhead AC, QC, and the fine leadership he demonstrated during the first one and a half years of the Commission’s existence.

Elliott Johnston, QC

SUMMARY OF ALL VOLUMES

Volume 1 Transmission Letters Preface Framework of this report

1. Overview

PART A T H E D EATHS IN V E ST IG A T E D BY T H E R O Y A L C O M M ISSIO N 2. Profile of Those Who Died; 3. The Findings of the Commissioners as to the Deaths; 4. The Adequacy of Previous Investigations.

PART B T H E D IS P R O P O R T IO N A T E N U M B ER OF A B O R IG IN A L P E O P L E IN C U STO D Y 5. The Disproportionate Numbers in Custody as the Immediate Explanation of the Numbers of Deaths in Custody; 6. Aboriginal People in Custody—Some

Basic Facts; 7. Reasons for Custody; 8. Duration of Custody; 9. The Extent of the Disproportion.

Volume 2 PART C T H E U N D ER LY IN G ISSU ES W H IC H EX PLA IN T H E D ISP R O P O R T IO N A T E N U M B ER O F A B O R IG IN A L P E O P L E IN C U STO D Y

10. The Legacy of History; 11. Aboriginal Society Today; 12. Relations with the Non-Aboriginal Community; 13. The Criminal Justice System: Relations with Police; 14. Young Aboriginal People and the Juvenile Justice System; 15. The Harmful Use of Alcohol and Other Drugs; 16. Schooling;

17. Employment, Unemployment and Poverty; 18. Housing and Infrastructure; 19. Land Needs; 20. Self-determination.

Vol2 Page xxiii

Sum m ary of All Volumes

Volume 3 PART D R E D U C IN G T H E N U M BERS IN C U STO D Y 21. Diversion from Police Custody; 22. Imprisonment as a Last Resort.

P A R T E R E D U C IN G T H E R ISK S O F D EA TH IN

C U ST O D Y

23. The Vulnerabilities of those in Custody; 24. Custodial Health and Safety; 25. The Prison Experience.

Volume 4 PART F T H E U N D ER LY IN G ISSUES: D IR E C T IO N S F O R C H A N G E 26. The Interrelationship of the Underlying Issues; 27. The Path to Self­ determination; 28. Accomodating Difference—Relations Between Aboriginal

and Non-Aboriginal People; 29. Improving the Criminal Justice System— Aboriginal People and Police; 30. Breaking the Cycle: Aboriginal Youth; 31. Towards Better Health; 32. Coping with Alcohol and Other Drugs— Strategics for Change; 33. Educating for the Future; 34. Increasing Economic Opportunity; 35. Improving the Living Environment—Housing and Infrastructure.

Volume 5 PART G TO W A R D S R E C O N C IL IA T IO N 36. Conforming with International Obligations; 37. Addressing Land Needs; 38. The Process of Reconciliation.

RECOMMENDATIONS

PART H A P P E N D IC E S The Terms of Reference; Individual Deaths—Inquiries and Rulings; Methodology; Sources of Information.

IN D E X

Page xxiv Vol 2

Volume 1 TABLE OF CONTENTS

Transmission letters iii

Preface ix

Acknowledgements xxi

Summary of all Volumes xxiii

Table of Contents xxv

List of Tables xxxi

List of Figures X X X V

List of Acronyms xxxvii

Map xlv

Framework xlvii

Chapter 1 O V ER V IEW 1

1.1 The Royal Commission 1

1.2 The Individual Deaths 2

The Overall Findings 2

How the Deaths Occurred 4

The Lives of Those Who Died 4

1.3 The Disproportionate Numbers of Aboriginal People in Custody 6

1.4 The Importance of History 7

1.5 Some Consequences of History 11

Vol 1 Page xxv

Table of Contents Vol 1

1.6 Reducing the Number of Aboriginal People in Custody— the Criminal Justice System 12

Diversion from Custody 13

1.7 Reducing the Number of Aboriginal People in Custody— the Fundamental Question— Empowerment and Self-determination The Will to Renewal and Self-

15

determination 16

The Role of the Broader Society 17

The Policy of Self-determination Self-determination and Non-Aboriginal 19 Attitudes 20

1.8 The Importance of the Aboriginal Organizations 23

1.9 The Elimination of Disadvantage and the Process of Reconcilliation 25

1.10 An Overview of the Recommendations 26

PART A T H E DEATHS IN V ESTIG A TED BY T H E R O Y A L C O M M ISSIO N

Chapter 2 P r o f i l e o f t h e D e c e a s e d

P e r s o n s 35

2.1 Introduction

The Geographical Distribution of the 35

Aboriginal Population 36

2.2 Demographic Characteristics Of The Deceased 39

Age And Gender 39

Age And State 40

Place Of Birth 40

Marital Status 41

Employment 42

Occupation 42

Highest Educational Level Attained 43

Community 43

Childhood Separation 44

2.3 Criminal History 44

Reported Age At First Criminal Charge Most Frequent Offence During Whole Of 44 Life 45

2.4 Reason For Last Detention Police Custody— Reason for not granting 46 bail 47

2.5 Custody 48

Custodial Authority 48

Page xxvi Vol 1

Vol 1 Table of Contents

Custodial Status Duration O f Custody Prior To Death Or Transfer To Hospital Or Other Medical

48

Facility 49

2.6 Details of the Deaths 50

Custodial Authority and Year of Death 50

Place of Death 52

Manner of Death Time Between When Last Seen Alive and 53 Discovery of Death 54

2.7 Conclusion 55

Chapter 3 T h e F i n d i n g s o f t h e

C o m m i s s i o n e r s a s t o t h e D e a t h s 5 7

3.1 The Inquiries of the Commissioners 58

3.2 The Findings as to the Immediate Circumstances of the Deaths 60

The Deaths by Hanging The Deaths by Trauma (Other Than 61 Trauma Inflicted by Hanging) Deaths Directly Associated With Harmful

68

Use of Alcohol and Other Dmgs 71

Deaths from Natural Causes 72

Deaths Occurring in Hospital 74

Summary 76

3.3 The Findings of the Commissioners as to the Custodial Care of Those who Died in Custody 77

Introduction The Findings of the Commissioners as to the Custodial Care of Those who Died

77

in Police Custody The Findings of the Commissioners as to the Custodial Care of Those who Died

80

in Prison Custody The Findings of the Commissioners as to the Custodial Care of Those who Died

92

in Juvenile Detention Centres Some Other Observations Concerning the 94 Custodial Deaths Emergency Response Training, Including

95

Resuscitation Findings of the Commissioners as to 96 Matters of Hospital Treatment

A Conclusion From the Findings as to 97

Custodial Care 99

3.4 Creating Suspicions 100

Vol 1 Page xxvii

Table of Contents Vo! 1

3.5 Aboriginal Expectations about the Actions Which the Commission Might Take 102

Chapter 4 The Adequacy of Previous Investigations 109

4.1 Introduction 109

4.2 Police Investigations 113

4.3 Departmental Investigations 123

4.4 Autopsies (Post-Mortem Examinations) 125

4.5 Coronial Inquiries

Adequacy of Coronial Inquests Reviewed 129

by the Commission 130

Status and Qualifications of Coroners 133

Legislative and Procedural Structures 135

Coronial Jurisdiction and Inquests 141

4.6 The Rights of the Deceased’s Family 157

Introduction 157

Notification of Death 158

4.7 Conclusion 169

PART B T H E D ISP R O P O R T IO N A T E N U M BER O F A B O R IG IN A L P E O P L E IN C U STO D Y 185

Chapter 5 THE DISPROPORTIONATE NUMBERS in Custody as the immediate Expanation for the Numbers of Deaths in Custody 187

Chapter 6 ABORIGINAL PEOPLE IN CUSTODY: Some Basic Facts 191

6.1 Aboriginal People in Police Custody 191

Introduction 191

Age of Police Custody Detainees 192

Gender 193

6.2 Aboriginal People In Prison Custody 196

Age Group Distribution 198

Gender of Aboriginal Prisoners 199

Page xxviii Vol 1

Vol 1 Table of Contents

Chapter 7 R e a s o n s f o r C u s t o d y 2 0 1

7.1 Police Custody 201

Offences Involved 203

Public Drunkenness 204

7.2 Prison Custody 205

Offences Involved 207

Chapter 8 D u r a t i o n o f C u s t o d y 2 1 1

8.1 Police Custody 211

State-by-State Comparisons 214

8.2 Prison Custody 215

Chapter 9 T h e E x t e n t o f t h e

D i s p r o p o r t i o n 2 1 9

9.1 Introduction 219

9.2 Disproportionate Numbers in Police Custody 221

State-by-State Comparisons 221

9.3 Disproportion in Prison Populations 225

9.4 Summary of Part B 226

Vol 1 Page xxix

LIST OF TABLES

Table 2.1 Geographical Distribution of the Aboriginal Population and the Total Australian Population, 1986 Census 37

Table 2.2 Age at Death, by Gender 39

Table 2.3 Age at Death, by State 40

Table 2.4 State of Birth, by State of Death 41

Table 2.5 Marital Status, by State 41

Table 2.6 Employment Status Prior to Last Detention, by State 42

Table 2.7 Usual Occupation, by State 42

Table 2.8 Highest Education Level, by State 43

Table 2.9 Type of Community Lived in During the Five Years Prior to Apprehension, by State 44

Table 2.10 Childhood Separation by Official Intervention, by State 44

Table 2.11 Reported Age at First Criminal Charge, by State 45

Table 2.12 Most Frequent Offence— Whole of Life, by State 45

Table 2.13 Reason for Last Detention, by State 46

Table 2.14 Reason for not Granting Bail, by State (Police Custody Cases Only) 47

Table 2.15 Custodial Authority, by State 48

Table 2.16 Custodial Status, by State 48

Table 2.17 Length of Time in Custody Prior to Death or Transfer to a Hospital or Other Medical Facility, by Custodial Authority 49

Vol 1 Page xxxi

L ist of T ables

Table 2.18 Mean Length of Time in Custody Prior to Death or Transfer to a Hospital or Other Medical Facility, by State 50

Table 2.19 Year of Death, by Custodial Authority 51

Table 2.20 Year of Death, by Custodial Authority and State 52

Table 2.21 Place of Death, by Custodial Authority 53

Table 2.22 Manner of Death, by Custodial Authority 53

Table 2.23 Manner of Death, by State or Territory 54

Table 2.24 Time between Last Seen Alive and Discovery, by Custodial Authority 54

Table 3.1 Prison Hangings 64

Table 3.2 Police Cell Hangings (including Death in Hospital Taken There from Police Cells) 65

Table 3.3 Regional Distribution 68

Table 6.1 Persons Taken into Police Custody August 1988, by Age Group 192

Table 6.2 Persons Taken into Police Custody August 1988, by Jurisdiction 194

Table 6.3 Prisoners in Custody, by Jurisdiction, 30 June 1989 197

Table 6.4 Aboriginal Prisoners by Age Group And Jurisdiction, 30 June 1989 198

Table 6.5 Gender of Aboriginal and Non-aboriginal Prisoners, by Jurisdiction, 30 June 1989 200

Table 7.1 Persons Taken into Police Custody August 1988, by Reason for Custody and Jurisdiction 202

Table 7.2 Percentage of Persons Taken into Police Custody August 1988, by Reason for Custody, Aboriginality or non- Aboriginality and Gender 203

Table 7.3 Persons Taken into Police Custody August 1988, by Offences Involved and Aboriginality or Non-aboriginality 203

Table 7.4 Custodial Status of Prisoners, by Jurisdiction, 30 June 1989 206

Page xxxii Vol 1

L ist of T ables

Table 7.5

Table 7.6

Table 7.7

Table 7.8

Table 8.1

Table 8.2

Table 8.3

Table 8.4

Table 8.5

Table 9.1

Table 9.2

Table 9.3

Per Cent Remandees by Jurisdiction, 30 June 1989

Most Serious Offence of Sentenced Prison Receptions, Aboriginal and non­ Aboriginal, April 1989

Most Serious Offence of Conviction or Charge, Aboriginal and non-Aboriginal Prisoners, 30 June 1989

Most Serious Offence of Conviction or Charge, Aboriginal and Non-aboriginal Prisoners, and Percent Aboriginal Prisoners, 30 June 1989

Mean Length of Time in Cells, Aboriginal and Non-aboriginal Persons, August 1988

Mean Length of Time in Cells, Aboriginal and Non-aboriginal, by Jurisdiction

Number of Hours in Cells, Aboriginal and Non-aboriginal

Mean Time in Police Custody, August 1988 (for Reasons Other Than Public Drunkenness)

Aggregate Sentences Imposed on Sentenced Aboriginal Prisoners, 30 June 1989

Police Custody Rates, Aboriginal and Non­ aboriginal, by Jurisdiction, August 1988

Custody Rates for Persons Taken into Police Custody for Reasons Other Than Public Drunkenness, August 1988

Aboriginal and Non-aboriginal Adult Imprisonment Rates And Levels of Disproportion, by Jurisdiction, 30 June 1989

206

207

209

210

211

212

213

213

215

223

224

226

Voll Page xxxiii

LIST OF FIGURES

Figure 2.1 Year of Death, by Custodial Authority 51

Figure 6.1 Persons Taken Into Police Custody, August 1988, And Total Australian Population, by Age Group 193

Figure 6.2 Age Group Distribution of Aboriginal And Non-aboriginal Prisoners, Australia, 30 June 1990 199

Figure 8.1 Aggregate Sentences Imposed on Aboriginal And Other Prisoners as at 30 June 1989 216

Figure 9.1 Aboriginal Disproportionate Numbers in Police Custody 221

Figure 9.2 Persons Taken Into Police Custody August 1988, Aboriginal And Non-aboriginal, by Jurisdiction 222

Vol 1 Page xxxv

ACRONYMS

AAPA AATA ABC ABS

ABSEC

ABSEG ACAP ABSTUDY ABTA

ACAP ACC ADC ADFA

AEA AECG AEDP AEEDO

AEIS AESIP AEW AGPS

AHL AHO AES AIC

AICHS AIR AUA

Aboriginal Affairs Planning Authority Aboriginal Advancement Trust Account Australian Broadcasting Corporation Australian Bureau of Statistics

Aboriginal Secondary Assistance Scheme (now ABSTUDY Schooling) Aboriginal Secondary Education Grant (now ABSTUDY Schooling) Aboriginal Community Affairs Panel

Aboriginal Study Assistance Scheme Aboriginals Benefit Trust Account Aboriginal Community Affairs Panel Aboriginal Co-ordinating Council

Aboriginal Development Commission (Now ATSIC) Alcohol and Drug Foundation Australia (now known as Australian Council of Alcohol and Other Drug Associations) Aboriginal Education Assistant

Aboriginal Education Consultative Groups Aboriginal Employment Development Policy Aboriginal Economic and Employment Development Officer Aboriginal Enterprise Incentive Scheme

Aboriginal Education Strategic Initiatives Program Aboriginal Education Worker Australian Government Publishing Service Aboriginal Hostels Ltd

Aboriginal Health Organization Aboriginal Health Service Australian Institute of Criminology Aboriginal and Islander Community Health Service

Australian Institute of Health Australian Institute of Judicial Administration

Vol 1 Page xxxvii

A cronym s

AIM Australian Institute of Management AITEP Aboriginal and Islander Teacher Education Program AIU Aboriginal Issues Unit (of Royal Commission) AJA Australian Journalists Association ALC Aboriginal Loans Commission ALFC Aboriginal Land Fund Commission ALO Aboriginal Liaison Officer ALRC Australian Law Reform Commission ALRM Aboriginal Legal Rights Movement ALS Aboriginal Legal Service ALT Aboriginal Lands Trust AMA Australian Medical Association ΑΜΗΝ Aboriginal Mental Health Network AMS Aboriginal Medical Service ANAO Australian National Audit Office ANOP Australian National Opinion Polls ANPWS Australian National Parks and Wildlife ANTEP Anangu Teacher Education Programme AOT Aboriginal Organization Training Program APH Anangu Pitjantjatjara Homelands API Aboriginal Participation Initiative APS Australian Public Service ASAP Aboriginal Services Action Plan ASSPA Aboriginal Student Support and Parent Awareness ATAS Aboriginal Tutorial Assistance Scheme ATS I Aboriginal and Torres Strait Islander ATSIC Aboriginal & Torres Strait Islander Commission (Formerly DAA -

Department of Aboriginal Affairs)

ATSICDC Aboriginal and Torres Strait Islander Commercial Development Corporation AVS Aboriginal Visitors Scheme BRAMS Broome Aboriginal Medical Service BTEC Brucellocis and Tuberculosis Eradication Campaign CAAC Central Australian Aboriginal Congress Inc CAALAS Central Australian Aboriginal Legal Aid Scheme CAAMA Central Australian Aboriginal Media Association CAE College of Advanced Education CAEPR Centre for Aboriginal Economic Policy Research CALM Conservation & Land Management

Page xxxviii Vol 1

A cronym s

CAMS CATARAC CCNT CDBR

CDC

Carnarvon Aboriginal Medical Service Central Area Training Aboriginal Resource Accounting Corporation Conservation Commission of the Northern Territory Committee to Defend Black Rights

(Aboriginal and Torres Strait Islander) Commercial Development Corporation CDEP CEAAC CEC CEP CERD

Community Development Employment Projects Catholic Education Aboriginal Advisory Committee Catholic Education Commission Commonwealth Employment Project

United Nations Committee on the Elimination of Racial Discrimination CES CJP

CLC CRP CRU CSIRO

CSO CT DAA DAS DCH DCS (1)

DCS (2) DEET DETAFE DFSAIA

DOF DOGIT DOPIE DPP DPUD

DSR DSS EEA EEO

ESL ESU

Commonwealth Employment Service Community Justice Panel Central Land Council Community Release Program

Criminology Research Unit Commonwealth Science and Industrial Research Organization Community Service Order Computerized Tomography

Department of Aboriginal Affairs (Now ATSIC) Department of Aboriginal Sites Department of Community Health Department of Community Services

Department of Corrective Services Department of Employment, Education & Training Department of Employment, Technical and Further Education Department of Family Services and Aboriginal and Islander Affairs

Department of Finance Deeds Of Grant In Tmst Department of Primary Industry and Energy Director of Public Prosecutions

Department for Planning & Urban Development Department of Sport & Recreation Department of Social Security Enterprise Employment Assistance

Equal Employment Opportunity English as a Second Language Enterprise Support Units

Voll Page xxxix

A cronym s

FACS FCAATSI

FORWAARD

GNP HACC HALT HDWA HOAL

HREOC ICCPR ICD ICESCR ICERD

IPCHAC JP JPA KALCC

KAMSC KLC KRALAS LAC LAECG LGC NAANH NAC NACC NADU NAEC NAEP NAHSWP NAIDOC NAIHO NAILSS NARU NCADA NCC

Family and Community Services Federal Council for the Advancement of Aboriginal and Torres Strait Islanders Foundation of Rehabilitation with Aboriginal Alcohol Related

Difficulties Good Neighbour Program Home And Community Care Healthy Aboriginal Life Team Health Department of Western Australia Homes on Aboriginal Land Human Rights and Equal Opportunity Commission International Covenant on Civil and Political Rights International Classification of Diseases International Covenant on Economic Social and Cultural Rights International Convention on the Elimination of all Forms of Racial Discrimination Incarcerated Peoples Cultural Heritage Aboriginal Corporation Justice of the Peace Justices of Peace Association

Kimberley Aboriginal Law & Culture Centre Kimberley Aboriginal Medical Services Council Kimberley Land Council Katherine Regional Aboriginal Legal Aid Service Legal Aid Commission Local Aboriginal Education Consultative Groups Local Government Council Northern Area Aboriginal Neighbourhood House National Aboriginal Congress National Aboriginal Consultative Committee North Australia Development Unit National Aboriginal Education Committee National Aboriginal Education Policy National Aboriginal Health Strategy Working Paper National Aboriginal and Islander Day Organising Committee National Aboriginal Islander Health Organization National Aboriginal and Islander Legal Services Secretariat North Australia Research Unit National Campaign Against Dmg Abuse Nulungu Catholic College

Pagexl Vol 1

A cronym s

NESA NFLC NH&MRC NHC NT AMS OAA OIC PFANZ

PIA PIAC PMS PNLRM

PSC QCSC RALC RATE RATEP RCAGA

RCIADIC RFDS SBS SCAM

SJAA SMR (1) SMR (2) SNAICC

SPG SWOS SWRC TAPE

TAPE TAP TCHIP TE

ΤΕΡΑ TRG UAM UB

UN

National Employment Strategy for Aboriginals National Federation of Land Councils National Health and Medical Research Council Nganampa Health Council Northern Territory Aerial Medical School

Office of Aboriginal Affairs Officer in Charge Police Federation of Australia and New Zealand Public Intoxication Act

Public Interest Advocacy Centre Prison Medical Service Preferred National Land Rights Model Public Service Commission

Queensland Corrective Service’s Commission Regional Aboriginal Land Council Remote Area Teacher Education Remote Area Teacher Education Program

Royal Commission on Australian Government Administration Royal Commission into Aboriginal Deaths in Custody Royal Flying Doctor Service Special Broadcasting Service

Self Contained Accommodation Modules St John Ambulance Association Standardized Mortality Ratio Standard Minimum Rules for the Treatment of Prisoners

Secretariat National Aboriginal Islander Child Care Special Purpose Grant Special Weapons and Operations Section Social Welfare Research Centre (now Social Policy Research Centre)

Technical & Further Education Technical and Further Education Training for Aboriginals Program Town Campers Housing and Infrastructure Program

Tertiary Entrance Tertiary Education Program for Aboriginals Tactical Response Group United Aboriginal Mission

Unemployment Benefit United Nations

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A cronym s

UPK VACSAI VAEAI VAHS VALS VAMHN WAADA WAAECG WACAE WATC

Uwankara Palyanyku Kanyintjaku Victorian Aboriginal Community Services Association Incorporated Victorian Aboriginal Education Association Inc Victorian Aboriginal Health Service Victorian Aboriginal Legal Service Victorian Aboriginal Mental Health Network Western Australia Alcohol & Drug Authority Western Australian Aboriginal Education Consultative Group Western Australian College of Advanced Education Western Australian Tourism Commission

Pagexlii V o ll

Names of Deceased Persons whose Deaths were within the Jurisdiction of the Royal Commission __________________ Showing the Last Place of Custody_____________________________

N E W S O U T H W A L E S V incent RYAN T ow nsville Prison

Shane ATKINSON G riffith W atch-house M onty SA LT Police vehicle, K ings Plains

Lloyd BONEY B rew arrina W atch-house D eidre SHORT Lockhart R iver W atch-house

Peter CA M PBELL L ong B ay G aol B arbara TIER S R ockham pton W atch-house

Thom as CARR M in da Rem and Centre Eddie W EST Cherbourg W atch-house

D avid GUNDY Private Residence D arren W O U T ER S Brisbane City W atch-house

Paul K EA R N EY D arlinghurst W atch-house W ujal W ujal * W ujal W ujal W atch-house

B ruce LE SL IE Tam w orth W atch-house B arbara Y A RR IE Brisbane City W atch-house

Eddie M URRAY W ee W aa W atch-house Fay Y A RRIE Brisbane City W atch-house

T im M URRAY B errim a T raining Centre

W E S T E R N A U S T R A L IA

C la m e N EA N Marie Q U A Y LE M ark R EV EL L Max SAUNDERS

W algett W atch-house W ilcannia W atch-house G rafton W atch-house G oulbum T raining Centre

R obert A N D ER SO N Faith BARNES B obby BATES

W iluna Lockup K algoorlie L ockup Eastern G oldfields R egional Prison

M alcolm SM ITH Peter W ILLIA M S

L ong B ay G aol G rafton Gaol

N itaB L A N K E T T Stanley BROW N

B andyup W om en's Prison B room e Lockup

V IC T O R IA Edw ard C A M ERO N G eraldton Lockup

H arrison DAY Echuca W atch-house Sir Charles G airdner H ospital* Frem antle Prison

A rthur M O F FA TT W arragul W atch-house D onald CH ATU N A LG I Halls Creek Lockup

James M OORE Swan H ill W atch-house W ayne D O O LER C arnarvon Lockup

A lbert D O U G A L B room e Lockup

Q U E E N S L A N D Paul FA RM ER A lbany R egional Prison

A urukun * A urukun W atch-house D arryl G A R L ET T W ooroloo Prison Farm

W alter BA RN EY T ow nsville Prison G eraldton * G eraldton Lockup

M uriel S IN K S Innisfail W atch-house D ixon G R EEN B room e R egional Prison

Patrick BO O TH Rockham pton Prison Donald HARRIS Canning V ale Rem and Centre

G regory D U N RO B IN C herbourg W atch-house and Prison

C harlie HY D E Y arrabah W atch-house Christine JONES M idland Lockup

Bernard JOH N SON T ow nsville Prison Bernard M cG RA TH K algoorlie Lockup

David KOOW OOTHA Y arrabah W atch-house Charles M ICH A EL B arton's M ill Prison

C harlie K U LL A K U LLA Coen W atch-house Steven M ICHAEL Canning V ale Rem and Centre

D aniel LA CEY B risbane Prison and Prison

D aniel LO RRA WAY T ow nsville Prison Benjam in M ORRISO N Frem antle Lockup

N ikiraM A U Brisbane City W atch-house Jim m y N JANJI Port H edland Lockup

Patrine M ISI T ow nsville W atch-house John PA T R oeboum e Lockup

Perry N O B L E Y arrabah W atch-house K im P O L A K K algoorlie Lockup

K aren O 'R O U RK E B irr alee C hildren's H om e G inger SA M SO N R oeboum e Lockup

John PILO T B risbane City W atch-house Ronald U G LE B room e R egional Prison

A listair RIV ER SL EIG H D oom adgee W atch-house

R icci V IC EN T I

M isel W AIG A N A R obert W A LK ER R oy W A LK ER

G raham W A LLE Y M ilton W ELLS H ughW O D U L A N

C anning V ale R em and C entre and Prison East Perth Lockup Frem antle Prison K algoorlie Lockup

G reenough R egional Prison K algoorlie Lockup B room e Lockup

S O U T H A U S T R A L IA

E ddie BETTS M alcolm B U ZZA C O TT Ceduna* K ingsley D IX O N Joyce EG A N

M ichael G O LL A N

Stanley G O LL A N John H IG H FO LD C raig K A R P A N Y

K eith KA RPA N Y O odnadatta * G ordon SEM M EN S

Port L incoln W atch-house Port A ugusta Gaol Ceduna W atch-house A delaide Gaol M ount G am bier W atch-house South A ustralian Youth T raining C entre

M ount G am bier W atch-house A delaide Gaol D arlington W atch-house

A delaide City W atch-house Oodnadatta W atch-house Port A ugusta Gaol

G lenn CLA RK

T A S M A N IA G lenorchy W atch-house

N O R T H E R N

B eatrice H ill P rison Farm * B urralangi * D arw in P rison * E lliott * Jabanardi *

Jam bajim ba * K atherine * K w em entyaye P rice * R oyal D arw in H ospital *

T E R R IT O R Y B eatrice H ill P rison Farm D arw in Prison D arw in P rison Elliott W atch-house A ileron R d, T i T ree A lice Springs Prison

K atherine W atch-house A lice Springs W atch-house B errim ah W atch-house

* N am e o f th e deceased suppressed by order o f C om m issioner.

• Beatrice Hill Prison Farm

Aumkun Watch-house A

A Katherine Watch-house

A ElBott Watch-house

’rison (2)

^ A 'P o r t Hedland Lockup

.A A 'R oebourne Lockup (2)

, Carnarvon Lockup

A A Geraldton Lockup (2) •O re e n o u g h Regional Prison

\ A A A Kalgooriie Lockup (5)

\ · Eastern Goldfields Regional Prison

· Wooroloo Prison Farm

^ - - ^ ^ ^ j ^ C a n n i n g Vale Remand Centre and Prisorv{3)

• Bandyup Women's Pi • Barton's Mill Prison _ A Midland Lockup — . A East Perth Lockup -

A Fremantle Lockup — · · Fremantle Prison (2)

►-Albany Regional Prison

A 'B errim ah W atch-housex - ^ l 5 ^ > e e Darwin Prison (2)

Broome Lock Creek Lockup A D oom adgee Watch-house A Hans Broome Reg

A Aileron Road. Ti Tree

Watch-house A Alice Spnngs V •A lic e Springs P

A Wiluna Lockup

A Oodnadatta Watch-house

I--------

A POLICE CUSTODY

• PRISON CUSTODY

JUVENILE CENTRE CUSTODY

() More than one death at any location is shown m brackets

ABORIGINAL DEATHS IN CUSTODY

1 January 1980 - 31 May 1989

TASMANIA

Showing custodial authority and place of custody AM M AP GIU91O12

Lockhart River Watch-house

A Coen Watch house

Police vehide. Kings Plains A\Wujal Wujal Watch-house

A A A Y a rra b a h Watch-house (3) Alnnisfail Watch-house Sfc Townsville Watch-house · · · · Townsville Prison (4)

B-alee

A A Cherbourg W atch-house (2)

A A A A A'B risbane City Watch-house · · Brisbane Prison (2)

Brewamna W atch-house A AW algett Watch House A Grafton Watch-house

•G ra f t

......................... .Vatch-house /

.A p a d u n a Watctvtwusa I * ™ c a n „ ,a W a . * - t a s e A T a r n w a a h iw a te ta s a

· · Port Augusta Gaol (2)

A [ N E W s o u t h w a l e s /

\ y /S outh Australian. Youth Training Centre Minda Remand Centre

' " _ Λ ^ - - Α Darlinahurst Watch-house

L.........». . . A Griffith W atch-house ClF— — · · Long Bay Gaol (2)

■essence, Sydney

\ / f , / ^ J/'.-AD arlinahurstW atct

P „nU ac,,aw»:w ΙΔ·#^ ' W a ^ 2 S ± S M

Custodial Author»,

Darlington W atch-house \ | A-€cfiuca Watch-house,·"1 A C /T

i V I C T O R I A 1 . /

AWarragul Watch-house

SCALE

1000 k m s

'

THE FRAMEWORK OF THIS REPORT

The Letters Patent of this Royal Commission required that I study and report upon the underlying social, cultural and legal issues behind the deaths in custody. This aspect of the inquiries of the Commission was a formidable but essential task and involved all Commissioners. As will be

explained in Chapter 1, C om m issioners were convinced that the explanation for the causes of the deaths and the identification of solutions involved a much broader range o f factors than those immediately associated with the custodial experience.

Identifying, understanding and according priority to the underlying issues has proved a difficult task, made more difficult by the demands which all Commissioners faced, apart from Commissioner Dodson, to investigate and report upon the individual deaths. The com m itm ents of

Commissioners were such that it was not possible to provide an investigation of underlying issues in all States and Territories that was necessarily o f consistent depth or breadth. N onetheless, all

Commissioners, and especially Commissioner Dodson whose brief enabled him to concentrate on these issues, were able to provide valuable insights into the underlying issues.

The extraordinary range of submissions received and consultations held have also greatly added to the understanding of the underlying issues. The Commissioners published a discussion paper in October 1989 noting the issues which we regarded as significant and upon which we invited

comment. Response to that invitation has been very great and, coupled with reports made by Aboriginal Issues Units set up in each jurisdiction, Commissioners were able to plan the framework of this report with some confidence that the proper range and priority of underlying issues had been

identified.

The very fact that such a multiplicity of issues play a part in the final, tragic result of deaths in custody presented difficulties in devising a framework of the report. Issues overlap and the interplay between issues is both complex and subtle. I have endeavoured to avoid unnecessary duplication in the discussion of matters relevant to issues in each of the

chapters, but that has not always been either possible or desirable; the fact is that all too often issues have been made the subject of policies without a proper appreciation of the linkage between those issues and other issues,

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Fram ew ork of this R eport

policies and programs. If occasional repetition or reiteration o f ideas serves to remind the readers of the complex interrelationship of issues then a useful purpose has been served.

The report, conceptually, follows this approach. In Chapter 1 ,1 provide an overview o f the investigation into the deaths in custody. In this C hapter I w ill identify the major conclusions reached as to the

phenomenum of Aboriginal deaths in custody.

In Part A, Chapters 2 to 4 , 1 look at those issues most proximate to the deaths which emerged from the inquiries into the individual deaths. This explains who the deceased people were, how, why and where they died and what findings were made about the circumstances o f their deaths. Part A also examines the inadequacies of investigations which followed the deaths and makes recommendations for the future.

Commissioners identified the principal and immediate explanation for the deaths in custody as being the disproportionate rate at which Aboriginal people are detained, arrested and imprisoned in Australia. The parameters of that disproportion are dealt with in Part B, Chapters 5-9.

Having explained the extent of the disproportion I then turn to look at those underlying issues which contribute to it. Part C, Chapters 10-20, provides a treatment which explains the relevance of each issue and the extent to which each such issue contributes to the disadvantaged situation of Aboriginal people. In part C I do not attempt to suggest a solution to problems but merely to identify them and to analyse their significance as factors in deaths in custody. Solutions, by way of policies, programmes or, perhaps, approaches with respect to each of these underlying issues are dealt with in Part F, Chapters 26 to 35. Although, at times, possible solutions may only be suggested by analysis of past failures of policies and programmes, Part F, for the most part, looks to the future rather than to recount or cast blame for past failures of policy.

As I have said, the underlying issues, their identification and suggestions for tackling them, are of critical long-term importance. There are many areas of policy which relate more closely to the detention and custodial experience of Aboriginal people, but which also require policies for the short and long term in order to reduce the incidence of Aboriginal deaths in custody. In Part D, Chapters 21-22, I look at means to reduce the numbers of people being taken into custody and imprisoned. In Part E, Chapters 23-25, I look at ways to reduce the vulnerabilities of those people to injury, sickness or death whilst in custody.

In Part G, Chapters 36-38,1 address the process which in my opinion will be the fundamental backdrop to reform and change. Reconciliation of the A boriginal and non-A boriginal com m unities m ust be an essential commitment on all sides if change is to be genuine and long term.

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F ram ew ork of this R eport

In Part H, Appendices, I provide details relating to the establishment and operation of the Royal Commission. The terms o f reference of the Commission are set out in Appendix A. Details relating to the cases investigated are set out in Appendix B. Legal challenges against the Royal

Commission and some of the key rulings are also set out in this appendix. Appendix C deals with the approach taken to the inquiries of the individual deaths and the investigation of the underlying issues. Appendix D deals with the sources of information used by the Royal Commission.

The recommendations of the Commission appear in each appropriate chapter and are then collected together at the end of the report.

Vol 1 Page xlix

OVERVIEW

Chapter 1 OVERVIEW

1.1 THE ROYAL COMMISSION

1.1.1 Between 1 January 1980 and 31 May 1989, ninety-nine

Aboriginal and Torres Strait Islander1 people died in the custody of prison, police or juvenile detention institutions. They were eighty-eight males and eleven females. Their approximate average age at death was thirty-two years, the median age— the point above and below which half the cases

fell— was twenty-nine years and the range was fourteen to sixty-two years. Their deaths were premature. The circumstances o f their deaths were extremely varied. One cannot point to a common thread of abuse, neglect or racism that is common to these deaths. However, an

examination of the lives of the ninety-nine shows that facts associated in every case with their Aboriginality played a significant and in most cases dominant role in their being in custody and dying in custody.

1.1.2 This Royal Commission was established in October 1987 in response to a growing public concern that deaths in custody of Aboriginal people were too common and public explanations were too evasive to discount the possibility that foul play was a factor in many of them.

1.1.3 Public agitation for a Royal Commission was led by members of the Aboriginal community. It is a revealing commentary on the life experience of Aboriginal people in 1987 and of their history that it would have been assumed by so many Aboriginal people that many, if not most,

of the deaths would have been murder committed if not on behalf of the State at least by officers of the State. But disquiet and disbelief in official explanations was not only expressed by Aboriginal people; many non­ Aboriginal people shared the assumption that police and prison officer

misconduct would be disclosed by a Royal Commission. Thus many non­ Aboriginal people, whilst not sharing the life of Aboriginal people, had seen and heard sufficient evidence of the mistreatment o f Aboriginal people to share their expectation that Aboriginal people would suffer and die from the same discrimination and brutality as they experienced during

life.

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1.1.4 The task given to the Commission by the Letters Patent was to inquire into the deaths found to fall within jurisdiction and to enquire also into ‘any subsequent action taken in respect of each of those deaths including...the conduct o f coronial, police and other inquiries and any other things that were not done but ought to have been done’.

1.1.5 At the outset of the Royal Commission, Commissioner

J.H. Muirhead, QC, then the sole Commissioner, announced that he saw his job as being not merely to understand how each person died but to know why that person died.

1.1.6 G overnm ents confirm ed his view by am endm ents

subsequently made to the Letters Patent whereby it was declared ‘that, for the purpose of reporting on any underlying issues, associated with those deaths, you are authorised to take account of social and cultural and legal factors which, in your judgm ent, appear to have a bearing on those deaths’.

1.1.7 The reports on the individual deaths have been prepared by the individual Commissioners who conducted the individual inquiries. This report summarises the findings of those individual reports and addresses the underlying issues, for example, social, cultural and legal factors which

appear to me to have a bearing on the deaths.

1.1.8 The structure of several independent Commissioners holding and acting under their own Letters Patent and linked together through one who came to be known within the Commission as the National Com m issioner is rather com plicated and is explained in Part H, Appendix A.

1.1.9 In this chapter I provide an overview of the report. I deal first with the question of how these ninety-nine people died.

1 .2 THE INDIVIDUAL DEATHS

T h e o v e r - a l l F i n d i n g s

1.2.1 The investigation into the deaths was extremely thorough. No effort was spared to get to the truth. All contemporary documents were subpoenaed and studied. Relevant people were interviewed wherever possible and in the great majority of instances t l .. was possible. In many

cases postmortem reports were reconsidered by eminent pathologists. Not only the cause of death, but all aspects of custodial care and the orders binding on custodians were critically examined. Hearings were held in public; families of the deceased were represented by legal counsel. All

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1 O verview

documents were made available to counsel. Reports on the ninety-nine deaths have been delivered to government. At the time of writing almost all have been tabled in parliament and thus made public.

1.2.2 The conclusions reached in this report will not accord with the expectations of those who anticipated that findings o f foul play would be inevitable and frequent. That is not the conclusion which Commissioners reached. As reported in the individual case reports which have been released, Commissioners did not find that the deaths were the product of

deliberate violence or brutality by police or prison officers.

1.2.3 But Commissioners did find that, generally, there appeared to be little appreciation of and less dedication to the duty o f care owed by custodial authorities and their officers to persons in custody. We found many system defects in relation to care, many failures to exercise proper

care and in general a poor standard of care. In some cases the defects and failures were causally related to the deaths, in some cases they were not and in others it was open to debate. The reports of the inquiries into the deaths stand as the findings of the Commissioners. Commissioners

O’Dea, Wootten and Wyvill made their findings pursuant to their own individual Letters Patent. But it can certainly be said that in many cases death was contributed to by system failures or absence of due care.

1.2.4 Deaths in custody are particularly distressing for families and friends, and engender suspicion and doubt in their minds and also in the minds of members of the public. The deceased person has been in the custody and care of the State, not accessible in the general sense, his or

her life controlled and ordered by functionaries of the State, out of sight and of normal contact. Deaths in such circumstances breeds anguish and suspicion equally. Time may heal some of the anguish, but the suspicion can be allayed only by the most open and thorough going laying of the facts on the table.

1.2.5 It is not surprising that there was much cynicism about official explanations for the deaths. It is quite clear that this Royal Commission would not have been necessary— or at least its Terms of Reference would have been very different— had there been adequate, objective and

independent investigations conducted into each of the deaths after they occurred and had those investigations examined not only the cause of death— in the medical sense— and whether there had been foul play but also questions of custodial care and the issue of responsibility in the wider

sense.

1.2.6 In very few cases prior to the establishm ent o f the

Commission was the investigation into the death other than perfunctory and from a narrow focus and the coronial inquest mirrored the faults in the investigations.

Vol 1 Page 3

O v e rv ie w 1

1.2.7 I deal with these questions in Chapter 4 but it is plain that

much harm was done to relations between Aboriginal people and the broader community, and great hardship was imposed on the relatives of the deceased persons as a result of the inadequacies of most post-death

investigations. It must never again be the case that a death in custody, of Aboriginal or non-Aboriginal persons, will not lead to rigourous and accountable investigations and a comprehensive coronial inquiry.

How t h e D e a t h s O c c u r r e d

1.2.8 I deal first with the cause of death, in the most immediate

sense. The ninety-nine cases can be summarised as follows:

1. Deaths by hanging 30

2. Deaths by trauma (other than those inflicted by hanging): Head injuries 12

Gunshot wounds 4

Other external trauma 7

23

3. Deaths immediately associated with substance abuse 9

4. Deaths from natural causes 37

99

1.2.9 Sixty-three of the deaths were associated with police custody, thirty-three with prison custody and three with juvenile detention.

1.2.10 I deal in Chapter 3 with the findings as to the cause of death and as to the custodial care of those who died.

T h e L i v e s o f T h o s e W h o D i e d

1.2.11 These are the bare statistical facts. This Royal Commission has investigated in great depth the lives and deaths o f most of the individuals whose deaths are comprised in these statistics. Aboriginal people have a unique history o f being ordered, controlled and monitored

by the State. For each individual there are files maintained by agents of the State; schools, community welfare, adoption, medical, police, prison, probation and parole and, finally, coroners’ files document each life to a degree that few non-Aboriginal peoples lives would be recorded. Not infrequently the files contain false or misleading information; all too often

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1 O verview

the files disclose not merely the recorded life history o f the Aboriginal person but also the prejudices, ignorance and paternalism of those making the record.

1 . 2 . 1 2 Through the files, Commissioners could trace the familiar pattern of State intervention into and control of Aboriginal lives. The files start from birth; perhaps recording a child adopted out, perhaps its birth merely noted as a costly additional burden; through childhood, perhaps

forcibly removed from parents after having been categorized as having mixed racial origins and therefore being denied a loving upbringing by parents and family; through encounters at school, probably to be described as truant, intractable and unteachable; to juvenile courts, magistrates

courts, possibly Supreme Court; through the dismissive entries in medical records (‘drunk again’), and in the standard entries in the note books of police investigating death in a cell (‘no suspicious circumstances’).

1 . 2 . 1 3 The official record keepers saw all, recorded all, and rarely knew well or at all the people they wrote about.

1 . 2 . 1 4 The Royal Commission examined all of the files, but it also heard the life stories from those who knew them best - the family and friends who shared the life and the hardships with each of those individuals.

1 . 2 . 1 5 Slowly a picture w ould em erge from all the sources.

Sometimes there would be a level at which truth emerged in the official records; more often not. What did emerge was that to understand the last hours of life of each individual and to truly understand the circumstances of their deaths Commissioners had to know the whole life of the

individuals and, equally important, had to understand the experience of the whole Aboriginal community through their two hundred years of contact with non-Aboriginal society.

1 . 2 . 1 6 This inquiry has been unique in Australia's history. W hilst Aboriginal people have been subjected to and have participated in an extraordinary number of inquiries and studies into various aspects of their lives and of policies affecting them, there has never before been such a

comprehensive inquiry as that conducted by this Royal Commission. The whole range of societal and historical factors which impact on Aboriginal lives came into focus from the investigations into the deaths of so many of them which occurred whilst ostensibly under the care and protection of the

State.

1 . 2 . 1 7 C h a p t e r 2 p r e s e n t s a s p e c t s o f a p r o f ile o f t h o s e w h o d ie d . I

have mentioned the median age (twenty-nine years); of the ninety-nine, eighty-three were unemployed at the date of last detention; they were uneducated— at least in the European sense—or under-educated - only two had completed secondary level; forty-three of them experienced childhood

Vol 1 Page5

O verview 1

separation from their natural families through intervention by the State authorities, mission or other institutions; forty-three had been charged with an offence at or before aged fifteen and seventy-four at or before aged nineteen; forty-three had been taken into last custody directly for reasons related to alcohol and it can safely be said that overwhelmingly in the remaining cases the reasons for last custody was directly alcohol related.

But the statistical methodology of Chapter 2 can give only part of the picture. As the individual reports o f the deaths indicate, generally speaking the standard of health of the ninety-nine varied from poor to very bad (the average age of those who died from natural causes was a little over thirty years); their economic position was disastrous and their social position at the margin of society; they misused alcohol to a grave extent (of the twenty-two deaths by hanging in police cells, nineteen at death had a

blood alcohol level of 0.174 per cent or over, mostly much over) and, of the other three, one level was not taken and one was suffering severe withdrawal symptoms).

1.2.18 Naturally, there were some exceptions to each of these

generalizations. But one thing which was almost universal was that as well as having early contact with the criminal justice system they had repeated contact with it. This latter point is one of great significance.

1.3 THE DISPROPORTIONATE NUMBERS OF ABORIGINAL PEOPLE IN CUSTODY

1.3.1 The work of the Commission has established that Aboriginal people in custody do not die at a greater rate than non-Aboriginal people in custody.

1.3.2 However, what is overwhelmingly different is the rate at which Aboriginal people come into custody, compared with the rate of the general community. The degree of over-representation in police custody, as measured by the Commission’s study of police cell custody in August

1988, is twenty-nine times. In Chapters 5 to 9 those matters and their implications are discussed in detail. The ninety-nine who died in custody illustrate that over-representation and in a sense are the victims of it.

1.3.3 The conclusions are clear. Aboriginal people die in custody at a rate relative to their proportion of the whole population which is totally unacceptable and which would not be tolerated if it occurred in the non­ Aboriginal community. But this occurs not because Aboriginal people in custody are more likely to die than others in custody but because the Aboriginal population is grossly over-represented in custody. Too many Aboriginal people are in custody too often.

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1.3.4 The fact is that those features which I have mentioned as being found very generally in the lives of those who died are common to the Aboriginal community. In Chapter 11 the report deals with the social indicators of Aboriginal society and in Chapters 12 to 20 I discuss aspects

of Aboriginal society today.

1.3.5 W hat these Chapters show in considerable detail is that the features noted in relation to those who died constantly re-appear in the broad fabric of Aboriginal society.

1.3.6 By all the indicators, as has often been said, Aboriginal people are disadvantaged when compared with any other distinct group in Australian society and with the society as a whole. In these chapters I discuss the economic position of Aboriginal people, the health situation,

their housing requirements, their access or non-access to an economic base including land and employment, their situation in relation to education; the part played by alcohol— and other drugs— and its effects.

1.3.7 All these matters are calculated to lower self esteem; but

equally important are other legacies of the history o f two centuries of European domination of Aboriginal people.

1.4 THE IMPORTANCE OF HISTORY

1.4.1 I include in this report a chapter on that history. I make no

apology for doing so. I do so not because the chapter adds to what is known but because what is known is known to historians and Aboriginal people; it is little known to non-Aboriginal people and it is a principal thesis of this report that it must become more known.

1.4.2 That Aboriginal people were dispossessed o f their land

without benefit of treaty, agreement or compensation is generally known. But I think little known is the amount of brutality and bloodshed that was involved in enforcing on the ground what was pronounced by the law. Aboriginal people were deprived of their land and if they showed resistance they were summarily dealt with. The loss of land meant the

destruction of the Aboriginal economy which everywhere was based upon hunting and foraging. And the land use adopted by the settlers drastically reduced the population of animals to be hunted and plants to be foraged. And the loss of the land threatened the Aboriginal culture which all over

Australia was based upon land and relationship to the land. These were the most dramatic effects of European colonisation supplemented by the decimating effects of introduced disease to which the Aboriginal people had no resistance. These matters are understood to a very imperfect

degree by non-Aboriginal society.

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1.4.3 But the facts of later policies and their effects are even less well known to the general population. Having reduced the original inhabitants to a condition, in many places, of abject dependency the colonial governments decided upon a policy of protection which had two main thrusts: Aboriginal people were swept up into reserves and missions where they were supervised as to every detail of their lives and there was a deliberate policy of undermining and destroying their spiritual and cultural

beliefs. The other aspect of that policy as it developed was that Aboriginal children of mixed race descent— usually Aboriginal mother and non­ Aboriginal father— were removed from their family and the land, placed in institutions and trained to grow up as good European labourers or domestics. Those outside the reserves were usually to be found camping on river banks or on the outskirts of country towns where they were under

the eye of the non-Aboriginal police. Naturally, legislation varied from place to place and time to time but the effect was the same— control over the lives of the people. A person could not live on a reserve without permission, or leave or return after leaving without permission, or have a relative to live with them without permission, or work except under supervision. The extent of control seems incredible today. It was an offence to encourage or assist an Aboriginal person to leave a reserve. There were special laws about alcohol. On the reserves and the missions

the supervisors and missionaries had all power.

1.4.4 The theory was that the ‘full blood’ Aboriginal people would die out and they should be provided with a little care while they did so; and that the ‘mixed blood’ would be bred out. When these expectations proved ill founded, another policy was tried, that of assimilation. But the old supervisor remained in place; in the Northern Territory Aboriginal people remained wards of the State, in the States the Protectorate and the

Boards remained in place with all their powers, children continued to be removed but the whole aim was now to assimilate the Aboriginal people by encouraging them to accept the Western culture and lifestyle, give up their culture, become culturally absorbed and indistinguishable, other than physically, from the dominant group. For a short time, integration replaced assimilation as the policy option with little change in any practical way. And that was the practice in 1967 when the Referendum was carried which gave power to the Commonwealth to make laws relating to Aboriginal people.

1.4.5 From that history many things flow which are of central

importance to the issue of Aboriginal over-representation in custody.

1.4.6 The first is the deliberate and systematic disempowerment of Aboriginal people starting with dispossession from their land and proceeding to almost every aspect of their life. They were made dependent upon government or non-Aboriginal pastoralists or other employers for rations, clothing, blankets, education, living place and living conditions.

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Decisions were made about them and for them and imposed upon them. It was thought to be bad for an Aboriginal woman to be living with a non­ Aboriginal man so that was outlawed; and when Aboriginal women disguised the fact by dressing in male costume that too was outlawed.

Aboriginal people were made dependent upon non-Aboriginal people. Gradually many of them lost their capacity for independent action, and their communities likewise. With loss of independence goes a loss of self esteem.

1.4.7 O f course, I speak in general terms; in the most remote

communities the society went as before and in all areas there were and are strong people, many of them, men and women, who kept alive the culture and pride in the Aboriginal society. Some of them strove to organise a better deal, to call for rights but the battle was uphill and while some slight

gains were made it was a slow and painful progress. People were still not counted in the population, they were not entitled to and did not get social security benefits, mothers still gathered their children about them and ran

into the bush when they heard ‘the welfare’ was about. The damage to Aboriginal society was devastating. In some places, it totally destroyed population. In others, dependency, despair, alcohol, total loss of heart wrought decimation of culture. So it was on the Aboriginal side.

1.4.8 There is the other side of the coin, the effects of history upon the non-Aboriginal people. Every turn in the policy of government and the practice of the non-Aboriginal community was postulated on the inferiority of the Aboriginal people; the original expropriation of their land was based

on the idea that the land was not occupied and the people uncivilised; the protection policy was based on the view that Aboriginal people could not achieve a place in the non-Aboriginal society and that they must be protected against themselves while the race died out; the assimilationist

policy assumed that their culture and way of life is without value and that we confer a favour on them by assimilating them into our ways; even to the point of taking their children and removing them from family.

1.4.9 Every step of the way is based upon an assumption of

superiority and every new step is a further entrenchm ent of that assumption.

1.4.10 N on-A boriginal A ustralia has developed on the racist

assumption of an ingrained sense of superiority that it knows best what is good for Aboriginal people. W ith many people associated directly or indirectly with land settlement, the assumption was underpinned by economic interest; while with many others it was underpinned by an

absolute certainty that it was essential to religious enlightenment that Aboriginal religious belief be obliterated where possible. That feeling of superiority towards Aboriginal people, which is a racist view, was very strong.

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1.4.11 It was strengthened by another circumstance. For reasons not relevant to the report, Australia came to adopt as national policy, immediately after Federation, a policy of white Australia. That policy clearly strengthened concepts of white superiority in relation to Aboriginal people.

1.4.12 So that for a com plex o f reasons the non-Aboriginal

population has, in the mass, been nurtured on active and passive ideas of racial superiority in relation to Aboriginal people and which sits well with the policies of domination and control that have been applied.

1.4.13 I do not suggest, of course, that many non-Aboriginal people have not been guided by the best of motives; and in point of fact some missions and probably some reserves offered an opportunity for some Aboriginal people to maintain their unity and a measure of cohesion at a time when this might have been threatened in the larger society. But all this was done in the sure knowledge that the people needed our superior skills and ideas.

1.4.14 The relations between Aboriginal and non-Aboriginal people were historically influenced by racism, often of the overt, outspoken and sanctimonious kind; but more often, particularly in later times, of the quiet assumption that scarcely recognises itself. What Aboriginal people have largely experienced is policies nakedly racially-based and in their everyday lives the constant irritation of racist attitudes. Aboriginal people were never treated as equals and certainly relations between the two groups were conducted on the basis of inequality and control.

1.4.15 But there was one aspect of the relations between Aboriginal people and non-Aboriginal people which was very important for all the others and where the relationship was at its worst; that is, the relations between Aboriginal people and the police forces of the dominant society.

1.4.16 Police officers naturally shared all the characteristics of the society from which they were recruited, including the idea of racial superiority in relation to Aboriginal people and the idea of white superiority in general; and being members of a highly disciplined centralist organisation their ideas may have been more fixed than most; but above

and beyond that was the fact that police executed on the ground the policies of government and this brought them into continuous and hostile conflict with Aboriginal people. The policeman was the right hand man of the authorities, the enforcer o f the policies of control and supervision, often the taker of the children, the rounder up of those accused of violating the rights of the settlers. Much police work was done on the fringes of non-Aboriginal settlement where the traditions o f violence and rough practices were strongest.

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1.4.17 I do not add to this here since the matter is discussed in the history chapter (Chapter 10) of the Report. It is sufficient to say that a deep animosity and often hatred developed between Aboriginal people and police.

1.4.18 What is most remarkable and what must command the respect and admiration of fair minded people is that Aboriginal society survived all of these assaults. Outstanding people amongst them campaigned for rights, for equality. G radually, their calls were heard with more

sympathy; in 1967 the Referendum was carried with the support of a majority of voters in every State. The Referendum was a watershed. The people w ho died in custody betw een 1980 and 1989 w ere,

overwhelmingly, bom before the Referendum; their parents universally so.

1.4.19 The consequence of this history is the partial destruction of Aboriginal culture and a large part of the Aboriginal population and also disadvantage and inequality of Aboriginal people in all the areas of social life where comparison is possible between Aboriginal and non-Aboriginal people. The other consequence is the considerable degree of breakdown

of many Aboriginal communities and a consequence o f that and of many other factors, the losing of their way by many Aboriginal people and with it the resort to excessive drinking, and with that violence and other evidence of the breakdown of society. As this report shows, this legacy

of history goes far to explain the over-representation of Aboriginal people in custody, and thereby the death of some of them.

1.4.20 Since 1967, governments have moved in the direction of changing this position and in particular in the direction of an assault on inequality. Laws have been passed outlawing discriminatory behaviour in various fields on the basis of colour and race. Such laws reflect

international conventions, to which Australia is a party, but they also reflect a genuine movement against discrimination on the ground of colour, creed, religion, race, etc. Efforts have been made by

government— in many cases very strenuous efforts— but what is absolutely outstanding is the efforts which have been made by Aboriginal people, organizations and communities to grasp the opportunities which have become available and to assert their rights in the new situation. I

speak of this later.

1.5 SOME CONSEQUENCES OF HISTORY

1.5.1 I mention three matters which seem important in a practical way and which arise from that history.

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1.5.2 Firstly, Aboriginal people remember this history and it is burned into their consciousness.

1.5.3 Secondly, A boriginal people have had very different

experiences arising out of the taking over of their country. In South Eastern Australia, non-Aboriginal occupation has been longest and most thorough in penetrating the country. A boriginal people have

overwhelmingly been removed from their traditional land and from ceremonial life and the influence of much of the law. W here European penetration came late and was partial, and where not all the land was sufficiently attractive to be occupied, or for other reasons was not occupied, people still live on their traditional land where the law is strong.

There are variations in between. O f more recent times, many Aboriginal people have come to the cities but overwhelmingly the Aboriginal population still lives in the rural areas or in discrete communities beyond the rural areas.

1.5.4 Thirdly, Aboriginal society was local. Groups were small. There were not large social or political units. These two facts— the small scale character of Aboriginal society and the vastly different experiences in different parts o f Aboriginal society over the last two hundred years— mean that the perception of Aboriginal people is often different on different questions; of course on some questions there is a unity of perception, but on many a different perception.

1.5.5 L ater on, I deal with the attem pts w hich Australian

governments made over time to try to find, or to make, an organization which could speak for all Aboriginal people. The attempt failed. The lesson is that negotiation at a local level is more fruitful.

1.6 REDUCING THE NUMBER OF ABORIGINAL PEOPLE IN CUSTODY—THE CRIMINAL JUSTICE SYSTEM

1.6.1 There are, in the view o f all Commissioners, two levels at which the problem of the disproportionate numbers o f Aboriginal people in the criminal justice system and in custody can be tackled. The first, and in some ways the most immediate and in many ways least difficult, is at

the level of the criminal justice system itself. The second is at the level of those more fundamental factors which bring Aboriginal people into contact with the criminal justice system. This section deals with issues o f the criminal justice system.

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1.6.2 In a sense it begins before the criminal justice system takes effect. By far the largest number of Aboriginal people in police lockups, are those who are detained for what is often called protective custody, that is those who are found drunk in a public place— which in most

jurisdictions is no longer a criminal offence— but who are detained and taken to police cells and kept there for a number of hours until they are thought to be sufficiently sober to be released. And these numbers are added to by those who are arrested for the offence of public drunkenness where drunkenness has not been decriminalised. The Interim Report of the Royal Commission strongly advocated sobering-up shelters, not

associated with police or other custodial agencies, to which a person drunk in public could be taken. There have been some such shelters created and others are being created. Many more are needed.

1.6.3 There are also large numbers of Aboriginal people in custody, mainly police custody and occasionally prison custody for street offences and, comparatively speaking, a small number in prison custody for serious offences.

1.6.4 There is much potential for diverting Aboriginal— and other— people from custody. The report contains many recommendations for doing so.

D i v e r s i o n f r o m c u s t o d y

1.6.5 One can start at the level of law refonn and cover every facet of the system. The first group of diversion schemes are those which occur before a defendant gets before the court and concerns the interaction with police, the arrest or charge on summons, the questions of bail. Very important to all these matters is the relationship between police and

Aboriginal people. Where there is less tension and less bitterness, what might be an arrest or a charge might become a caution. What might be an arrest becomes a summons to attend a court. What might be a summons to attend court does not become an arrest because matters such as indecent

language or resisting enter into the course of the dealing. One of the most heartening things in this report is the improvements that are taking place in many parts of Australia in police and Aboriginal relationships.

1.6.6 Equally important are diversionary schemes by which a court sentencing a defendant found guilty can direct him or her away from the prison system as opposed to into it. Here again there is a proliferation of creative ideas and of innovative schemes which provide courts with some

further and better sentencing options. There also appears to be, generally speaking, a greater willingness on the part of courts to take advantage of these options.

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1.6.7 F irst am ongst them , o f very great im portance, is the

com m unity service order. The Northern Territory D epartm ent of Correctional Services has been outstandingly innovative in this area. But I think that it can be said that every single jurisdiction in Australia has achievements in this area and that there are Aboriginal people— and I believe non-Aboriginal people too— who are being ordered into these diversionary schemes who not long ago would have been ordered into prison.

1.6.8 The next group are those who, having been sentenced by the court to a non-custodial sentence, have breached the order. Until very recently, a considerable proportion of those persons who were in prison custody were serving court sentences for non-payment o f fines. This

applied to Aboriginal people and non-Aboriginal people alike. Some information about numbers is given in the report. Increasingly there are coming into operation diversionary schemes in respect of breaches of non­ custodial orders, not only for non-payment of fines but for other breaches. There is great scope for keeping people out of prison because they cannot pay a fine. Some of those who died in custody were, in fact, in that situation.

1.6.9 Another area of importance in the sentencing process, as far as A boriginal defendants are concerned, is input from Aboriginal communities, and particularly discrete communities, as to their views on penalty and the role that they may play in supervising non-custodial options.

1.6.10 And finally, at the sentencing end of the process there are community custody options, parole etc. All these matters are discussed at length in the report. New experiments are being tried. It is important that the process of creating new options goes on to meet different and particular circumstance. It is not necessary for me to discuss these matters further in this overview. But I must stress that, as the subsequent chapters

show, in respect of Aboriginal defendants, success or otherwise of these schemes depends to a very large extent— and often wholly— upon the involvement of Aboriginal people, organizations and communities. The success of the schemes is very much connected with the empowerment of Aboriginal people, a theme to which I return.

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1.7 REDUCING THE NUMBER OF ABORIGINAL PEOPLE IN CUSTODY—THE FUNDAMENTAL QUESTION—EMPOWERMENT AND SELF­ DETERMINATION

1.7.1 H ow ever, the more fundam ental causes for the over­

representation of Aboriginal people in custody are not to be found in the criminal justice system but in those factors which bring Aboriginal people into conflict with the criminal justice system in the first place. The view propounded by this report is that the most significant contributing factor is

the disadvantaged and unequal position in which Aboriginal people find themselves in the society— socially, economically and culturally.

1.7.2 The report is largely concerned with dem onstrating the

existence of that inequality and disadvantage in many aspects of social life and social situation. The report examines the position of Aboriginal people in relation to health, housing, education, employment and income; it discusses the land needs of Aboriginal people. It shows how the

attitudes of the dominant non-Aboriginal society, racism both overt and hidden and institutional racism, adversely affect Aboriginal people. It shows how some laws bear unequally upon Aboriginal people.

1.7.3 The report shows also how this disadvantage and inequality is closely linked to the disproportionate numbers of Aboriginal people in custody, directly and indirectly. It demonstrates how the assaults that have been made on Aboriginal society have affected particularly young

Aboriginal men in a way which tends to bring them into contact with the criminal justice system.

1.7.4 And finally, it makes recommendations about reducing and eliminating disadvantage in all the fields that I have mentioned.

1.7.5 The greater part of the report deals with these various aspects of the existence of, the consequences of and proposals for the elimination of the social, economic and cultural disadvantages which Aboriginal people suffer.

1.7.6 But running through all the proposals that are made for the elimination of these disadvantages is the proposition that Aboriginal people have for two hundred years been dominated to an extraordinary degree by the non-Aboriginal society and that the disadvantage is the product of that

domination. The thrust of this report is that the elim ination of

disadvantage requires an end of domination and an empowerment of Aboriginal people; that control of their lives, of their communities must be returned to Aboriginal hands.

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1.7.7 Because empowerment of Aboriginal society— and associated with it the right to self-determination— is a central issue in the report, it is appropriate that I outline here the approach taken in the report to those questions. I do so before returning to the question of social, economic

and cultural disadvantage.

1.7.8 There are three essential pre-requisites to the empowerment of Aboriginal society, to Aboriginal people having control over their lives and their communities.

T h e W i l l t o R e n e w a l a n d t o S e l f -d e t e r m i n a t i o n

1.7.9 The first and the most crucial is the desire and capacity of Aboriginal people to put an end to their disadvantaged situation and to take control of their own lives. There is no other way. Only the Aboriginal people can, in the final analysis, assure their own future. This, of course, is no easy thing. Where a people have been put down for so long, deprived o f rights, made dependent, regarded and treated as inferior, assigned a totally inferior status in society, some or many become lost in despair.

1.7.10 Some non-Aboriginal people have entertained doubts as to whether Aboriginal society is capable of taking control of itself and of exercising self-determination. Such people have been oppressed by the sight of the squandering of resources on alcohol, on the breakdown, in

some places, of family life, of the breakdown o f respect for elders and other such factors.

1.7.11 In my opinion, there is no doubt that Aboriginal people are capable of, determined to and will in fact exercise self-determination. I say that not on the basis of easy optimism; I say it on the basis of the views expressed by the Aboriginal Issues Units and by Aboriginal people. But most of all I say it on the basis of solid evidence of the efforts and initiatives and dedicated work of Aboriginal people and organizations and communities around Australia, who take positive steps to re-establish the

strength of their society, to build their communities, to restore self-esteem, protect their culture and to achieve equal rights in all fields. Some part of the evidence for that assertion is to be found in this report but only a small part of it.

1.7.12 Considerations of time and length prevent me from dealing in any detail at all with the efforts being made at a local and larger level by groups, organizations or communities. There are literally hundreds and hundreds of organizations, some large, some quite small: Aboriginal medical services, wom en’s groups, language study groups, cell visitor

groups, music groups, police liaison groups, adult education providers,

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legal services, child care groups, community councils, land councils, housing associations, beat the grog groups, media groups, commercial enterprises, rock groups, art groups, craft co-operatives, link up groups to link children who were taken away to family, history groups, community

centre groups. And particularly in the context of this Commission, the Committee to Defend Black Rights (CDBR) which played a leading part in the setting up of the Commission, and the National Aboriginal and Islander Legal Services Secretariat (NAILSS) which, along with CDBR, had leave to appear at the Commission hearings on underlying issues. I

suspect that one could write scores of pages about communities who are making some creative use of the possibilities o f the Community Development Em ploym ent Program Scheme under which they are

operating. The variety is endless, the energy is enormous. Some of course, fail. What is surprising is not that some fail but that so many keep going and even those that run down often come up again. All of these are dedicated in their own way to the empowerment of Aboriginal people, to

raising self-esteem, demonstrating the ability to exercise control of their own affairs, attacking the legacy of the past. Associated with this is a renaissance in many ways of Aboriginal culture.

1.7.13 Scarcely a week goes by w ithout news of some new

constructive endeavour. These efforts are gaining more recognition and interest. The media is, over recent times, reporting more of them. This, of course, gives more confidence to Aboriginal people but at the same time it helps non-A boriginal people to a better understanding, to avoid

stereotyping. In my view, the first pre-requisite for the empowerment of Aboriginal society is present; namely, the will for renewal and for self­ determination.

T h e R o l e o f t h e B r o a d e r S o c i e t y

1.7.14 The second pre-requisite is assistance from the broad society and this basically means assistance from governments with the support of the electorate, or at least without its opposition. That support is necessary because the economic base of Aboriginal people was completely destroyed

by their being dispossessed of their lands, and their treatment since then has been such that, except to a limited extent in recent times, it has been quite impossible for them to achieve any economic base. Indeed, their hitherto main employment base in rural industry— namely, in the pastoral

industry and in other industries such as cotton— has largely collapsed. In many of the discrete and rem ote communities there is very little employment, not enough housing, an absence of infrastructure, an improving but essentially low level of educational achievements and skill

qualifications required for employment, whether on the community or off it. In country towns and cities employment is precarious.

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1.7.15 Since 1967, in a variety of ways governments have given some support. The Commonwealth land rights legislation for the Northern Territory conferred immediate ownership of much reserve land on Aboriginal people and allowed for a system of claims by traditional owners of the lands. The upshot of that legislation has been that a very considerable amount of land in the Northern Territory is now in the hands o f Aboriginal people on inalienable freehold title. This provides the people concerned with a land base and also, in many cases, with an income base

generated from ownership and control of the land, and with further possibilities for negotiating with persons desirous of undertaking some development on the land. A different form o f legislation has produced much the same result in South Australia. A totally different form again in New South Wales has provided a fund out of which Aboriginal interests

have been able to buy land on which to undertake rural enterprises and acquire other assets related to an economic base for some people. I consider the land needs of Aboriginal people in Chapters 19 and 37.

1.7.16 Funds have been provided for many organizations of the type to which I referred. Funds have been available to individuals to facilitate their undertaking study at all levels. There are, of course, many other examples of practical assistance referred to in the report and also many others not referred to. Some of the forms of assistance represent the provision of citizen rights entitlements to Aboriginal people. Some represent positive discrimination to Aboriginal people to compensate for past disadvantage. Such positive discrim ination is specifically contemplated by the international covenants to which Australia is a party, contem plated by the equal opportunity legislation— under whatever

name— which operates in various parts of the country and has been provided for many disadvantaged groups in our society, amongst which Aboriginal people would constitute by far the group disadvantaged to the greatest degree over the longest time.

1.7.17 The provision of such assistance to Aboriginal people has been a bi-partisan feature of Australian political life since shortly after the carriage of the Referendum, as I show later in the report. A bi-partisan joint committee of the House of Representatives has recently affirmed

support for a policy which means ‘Aboriginal people having the resources and capacity to control the future of their own com m unities...’. I discuss this matter in Chapter 20.

1.7.18 In short, there is bi-partisan support for the second pre­ requisite although inevitably there are some disputes about matters of detail, priorities and extent.

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Th e P o l i c y o f Se l f -d e t e r m i n a t i o n

1.7.19 The third prerequisite to the empowerment of Aboriginal people and their communities is having in place an established method, a procedure whereby the broader society can supply the assistance referred to and the Aboriginal society can receive it whilst at the same time

maintaining its independent status and without a welfare-dependent position being established as between the two groups. That requires an adherence to the principles of self-determination, a concept which— I think—does not have a precise definition; it is a developing concept, one

as to the limits of which there can be some disagreement but about which, as I believe is shown in Chapter 20 of this report, there is an enormous common area of agreement quite sufficient to allow progress to go forward with great benefit to Aboriginal people.

1.7.20 The concept of empowerment of Aboriginal people based on these concepts runs through the whole of this report and informs a great majority of the recommendations, other than some dealing with rather technical matters such as coronial inquests. All Australians, of course, recognize Aboriginal people as the original inhabitants of the country and

also that prior to 1788 they had in fact occupied the country since time immemorial, indeed, for so long that the culture of the various groups or nations of Aboriginal people were inseparably connected to the land itself. But from these matters recognized by all, not everybody draws an

important conclusion; namely, that the status of original inhabitants puts the Aboriginal people in a unique situation.

1.7.21 It can be said of everybody else who lives in Australia that they are migrants or descendants o f migrants. They or their forebears came to Australia for a variety of reasons but with the clear understanding that they were coming to a new and quite different country where life

would evolve in a distinctive way and where in respect of those who came later they knew that it had evolved in a particular way. The first Europeans to arrive brought with them ideas, institutions, religions and the other ingredients that make up a culture. What they brought with them

was a culture which has now evolved into something that is difficult to describe and identify but is a non-Aboriginal Australian culture. Its basic ingredient is the culture which was brought in 1788 but all those who have come since have contributed to the environment in which we all live. All

those who have come to the country this century have had a concept of the country and culture to which they were coming and made the decision to leave their own place to embrace the new. For the Aboriginal people it is different. They were here, they had their culture, they did not leave and

did not ask others to come. They did not go through the process of leaving the old to embrace the new. They never voluntarily surrendered their culture and, indeed, fought tooth and nail to preserve it, throughout dispossession, protection, assimilation, integration. In their own words,

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they survived and their culture survived; in different forms and to different degrees in different parts o f the country as a result o f different

experiences. They have the right to retain that culture, and that identity. Self-determination is both the expression and the guarantee of that right.

S e l f -d e t e r m i n a t i o n a n d N o n - A b o r i g i n a l A t t i t u d e s

1.7.22 As I set out in the previous section, the need of Aboriginal people and communities for special assistance has, since 1967, been recognized by succeeding Commonwealth governments irrespective of political complexion. And the same bi-partisan support for those propositions can be found at State and Territory level. But how to provide

that assistance in a way which does not exacerbate feelings of dependency, in a way which promotes decision-making by Aboriginal people in relation to their own individual and community lives, is a problem which has presented more difficulties. The perception of many Aboriginal people— and I might add the perception of many public servants with whom I have spoken— is that too often policies are propounded, programmes put forward, assistance offered in a form which has been largely pre­ determined in the bureaucracies of the departments concerned; that there is a process of consultation with relevant Aboriginal communities or bodies but that the parameters of the consultation have been set in advance; that the agenda is being fixed by non-Aboriginal people, not by Aboriginal people. I discuss this matter at length in the chapters on self-determination

(Chapters 20 and 27).

1.7.23 Non-Aboriginal Australia must face the fact that for a very long time we have proceeded on the basis that Aboriginal people were inferior, were unable to make decisions affecting themselves, that we knew what was best for them, that we had to make decisions affecting them; it became second nature for us to have that attitude. It is very easy for us to adopt that attitude without even being aware that we are adopting it. This is true both for public officials and for private persons. It is an attitude which is very deeply resented by Aboriginal people, as would, indeed, be by us if roles were reversed. I say very frankly that when I started upon my work in this Commission I had some knowledge of the way in which broad policy had evolved to the detriment of Aboriginal people and some idea of the consequences. But, until I examined the files o f the people who died and the other material which has come before the

Commission and listened to Aboriginal people speaking, I had no conception of the degree of pin-pricking domination, abuse of personal power, utter paternalism, open contempt and total indifference with which so many Aboriginal people were visited on a day to day basis. It is hard to convey the understanding because each particular story takes time and

space to tell. Some of the stories are contained in the individual case reports. Let me refer to just two.

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1.7.24 I quote in Chapter 10 the letter of a protector in Queensland who was quite shocked to receive a request from a newly-married Aboriginal woman to have from her bank account, of which he was trustee, four-fifths of her week’s earnings, even though he acknowledged

that her employer— who was going to do the shopping— would be very careful in the disbursement of her money. He refused the request but as it was Christmas allowed here a little of her own money ‘to buy lollies with’ (for which she had not asked).

1.7.25 In one of the cases that I inquired into, a young boy was put in an institution because he kept running away from his home where there was a lot of domestic strife. He wanted to go to the home of his sister, a married women, who lived on a reserve. The sister and her husband are

to this day leading members of the community. The superintendent refused the lad permission to come on to the reserve to join his sister. His reasons included that the couple were thought to keep some beer in the

fridge— at a time when it was lawful for them to do so— and they had some household items on hire-purchase, including a TV (his underlining, not mine).

1.7.26 This petty tyranny, escalating to interference with the most fundamental of rights to practise ones own culture, ones own religion, to parent one’s own children is deeply resented. Any assumption of superiority, any attitude of knowing what is best for Aboriginal people

produces a negative reaction and endangers the process of consultation and negotiation.

1.7.27 1 give an example, to illustrate and not to criticise. I held a session on Aboriginal education in the Northern Territory. One document which was discussed was a statement made by the former Minister for Education in the Northern Territory Government. In my opinion, it was a

statement which had many distinguished features. As an application of the Aboriginal education policy, it proposed that remote communities should establish education advisory committees which would have control of schooling matters and all questions of organization, arrangements of

terms, teaching methods and curriculum, the latter being subject to the teaching of three core subjects— English, arithmetic and science. There was some strong Aboriginal opposition to the core subject qualification.

There was some discussion about this. It became clear to me that the opposition was not, and certainly not primarily, to the core subjects but to the fact of their being declared to be compulsory. I would be very surprised if negotiation conducted in a spirit of goodwill does not yield

agreement on these matters.

1.7.28 M any Aboriginal people feel that the means by which

communities and organizations are presently funded makes it impossible for them to exercise control over decision-making because priorities are determined in advance and there is no opportunity for long-term planning.

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Many non-Aboriginal people would agree with this point of view and agreement with it was recently expressed by the bi-partisan House of Representatives Committee on Aboriginal Affairs. This is a serious question which I discuss later in the Self-Determination chapters.

1.7.29 I have discussed this m atter at length and to my great

advantage with Commissioner Dodson who expresses the view that it is not only a question of the material assistance which the broader society makes available, not only the administrative arrangements which are put in place, but also the attitude of non-Aboriginal people. He puts it that it is important that non-Aboriginal people not try to impose on Aboriginal people their non-Aboriginal ideas of what is good, wise or moral, but to

let the Aboriginal people feel their own way. In some cases, the way may be different, in many others— in the case of the core subjects mentioned above— the way may well be the same.

1.7.30 Commissioner Dodson stresses that, after what has happened to Aboriginal society, people need space, time and distance to think out very carefully what they want to do with their own communities and their lives.

1.7.31 It is a recom m endation of this report that Aboriginal

communities and organizations should not be crowded with programmes but allowed time to think their position through and formulate the order in which they want to attend to things— then come back to the broader society to discuss decisions that they have made. In some cases, perhaps in all, they will need some advice— technical, professional— in coming to

those decisions. That advice should be provided at their request.

1.7.32 Commissioner Dodson speaks of the need for a maturing of the relationship between Aboriginal and non-Aboriginal people; a deeper understanding of how each sees the other and why; a bringing out of the common ground between us— the centrality of being human beings. He

suggests that as Aboriginal people need time space and distance for thinking through their position, perhaps non-Aboriginal Australia needs to take some time to think through its position in relation to Aboriginal people, to ask ourselves whether we have not stereotyped Aboriginal people, whether as noble savages, scroungers, horsemen, child-like persons, servants or people addicted to alcohol.

1.7.33 In the ultimate, self-determination is basically about people having the right to make decisions concerning their own lives, their own communities, the right to retain their culture and to develop it.

1.7.34 I summarise by saying that the whole thrust o f this report is directed towards the empowerment of Aboriginal society on the basis of their deeply held desire, their demonstrated capacity, their democratic right to exercise, according to circumstances, maximum control over their own

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lives and that of their communities; that such empowerment requires that the broader society, on the one hand, makes material assistance available to make good past deprivations and on the other hand approaches the relationships with the Aboriginal society on the basis o f the principles of

self-determination.

1.8 THE IMPORTANCE OF THE ABORIGINAL ORGANIZATIONS

1.8.1 When dealing with what I called the first pre-requisite of the empowerment of Aboriginal society— The Will to Renewal and to Self- Determination— I referred to the tremendous energy, determination and strength being demonstrated by the Aboriginal people. This highlights the

importance of the Aboriginal organizations. Throughout the report will be found literally hundreds of references to the work o f such organizations, including community councils.

1.8.2 Aboriginal people formed organizations to further their struggle for equal rights before W orld W ar II. But there has been a tremendous proliferation of organizations since the decade of the sixties and they play a very significant role in Aboriginal life and in particular in

the efforts to elim inate disadvantage. Some organizations perform statutory functions, such as various land councils; others provide services to Aboriginal people and are funded for this purpose— these include the legal services, the medical services and the housing associations; others exist, in part at least, to provide advice to governments, an example being

the State and Territory Education Advisory Committees; others perform a myriad of different functions.

1.8.3 This report will, I think, show that strong organizations that have adequate resources play a tremendous part in raising the status of Aboriginal people in their own eyes and in the eyes of non-Aboriginal society. Such organizations are able to negotiate with the non-Aboriginal

society from a position of some strength and recognized position, to command respect and attention. Many of them are able to obtain access to the general media— as well as to the Aboriginal media— and thus can press their point of view in public if they find this to be to their advantage.

Many of them are directly concerned in the elimination of disadvantage by their work in the fields of health, legal rights, education, housing; and the attention to land needs and the pressing of Aboriginal points of view. Of course, they are not all equally successful but many of them are very

successful; they have become an accepted part of Aboriginal society and generally retain the support of the people for whom or amongst whom the organization is set up. These organizations should be appropriately funded. In some circumstances their funding is a matter of the supply of

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citizen right services. In others it is a matter of assistance to Aboriginal communities or groups.

1.8.4 The report supports the continuation and extension of service provision through Aboriginal organizations in key areas and opposes the mainstreaming of those services.

1.8.5 I wish to particularly stress one last point. As this report

shows, the existence of strong Aboriginal organizations does not lead to an exacerbation o f community relations but to improvement in those relations. This is a very important point to be noted by those non­ Aboriginal people who entertain some fears about the effects of self­ determination. The report describes many practical examples o f this process at work.

1.8.6 There is one aspect of this process which is particularly worth drawing attention to and this is in the vexed area of Aboriginal/police relations.

1.8.7 The em ergence o f Aboriginal organizations which have resources, backup, expertise and which can speak and are recognized as speaking on behalf of Aboriginal people are making possible some tremendous initiatives in the area of Aboriginal and police relationships. In the text I speak o f the Community Justice Panels in Victoria, of the Julilikari Council in Tennant Creek and its counterpart at Elliott; of the Port Lincoln organization and the visitor schemes in South Australia; of legal

services in all parts of the country, and others.

1.8.8 Many of those changes are based on the existence of these strong organizations which are able to speak for their people and with whom police officers at all levels feel they can negotiate and with whom increasingly they feel they should negotiate. When these negotiations are carried on in a spirit of mutual respect and with proper regard to the

interests of both sides, experience shows that considerable progress can be made. I deal with some of these matters in Chapter 13. Commissioner Dodson said to me, concerning some of the developments in the Northern Territory with which he is very familiar:

I t u n fo rtu n a te ly a p p e a r s th a t m uch o f th e A b o r ig in a l p e r c e p tio n o f n o n -A b o rig in a l s o c ie ty is f o c u s s e d upon w h a t the q u a lity o f the rela tio n sh ip is like w ith th e lo c a l p o lic e o ffic ers. It a lso h as its co n v e rse in th a t p o lic e

p e r c e p tio n s o f A b o r ig in a l p e o p le is lin k e d to th o se

w h om th ey a r r e s t on a r e g u la r b a sis. T h is h a s s e t the

fo u n d a tio n f o r g o o d o r b a d re la tio n s o v e r th e y e a rs .

Such fo u n d a tio n s a re c a p a b le o f g e n e ra tin g th e ir ow n m y th o lo g ie s w h ich can then a c t a s e n tre n c h e d m a rk ers g o v e rn in g th e in te ra c tio n b e tw e en the tw o g ro u p s. To

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con stru ct b rid g e s o f tru st a n d re sp e c t req u ires in itia tives on b o th s id e s . F r a n k a n d h o n e s t d ia lo g u e h a s

u n d erlin ed th o se in sta n ces b ro u g h t to the n o tic e o f the C o m m issio n a s p o s itiv e a d v a n c e s. T h ese h a v e b e e n

o c c a s io n s w h en b o th g r o u p s h a v e b een a b le to ris e

a b o v e the n eg a tive ste re o ty p ic a l v ie w s o f ea ch o th e r a n d c o lle c tiv e ly e sta b lish w o rk a b le re sp o n se s to w h a t th ey k n o w to b e th e p r o b le m s o f th e c o m m u n ity in w h ich

they a b id e. B y pu ttin g a sid e the p re ju d ic e a n d h ostilities to m e e t the ch a llen g e o f red u cin g the n u m ber o f d e a th s in c u sto d y a n d the high le v e l o f c u sto d ie s o f A b o rig in a l p e o p le , b o th g ro u p s h a v e f o u n d th a t th ey ca n w o rk

to g eth e r. T he fu n d a m e n ta l ch a n g e h ere h as b een th a t A b o r ig in a l p e o p le a n d n o n -A b o r ig in a l p e o p le h a v e

d isc o v e re d th a t they n eed no lo n g e r be c o n tro lled b y the p a s t n e g a tiv e im a g es th ey m a y h a ve h ad o f ea ch o th e r

b u t a sse rt, c o lle c tiv e ly , c o n tro l o v e r a m u tu a l a r e a o f

interest.

It is precisely the existence of active, healthy, properly resourced organizations that make such dialogue possible.

1.9 THE ELIMINATION OF DISADVANTAGE AND THE PROCESS OF RECONCILIATION

1.9.1 In the final chapter of the report (Chapter 38) I discuss the question of reconciliation between Aboriginal and non-Aboriginal Australia. It is a matter which, as the chapter shows, has been raised many times since 1967 and with bi-partisan support. It has again been

placed on the agenda by the present Minister for Aboriginal Affairs in a statement released on behalf of the Commonwealth Government. I discuss the concept of a reconciliation process. I do not repeat what I say there except to stress the importance of the process and to lend my support

to the view that reconciliation demands a level playing field, a negotiation based upon mutual respect and an acceptance of equality. The process of reconciliation demands a very strong commitment to the elimination of that Aboriginal social, economic and cultural disadvantage which is the basic

reason for the disproportionate number of Aboriginal men and women in custody, the deaths of some of them and the setting up of this Royal Commission.

i

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1 .1 0 AN OVERVIEW OF THE RECOMMENDATIONS

1.10.1 My aim, and that of the other Commissioners in the course of our consultations, has been to suggest practical proposals directed to what we see as important questions. Some recommendations require legislative change; some can be applied very quickly, others would require more time. But we have striven to grapple with real problems and solutions that

seem feasible, rather to make grandiose declarations about abstract rights.

1.10.2 Many of the proposals make suggestion for the better use of agencies, facilities etc. which are already in place.

1.10.3 For example, in every State and Territory, there is in place a coronial structure. That structure did not supply the critical analysis which is needed of the reasons for custodial deaths. In the few cases where coroners did pursue these matters the issues raised were frequently not

brought to the notice of the relevant authority and certainly not to the notice o f the public. I make a large number of recommendations directed to the better use of the coronial structure.

1.10.4 Likewise, there are in place a large num ber o f agencies, departments etc. with operations in areas of considerable Aboriginal population. But the staff are not, in many or most cases, given any special training to enable them to provide an appropriate or the most appropriate

service to the Aboriginal clients. The recommendations, associated with different service areas are directed to this question. I make it clear that I do not envisage those staff m embers being trained to be amateur

anthropologists; but that they be trained in cross cultural communication and sensitivity, and in something of the history and circumstances of the local Aboriginal people and the history of race relations in the area. I do not think it should be assumed that because a person has had some training for working in one area that further training is not necessary before working in another area. I should add that I have found overwhelming support for the principle involved in these recommendations; expressed in many ways on the Aboriginal side, including by the Aboriginal Issues Units, and by police and prison officers, the A ustralian Medical

Association and many individuals on the non-Aboriginal side.

1.10.5 Likewise again, in the area of imprisonment being the sentence of last resort, there are in the various jurisdictions considered as a totality a very large number of sentencing options, some of them very creative. There needs to be a cross fertilization of ideas to ensure that all the

solutions that are suitable for application in the circum stances of a particular area are available. But above all, the recommendations envisage steps being taken to ensure that these schemes achieve maximum

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advantage for Aboriginal offenders by including communities in decisions about such orders and in the supervision of them. There are excellent examples referred to in the text. This is a particularly crucial matter for juvenile and young adult prisoners.

1.10.6 There are areas where essentially much of the infrastructure is in place and policies also. What is required are modifications and changes in direction which can achieve better results. The recommendations relating to prisons and particularly to custodial medical services fall into

the same general category.

1.10.7 Then there are policies which have been adopted and are in operation. The Aboriginal Education Policy is an example of what appears to me to be a good policy, backed up by the Triennial Strategic Plans for each State and Territory. The main thrust of the recommendations in that

area are directed to ensuring that— depending on the circumstances— control, or the maximum contribution to control, is assured to Aboriginal communities by way of the negotiating process envisaged by the plan. In short, the fundamental thrust of the recommendation goes to the spirit in

which the policy is administered and to stressing that at every level, from pre-school to tertiary, there is a need to make up for past disadvantage.

1.10.8 Rather similar considerations apply to the implementation of the National Aboriginal Health Strategy and the Aboriginal Employment Development Policy. In the latter area the successful initiatives of various governments to increase Aboriginal employment in the public service are

worthy of praise. One of the important aspects of this achievement and a subject of recommendation is that it opens the way to extend the initiative to the broader public sector and the private sector.

1.10.9 I refer to Recommendation 316 which to my mind relates to a very important topic. Many of the remote communities across the north of the country pose a special problem in the vital area of an economic base. It seems to be assumed by many people, Aboriginal and non-Aboriginal, that

there is little scope for economic development and that the lifestyle of the people may not be conducive to it in any event. My own view is that there may be many possible projects which could increase subsistence income and in other ways at least increase self-sufficiency. I think that a small

unit which closely studied all the initiatives in fact taken, which drew out what was best in them and gave thought to their application in other places —perhaps in a modified form— and made inform ation from many communities available to all, might produce some positive outcomes. A

close study of constructive application of the CDEP Scheme would be one starting point.

1.10.10 The principal thrust of the recommendations, as of the report, is directed towards the prime objectives— historically linked— of the elimination of disadvantage and the growth of empowerment and self­

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determination o f Aboriginal society. It may seem to some, especially to those who read the recommendations as a body, that the calls for negotiation with Aboriginal communities or organizations is repetitive and mechanical. I believe that the text will demonstrate that this is not so. It is, in fact, along with the provision o f resources on a non-dependency basis, the fundamental question without which policies cannot succeed. This is the view of all Commissioners. There are a number of

recommendations directed towards economic opportunity.

1.10.11 Because of its very great importance— supported by the individual inquiries, by the general research, the advice of all of the Aboriginal Issues Units and many submissions— I mention the problem of alcohol. It appears as a discrete question, and undoubtedly it is in some very particular respects such as detoxification and the provisions of

shelters. But it is in the final analysis, in its general form, linked to the health of the society and can only be overcome as part of a policy of renewing and strengthening Aboriginal community and family life. The recommendations under the heading of alcohol are linked to the general

body of the recommendations. I add that, because of the very great importance o f this topic and because it was given great attention by the Northern Territory Aboriginal Issues Unit, headed by Ms Marcia Langton, and by the Aboriginal people with whom the Unit consulted, I have included the report of the Unit entitled T oo M uch S o rry B u sin e ss as an appendix to this report.

1.10.12 For reasons already m entioned, the question o f self­

determination and, therefore, the recommendations linked to Chapter 20, are crucial. It would be obviously foolish not to acknowledge that some o f these recom m endations raise large questions o f administrative difficulty. The difficulties are not insurmountable. I have tried, here, as

before, to keep the recommendations at a practical level but they are necessarily rather more general.

1.10.13 I have included a simple recommendation relating to the process of reconciling the differences— grounded in history— between Aboriginal society and non-Aboriginal society. I believe that process is ongoing; that it has wide support. I stress that as a process it must, if it is to be successful, have widespread support amongst both Aboriginal and

non-Aboriginal people. In the latter case, that means bi-partisan support.

1.10.14 F in ally , as part o f this O verview , I m ake three

recommendations which are related to the recommendations and their implementation.

1.10.15 The first is based on the tremendous support which has been given to the Commission by governments, by Aboriginal organizations, by non-Aboriginal organizations, by individuals Aboriginal and non­ Aboriginal alike. Such was the government and public involvement in the

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work of the Commission, and such is the importance of these issues that I recommended that the follow-up should be in the public arena.

Recommendation 1:_________________________________

T h a t h a v in g r e g a r d to th e g r e a t in p u t w h ic h h a s b e e n

m a d e to th e w o r k o f th e C o m m is s io n , n o t o n ly b y

g o v e r n m e n t s a n d d e p a r tm e n ts o f g o v e r n m e n t b u t a ls o

b y A b o r i g i n a l c o m m u n i t i e s , o r g a n i z a t i o n s a n d

i n d i v i d u a l s , o n th e o n e h a n d , a n d n o n - A b o r i g i n a l

o r g a n i z a t i o n s a n d i n d i v i d u a l s , o n t h e o t h e r , i t is

h ig h ly d e s ir a b le th a t th e a t titu d e o f g o v e r n m e n ts to th e

r e c o m m e n d a t i o n s a n d th e i m p l e m e n t a t i o n o f t h o s e

a d o p te d b e c a r r ie d o u t in a p u b lic w a y a s p a r t o f th e

p r o c e s s o f e d u c a tio n a n d r e c o n c i l ia t io n o f th e w h o le

s o c ie ty . T o th is e n d th e C o m m is s io n r e c o m m e n d s :

a . T h a t th e C o m m o n w e a lth G o v e r n m e n t a n d S ta te a n d

T e r r i t o r y G o v e r n m e n t s , in c o n s u l t a t i o n w ith

A T S I C , a g r e e u p o n a p r o c e s s w h ic h e n s u r e s th a t

th e a d o p tio n o r o th e r w is e o f r e c o m m e n d a tio n s a n d

t h e i m p l e m e n t a t i o n o f t h e a d o p t e d

r e c o m m e n d a t i o n s w i l l b e r e p o r t e d u p o n o n a

r e g u l a r b a s i s w i t h r e s p e c t to p r o g r e s s o n a

C o m m o n w e a lth , S ta te a n d T e r r ito r y b a s is ;

b . T h a t s u c h r e p o r t s s h o u l d b e m a d e n o t le s s th a n

a n n u a lly a n d th a t, s u b j e c t to th e a g r e e m e n t o f its

C o m m is s io n e r s so to d o , A T S I C b e g i v e n s p e c i a l

r e s p o n s i b i li ty a n d f u n d i n g to e n a b le i t to m o n ito r

th e p r o g r e s s o f th e im p le m e n ta tio n o f th e a d o p t e d

r e c o m m e n d a t i o n s a n d to r e p o r t t h e r e o n to th e

A b o r i g in a l a n d T o r r e s S t r a it i s l a n d e r c o m m u n ity ;

c . T h a t g o v e r n m e n t s c o n s u l t w i t h a p p r o p r i a t e

A b o r i g i n a l o r g a n i z a t i o n s in th e c o n s id e r a t io n a n d

im p le m e n ta tio n o f th e v a r io u s r e c o m m e n d a tio n s in

th is r e p o r t;

d . T h a t, w h e r e v e r a p p r o p r ia te , g o v e r n m e n t s m a k e u se

o f t h e s e r v i c e s o f A b o r i g i n a l o r g a n i z a t i o n s in

im p le m e n tin g s u c h r e c o m m e n d a tio n s ; a n d

e . E n s u r e t h a t l o c a l A b o r i g i n a l o r g a n i z a t i o n s a r e

c o n s u l t e d a b o u t t h e l o c a l i m p l e m e n t a t i o n o f

r e c o m m e n d a t i o n s , a n d t h e i r s e r v i c e s b e u s e d

w h e r e v e r f e a s i b l e .______________________ ___________

1.10.16 Matters of the Criminal Justice System are very much matters for the State and Territories. In these areas many of the recommendations are quite detailed; they are areas of ongoing concern; new problems will inevitably develop.

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1.10.17 Many of the proposals— particularly the more detailed ones— require ongoing liaison with custodial and other agencies. In my opinion some organization on a State or Territory basis should be set up to enable such liaison to occur.

Recommendation 2:_________________________________

T h a t s u b j e c t to th e a d o p t io n b y g o v e r n m e n t s o f th is

r e c o m m e n d a ti o n a n d th e c o n c u r r e n c e o f A b o r i g i n a l

c o m m u n i ti e s a n d a p p r o p r i a t e o r g a n i z a t i o n s , th e r e be

e s ta b lis h e d in e a c h S ta te a n d T e r r ito r y a n in d e p e n d e n t

A b o r i g i n a l J u s t i c e A d v i s o r y C o m m i t t e e to p r o v i d e

e a c h G o v e r n m e n t w i t h a d v i c e o n A b o r i g i n a l

p e r c e p t i o n s o f c r i m i n a l j u s t i c e m a tt e r s , a n d o n th e

im p le m e n ta tio n o f th e r e c o m m e n d a tio n s o f th is r e p o rt.

T h e A b o r i g i n a l J u s t i c e A d v i s o r y C o m m it te e in e a c h

S ta te s h o u l d b e d r a w n f r o m , a n d r e p r e s e n t, a n e tw o r k

o f s im i la r lo c a l o r r e g io n a l l y b a s e d c o m m it t e e s w h ic h

c a n p r o v i d e th e S t a t e A d v i s o r y C o m m i t t e e w ith

i n f o r m a tio n o f th e v ie w s o f A b o r i g i n a l p e o p le . I t is

m o s t i m p o r ta n t th a t th e v ie w s o f p e o p le l iv in g o u ts id e

th e u r b a n c e n tr e s b e in c o r p o r a te d .

T h e te r m s o f r e fe r e n c e o f e a c h S ta te , lo c a l o r r e g io n a l

A d v i s o r y C o m m i t t e e is a m a t t e r to b e n e g o t i a t e d

b e tw e e n g o v e r n m e n t s a n d A b o r i g i n a l p e o p l e . T h e

C o m m i s s i o n s u g g e s t s h o w e v e r t h a t m a t t e r s w h ic h

m ig h t a p p r o p r ia te ly b e c o n s id e r e d in c lu d e , i n te r a lia :

a . T h e im p le m e n ta tio n o f th e r e c o m m e n d a tio n s o f th is

r e p o r t, o r s u c h o f th e m a s r e c e iv e th e e n d o r s e m e n t

o f th e G o v e r n m e n t;

b . P r o p o s a ls f o r c h a n g e s to p o l ic ie s w h ic h a f f e c t th e

o p e r a tio n o f th e c r im in a l j u s t i c e s y s te m ;

c . P r o g r a m s f o r c r im e p r e v e n t i o n a n d s o c i a l c o n t r o l

w h ic h e n h a n c e A b o r i g i n a l s e l f - m a n a g e m e n t a n d

a u t o n o m y ;

d . P r o g r a m s w h ic h i n c r e a s e t h e r e c r u i t m e n t o f

A b o r i g i n a l p e o p l e to t h e s t a f f o f c r i m i n a l j u s t i c e

a g e n c ie s ; a n d

e . T h e d is s e m in a tio n o f in f o r m a tio n o n p o l i c i e s a n d

p r o g r a m s b e tw e e n d i f f e r e n t a g e n c ie s , a n d b e tw e e n

p a r a l l e l b o d ie s in d i f f e r e n t S ta te s .__________________

Page 30 V oll

1 O verview

Recommendation 3:__________________________________

T h e C o m m i s s i o n n o t e s t h a t s o m e o f t h e

r e c o m m e n d a t i o n s o f t h i s r e p o r t , p a r t i c u l a r l y t h o s e

r e la t in g to th e c u s to d i a l e n v ir o n m e n t, a r e p a r t i c u l a r l y

d e ta i le d . T h e m o n i t o r i n g o f th e i m p l e m e n t a t i o n o f

r e c o m m e n d a ti o n s c o u l d o n ly b e c a r r i e d o u t in c lo s e

l i a i s o n w i t h t h e a u t h o r i t i e s r e s p o n s i b l e f o r

i m p le m e n tin g th e m . I n o r d e r to e n s u r e t h a t th e S ta te

A b o r i g i n a l J u s t ic e A d v i s o r y C o m m itte e is a b l e to g iv e

i n f o r m e d a d v ic e to th e A t t o r n e y - G e n e r a l o r M i n i s t e r

f o r J u s t i c e , i t s h o u l d b e a s s i s t e d b y a s m a l l

S e c r e t a r i a t , s t a f f e d b y p e o p l e w ith k n o w l e d g e o f

A b o r i g i n a l i n t e r a c t i o n s w i t h t h e c r i m i n a l j u s t i c e

s y s t e m . T h e r o le o f th e S e c r e t a r i a t s h o u l d b e to

p r o v id e in f o r m a tio n to th e A d v i s o r y C o m m it te e , a s s is t

it in th e d e v e l o p m e n t o f p o l i c y p r o p o s a l s , a n d l ia i s e

o n b e h a l f ( a n d a t th e d ir e c tio n o f) th e C o m m itte e w ith

o t h e r a g e n c ie s . T h e S e c r e t a r i a t s h o u l d b e l o c a t e d

w ith in th e D e p a r t m e n t o f A t t o r n e y - G e n e r a l o r M in is t e r

f o r J u s t i c e b u t b e a c c o u n t a b l e to t h e A d v i s o r y

C o m m i t t e e o n t e r m s to b e n e g o t i a t e d b e t w e e n

g o v e r n m e n t a n d A b o r i g i n a l p e o p l e b u t w i t h t h e

m a x im u m d e g r e e o f a u t o n o m y f r o m g o v e r n m e n t a s

m a y b e c o n s i s t e n t w ith i t f u l f i l l i n g i ts f u n c t i o n to

a s s i s t t h e A d v i s o r y C o m m i t t e e to g i v e i n f o r m e d ,

i n d e p e n d e n t a d v ic e to g o v e r n m e n t.________________ ____

Throughout this report, unless expressly stated otherwise, the term ‘Aboriginal people’ will denote both Aboriginal and Torres Strait Islanders

V o ll Page 31

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PART A

THE DEATHS INVESTIGATED BY THE ROYAL COMMISSION

Chapter 2 PROFILE OF THOSE WHO DIED

This c h a p te r b rin g s to g e th e r so m e o f th e b a s ic f a c t s th a t h a v e b een

gath ered a b o u t th e n in ety-n in e r e p o r te d c a s e s o f d e c e a s e d A b o r ig in a l p eo p le fa llin g w ith in th e term s o f re fe re n c e o f the R o y a l C o m m issio n . The in fo rm a tio n a b o u t ea ch c a se w a s taken fr o m m a te r ia l w h ich w a s

before the releva n t C o m m issio n er in ea ch o f the en qu iries a n d o b ta in e d by staff o f the C o m m issio n . W h erever p o s s ib le the in form ation s u p p lie d w a s checked a g a in s t th a t in c lu d e d in th e r e p o rts o f th e in d iv id u a l d e a th s.

A pproxim ately 1 2 0 se p a ra te p ie c e s o f in form ation h ave b een c o lle c te d f o r each ca se, o n ly a sm a ll p a r t o f w h ich is u se d in th is c h a p te r. A m o re

d e ta ile d p r o file h a s b e e n p r e p a r e d b y th e s ta f f o f th e C o m m is s io n ’s

R esearch U n it a s R e se a rch P a p e r N o . 2 1 , The R o y a l C o m m issio n C a se s: A Statistical D escrip tio n .

The ch apter com m en ces w ith b a ckgrou n d inform ation on the g e o g ra p h ic a l distribution o f th e A b o rig in a l p o p u la tio n o f A u stralia, a n d a s s e s s e d b y the 1986 n a tio n a l p o p u la tio n cen su s, to p r o v id e a fra m e w o r k in to w h ich the balance o f the r e p o r t’s in form ation on the A b o rig in a l p o p u la tio n m a y b e p la ce d . T h e d e m o g r a p h ic c h a r a c te r is tic s o f th e n in e ty -n in e c a s e s

in vestig a ted a re then o u tlin ed , f o llo w e d b y in fo rm a tio n on th e c rim in a l b a ck g ro u n d s o f th e d e c e a s e d a n d th e c ir c u m s ta n c e s o f th e ir f in a l

detentions an d cu sto d y. The ch a p ter con clu des w ith a s ta tistic a l o v e rv ie w o f the death s th em selves, clarifyin g w hen, w h ere a n d h o w th ey o ccu rred .

The central fin d in g s rep o rted in this ch apter a re that the v a st m a jo rity o f the 99 death s w e re o f A b o rig in a l m en: 8 8 c o m p a re d w ith 11 w o m en ; n ea rly tw ice as m a n y d e a th s o c c u r re d in p o lic e c u sto d y (6 3 ) th an in p r is o n

cu stody (3 3 ), w h ile th re e d e a th s w e r e o f y o u n g p e o p le in ju v e n ile

detention c e n tre s; r e la tiv e ly high n u m b ers o c c u rre d in 1 9 8 7 ; W estern Australia a n d Q u een sla n d had the h igh est num bers o f d ea th s; a n d th a t the dom inant ca u ses o f d ea th w ere n atu ral ca u ses o r d ise a se (3 7 dea th s) a n d hanging (3 0 death s).

2.1 INTRODUCTION

2.1.1 As will be explained in more detail below, 63 of the deaths occurred in police custody, 33 in prison custody and 3 in juvenile detention facilities. The highest numbers occurred in Western Australia

Vol 1 Page 35

P r o f ile o f T h o s e W h o D ie d 2

(32) and Queensland (27), followed by New South W ales (15), South Australia (12), Northern Territory (9), Victoria (3) and Tasmania (1). No Aboriginal deaths in custody occurred in the Australian Capital Territory during the relevant period.

T h e G e o g r a p h i c a l D i s t r i b u t i o n o f t h e A b o r i g i n a l

P o p u l a t i o n

2.1.2 Before proceeding with detailed information on the deceased, I will present some background information on the geographical distribution of the Aboriginal population. This will assist readers to place much of this report’s discussion of Aboriginal people, including the deaths that occurred in custody and the underlying issues that account for the deaths, into a geographical context. It is important, I suggest, that readers understand where Aboriginal people are to be found, and their numerical strength relative to that of the non-Aboriginal population. More detailed information on the Aboriginal population is to be found in Chapter 11,

‘Aboriginal Society Today’.

2.1.3 Because this is a technical m atter and one in which neither Commissioners nor the Royal Commission staff have special expertise, I commissioned a paper on this and related topics from the National Centre for Epidemiology and Population Health at The Australian National University. D r Alan Gray o f that Centre and D r H abtem ariam

Tesfaghiorghis of the AN U ’s Centre for Aboriginal Economic Policy Research prepared the paper in 1990. It is used extensively in the relevant chapters of this report, and it forms the basis of my discussion in this section.

2.1.4 The distribution of the Aboriginal population can be understood from two perspectives: first, the absolute distribution of the Aboriginal population, i.e. where Aboriginal people are to be found; and, secondly, their distribution relative to that of the non-Aboriginal population. The

1986 Census provides relevant data, and these are set out in Table 2.1 (overleaf). The table shows the A boriginal and total A ustralian populations separately for each State and Territory. It also breaks them down according to what the Australian Bureau of Statistics calls ‘section of state’, namely major urban areas (defined as urban centres with a population of 100,000 or more); other urban areas (urban centres with a population of 1,000 to 99,999); and rural areas (population less than

1,000). The map opposite depicts the information in Panel D of the table.

Page 36 Vol 1

18.1%

34739 (22.4%) Note: The pie diagrams show that most Aboriginal people live

outside the major urban areas and/or capital cities.

61268 (2 .4%)

36.3%

85.9%

ABORIGINAL POPULATION DISTRIBUTION Percentage of Aboriginal people living in major urban areas and/or capital cities

20.1% 47.5% Percentage of Aboriginal people living in other areas TASMANIA,

14291 Total Aboriginal population (1.1%) Aboriginal population as a percentage of total population

Source: Australian Bureau of Statistics, Census of Population and Housing, 30 June 1986.

ASSaaaP GIU 91/012

SCALE

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» P r o f ile o f T h o s e W h o D ie d

FABLE 2.1 GEOGRAPHICAL DISTRIBUTION OF THE ABORIGINAL POPULATION AND THE TOTAL AUSTRALIAN POPULATION, 1986 CENSUS

)tate Aboriginal Population Total population

M ajor urban

O th er urban

Rural T o ta l M ajor

urban

O ther urban

Rural T o ta l

(A) POPULATION NUMBERS

MSW 21416 27352 10243 5 9 0 1 1 3658459 1088754 654668 5 4 0 1 9 0 1

Vic 5986 5224 1401 1 2 6 1 1 2771317 743360 504801 4 0 1 9 4 7 8

31d 11091 28788 21389 6 1 2 6 8 1201147 840395 545773 2 5 8 7 3 1 5

5A 5696 45 8 0 4015 1 4 2 9 1 917000 221036 207909 1 3 4 5 9 4 5

WA 8949 15775 13065 3 7 7 8 9 895710 296657 214562 1 4 0 6 9 2 9

las 1351 3460 1905 6 7 1 6 127106 197751 111496 4 3 6 3 5 3

NT - 1 0 7 0 0 2 4 0 3 9 3 4 7 3 9 - 1 1 1 0 5 9 4 3 7 8 9 1 5 4 8 4 8

ACT 1 0 4 8 - 1 7 2 1 2 2 0 2 4 7 1 9 4 - 2 2 1 3 2 4 9 4 0 7

Aust 5 5 5 3 7 9 5 8 7 9 7 6 2 2 9 2 2 7 6 4 5 9 8 1 7 9 3 3 3 4 9 9 0 1 2 2 2 8 5 2 1 1 1 5 6 0 2 1 7 6

(B) P E R C E N T A G E D I S T R I B U T I O N BY S T A T E S

NSW 3 8 . 6 2 8 . 5 1 3 . 4 2 5 . 9 3 7 . 3 3 1 . 1 2 8 . 6 3 4 . 6

Vic 1 0 . 8 5 . 4 1 . 8 5 . 5 2 8 . 2 2 1 . 2 2 2 . 1 2 5 . 8

Qld 2 0 . 0 3 0 . 0 2 8 . 1 2 6 . 9 1 2 . 2 2 4 . 0 2 3 . 9 1 6 . 6

SA 1 0 . 2 4 . 8 5 . 3 6 . 3 9 . 4 6 . 3 9 . 1 8 . 6

WA 16. 1 1 6 . 5 1 7 . 2 1 6 . 6 9 . 1 8 . 5 9 . 4 9 . 0

Tas 2 . 4 3 . 6 2 . 5 3 . 0 1. 3 5 . 7 4 . 9 2 . 8

NT - 1 1 . 2 3 1 . 5 1 5 . 3 - 3 . 2 1 . 9 1 . 0

ACT 1 . 9 - 0 . 2 0 . 5 2 . 5 - 0 . 1 1 . 6

Aust 1 0 0 . 0 1 0 0 . 0 1 0 0 . 0 1 0 0 . 0 1 0 0 . 0 1 0 0 . 0 1 0 0 . 0 1 0 0 . 0

(C) P E R C E N T A G E D I S T R I B U T I O N W I T H I N S T A T E NSW 3 6 . 3 4 6 . 3 1 7 . 4 1 0 0 . 0 67.7 20.2 12.1 1 0 0 . 0

Vic 47.5 4 1 .4 11.1 1 0 0 . 0 68.9 18.5 12.6 1 0 0 . 0

Qld 18.1 4 7 .0 34.9 1 0 0 . 0 46.4 32.5 21.1 1 0 0 . 0

SA 39.9 3 2 .0 28.1 1 0 0 . 0 68.1 16.4 15.5 1 0 0 . 0

WA 23.7 41.7 34.6 1 0 0 . 0 63.7 21.1 15.2 1 0 0 . 0

Tas 20.1 51.5 28.4 1 0 0 . 0 29.1 45.3 25.6 1 0 0 . 0

NT - 3 0 . 8 6 9 . 2 1 0 0 . 0 - 7 1 . 7 2 8 . 3 1 0 0 . 0

ACT 85.9 - 1 4 . 1 1 0 0 . 0 99.1 - 0 . 9 1 0 0 . 0

Aust 24.4 42.1 33.5 1 0 0 . 0 62.9 22.4 14.7 1 0 0 . 0

(D) ABORIGINAL PEOPLE AS A PERCENTAGE OF TOTAL POPULATION NSW 0.6 2.5 1.6 1 . 1

Vic 0.2 0.7 0.3 0 . 3

Qld 0.9 3 .4 3.9 2 . 4

SA 0.6 2.1 1.9 1 . 1

WA 1.0 5.3 6.1 2 . 7

Tas 1.1 1.7 1.7 1 . 5

NT - 9.6 54.9 2 2 . 4

ACT 0.4 - 7.8 0 . 5

Aust 0.6 2.7 3.3 1 . 5

Source: Gray and Tesfaghiorghis, 1990; 15; compiled by them from Australian Bureau of Statistics 1986 Census tabulations

Voll Page 37

Profile of Those W ho Died 2

2.1.5 Gray and Tesfaghiorghis make several observations based on the information set out in the table (previous).

N o te (from p a n e l B o f the ta b le) th at a p p ro x im a tely one- q u a rter o f th e A b o rig in a l p o p u la tio n w a s e n u m e ra te d in Q u e e n sla n d a n d a n o th e r q u a r te r in N e w S ou th W a le s; th ese tw o S ta te s to g e th e r a lso co n ta in j u s t o v e r h a lf o f

the to ta l A u stra lia n p o p u la tio n , a lth o u g h w ith g r e a te r c o n c e n tra tio n in N e w S ou th W a les. O f th e rem a in in g S ta te s a n d T e r r ito r ie s , W e ste rn A u s tr a lia a n d th e

N o r th e r n T e r r ito r y c o n ta in e d p r o p o r ti o n s o f th e

A b origin al p o p u la tio n w hich w ere m uch la rg e r than their s h a re s o f th e to ta l p o p u la tio n , a n d V ic to r ia , S ou th

A u stra lia a n d the A u stralian C a p ita l T e rrito ry c o n ta in ed p r o p o r tio n s o f th e A b o r ig in a l p o p u la tio n w h ich w e re c o n s id e r a b ly le s s th a n th e ir s h a r e s o f th e t o ta l

p o p u la tio n . O n ly in T asm an ia w e re the tw o p r o p o rtio n s approxim ately equal.

In P a n e l C o f the table, it can b e seen th a t a p p ro x im a tely o n e -th ird o f th e A b o rig in a l p o p u la tio n w a s lo c a te d in ru ra l a r e a s a n d m o re than f o r t y p e r c e n t in th e u rban

a re a s o u tsid e the m a jo r cities, p ro p o r tio n s m u ch h igh er than in the to ta l p o p u la tio n . In deed, le ss than a q u a rte r o f the A b o r ig in a l p o p u la tio n w a s lo c a te d in the m a jo r urban a re a s, w h ile m o re than six ty p e r c e n t o f th e to ta l A u stra lia n p o p u la tio n w a s c o n c e n tra te d in th o se cities.

The p a tte r n is m uch th e sa m e in m o st S ta te s, b u t v e ry

m a rk e d ly d iffe re n t in the N orth ern T e rrito ry a n d in the A u stralian C a p ita l T errito ry. In the N orth ern T errito ry, a v ery la rg e p ro p o rtio n o f the A borigin al p o p u la tio n is to be fo u n d in ru ral areas.

The e ffe c t ca n b e se e n in P a n e l D : o f th e tw e n ty -tw o

S ta te /se c tio n c a te g o rie s, th ere is o n ly o n e th a t h a s an

A b o r ig in a l p o p u la tio n g r e a te r than ten p e r c e n t o f the to ta l p o p u la tio n , a n d th a t is ru ra l a re a s o f th e N o rth ern T e rrito ry , w h e re in f a c t o v e r h a lf the to ta l p o p u la tio n c o n sists o f A b o rig in a l p e o p le . I t can a lso b e n o te d th a t a ll m a jo r u rban a r e a s c o n ta in A b o rig in a l p o p u la tio n p ro p o rtio n s w h ich a re less than the o v e ra ll p ro p o rtio n o f

1 5 p e r c e n t o f the A u stralian p o p u la tio n .'

2.1.6 Later in this report I discuss aspects of the history o f the

Aboriginal population. It is worth commenting here, nevertheless, about the patterns of migration of Aboriginal people within Australia. Historical analysis suggests that there has been a long-term trend for Aboriginal people to move towards the urban areas, including the large cities.

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2 Profile of Those Who Died

Demographic research has suggested, however, that this may not have been the dominant pattern in recent years. Gray has analysed Aboriginal migration using data from the 1981 and 1986 Censuses. He has concluded that Australia’s major urban areas (in New South Wales and Victoria) actually experienced a net loss in their Aboriginal populations during this period. As he points out, ‘at both inter-State level and country-

to-city level, any Aboriginal migration flow in one direction tends to be almost cancelled out by a flow of similar size in the opposite direction’.2

2.1.7 Gray’s analysis includes the interesting finding that definite age- gender patterns exist in these population movements. The people moving into the major urban areas tend to be young adults, while those moving out tend to be older people and their young children. This suggests that the

stereotypes of the ‘urban Aboriginal person’ and the ‘rural Aboriginal person’, frequently used by non-Aboriginal commentators, may have little factual basis. Over much of Australia we are perhaps seeing an Aboriginal population that is quite mobile, with its members moving between the

cities and the country at different stages in their lives.

2.1.8 Having provided this background demographic information on the Aboriginal population, I turn now to the main component of this chapter, a statistical profile of the Aboriginal people who died in custody during the period 1 January 1980 to 31 May 1989.

2 .2 D E M O G R A P H IC C H A R A C T E R IST IC S O F TH E D E C E A SE D

A g e a n d G e n d e r

TABLE 2.2: AGE AT DEATHS, BY GENDER

A g e g r o u p M a l e F e m a l e T o t a l

0-14 - 1 1

15-19 12 - 12

20-24 13 1 14

25-29 20 3 23

30-34 16 2 18

35-39 4 2 6

40-44 12 1 13

45-49 2 - 2

50-54 2 - 2

55-59 4 1 5

60+ 3 - 3

Total 88 11 99

(a) In ten cases the exact age was not known so an estimate of the age has been made.

Vol 1 Page 39

Profile of Those W ho Died 2

2.2.1 During the period 1 January 1980 to 31 May 1989 there were 99 reported cases of Aboriginal deaths in custody in Australia falling within the jurisdiction of the Commission. These included 88 males and 11

females. The mean age at death was 32 years, the median age (i.e. the point above and below which half the cases fell) was 29 years and the range was 14 to 62 years. Details are set out in Table 2.2 (previous).

A g e a n d S t a t e

2.2.2 Table 2.3 shows the age group and the State or Territory in which the person was in custody immediately prior to death. It is also the State or Territory in which the Royal Commission inquiries were conducted. The highest num ber o f cases occurred in W estern A ustralia and Queensland (these two States comprised over half of the total) while there were no cases in the Australian Capital Territory during the relevant period.

TABLE 2.3: AGE AT DEATH(a) ( b ) , BY STATE

A g e N S W V i c Q l d W A S A T a s N T ACTb> T o t a l

g r o u p

0-14 - -

15-19 2 -

20-24 3 -

25-29 6 -

30-34 2 -

35-39 1 -

4044 - 1

4549 1 -

50-54 - 1

55-59 - 1

60+ - -

T o t a l 1 5 3

1 - -

5 3 2

2 5 1

2 11 1

5 5 4

4 1 -

7 3 -

- - 1

- 1 -

1 1 2

- 2 1

27 32 12

- - 1

- - 1 2

2 - 1 4

3 - 2 3

2 - 1 8

- - 6

2 - 1 3

- - 2

- - 2

- - 5

- - 3

9 . 9 9

(a) In ten cases the exact age was not known so an estimate of the age has been made. (b) As none of the cases related in any way to the ACT, all subsequent tables in this chapter will exclude reference to the ACT.

P l a c e o f B i r t h

2.2.3 The State or Territory of birth of the deceased, compared with the State or Territory of death, is shown in Table 2.4 (below). While most of the persons are shown as having died in the State or Territory of birth, thirteen of the cases did not.

Page 40 Voll

2 Profile of Those W ho Died

TABLE 2.4: STATE OF BIRTH, BY STATE OF DEATH

S ta t e o f d e a t h

S ta te o f

b ir th

N S W V i c Q ld W A S A T a s N T T o t a l

NSW 11 2 3 16

Vic 1 1 - - - - - 2

Qld 1 - 24 1 - - 2 28

WA - - - 30 - - - 30

SA 1 - - 1 12 - - 14

Tas 1 - - - - 1 - 2

NT - - - - - - 7 7

Total 15 3 27 32 12 1 9 99

M a r i t a l S t a t u s

2.2.4 The marital status of the deceased persons is shown in Table 2.5, (below). It will be noted that, in 73 cases, the person was not in a marital relationship immediately prior to incarceration, i.e. was classified as having never been married, being separated from a relationship or being

widowed. O f the remaining 26 cases, the person was married, either by Aboriginal or non-Aboriginal law, or was in a de facto relationship.

TABLE 2.5: MARITAL STATUS, BY STATE

M a r ita l s t a tu s N S W V i c Q ld W A S A T a s N T T o t a l

Never married 9 1 17 12 5 1 5 50

Married(,) - - - 3 4 - 3 10

Married - de facto 3 - 4 7 1 - 1 16

Separated - not divorced

1 - 1 1 1 4

Widowed - 2 2 - 1 - - 5

Otheri^ 2 - 3 9 - - - 14

T o t a l 15 3 27 32 12 1 9 9 9

(a) Married either by Aboriginal or non-Aboriginal law. (b) Includes married-de facto, since separated; and married by Aboriginal law, since separated.

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Profile of Those Who Died 2

E m p l o y m e n t

TABLE 2.6: EMPLOYMENT STATUS PRIOR TO LAST DETENTION, BY STATE

E m p l o y m e n t s t a t u s N S W V i c Q ld W A S A T a s N T T o t a l

Employed-full time 1 - 2 5 - - - 8

Employed-part time 1 - 4 - - - 1 6

Home duties - - - - 1 - - 1

Unemployed 13 3 21 26 11 1 8 83

Not known - - - 1 - - - 1

Total 15 3 27 32 12 1 9 99

(a) ‘Employment’ means paid employment and does not include subsistence hunting/gathering, art and craft activities and other unpaid services. (b) Five of the deceased were known to have been in receipt of benefits under the Community Development Employment Program (CDEP); they are included in the

‘employed— full time’ and ‘employed—part time’ categories, as appropriate.

2.2.5 The employment status immediately prior to the last detention is shown in Table 2.6 (above) by State or Territory of death. Most of the deceased (83 cases) were unemployed; eight were employed full time, six were employed part time and one was employed with home duties. The persons classified as employed were in New South Wales, Queensland, Western Australia and the Northern Territory at the time of death.

O c c u p a t i o n

TABLE 2.7: USUAL OCCUPATION, BY STATE

U s u a l o c c u p a ti o n N S W V i c Q ld W A S A T a s N T T o t a l

Unemployed 4 - 9 4 6 1 3 27

Labourer 6 - 11 6 - - 1 24

Stockperson - - 4 5 1 - 4 14

Rural labourer 1 1 1 8 - - 1 12

Pensioner - 2 - 4 2 - - 8

Student 1 - 1 1 - - - 3

Driver 1 - - - 1 - - 2

Home duties - - - - 1 - - 1

Clerical - - 1 - - - - 1

Shearer - - - 1 - - - 1

Tradesperson 1 - - - - - - 1

Gardener - - - 1 - - - 1

Supervisor - - - 1 - - - 1

Not known 1 - - 1 1 - - 3

T o t a l 15 3 27 32 12 1 9 9 9

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1.2.6 The usual occupation of each of the deceased persons is shown in fable 2.7, together with the State of death. It can be seen that in 35 cases he person was either usually unemployed (27 cases) or in receipt of a tension (8 cases).

iiG H E S T E d u c a t i o n a l L e v e l A t t a i n e d

1.2.7 The highest level of formal education attained is shown in Table 2.8 together with the State or Territory of death. More than half of he persons had received at least some secondary education, while a ;izable minority had not proceeded beyond primary school. Three persons lad received some tertiary education, but only one had completed studies it that level.

TABLE 2.8: HIGHEST EDUCATION LEVEL, BY STATE

E d u c a tio n l e v e l N S W V ic Q ld W A S A T a s N T T o t a l

No formal schooling - - 2 3 1 - 2 8

Some primary 1 1 9 2 4 - 3 20

Completed primary 1 1 6 2 1 - 1 12

Some secondary 10 - 9 23 5 - 3 50

Completed secondary 1 - 1 - - - - 2

Some TAPE 1 - - - - 1 - 2

Completed TAPE 1 - - - - - - 1

Not known - 1 - 2 1 - - 4

Total 15 3 27 32 12 1 9 99

C o m m u n i t y

2.2.8 The community in which the person lived during most of the five years prior to the final detention has been classified and displayed with the State or Territory of death in Table 2.9 (overleaf). It can be seen that most of the deceased lived in urban communities, with 24 persons in

major urban communities and 35 persons in minor urban communities. The majority of the 21 persons who lived in form al Aboriginal communities were in Queensland, while the 5 cases in which the people lived in fringe camps were in Western Australia and South Australia.

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TABLE 2.9: TYPE OF COMMUNITY LIVED IN DURING THE FIVE YEARS PRIOR TO APPREHENSION, BY STATE

T y p e o f c o m m u n it y N S W V ic Q ld W A S A T a s N T T o t a l

Major urban 4 - 1 7 4 1 1 24

Minor urban 6 3 5 13 5 - 3 35

Fringe camp - - - 4 1 - - 5

Formal Aboriginal community 1 - 12 5 1 - 2 21

Rural centre 2 - 2 2 1 - 1 8

Rural property - - 1 1 - - 2 4

Itinerant 2 - - - - - - 2

Total 15 3 27 32 12 1 9 99

(a) Major urban: population 100,000 and over; Minor urban: population 1,000 to 99,999; Rural centre: population 200 to 999; Formal Aboriginal community: as recognized by legislation.

C h i l d h o o d S e p a r a t i o n

2.2.9 As can be seen in Table 2.10 (below) 43 of the 99 deceased persons experienced childhood separation from their natural families through intervention by the State, mission organizations or other institutions. In both New South Wales and Western Australia, over half o f the cases had been separated from their families. For Queensland, the proportion was nearly one-half.

TABLE 2.10: CHILDHOOD SEPARATION BY OFFICIAL INTERVENTION, BY STATE

C a t e g o r y N S W V i c Q ld W A S A T a s N T T o t a l

Separated 8 - 12 17 4 1 1 4 3

Not separated 7 3 15 11 8 - 7 51

Not known - - - 4 - - 1 5

T o t a l 15 3 27 32 12 1 9 99

2 .3 CRIMINAL HISTORY

R e p o r t e d A g e a t F i r s t C r i m i n a l C h a r g e

2.3.1 The age at the time of the first criminal charge is shown in

Table 2.11 (facing) together with the State or Territory of death. It can be

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seen that three-quarters of the cases were under 20 years of age at the time of their first criminal charge. The mean age when first charged was 18.4 years, the median age was 16.0 years and the ages ranged from 9 to 55 years.

TABLE 2.11: REPORTED AGE AT FIRST CRIMINAL CHARGE, BY STATE

A g e g r o u p N S W V ic Q ld W A S A T a s N T T o t a l

0-9 years 1 - - 2 - - - 3

10-11 1 - 3 2 1 - - 7

12-13 1 - 2 6 2 - - 11

14-15 7 1 4 7 2 - 1 22

16-17 3 - 4 7 2 1 3 20

18-19 2 - 5 3 - - 1 11

20-24 - 1 3 2 1 - 1 8

25-29 - - 3 1 1 - 3 8

30-34 - 1 - 1 2 - - 4

35+ - - 3 1 1 - - 5

Total 15 3 27 32 12 1 9 99

M o s t F r e q u e n t O f f e n c e D u r i n g W h o l e o f L i f e

TABLE 2.12: MOST FREQUENT OFFENCE—WHOLE OF LIFE, BY STATE

Offence N S W V ic Q ld W A S A T as N T T o t a l

Assault 1 1 2 1 - 1 6

Sex offences - - 1 - - - 1 2

Break & enter 5 - 2 9 2 - 1 1 9

Motor theft 2 - 3 2 1 - 1 9

Theft 3 - 1 1 - 1 - 6

Property damage - - 1 - - - - 1

Justice procedures 1 - - - - - - 1

Drunkenness 1 3 14 13 5 - 2 3 8

Other good order 1 - 2 5 2 - 1 1 1

Drink driving 1 - 1 - 1 - 1 4

Other traffic - - - - - - 1 1

Other offences - - 1 - - - - 1

T o t a l 1 5 3 2 7 3 2 1 2 1 9 9 9

(a) Where no single offence occurred more frequently than others, the most serious of the most frequent offences is included here, (b) Intoxication was not an offence in New South Wales after 17 March 1980, in South Australia after 3 September 1984 and in the Northern Territory after 21 October 1974. In all 99 cases, however, the deceased had, at

some time in her or his life, committed at least one offence.

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2.3.2 Information concerning the most frequent offence during the whole of life is presented in Table 2.12 (below) for the 99 cases. An examination of this table reveals that the most frequent offence overall was drunkenness, and that this was the case in Victoria, Queensland, Western Australia, South Australia and the Northern Territory. In New South Wales the most frequent offence was break and enter. Drunkenness was the most frequent offence for 7 of the 11 deceased female persons.

2 .4 R EA SO N FO R LA ST D E T E N T IO N

2.4.1 The Table 2.13 (below) provides information relating to the most serious offence, or alleged offence, leading to the final detention for 87 of the 99 cases. No offence was involved in the remaining 12 cases. In 8 of these 12 cases the person was detained as an intoxicated person where public intoxication was not an offence. In one case the person was unlawfully detained in police cells; in one case the person was detained as a ward of the State; in one case the person was unlawfully detained by

police acting upon a search warrant; and in one case the person was detained under mental health legislation.

TABLE 2.13: REASON FOR LAST DETENTION, BY STATE

R e a s o n N S W V ic Q ld W A S A T as N T T o t a l

Offence H om icide 1 - 2 1 - - - 4

A ssault 2 - 1 2 3 - 1 9

Sex offences 2 - 2 4 - - - 8

Break & enter - - - 5 1 1 - 7

M otor theft 1 - 1 1 - - . - 3

Theft 1 - - - - - 2 3

Property damage 1 - - 1 1 - 1 4

Justice procedures - - 1 1 2 - 1 5

Drunkenness - 3 14 9 1 - - 2 7

Other good order 1 - 3 3 2 - - 9

Drink driving 1 - 1 5 1 - - 8

N on-offence In toxication ^ 3 - - - 1 - 4 8

Other 2 - 2 - - - - 4

T o t a l 15 3 2 7 3 2 1 2 1 9 9 9

(a) Public drunkenness (‘intoxication') was not an offence in New South Wales after 17 March 1980; in South Australia after 3 September 1984; and in the Northern Territory after 21 October 1974.

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2.4.2 Table 2.13 (facing) reveals dramatically, but understates, the heavy involvement of alcohol use in reasons for custody. It was by far the dominant reason, with public drunkenness being the most serious offence resulting in the final detention in 27 of the 87 cases for which this information is relevant. (As noted above, in an additional 8 cases the person was held because of public drunkenness in jurisdictions where it

was not an offence.) Each of the 3 Victorian deaths were drunkenness cases, as were more than half of the Queensland cases. Offences against good order, other than public drunkenness, was the second most frequent category, accounting for 9 of the 86 cases.

P o l i c e C u s t o d y — R e a s o n f o r N o t G r a n t i n g B a i l

2.4.3 Sixty-three of the 99 deaths occurred while the person was in the custody of police; 10 of these had been sentenced and therefore bail was not applicable. In the remaining 53 cases bail was denied or was not applicable for a number of other reasons, shown in Table 2.14, below. TTie definitions of the categories of reasons used here are: ‘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 remanded in police custody; ‘intoxicated’— where the person had been arrested for an offence but was too intoxicated to be released; ‘not considered’— where it

was reported that bail was not considered for various reasons; ‘not applicable’— cases where the person was detained and where there was not an offence; and ‘not known’— where the reasons for bail denial are not known to the Royal Commission.

TABLE 2.14: REASON FOR NOT GRANTING BAIL, BY STATE (POLICE CUSTODY CASES ONLY)

R e a s o n N S W V i c O ld W A S A T a s N T T o t a l

Antecedents 2 2 3 1 8

Remand - - - - 2 - - 2

Intoxicated 1 1 14 10 1 - - 2 7

N ot considered - - 1 1 2 - - 4

N o t applicable 5 - 1 - 1 - 4 1 1

N ot know n - - - 1 - - - 1

T o t a l 8 1 1 8 1 5 6 1 4 5 3

It will be noted that bail was not granted in more than half the cases (27 out of 53) as the person was deemed to be too intoxicated to be released.

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2 .5 C U ST O D Y

C u s t o d i a l A u t h o r i t y

2.5.1 As noted above, of the 99 cases, 63 were held in police custody, 33 were held in prison custody and 3 were held in juvenile detention centres. Map 1 and Table 2.15 show the distribution of cases by custodial authority for each State or Territory.

T A B L E 2 .1 5 C U ST O D IA L A U T H O R IT Y , BY S T A T E

C u s to d ia l A u t h o r i t y

N S W V ic Q ld W A S A T a s N T T o t a l

P o lic e 9 3 19 19 1 1 5 6 3

P rison 5 - 7 13 4 - 4 3 3

Juvenile centre 1 - 1 - 1 - - 3

T o t a l 1 5 3 2 7 3 2 1 2 1 9 9 9

C u s t o d i a l S t a t u s

2.5.2 The custodial status o f each of the deceased persons is shown in Table 2.16, (below). In 48 cases the persons had been charged but not sentenced, in 39 cases the persons were serving a sentence, in 8 cases the persons were detained for intoxication where it was not an offence and in 4 cases the persons were detained for other reasons, where an offence had not been committed.

T A B L E 2 .1 6 : C U ST O D IA L S T A T U S , BY S T A T E

L e g a l s t a t u s N S W V i c Q ld W A S A T a s N T T o t a l

Charged^ 5 1 18 16 5 1 2 48

Serving sentence 5 2 7 16 6 - 3 39

Intoxicated-not offence 3 - - - 1 - 4 8

Other 2 - 2 - - - - 4

T o t a l 15 3 27 32 12 1 9 99

(a) ‘Charged’ implies either not yet brought before the court or remanded in custody awaiting trial or sentence.

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D U R A T IO N O F C U S T O D Y P R I O R T O D E A T H O R T R A N S F E R T O

H o s p i t a l o r O t h e r M e d i c a l F a c i l i t y

2.5.3 The lengths of time prior to death spent in the direct physical custody of police and prison officers (that is, prior to transfer to a hospital or other health care facility) are detailed in Table 2.17 (below). The deaths from hanging are differentiated from the deaths from other causes.

2.5.4 The three young people who died while in the custody of juvenile centres had durations in custody of 101 days (a death by hanging), and 15 days and approximately ten minutes, respectively, in the two cases of deaths from other causes.

TABLE 2.17: LENGTH OF TIME IN CUSTODY PRIOR TO DEATH OR TRANSFER TO A HOSPITAL OR OTHER MEDICAL FACILITY, BY CUSTODIAL AUTHORITY

L e n g t h o f ti m e H a n g in g O th e r T o t a l

POLICE

Under 2 hours 14 7 21

2 & under 6 hours 7 5 12

6 & under 8 hours 1 8 9

8 & under 12 hours - 7 7

12 & under 24 hours - 6 6

1 & under 7 days - 8 8

Total 22 41 63

PRISON

1 & under 7 days - 2 2

7 days & under 1 month - 4 4

1 & under 3 months 4 4 8

3 & under 12 months 3 3 6

1 & under 2 years - 5 5

2 & under 3 years - 4 4

3 & under 5 years - 2 2

Over 5 years - 2 2

Total 7 26 33

2.5.5 It will be noted that the police custody deaths by hanging were concentrated in the first few hours of custody, whereas in both police and prison custody the deaths from other causes were more widely spaced.

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TABLE 2.18: MEAN LENGTH OF TIME IN CUSTODY PRIOR TO DEATH OR TRANSFER TO A HOSPITAL OR OTHER MEDICAL FACILITY, BY STATE

S t a l e N S W V ic Q ld W A S A T a s N T T o ta l

POLICE (hours)

Hanging 2.9 - 1.6 1.4 1.1 2.0 - 1.8

Other 27.3 25.2 12.7 16.9 13.7 - 16.4 16.9

Total 13.8 25.2 7.4 12.0 11.9 2.0 16.4 11.7

PRISON (months)

Hanging 1.7 - 1.2 6.0 8.0 - 3.4 3.6

Other 18.0 - 47.2 13.2 1.1 - 3.5 18.3

Total 14.7 - 34.1 12.6 2.8 - 3.4 15.2

Note: Some figures in this table are each derived from one case only.

2.5.6 The mean length of time in police and prison custody prior to death or transfer to a hospital or other medical facility is shown in Table 2.18 (above). In police custody the mean length o f time was

approximately 12 hours and in prison custody approximately 15 months. Substantial differences exist between the seven States and Territories, but it should be noted that a number of the figures in the table are based on very small numbers, sometimes only one case.

2 .6 D ET A ILS O F T H E D EA THS

C ustodial Authority and Year of Death

2.6.1 Table 2.19 and Figure 2.1, (below) summarize the year of death and the custodial authority involved. The greatest numbers of deaths in a year, in all forms of custody combined, occurred in 1987 (20 cases) and in 1988 (14 cases). The year 1987 had the highest num ber of deaths in

police custody. Prison custody deaths, on the other hand, were most frequent in 1988 (6 cases) and in 1980 and 1983 (5 cases each). The highest occurrence of deaths in police custody was in Queensland in 1987 (8 cases) while Western Australia reported the highest number o f prison custody deaths in 1984 (3 cases).

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TABLE 2.19: YEAR OF DEATH, BY CUSTODIAL AUTHORITY

Y e a r P o l i c e P r i s o n J u v e n ile

ce n tre

T o t a l

1980 5 5 1 11

1981 3 2 1 6

1982 5 3 - 8

1983 6 5 - 11

1984 3 3 - 6

1985 6 3 - 9

1986 7 2 - 9

1987 16 4 - 20

1988 7 6 1 14

19896) 5 - - 5

Total 63 33 3 99

(a) 1 January to 31 May 1989

FIGURE 2.1: YEAR OF DEATH, BY CUSTODIAL AUTHORITY

H Juvenile centre 0 Prison Police

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TABLE 2.20: YEAR OF DEATH, BY CUSTODIAL AUTHORITY AND STATE

Y e a r N S W V i c Q ld W A S A T a s N T T o t a l

POLICE

1980 3 _ 2 5

1981 1 - 1 1 - - - 3

1982 2 2 - 1 - - - 5

1983 - - - 3 3 - - 6

1984 - - 2 - - - 1 3

1985 1 - 1 3 - - 1 6

1986 2 - 3 - 1 1 - 7

1987 2 1 8 3 1 - 1 16

1988 - - 1 5 1 - - 7

1989 1 1 5 1 2 - - 10

1990 - - 1 - - - - 1

Total 9 3 19 19 7 1 5 63

PRISON

1980 1 1 1 1 1 5

1981 - - 2 - - - - 2

1982 - - - 2 1 - - 3

1983 2 - - 2 1 - - 5

1984 - - - 3 - - - 3

1985 - - 1 1 - - 1 3

1986 - - 1 1 - - - 2

1987 1 - 1 1 1 - - 4

1988 1 - 1 2 - - 2 6

1989 2 - - - 1 - - 3

1990 2 - 2 - 1 - - 5

Total 5 - 7 13 4 - 4 3 3

2.6.2 These aggregates are broken down in Table 2.20, (above) to show the individual States and year of death among the police and prison cases. It is also noted that the three deaths in juvenile centres occurred in Queensland (1980), New South W ales (1981) and South Australia

(1988).

P l a c e o f D e a t h

2.6.3 The actual location o f death was not always the same as the location of custody, as can be seen in Table 2.21 (facing). 16 of the 63 police custody cases died in hospital, as did 9 of the persons in prison custody and 1 person in juvenile detention centre custody. The location of death for the 8 persons shown as ‘other’ were as follows: 1 police and 2

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prison custody cases died in vehicles on the way to hospital; 1 died in a prison vehicle elsewhere; 1 police custody case died on a roadside; 1 police custody case died in a private residence; and the 2 juvenile cases in this category died in juvenile detention centres.

TABLE 2 .2 1 : PLACE OF D EA TH , BY CUSTODIAL A U TH O R IT Y

C u s to d ia l a u th o r it y P o l i c e s t a ti o n P r is o n G e n e r a l h o s p i ta l O th e r T o t a l

Police 4 4 16 3 63

Prison - 21 9 3 33

Juvenile centre - - 1 2 3

Total 44 21 26 8 99

M a n n e r o f D e a t h

2.6.4 Table 2.22 shows the manner of death and the custodial authority for each of the cases investigated by the Royal Commission. The term ‘manner of death’ is used here to describe how the death occurred, without indicating intention or responsibility. In 37 cases death was from natural causes, and in 30 cases death was self-inflicted by hanging. O f the deaths

which occurred in police custody, 35% were caused by hanging and 30% were from natural causes. O f the deaths in prison custody, however, 21% were from hanging and 52% were from natural causes.

T A B L E 2.22: MANNER O F D EA TH , BY CUSTODIAL A U TH O R IT Y

M a n n e r o f d e a th P o l i c e P r is o n J u v e n il e

c e n tr e

T o ta l

Hanging 22 7 1 30

Head injury 11 1 - 12

Gunshot 2 2 - 4

Other external trauma 2 4 1 7

Drug use 2 2 - 4

Alcohol use(a) 5 - - 5

Natural causes 19 17 1 37

Total 63 33 3 99

(a) ‘Alcohol use’ includes four deaths from withdrawal and one from acute poisoning by alcohol. Diseases to which long-term alcohol use may contribute, such as cardiomyopathy, are included in the ‘natural causes’ category.

The manner of death and the State or Territory o f death are shown in Table 2.23.

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T A B L E 2 .2 3 : MANNER OF D E A T H , BY STATE OR TE R R IT O R Y

M a n n e r o f d e a th N S W V i c Q ld W A S A T a s N T T o t a l

Hanging 6 - 11 1 3 1 2 30

Head injury 2 - - 6 3 - 1 12

Gunshot 1 - 1 1 - - 1 4

Other external trauma 2 - 2 3 - - - 7

Drug use 2 - - - 1 - 1 4

Alcohol use - - 1 3 - - 1 5

Natural causes 2 3 12 12 5 - 3 37

Total 15 3 27 32 12 1 9 99

T i m e B e t w e e n W h e n L a s t S e e n A l i v e a n d D i s c o v e r y o f

D e a t h

2.6.5 Table 2.24 shows the length of time between when the deceased was last seen alive and when she or he was found to be dead or in need of transfer to a medical facility. In 27 cases, the person died in a hospital; this variable is of most interest with regard to the remaining cases where the people died in the physical custody of non-medical personnel. Of these 72 cases, 35 had been seen by custodians within one hour of the death. In police custody the most frequent length of time since last seen

alive was also under one hour, while in prison custody the most frequent length o f time is classified in the table as ‘nil’, that is, where the person died in the presence of custodial staff.

T A B L E 2 .2 4 : TIM E BETWEEN LAST SEEN ALIVE AND D ISC O V E R Y , BY CUSTODIAL A U TH O R ITY

L e n g t h o f ti m e P o l i c e P r is o n J u v e n il e T o t a l

Nil 4 1 11

Under 1 hour 17 5 2 24

1 & under 2 hours 8 1 - 9

2 & under 3 hours 7 1 - 8

3 & under 4 hours 3 2 - 5

4 & under 8 hours 6 2 - 8

8 & under 12 hours 1 2 - 3

Over 12 hours 1 3 - 4

Died in hospital 16 10 1 27

Total 63 33 3 99

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2.7 CONCLUSION

2.7.1 In this chapter a statistical description has been presented of the lives and deaths of the Aboriginal people who died in custody and whose deaths have been the subject of investigation and report by the Royal Commission. This description has aimed to present the basic facts without

drawing any comparisons with non-Aboriginal deaths in custody nor with Aboriginal deaths in the community. Such comparisons have been drawn elsewhere in this report.

2.7.2 This description has shown that:

• the 99 deceased Aboriginal people comprised 88 males and 11 females; • their mean age at the time of death was 32 years; • nearly twice as many deaths occurred in police custody (63) as in

prisons (33);

• Western Australia and Queensland had the highest numbers; • abnormally high numbers occurred in the calendar year 1987; • more o f the deaths resulted from natural causes (37) than from hanging (30), with much smaller numbers being associated with

head injuries (12), gun shot (4), other external trauma (7), alcohol poisoning or withdrawal (5), and drug use (4); and • the average time in custody before death was much shorter in

police custody (12 hours) than in prison custody (15 months).

2.7.3 A more extensive statistical description of the deceased persons may be found in R e se a rc h P a p e r N o . 21 of the Commission’s Research Unit.

1 A. Gray and H. Tesfaghiorghis, S o c ia l In d ic a to rs o f th e A b o rig in a l P o p u la tio n o f A u stra lia : A P a p e r P re p a re d f o r th e R o ya l C om m ission In to A b o rig in a l D ea th s in

C u stody, National Centre for Epidemiology and Population Health, Australian National University, Canberra, 1990

2 A. Gray, ‘Aboriginal Migration to the Cities’, Jou rn al o f th e A u stra lia n P o p u la tio n A s s o c ia tio n , 6(2), 1989, pp. 122-44

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.

■

Chapter 3 THE FINDINGS OF THE

COMMISSIONERS AS TO THE DEATHS

H aving p r e s e n te d a b r o a d s ta tis tic a l o v e r v ie w o f the d e a th s w h ich w e re in vestig a ted , I turn in this c h a p te r to th e c irc u m sta n c e s o f th e d e a th s

th em selves, p r e s e n tin g th e fin d in g s o f th e C o m m is s io n e r s a s to th e

im m ediate cau ses o f the death s. I stre ss h ere that, by ‘im m ediate c a u se s’ I mean the actu al m an n er o f death : h ow th e p erso n d ied a n d the im m ediately precipitating fa cto rs.

The co n c e p t o f cau se o f d ea th is, h o w ever, m uch b r o a d e r than c o v e r e d in this ch apter. In deed, P a r t C o f the re p o rt, e n title d ‘The U n derlyin g Issu es Which E xplain th e D is p r o p o r tio n a te N u m b e r O f A b o r ig in a l P e o p le in C u sto d y ’, a d d r e s s e s th a t b r o a d e r c o n te x t a n d c o n trib u te s to a f u lle r

explan ation o f w h y so m any A b o rig in a l p e o p le h ave d ie d in cu sto d y o v e r the p a s t decade.

A c e n tra l co n clu sio n o f this c h a p te r is th a t the im m ed ia te c a u se s o f the deaths do n ot in clu de fo u l p la y , in the se n se o f unlaw ful, d e lib e ra te killing o f A b o rig in a l p riso n e rs by p o lic e a n d p riso n officers. M o re than o n e-th ird o f the death s (3 7 ) w e re fro m d ise a se ; 3 0 w e re se lf-in flic te d h an gin gs; 2 3 w ere ca u se d b y o th e r fo rm s o f e x te rn a l trau m a, e s p e c ia lly h e a d in ju ries; and 9 w ere im m ediately a sso cia ted w ith dan gerou s a lco h o l a n d o th er drug

use. In d eed , h ea vy a lc o h o l use w a s in v o lv e d in so m e w a y in d e a th s in

each o f th ese c a te g o ries. The c h a p ter co n clu d es th at g la rin g d eficien cies existed in the sta n d a rd o f ca re affo rd ed to m any o f the decea sed .

The fin d in g th a t f o u l p la y on the p a r t o f p o lic e a n d p riso n officers w a s n ot im p lic a te d in the d e a th s in no w a y d im in ish es th e s e rio u sn e ss o f th e

p ro b le m o f A b o r ig in a l d e a th s in c u sto d y , n o r d o e s it u n d erm in e th e

rea so n s f o r th e e sta b lish m e n t o f th e R o y a l C o m m issio n . In d e e d , th e

fin d in g th at th e life sty le s o f the A b o rig in a l p e o p le w h o d ie d in cu sto d y, alon g w ith th e p r o c e d u r e s a d o p te d b y c u sto d ia n s a n d o th e rs, a r e the

cen tral d eterm in a n ts o f th eir d e a th s (ra th e r than f o u l p la y on the p a r t o f c u sto d ia l o fficia ls) h igh ligh ts the im p o rta n ce o f the R o y a l C o m m issio n s b ro a d enquiry into the p o sitio n o f A b o rig in a l p e o p le in A u stralia to d a y an d the w a y s th a t A b o rig in a l p e o p le a re h a n d led b y th e p o lic e a n d crim in a l ju stic e system s.

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The Findings of the Commision as to the Deaths 3

3 .1 THE INQUIRIES OF THE COMMISSIONERS

3.1.1 The purpose of this chapter is to bring together the findings of the inquiries into the ninety-nine deaths found to fall within the Letters Patent; that is, the causes and immediate circumstances of those deaths. This chapter does not deal with the broader social, cultural and legal factors thought to be associated with the deaths and which I am empowered to take into account (these are dealt with in other parts of the report), nor with the post-death investigations (dealt with in the next chapter).

3.1.2 As has been said earlier, there was a widely held suspicion amongst Aboriginal people, and others, that at the very least a number of the deaths were caused by foul play in the sense of the deliberate infliction o f harm by custodians. This has turned out not to be the case. But it needs to be understood that this perception was not at all unreasonable for at least three quite separate reasons: firstly, custody by its nature being away from the public gaze and out of the range of family and friends, the circumstances are such as to easily lead to suspicion and doubt; secondly, the deep distrust grounded in history that Aboriginal people have for police and prison systems; and thirdly, the post-death investigations and the treatment of families were in not a few cases such as to raise suspicion rather than allay it. I refer later to some cases where it can be said that

what happened after the death, so far from allaying the concerns of grieving relatives, was likely to increase them.

3.1.3 I discuss in this chapter the findings as to the actual cause of death in the ninety-nine cases investigated. My discussion includes the custodial and more immediate background information to the deaths. I find that the issues raised in the Interim Report o f the Commission concerning custodial care and the recommendations made therein are basically sound, although one m atter in particular deserves greater emphasis (see below). The subsequent investigations give much greater depth and force to those recommendations which were made after only a few deaths had been investigated and fewer reported. An examination of all the deaths shows the need for urgent changes in custodial procedures, many of which have been or are in the process of being introduced. More changes in custodial procedure are, however, required. It is to be borne in

mind that these changes will reduce deaths not only amongst Aboriginal prisoners but all prisoners.

3.1.4 A word o f caution is needed about statistics. Our list of

ninety-nine Aboriginal deaths in custody will not necessarily tally with some other statistics for the following reasons: not all of those who died were then recognized as Aboriginal; statistics relating to deaths in custody were poor (elsewhere I recommend measures to be taken in this respect) but mainly because the term ‘deaths in custody’ may be differently

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The Findings of the Commision as to the Deaths 3

defined.

3.1.5 Our Letters Patent, as interpreted by all Commissioners, were such that a death actually occurring in custody, whether prison, police or other place of detention— such as a juvenile detention centre— were within jurisdiction and therefore counted. Deaths occurring in a hospital, mental

institution, infirmary or medical treatment centre, whether the deceased was at the time of his death still in custody or otherwise, were outside jurisdiction unless the death in hospital or other insitution was found to have been caused or contributed to by injuries sustained whilst in custody.

(The interpretation of our Letters Patent is discussed in the Appendix B)

3.1.6 I w ant to stress that the inquiries by each o f the

Commissioners were conducted in a very rigourous way. The Commissioners subpoenaed all records from the relevant custodial and police authorities, courts and hospitals having dealings with the deceased, the coroners’ records, all departments having specific dealings with

Aboriginal people, and where appropriate, from legal aid offices. Guidelines were issued by Commissioner Muirhead in the early stages of the Commission dealing with questions of the availability of documents so subpoenaed to parties, and with pre-hearing and hearing procedures.

Those guidelines, broadly speaking, covered all documents held by the Commission relative to any death— whether documents were subpoenaed as above, statements taken by the officers of the Commission, notes or tapes of interviews, proposed exhibits or any other material on the

Commission file. These documents were open to all parties given leave to appear. The guidelines also included provision for pre-trial conferences and discussion as to the issues and the need to call witnesses— as opposed to tendering their statem ents. There was also recourse to the

Commissioner in the event of disagreement between parties. These guidelines were reviewed based on the experience of the Commission, and on 19 July 1989 I issued new guidelines to come into operation on 19 August 1989. A month was allowed for familiarization and an opportunity for seeking changes to these guidelines. There were, however, no

suggested changes and those guidelines operated from then on in the hearings into individual deaths. These guidelines were designed to secure efficiency in hearings and the maximum access to all material by all parties.

3.1.7 The hearings were open to the public and advertised. Some hearings were short where the facts were not greatly in dispute and where there had been comprehensive coronial inquests; but in many cases the hearings were long and intense, running into weeks in some cases and

months in one case. The individual case reports with the appendices showing the list of witnesses and exhibits testify to the thoroughness of the inquiries. Many transcripts run to over one thousand pages. I discuss the Commission’s methodology in more detail in Appendix C.

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3.1.8 The post-death investigations, including the post-mortem examinations were closely monitored as the case reports demonstrate. In most cases the post-mortem reports were reviewed by eminent forensic pathologists engaged by the Commission and in some cases engaged by

advisers to the family of the deceased.

3.1.9 In virtually every case the family was legally represented at the hearing. In the final analysis, as a result of rigourous inquiry and the free flow of information, there were very few cases where foul play was alleged at the conclusion of the inquiry. I hasten to add that in many cases a lack o f care on the part of custodians was alleged (and in many such cases found to have occurred), but the pre-existing suspicion of a large number o f deaths brought about by deliberate violence on the part of custodians was largely dispelled. I cannot sufficiently stress the need when a death occurs in custody for full, open and searching inquiry in which the families feel that they are given all the available facts and given the power to participate in a meaningful way.

3 .2 THE FINDINGS AS TO THE IMMEDIATE CIRCUMSTANCES OF THE DEATHS

3.2.1 I divide the deaths into two categories: those where the actual causes of death were natural in a broad sense, and those where a specific external event intervened. The categories are not altogether clear cut but are im portant for a study of problems. O f the ninety-nine cases investigated, sixty-two fall into the category of external causes. It is important to note that the cause of death here refers to the cause of death in the medical sense. ‘Cause of death’ may have different meanings. Hanging is the cause of death in the medical sense, but hanging may well

not have occurred if the background of the deceased had been different or if the care in custody had been different.

3.2.2 The sixty-two deaths due to external causes divide into five groups:

• deaths by hanging, 30

• deaths as a result of head injuries, 12

• deaths as a result of gunshot wounds, 4

• deaths as a result of other external trauma, 7 • deaths directly due to harmful use of alcohol and other drugs (as distinct from deaths due to natural causes arising from long continued harmful alcohol or drug use), 9.

I deal with these five groups separately.

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T h e D e a t h s b y H a n g i n g

3.2.3 O f the ninety-nine deaths investigated thirty were by hanging. In each case it was found that the deceased, alone and unaided, procured his or her hanging, save in the one case in Western Australia where some assistance was rendered by a fellow prisoner. In a number of cases

Commissioners m ade serious criticism s o f system o r individual inadequacies which, as a matter of probability, either contributed to the desire to act in a self-destructive way or failed to avert it.

Incidence of Death by H anging 3.2.4 Death by hanging is by far the most common external cause of death in custody. There are clear reasons for this:

(a) Life in custody effectively removes many of the most common causes of harm whether by design or accident: firearms, other offensive weapons, poisonous substances, drowning, motor vehicle accidents and work place accidents. But hanging is relatively easily available as a form of self harm. Short of placing

a prisoner naked in a cell, it is very difficult to totally eliminate the possibility of hanging. The traditional cell provides many points of suspension; a whole variety of ordinary possessions can be used to make a noose. In the thirty cases investigated, the

following objects were amongst those used for suspension: strips of sheeting, strips of blanket, football socks, a length of electric flex, a belt, the sleeve of a jacket, a shirt, a mattress cover, a shoelace, the sleeve of a cardigan, a bandage, a sleeve of a

jumper, a pair of jeans. Clearly, almost any textile item can be used for the purpose. It is impossible to deprive persons of all such items. Cell architecture can eliminate many if not all possible suspension points. Considerable efforts have been made

in many places to eliminate suspension points. ( b )

(b) Hanging is exceedingly lethal, irrespective of the intention of the person concerned. It is highly likely that a number of those who in fact suffered death by hanging had little idea of the dangers of constricting the neck. I have little doubt that the public perception

of hanging is that of a body suspended from above, the feet off the ground, with no possibility of the person protecting life by use of arm or leg. The brutal fact is that only partial suspension is necessary and that death may follow in a very very short time,

even less than a minute. Many of the suspensions were partial only. To take some examples: the deceased was found sitting on a bed, with a noose suspended from above; sitting in front of and leaning against a grille with the noose suspended a little above his

head; kneeling in front of the grille to which the noose was

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attached; hanging with one leg in the toilet, the other above the floor; in short, any position which allows part of the body weight to be transferred to the neck by way of the noose.

3.2.6 The high incidence of this form of harm in the custodial setting is not surprising given the combination of non-accessibility to other forms o f self harm and the lethality of hanging.

Distribution of Death by Hanging as Between Prison and Police Cells and as Between Regions 3.2.7 By far the largest number of deaths by hanging occurred in police cells (twenty-two) as opposed to prison (eight). The cases were

spread around the various regions of the country, although there are significant differences. Leaving aside the States where the numbers of deaths from any cause were fewest (Victoria three and Tasmania one), all States and the Northern Territory had very small numbers of deaths by hanging in prison; Northern Territory, Queensland and South Australia— two each; (in South Australia one being in a juvenile detention centre, treated for this purpose as prison as opposed to police cell); New South Wales and Western Australia— one each. The hangings in police cells were far less uniform (nine in Queensland, six in Western Australia, five in New South Wales; as against one in South Australia and Tasmania; and nil in the Northern Territory and Victoria). (It is a matter of some interest that the preponderance of deaths by hanging of Aboriginal prisoners in police cells as opposed to prisons, is exactly contrary to the situation in respect of non-Aboriginal prisoners. That is, 157 cases of custodial deaths of non-Aboriginal prisoners by hanging are recorded over the period 1980-88, being 100 in prison custody and 57 in police custody.)

The Prison Hangings 3.2.8 The prison hanging deaths are so dispersed in time and place and so comparatively few in number that it is impossible to observe a

pattern, and it may be unwise to look for one. Certain matters, however, do stand out and may well be im portant for prevention. In one

Queensland case the deceased concerned was aged 42. This case was atypical in that it was a very clear case of suicide by a man who left a note and who was facing charges of serious sexual m isconduct with his daughter. But of the other seven prison hangings, three deceased were 19 years of age or under, the next youngest 21 and the others aged 24, 25 and 26 respectively. The four youngest had all been put in their cells for disciplinary reasons at a time when ordinarily they would not be in cells.

3.2.9 Finally, all the prison hangings were committed in cells, and in every case the prisoner was in a single cell.

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The Police Cell Hangings 3.2.10 The first notable feature of these hangings is their occurrence over time. O f the twenty-two cases, eighteen occurred in 1986-1988 (the cut-off point for deaths to be investigated by the Commission was 31 May

1989). There were no deaths by hanging in police custody in Victoria or the Northern Territory.

3.2.11 The dominant characteristics of the deaths by hanging in police cells are four in number:

(a) The shortness of the time between admission to the cell and the hanging being discovered (this period being conditioned by the frequency of cell checks). In eight of the twenty-two cases the time lapse was established at one hour or less; in others it was

established at a little over one hour or less; in several at three or four hours or less and the longest period was twelve hours, accounted for solely by the fact that the cell was not checked for twelve hours. It would appear likely that the substantial majority

of the hangings occurred within two hours of entering into custody, or even less.

(b) The persistent appearance of high levels of alcohol in the blood of the deceased at death. The blood alcohol level at death was established by samples of blood taken at post-mortem and in at least one case the deceased was blood tested before being placed

in the cell. O f the twenty-two deceased: three had a blood alcohol level1 of 0.3g% or over at death; seven had a blood alcohol level of between 0.25g% and under 0.3g% at death; five had a blood alcohol level between 0.2g% and under 0.25g% at death; four

had a blood alcohol level of between 0.174g% and 0.195g% at death; and one 0.125g% at death. (For comparative purposes I mention that the general blood alcohol level beyond which a person may not drive a motor vehicle varies between 0.05g% and

0.08g% and that figure is proposed to be reduced to 0.05g%.) That leaves two other cases. In one, blood was not taken but all witnesses described the deceased as having been very drunk at the time of being taken into custody and he was found hanging

twenty minutes after having been placed in the cell. The other case was of a man accustomed to a heavy level of alcohol intake, who had not been drinking and who was suffering severe withdrawal symptoms. ( c )

(c) The third characteristic (as with the prison hangings) is the

youthfulness of the deceased persons. In thirteen of the twenty- two cases the deceased was under the age o f 25 years; five were aged 27-30; four only were aged over 30.

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(d) All hangings occurred in cells, and, except in one case, the

deceased was alone in his/her cell (one deceased was female, aged 20 years, found hanging after fifteen minutes, her blood alcohol level being 0.25g%). I now introduce the particulars of

the cases to which I have referred.

TABLE 3 .1 PRISON H A N G IN G S

South Australia N a m e D a t e o f

D e a th

A g e P la c e

Dixon 09.07.87 19 Adelaide Gaol. Locked in cell for disciplinary reasons.

Gollan, M. 19.06.88 17 Adelaide juvenile institution. Locked in cell for disciplinary reason.

Northern Territory N a m e D a t e o f

D e a th

A g e P la c e

Jambajimba 16.06.80 24 Alice Springs Prison Man who died at Darwin Prison on 5 July 1985

05.07.85 26 Berrimah Prison, Darwin

New South Wales N a m e D a t e o f

D e a th

A g e P la c e

Williams 18.11.87 25 Grafton Gaol

Queensland N a m e D a t e o f

D e a th

A g e P la c e

The man who died at Brisbane Prison on 4 December

1980

04.12.80 42 Brisbane Prison

Booth 15.11.88 17 Rockhampton Prison. Locked in cell for disciplinary reasons.

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Western Australia N a m e D a t e o f

D e a th

A g e P la c e

Walley 23.10.88 21 Greenough Regional Prison

Note: The blood alcohol level is inappropriate to the prison deaths.

TABLE 3 .2 POLICE CELL HANGINGS (INCLUDING DEATH IN HOSPITAL TAKEN THERE FROM POLICE C ELLS)

South Australia N a m e D a t e o f

D e a th

A g e P la c e B A L e v e l

Karpany, C. 27.01.88 23 Darlington Police Station— metropolitan area. Found hanging in less than half an hour.

0.185 plus influence of marijuana.

New South Wales N a m e D a t e o f

D e a th

A g e P la c e B A L e v e l

Murray, E. 12.06.81 21 Wee Waa Police Cells. Interval one hour. Found hanging after 1 hour.

0.3

Revell 29.10.82 27 Grafton Police Cells. Found

hanging after 34 hours. 0.3 at arrest, 0.225 at death.

Atkinson 05.10.86 23 Griffith Police Cells.Found hanging after 2^2 hours. 0.235

Quayle 24.06.87 22 Wilcannia Police Cells. Found hanging after 5 hours. Abstaining from liquor— suffering withdrawal

symptoms.

Bortey 06.08.87 28 Brewarrina Police Cells. Found hanging after interval of l'/2 hours.

0.310

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Queensland N a m e D a t e o f

D e a th

A g e P la c e B A

L e v e l

Dunrobin 02.08.84 30 Cherbourg Lockup. Found hanging after 4 hours. 0.228

Noble 04.12.86 20 Yarrabah Lockup. Found hanging after interval of approx. 1 hour. 0.287

Hyde 18.12.86 42 Yarrabah Lockup. Found hanging after interval of 1 hr 20 mins. 0.285

Riversleigh 13.03.87 34 Doomagee Lockup. Found hanging after less than interval of 1 !/2 hours.

0.3

Koowootha 14.03.87 19 Yarrabah Lockup to Cairns BA not taken Hospital. Found hanging but described after interval of 20 mins. as being very drunk.

Wujal Wujal 29.03.87 22 Wujal Wujal Lockup. Found hanging after interval of six hours. 0.174

Aurukun 11.04.87 18 Aurukun Lockup. Found hanging after interval of 12 hours. 0.182

West 09.07.87 18 Cherbourg Lockup. Found hanging after interval of 15 minutes. 0.279

Wouters 15.11.87 17 Brisbane Watch-house. Found hanging after interval of less than 1 hour.

0.121

Western Australia N a m e D a t e o f

D e a th

A g e P la c e B A

L e v e l

Jones 18.10.80 22 Midland Police Cells. Found

hanging after interval of 15 minutes.

0.25

Wodulan 19.07.83 30 Broome Police Cells. Found hanging after interval of 3 hours and 15 minutes.

0.264

Brown 26.07.87 32 Broome Police Cells. Found hanging after interval of 3 hours. 0.279

McGrath 15.11.87 20 Kalgoorlie Police Cells. 0.23

Morrison 06.04.88 55 Fremantle Police Cells. Found hanging after interval of 45 minutes.

0.195

Cameron 08.07.88 23 Geraldton Police Cells. Found hanging after interval of 31/2 hours. 0.2

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Tasmania N a m e D a t e o f

D e a th

A g e P la c e B A

L e v e l

Clark 27.03.86 23 Glenorchy Police Cells. Found

hanging after interval of 2 hours. 0.283

3.2.12 In discussing self-inflicted harm, particularly by hanging, Commissioner O ’Dea has expressed the view that many o f the smaller more primitive lockups in small country towns are the least conducive to suicide as com pared with the regional and m etropolitan lockups. According to Commissioner O ’Dea, this is partly from the point of view of

physical construction and partly from the point of view o f relationship between police and Aboriginal people. His experience was that in the smaller towns he found some mutual respect between Aboriginal people and police, and the lockup was not some place of terror. This contrasted

with what he perceived to be the position in regional and metropolitan lockups. Certainly the fact is that of the six police cell hangings in Western Australia, four were in regional centres and two in metropolitan lockups. In New South Wales, there were no cases of hanging in the cells

of the capital city, and locations were a mixture of regional and smaller centres. The only other significant number of police cell hangings occurred in Queensland, and here the position is quite extraordinary. One hanging occurred in the Brisbane Watch-house, and all of the other eight

occurred in Aboriginal communities where those making the arrests and servicing the lockups were Aboriginal. One of these eight cases occurred in 1984 and the other seven in the eight-month period between December 1986 and July 1987. This has led to the suggestion that the hangings were

immitative and, therefore, influenced by earlier hangings. This viewpoint was based on the clustering of similar deaths in time and place, associated with reporting in the media of the agitation for setting up the Royal Commission itself and later by reporting o f the inquiries o f the

Commission. After evidence from a specialist psychiatrist relating to the phenomena of cluster suicides and some analysis o f it in relation to the circumstances of six deaths occurring in Queensland, Commissioner

Wyvill found that later deaths may have been influenced by earlier deaths but that the causal factors must be sought in the psychological and social circumstances of each deceased. The phenomena of cluster suicides in discussed further in Section 11.11.

3.2.13 I think that over the whole country the evidence does not allow one to point to any type of area as being more likely to produce cases of self-inflicted harm. Opinions will vary about the effect of cluster suicides, but it is to be noted that those Queensland cases received national publicity

without any clear indication of an imitation syndrome outside the Queensland communities. It may well be that certain similarities in the social situations of those communities was the key to what happened

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there. No doubt it must be acknowledged that publicity attending those and other hangings made it clear that the custodial situation does not present great difficulty to attempting this type of self harm. On the whole, I think it is not possible to draw conclusions on these matters. It seems to me that it is likely that deaths in custody are most likely to occur in those places where vigilance is relaxed irrespective of the location of the prison or lockup.

T h e D e a t h s by T r a u m a (O t h e r T han T r a u m a I n f l i c t e d by H a n g in g )

3.2.14 Twenty-three deaths occurred as a result of traumatic injury. The deaths occurred in prison and police cells. The regional distribution was:

TABLE 3.3 REGIONAL DISTRIBUTION

S t a t e /T e r r it o r y P o l i c e

C u s t o d y

P r is o n

C u s t o d y

J u v e n il e

D e t e n t i o n

T o t a l

NSW 3 2 5

Vic - - - -

Qld 1 1 1 3

WA 7 3 - 10

SA 2 1 - 3

Tas - - - -

NT 2 - - 2

Total 15 7 1 23

3.2.15 Some o f the deceased actually died in hospital after having been taken there from custody.

3.2.16 As appears, the circumstances of the deaths were quite diverse which is reflected in the persons involved whose ages ranged from about 14 to 60 years of age and included three females.

The Types of Injuries that Caused Death

3.2.17 Twelve deaths occurred as a result of head injuries:

• In seven o f these cases the injury was sustained away from

custody (Western Australia: Roy Walker, Ginger Samson and Albert Dougal; South Australia: Gordon Semmens, Keith Karpany and Stanley Gollan; Northern Territory: Kwementyaye

Price). In each of these cases the deceased came into custody having suffered the head injury; in no case was it recognized or

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immediate action taken; in most cases it is unclear as to exactly how the deceased came by his injury. They may well have been sustained accidentally by the deceased falling over. Gordon Semmens almost certainly sustained his injury in a fight of which

he had several before coming into custody and the precise event cannot be determined. Dougal hit his head on the roadway after being hit by another person.

• In two of the cases the injury was sustained in custody, in one

case by an accidental fall onto concrete (New South Wales, Clarrie Nean) and in the other as a result of a hit to the head by a fellow prisoner (Western Australia, Jimmy Njanji).

• In two of the cases it could not be determined whether the injury was suffered away from custody or in custody (W estern Australia, Faith Barnes; New South Wales, Bruce Leslie). • In another case among the twelve deaths, John Pat (Western

Australia) received a closed head injury when the back of his head struck against a flat unyielding surface in the course of a fight between Aboriginal males and off duty police officers outside the hotel at Roebourne. He was not in custody at the time but

subsequently died in custody.

3.2.18 Four deaths occurred as a result of gunshot wounds:

• In two of these cases the gun was discharged by a prison officer in circumstances where the deceased was trying to escape over a prison wall (Western Australia, Ricci Vicenti; Queensland, Daniel Lorraway); in another the deceased was shot by a police officer in

the course of a roadside incident (Northern Territory, Jabanardi). In the fourth case the deceased was shot when a police officer’s shotgun accidentally discharged during a raid on the deceased’s home (New South Wales, David Gundy).

3.2.19 Seven deaths occurred as a result of other external trauma.

• Four of these deaths were in prison custody; in two cases

(W estern Australia, Paul Farmer; New South W ales, Peter Campbell) the prisoner cut his throat with a razor; in one case (New South Wales, M alcolm Smith) the prisoner drove the handle o f a paint brush into his eye; in one case (W estern

Australia, Robert Walker) prison officers applied pressure to the body of the prisoner such that asphyxia resulted. • Three o f these deaths occurred in police cells; in one case

(Western Australia, the young man who died in custody at Geraldton) the prisoner wrapped a bandage tightly around his neck causing asphyxiation; in another (Queensland, Fay Yarrie)

death was caused by a fellow prisoner kicking and stamping on the deceased and the third was the case of the Queensland juvenile who died from burns resulting from her starting a fire in her detention room.

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3.2.20 No findings o f foul play were made, but in many cases

findings of system deficiencies and absence of proper care were found. These findings are dealt with later in this chapter.

3.2.21 In summary, in four of the twenty-three cases the injuries were self inflicted (Paul Farmer, Peter Campbell, Malcolm Smith and the young man who died at Geraldton); eleven were clearly not self inflicted (Clarrie Nean, Jimmy Njanji, the four gunshot wounds, Robert Walker, Gordon Semmens, Albert Dougal, Barbara Yarrie and John Pat); five may well have been accidental by falling or stumbling (prior to custody) and hitting the head against a hard object (Keith Karpany, Kwementyaye Price, G inger Samson, Roy W alker, Stanley Gollan); as to two, it was impossible to determine the circumstances in which the injury was sustained; in one case a child of fourteen started a fire which got out of control and caused the injuries.

3.2.22 In eight cases the injuries were sustained away from custody; in thirteen cases in custody; and in two cases it is unknown where injury was sustained.

3.2.23 O f the thirteen such deaths involving injuries sustained whilst in custody, custodians were involved in five (the gunshot wound cases and Robert W alker); four were self inflicted (Paul Farmer, Peter

Campbell, M alcolm Smith and the young man who died in custody at Geraldton); two involved fellow prisoners (Jimmy Njanji and Fay Yarrie); one was accidental (Clarrie Nean); and the last was the child fire case.

3.2.24 The head injury cases are particularly worthy of study from the point o f view of prevention. The evidence clearly establishes that people who are alcohol dependent are particularly prone to head injury both because of their instability when drunk and a tendency to get into fights

and also because of effects of long continued excessive use of alcohol on the tendency to bleed and the size o f the brain. The evidence also establishes that severe head injuries may not be observable, even by doctors and more so by lay people, for hours or days after the injury has been sustained. As a very significant proportion of persons arrested are affected by liquor, or are dependent on it, there is a very large number of persons coming into cells who drink heavily and are liable to head injury.

This poses severe problems for custodial authorities and custodians which require discussion in detail.

3.2.25 Quite apart from the significance of alcohol in relation to head injuries, it occupies an important place in this group of deaths by trauma as a whole. All of the seven deceased who died of head injuries sustained outside custody were alcohol dependent and in six cases certainly alcohol was associated with their being in custody at the time, as were the two persons with unexplained head injuries.

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3.2.26 The four clearly self-induced deaths were of people greatly given to harmful use of alcohol and other drugs, while three of the clearly not self-induced deaths were of people likewise given to harmful use of alcohol and other drugs: Jimmy Njanji and his attacker, Fay Yarrie and her

attacker, and Clarrie Nean.

3.2.27 These deaths raise important questions as to care of persons in custody, particularly of persons who are alcohol dependent.

De a t h s D ir e c t l y A s s o c ia t e d W it h H a r m f u l U se o f Al c o h o l and O t h e r D r u g s

3.2.28 I include under this heading those nine deaths which resulted directly from harmful use of alcohol and other drugs as opposed to deaths resulting (by natural causes) from long-term harm ful use o f these substances. There are borderline cases but the category is important

because it involves two very important problems of care in custody— the problem of the prisoner with immediate and pressing alcohol or alcohol withdrawal symptoms and the problem of the prisoner who has recently

ingested dangerous drugs. Three substances were involved in these deaths: BCF (the initials of a substance used in some fire extinguishing appliances); Doxepin, a prescription drug; and alcohol. I deal with them in that order.

3.2.29 The young man who died at Beatrice Hill Prison Farm died from the inhalation of toxic BCF vapour. He was a prisoner in a low security prison (Beatrice Hill, Northern Territory). Prisoners were allowed to spend time in a common room after the evening meal. A number of

prisoners were playing about with the fire extinguisher and collected some vapour from it in a plastic bag. The deceased inhaled from the bag and died.

3.2.30 Joyce Egan (aged 58) died of the toxic effects of Doxepin and other drugs, including alcohol, taken prior to her arrest. The drugs, other than alcohol, had been prescribed for her and her son respectively. It is quite possible that she did not understand the toxicity of Doxepin.

3.2.31 Paul Kearney (aged 37) was taken into custody as intoxicated and smelling of methylated spirits; sixty-six tablets of various kinds were found in his possession. He was then placed in a cell at 2.15 p.m. and was found dead at 9.45 p.m. The cause of death was sleep apnea

contributed to by excessive intake of Doxepin and alcohol. In these cases the substances were ingested prior to custody.

3.2.32 Tim Murray (aged 19) was being supplied on prescription with two Doxepin tablets per day. He accumulated them and took a fatal dose

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on 31 Dec 83 following a tiff with a fellow prisoner who had befriended and helped him.

3.2.33 The remaining cases are alcohol related and in each case the alcohol had been consumed prior to arrest. • W ayne Dooler, who was arrested for being drunk, died of

alcohol poisoning (B/A level 0.614g%); • The cases of the young man who died at Katherine, Kim Polak and John Pilot have much in common. They were detained respectively for protective custody (drunk), street drinking and

drunk; each would have been released after a short period except for warrants being executed (the first two for unpaid fines, the other a first instance warrant). Each died approximately two days later of the effects, direct or indirect, of alcohol withdrawal; • Misel Waigana was somewhat different in that he was arrested for

disorderly conduct, the arresting officer thinking that he had a mental problem; the watch-house officers thought he was drunk. In fact he was suffering delirium tremens. He quietened over two hours but was found dead thirty minutes after he was last checked.

3.2.34 O f the nine cases, two (the young man who died at Beatrice Hill prison farm and Tim Murray) were in prison and alcohol was not involved. The other seven were in police cells, and alcohol was directly related to the death in five cases and was a significant factor in the case of Joyce Egan in relation to her arrest and perhaps to her overdosing on the prescription drugs.

3.2.35 All of these cases raise important questions o f custodial systems and custodial care. The alcohol-related cases link particularly with the head injury cases above referred to and with many of the natural causes cases dealt with next. They underline both the difficulties presented by the problem of the reception of grossly drunken prisoners, and the need for system training and instruction improvements to avoid custodial deaths. The ninety-nine hearings leave absolutely no doubt that the fundamental rule is that persons who are unconscious or barely conscious must be taken to hospital or a doctor called; close and regular checking of prisoners is essential so that if a prisoner falls into that condition the same rule m ust be applied (see I n te r im R e p o r t :

Recommendations 12 and 13, Chapters 6.4 and 9.6).

D e a t h s F r o m N a t u r a l C a u s e s

3.2.36 Thirty-seven of the deaths investigated were found to have occurred by natural causes. An analysis of the causes and the ages at death is instructive. The extraordinary nature and incidence of the diseases and illnesses which led to the natural causes deaths are dealt with in detail

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in Chapter 23.

3.2.37 No less than nineteen persons died of a heart problem. The great majority were found to have been suffering from pre-existing heart disease. Two of the cases were due to arrhythmia. The spread of such cases was five in Western Australia (Darryl Garlett, Dixon Green, Charles

Michael, Steven Michael, Ronald Ugle); five in South Australia (out of a total of twelve deaths; John Highfold, Malcolm Buzzacott, the man who died at Oodnadatta, the woman who died at Ceduna and Eddie Betts); five in Queensland (Bernard Johnson, Daniel Lacey, N ikira Mau, Vincent

Ryan and Deidre Short); two in the Northern Territory (the young man who died at Elliott and Burralangi); and two in New South Wales (Thomas Carr and Max Saunders). In one case, Thomas Carr, the age of the deceased was 17 years, but this was quite atypical; that case aside, the ages ranged from 25 to 57, the average age being 35.4 years, eleven cases being under 35. There were two females in the group.

3.2.38 The next most common cause of death was respiratory

disease, of which there were seven cases. Of these, three were in Western Australia (Bobby Bates, Nita Blankett and Milton W ells) and four in Queensland (Muriel Binks, Charlie Kulla Kulla, Patrine Misi and Monty Salt). There was a striking similarity of age in this group, the youngest

being aged 30 (Milton Wells) and the oldest 41 (Nita Blankett). The average age was 36.9 years. The four Queensland cases were aged between 37 and 40. There were two females in the group.

3.2.39 Other groups by cause of death were much smaller. Three deaths were due to epilepsy (Robert Anderson and Donald Chatunalgi in Western Australia, and Harrison Day in Victoria). The two W estern Australians were aged 27 and the Victorian 41; all were male. It should,

however, be noted that epileptic fit was found to have played a part in a number of other deaths (for example, John Pilot).

3.2.40 There were two cases of spontaneous intracerebral bleeding (to be contrasted with the head injury cases mentioned above where the bleeding was induced by trauma). The cases were the man who died at the Royal Darwin Hospital (Northern Territory) and James Moore (Victoria);

both were male, aged 29 and 58 respectively and each had been previously diagnosed as hypertensive.

3.2.41 There were two deaths due to hypoglycaemia (that is, low levels of sugar in the blood). The two cases were Barbara Yarrie (Queensland) aged 29 in which the hypoglycaemia was alcohol induced, and Arthur Moffatt (Victoria) aged 51 in which the hypoglycaemic reaction

was due to the combination of diabetes, heavy drinking and not eating.

3.2.42 There were two deaths related to bleeding disorders; they were Barbara Tiers (Queensland) aged 36, and Walter Barney (Queensland)

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aged 39. In Barbara Tiers’ case the bleeding was caused by a ruptured ovarian cyst. W alter Barney was bleeding from the lungs. In both these deaths the bleeding was consequent upon advanced liver disease as a result of the harmful use of alcohol.

3.2.43 The two other causes were: acute pancreatitis, Donald Harris (Western Australia), aged 29 (infectious disease); the young man who died in Sir Charles Gairdner Hospital (Western Australia), aged 29 (meningitis arising from tuberculosis).

3.2.44 The deaths were almost equally divided between prison custody (18 cases) and police custody (19 cases).

3.2.45 Ascertaining the natural cause deaths is of great interest from the point of view o f the study of recognizing illness and the identifying of those who need im m ediate medical assistance. The findings of Commissioners in relation to these matters are dealt with later in this chapter.

D e a t h s O c c u r r i n g i n H o s p i t a l

3.2.46 I have previously discussed the jurisdiction of the Royal Commission as defined by the Letters Patent in terms o f whether the deceased person had been in custody in a prison, juvenile institution or in police custody. But for clarity, I briefly state at this point that deaths occurring in hospital, whether the deceased was at the time of his death still in custody or otherwise, were outside jurisdiction unless the death in hospital was found to have been caused or contributed to by injuries sustained whilst in custody.

3.2.47 In twenty-six of the ninety-nine cases already discussed, death actually occurred at a hospital, the patient having been taken directly to the hospital either from prison custody or police custody. In most cases the deceased was still technically in custody, although in some cases not so

(for example, the man who died at the Royal Darwin Hospital was detained for protective custody but the time for custody had expired when he was taken to hospital). In these twenty-six cases it was found by Commissioners that injury had occurred during the course of the custodial incident from which he or she was taken to hospital. ‘Injuries’ to bring the case within jurisdiction can be of two kinds. Firstly, injury by external event of which, for example, a hanging would be a clear instance;

secondly, an aggravation, an exacerbation of a pre-existing condition occurring naturally without any external intervention but causing in the deceased a significant change in his or her well-being which contributed to the death. A clear case of this second sort of injury is a person who is

suffering a head injury which caused internal bleeding, and who is conscious when brought into custody; as a result of ongoing bleeding the

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person becomes unconscious, the problem is recognized; the person is rushed to hospital and dies in hospital. In such cases the injury, although occurring whilst the deceased is in custody, is not necessarily at all causally associated with the fact of being in custody. In fact, of the

twenty-six deaths in hospital, sixteen were of this kind: four being instances of head injury sustained prior to custody (Keith Karpany, Stanley Gollan, Albert Dougal and Roy Walker); twelve being deaths from

natural causes of which three were heart problems, three were diseases of the respiratory system, three were spontaneous intracranial bleeding, and the others epilepsy, hypoglycaemia and acute pancreatitis and infectious disease.

3.2.48 There were eight cases in which the death in hospital was caused or contributed to by injury sustained whilst in custody and as the result of an external event occurring in custody. These eight instances were made up of:

• one shooting while escaping case (Ricci Vicenti) • two assault by fellow inmate cases (Jimmy Njanji and Fay

Yarrie)

• one hanging case (David Koowootha)

• one substance misuse case (Tim Murray— taking tablets in

custody)

» one accident case (Clarrie Nean— falling and striking head on concrete) • one other external trauma case (Malcolm Smith— forcing a

paintbrush into the eye) • one juvenile case of lighting a fire in the detention room (Karen O ’Rourke)

3.2.49 In two cases of head injuries it could not be ascertained

whether the injury was sutained before or during custody.

3.2.50 Additionally, there were three cases of death occurring whilst the person concerned was in a vehicle being conveyed to hospital. These were: Nita Blankett who was being taken from the Bandyup Training Centre (W estern Australia) and whose death was a result of acute

bronchial asthma; Monty Salt who was taken into custody under the Mental Health Services Act (Queensland) in the belief that he was suffering from delirium tremens but who, in fact, died from pneumonia; and Daniel Lorraway who was shot while attempting to escape.

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S u m m a r y

3.2.51 I summarize the above discussion as to the deaths as follows; there were ninety-nine deaths of which (stressing that this refers only to the immediate cause of death):

30 were by hanging of which all were self inflicted

23 by external trauma of which 4 were self inflicted 5 were as a result of actions by custodians 2 were as a result of actions by fellow prisoners

1 was by accident (falling) 2 (head injuries) were as a result of actions by civilian persons outside of custody 5 (head injuries) were sustained outside custody but in

what circumstances is unknown 2 (head injuries) were sustained in circumstances unknown, including whether they were sustained inside or outside of custody

1 (head injury) was as a result of a fight with police officers in a street outside a hotel 1 was as a result of a juvenile lighting a fire

9 were immediately associated with substance misuse

37 were by natural causes Total 99

3.2.52 O f the 99 deaths, 11 were female persons and 88 male

persons; 33 were of persons in custody in prison custody; three of juveniles in juvenile detention centres; and 63 o f persons in police custody.

3.2.53 In reporting the findings o f Commissioners I have listed the causes and immediate circumstances of the deaths. I have referred frequently to the very high level of alcohol use by most of those who died in custody. I intend no criticism of the deceased, nor do I wish to cause distress to the families, but the facts indicate that alcohol use amongst

sectors of the Aboriginal people has become a central feature of their life style, often with tragic consequences. The high risk of death of those taken into police custody who come out of this type o f environment requires understanding and vigilance by those officers who are responsible for their arrest and duties in the watch-house. It also requires that this

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report should equally attempt to approach this problem with understanding and diligence.

3.3 THE FINDINGS OF THE COMMISSIONERS AS TO THE CUSTODIAL CARE OF THOSE WHO DIED IN CUSTODY

In t r o d u c t i o n

3.3.1 It has to be said immediately that the inquiries into the deaths disclosed glaring deficiencies in the standard of care afforded many of the deceased during at least portions o f their period of incarceration. This applies, broadly speaking, to all types of custody, but more so in relation

to custody in police cells where, generally, the standard of accommodation is much lower and the officers are less experienced and trained in the task of acting as custodians. This is, of course, not unnatural since in the case of police officers watch-house duties are a small part of their duties and

not highly regarded, whilst in the case of prison officers custodial duties are their whole occupation. But, of course, it cannot be excused. I will deal with prison care (and juvenile detention care) separately from police custody care.

3.3.2 It is desirable, for clarity, to emphasize the great difference between prison custody and police custody. The former involves, mainly, prisoners who have been sentenced, or who are on remand awaiting trial, or awaiting sentence following conviction. The periods of detention vary

enormously but is generally for a period of weeks, although prisoners on fine default sentences may be in custody for days.

3.3.3 Police custody is quite different. Typically, an officer makes an arrest and takes the person arrested to the police station; if the arrestee is placed in the cells he/she remains there until bailed or brought before the courts and then passes to freedom or the prison system, either sentenced

or remanded for trial. Persons apprehended for public drunkenness (whether as an offence or for protective custody) are released after sobering up (unless held thereafter on warrant for unpaid fines etc.). Police custody is, therefore, typically for hours rather than days, weeks or months. There is an exception to this. Some police station cells are

gazetted as prisons with a limited maximum holding period. Typically, these are stations in fairly remote areas and stations adjacent to major prisons to cater for prison overflow problems. In these cases prisoners who are held in prison and who are under the control o f the State or

Territory corrections services (under whatever name) can be held in police cells, typically for a few days but sometimes for up to the maximum

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detention period for those cells. Ten of the ninety-nine deaths investigated by the Commission fall into this category. They are treated as deaths in police custody (rather than prison) because, from a practical point of view, the reality is that the prisoner is in a police lockup which is staffed by

police officers who are acting in accordance with their own practices and their own Standing Orders. A discussion o f the practical legal

consequences of this situation is contained in the report o f the death of the man who died at Katherine, and of the practical unsuitability of at least some police cells for this prolonged detention in the report of John Pilot.2

3.3.4 I make it clear that it is not my intention in this chapter to

review the findings made in all ninety-nine cases on this subject matter. Rather, my intention is to distil from these cases the principal problems recorded by the cases with a view to establishing before the community as a whole, and the responsible agencies, that there are problems. Nor do I

propose at this point to indicate possible solutions, a question dealt with in detail later. But this examination is intended to provide the basis and the background to those proposed solutions. Recommendations arising out of the findings o f Commissioners are contained in Chapters 24 and 28.

3.3.5 I add that, although Commissioners made serious criticisms of the standard of care given by custodians, there were cases in which aspects of the care were found to be quite satisfactory or better, and where it was found that custodians as a group or individually (and also others

such as medical staff) have tried hard to assist prisoners in difficulty. The individual reports reflect these bright spots. But it could not be said that this was the general picture.

3.3.6 Finally, I add that there have undoubtedly been improvements over the last few years, particularly since governments set up this Commission and the Commissioners commenced their work. I express my appreciation of the attitude o f many administrators in engaging in dialogue as to solutions. But it is necessary to state in plain words the findings o f the Commissioners. I think it is desirable to state shortly the position which Commissioners adopted on the duty of care.

Duty of Care Towards Those in Custody 3.3.7 It is settled law that a custodian owes a duty to a prisoner to take reasonable care for his or her safety. The existence and nature of that duty has been the subject of discussion in a number o f cases both in Australia and common law jurisdictions overseas. The question of whether a duty of care arose in particular custodial situations was raised

before the Commissioners inquiring into individual deaths in every jurisdiction. In no case before the Commission did counsel for the relevant State or Territory Government dispute the proposition that custodians owe a duty to take reasonable care for the safety o f prisoners,

although, naturally, there was discussion about the nature and extent of

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that duty in particular circumstances. The existence of the duty of care is fundamentally associated with the fact that, by definition, a person in custody has been taken from his or her ordinary environment, cut off from normal sources of assistance— whether from friends and relatives or from

medical welfare and other such services— and made dependent for all requirements upon the custodial authority. On general principles, the duty of care would appear to extend to protection against risks which are

reasonably foreseeable and the standard of care to be that which the reasonable person would regard as reasonable in all the circumstances of the particular case.

3.3.8 It is important to note that the duty of care attaches primarily to the custodial authority; that is to say, the corrections departments, the police services and the child welfare departments (under whatever names

they operate) which administer the prisons, the police cells and the juvenile detention centres. It is important, in my view, to stress that fact. It seemed to me that many of the discussions centred upon the duty of the custodial officers involved in a given case. Any such tendency tends to

obscure the prime responsibility of the relevant agency. The duty of those agencies extends, at least, to the provision of a reasonably safe custodial environment, the provision of sufficient and competently trained personnel to staff custodial facilities and the issuing, to those personnel, of

appropriate orders and directions, the performance o f which should be supervised by persons of appropriate training and authority. Since the fact of being detained in custody means that the prisoner is deprived of access to normal medical services, it is plain (and the courts have held) that the

duty of care extends to the provision o f medical care and assistance in cases where the circumstances reveal that a prisoner does, or may, need such care and assistance. This is the case whether such assistance is requested by the prisoner or otherwise. (The prisoner may, of course, be

in no condition to make such request or to appreciate the seriousness of his or her own condition.)

3.3.9 Custodial officers, of course, also owe a duty to persons in custody. This duty should extend, at least, to putting into practice the precepts of their training, observing their orders and directions, and

otherwise acting as would a reasonable person in the given circumstances.

3.3.10 In view of what appears to the Commissioners to have been a lack of commitment to care and a lack o f understanding of the importance of care, it was submitted that legislation in all jurisdictions should clearly and specifically deal with this question. I note that, in a general way,

support for this proposition is implicit in the submission of the Police Federation of Australia and New Zealand in which it was recommended that ‘State, Federal and Territory Governments should legislate for a

clearly defined standard of care to provide protection for those custodians carrying out their lawful duties’3.

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3.3.11 I think legislation is unnecessary as the duty o f care is

encompassed in the concept of negligence which the common law has dealt with and which provides a flexible means of adapting the law to changing circumstances. I think the matter is better dealt with in police and prison orders or directions which acknowledge the duty of care which the authorities and custodial officers have to persons in custody and which

set out particular obligations.

3.3.12 However, I think that government has a clear duty to ensure that custodial agencies are well aware of their responsibilities and that appropriate regulations, orders etc. are, in fact, made.

3.3.13 I would point out that a similar approach was taken by Royal Commissioner Gresley Clarkson, QC, in his Report on Allegations in Relation to Prisons Under the Charge, Care and Direction of the D epartm ent of Correctional Services and Related M atters, in South Australia, in 1981. In his report, Commissioner Clarkson commented:

T h ere is an u rg e n t n e e d f o r re g u la tio n s [in c o n te x t

m ean in g reg u la tio n s p u rsu a n t to the S ta tu te] a n d o rd e rs w h ich a c k n o w le d g e th e d u ty w h ich the a u th o ritie s b e a r to ta k e re a so n a b le c a re o f sic k p riso n e rs, w h ich s e t o u t

th e o b s e r v a tio n s to b e m a d e , th e p r o c e d u r e s to b e

f o llo w e d a n d th e re c o rd s to b e kept.

3.3.14 I think it also important that, in accepting and recognizing their duty of care, custodial authorities should take appropriate steps to properly inform their officers about the existence, and the nature and extent, of that duty. This issue should form part of recruit training and be continuously reinforced and explained by senior officers to officers under their charge.

It is only fair that those persons having the immediate responsibility for the care of prisoners fully understand what the law requires o f them so that they can carry out their duties in a competent and professional way. I have

the strongest impression that many police officers had (particularly until recently) only the haziest notion (if any) that they and their employers owed a duty of care to prisoners and what this duty of care entailed. This inattention has been reflected in their training and experience.

T h e F i n d i n g s o f t h e C o m m i s s i o n e r s a s t o t h e

C u s t o d i a l C a r e o f T h o s e w h o D i e d i n P o l i c e C u s t o d y

3.3.15 In my view, the outstanding impression to be gained from a study of the individual reports is that there was not generally over the period either a clear understanding of police accountability for the care of prisoners in protective custody, a clear concept of the standard of care required, nor a strong commitment to care in general. These attitudes are expressed at a variety of levels. The reported cases in the courts relative to

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the existence o f the duty of care and the standard of care in custodial situations are not numerous, probably owing to a lack o f resources to bring such cases to the courts; Police General (or Standing) Orders were neither strong nor clear or explicit, and there was slackness and disinterest

at the operational level in a great many cases. In South Australia I was told by many police officers that until very recently in many places cell guard duty was regarded as a punishment. I think it fair to say that all this reflected a good deal of public apathy in relation to prisoners’ conditions

and custodial reform. The saying, ‘There are no votes in prison reform ’ (in these or other words) has been around for as long as I can remember.

3.3.16 The Aboriginal people and organizations who expressed the demand for this Royal Commission ought to be congratulated by the whole community for raising the question. Four times as many non­

Aboriginal prisoners died in custody over the same period as the ninety- nine A boriginal prisoners with little m urm ur from the general community— although valiant efforts were made by individuals to attract attention to the deaths.

3.3.17 The general lack of understanding of the duty of care and commitment to this duty was reflected in the evidence of the individual cases. But it was also expressed even more vividly in the post death

investigations conducted by police for the coroner. W ith few exceptions, it was a mark of these investigations, at least until 1988, that they concerned themselves with issues of foul play and did not examine the standard of care afforded to the prisoner. I say no more about this point at

this stage because post- death investigations are dealt with in the next chapter. But nothing could more starkly reveal an absence of commitment to safety in custody than a failure to investigate possible breaches of proper care a fter it is known that a death has occurred.

3.3.18 The general lack of commitment was reflected in a number of areas, particularly in systems, in cell architecture and in the work of individuals. I examine these in turn.

System Weaknesses

Training:

3.3.19 Police witnesses, in all jurisdictions, gave evidence that they had received either no training or minimal training in respect of Aboriginal culture and attitudes which might assist them in dealing with Aboriginal people in custody. In particular, they had not received any training

beyond elementary first aid in appreciation of certain medical problems which are likely to be found amongst police prisoners and particularly Aboriginal prisoners. This applies primarily to training on induction, but is also substantially true of on-the-job training. The chief medical problem

likely to be found among police prisoners are the diverse risks associated with alcohol. These are, in particular, the risk of death associated with

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very heavy intoxication, the risk of death from alcohol withdrawal symptoms experienced in their most severe form (delirium tremens), and the risk that actual or apparent intoxication may mask other serious

conditions such as head injuries and epilepsy.

Standing O rders:

3.3.20 Standing Orders (under that or any other name) usually contained no explicit statement that the Police Service (Force) was under a duty of care to the prisoners and that individual officers were also under a duty of care; nor did they indicate the standard of care involved or give practical advice as to the standard. Orders in all jurisdictions gave

directions to officers as to some matters, but they were frequently imprecise and were not expressed in the most helpful way. Additionally, it appeared clearly that many, if not most, officers had only a sketchy (if any) knowledge of the orders relating to such matters. Finally, it did not appear that there was any com m itm ent to training on the job by experienced officers in the practical application of these rules. It did not

appear that in any single case heard by me that a station or watch-house officer in charge had, following a death, called his officers together to review the situation and to discuss what might have been done, nor what application the Standing Orders had to such situations and whether they were fully understood. As I already said, investigations following death carried out by police officers made no serious effort (except in the very odd case) to examine standards of care.

3.3.21 I illustrate what I say by reference to a death which I

investigated. The deceased had been taken into protective custody, and at the end of the period of such detention was arrested on a warrant for an unpaid fine. He was an alcohol dependent man, and following arrest was unable to be fingerprinted because of the shakes which he explained were because of ‘the grog’. He stayed for two days in custody. At 2.00 a.m. on the day of his death he was heard to be singing out by constables who were returning to the town station from patrol. He was crazy,

hallucinating. The other prisoners were terrified of him. He was saying ‘an old man’ had got his genitals. The constables did not even entertain the possibility that he was ‘putting on an act’. They put him in a single cell in order to allay the fears of the others.

3.3.22 They reported to the third (and senior) officer on the shift He visited the cells and saw an equally bizarre but different exhibition in the single cell. The deceased continued to act in this way over the next four hours but with fluctuations in the level of distress. He remained in the

single cell; he had no water, he was not taken to hospital, nor was a doctor called. At about 5.30 a.m. he was thought to be heard to say a word which sounded like ‘diabetic’. The officers then decided to ring the hospital. Two telephone calls were made; I was unable to find what was

said save that the police were advised that a doctor would be in attendance at 8.00 a.m. The shift changed. There was no urgency. A little after 8.00

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a.m. he was told to get ready for hospital. A few minutes later he was found dead. He had been suffering delirium tremens, the most acute form of alcohol withdrawal.

3.3.23 There was an immediate inquiry. Quite a lot of effort was put into it. A post-mortem was arranged. People were interviewed who had been on duty over the two days and who had been in custody with him.

The standard of care or compliance with orders was not seriously looked at. The officers were asked to prepare statements; they were not interviewed and they were not separated (I do not suggest they did not tell the truth— it is the methodology to which I refer). So little did the officers

think that their care of the deceased (as opposed to any unlawful acts) would be scrutinized that neither of the juniors set out— except in the most general of terms— what they reported to the senior at 2.00 a.m. The one who rang the hospital did not set out— except in the most general terms—

what he said to the hospital sister. When this initial inquiry was conducted a report as to the cause of death was not available. But shortly later the full report became known, and it was disclosed that the deceased had an abrasion on his forehead and an extensive area of bruising underlying the

abrasion consistent with his head bashing on a flat surface, the injury being 8-16 hours old. This was followed by a re-investigation prompted, I feel sure, by a desire to make certain that die injury was not related to an assault either by another prisoner or an officer. That was quite vigorous

and there was a follow-up by a more senior officer again who found (as was undoubtedly the case) that there was no foul play and that the officers ‘acted in the correct manner throughout the deceased’s internment in the cells’.

3.3.24 In evidence to me the senior officer told me that he would have sent the man to hospital at 2.00 a.m. but he would have done so because of his experience and by implication that you could not expect junior officers to show the wisdom of experience. But nothing was done to pass

on this experience. There was no criticism, excused on the ground of inexperience, which might have alerted others, particularly senior officers. It was not until the Commission was about to sit that it was realized that the case provided a brilliant illustration of the dangers of delirium tremens.

I make another point. It is probably inevitable that a police force has a focus on the investigation of crime or suspected crime. The finding of the head injury propelled immediate reaction. The suggestion of possible assault triggered action. There was simply not the same attitude towards

the possibility of negligence. It is this approach which must be changed. The death passed without anybody learning anything.

3.3.25 I do not identify this case. I have presented my report and made my criticisms. I do not raise it here to criticize but to illustrate. The case is easily identifiable. Because I have used it to illustrate a point, I add that late last year I returned to that town and found that great advances

have been made since that death. Since my inquiry there has been

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improvement in many aspects of police relations with Aboriginal people, including custodial care.

A sse ssm e n t o f P riso n ers on R ecep tio n :

3 . 3 . 2 6 At the beginning of the 1980s, there was in some jurisdictions no system or no properly organized system for obtaining information and assessing whether prisoners being received into custody were at risk. Moreover, there was no system of recording relevant information on this topic. This, no doubt, varied from station to station and individual to individual. But generally speaking there was no established recognition of the need to assess whether prisoners were at risk either from illness or self harm. Obvious physical injury was in a different class to some extent. This situation has changed in all jurisdictions, particularly over the period o f the Commission. These matters are discussed in Chapter 2 4 . The adoption of such an assessment process and the recording of essential information will do much to solve the next deficiency noted.

C om m unication:

3 . 3 . 2 7 Prior to the investigations of the Commission, General Orders for the police did not provide for a com prehensive system of

communication between officers (e.g. arresting officers) and watch-house personnel, or between watch-house personnel officers, with respect to any knowledge officers might have regarding a prisoner’s safety. For

instance, there was no facility for recording the information in a written form.

3 . 3 . 2 8 In every jurisdiction it appears that, either by order or by

practice, there exists a formal handing over of the station, including of the prisoners, from one shift to another. It is clear that relevant information as to prisoners (including, but not limited to health and safety information) should then be exchanged. In many cases it was clear that relevant

information was not passed from one shift to the next; in others there was a dispute between outgoing and incoming officers as to whether it was exchanged. These inconsistencies clearly make the case for recording such information.

3 . 3 . 2 9 I cite the example of the case of the young man who died in custody at Geraldton on 31 December 1988. The deceased had been arrested on the same day and put in the lockup, where he tore a blanket into strips and threatened to ‘string himself up’ unless he was given bail. He also tied a sock around his neck and made the same threat. Members o f the Aboriginal Visitors’ Scheme attended the lockup and came to the conclusion that he was intoxicated and that he may carry out the threat. They spoke to the officer in charge of the afternoon shift and conveyed to him their assessment. He was given bail and the officer agreed that if he

was re-arrested the visitors should be contacted. He was arrested shortly after midnight and lodged in a cell. The afternoon shift officer failed to

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inform the oncoming shift that the deceased might, if intoxicated, kill himself, but rather gave the impression to the oncoming officer that the threats were not to be taken seriously. He did not request the attendance of the Aboriginal visitors. The deceased was lodged in the cell at

1.30 a.m., was checked at 1.45 a.m. and 1.50 a.m., and at 2.04 a.m. he was found with a bandage wound around his neck and no longer breathing.

Regular C h ecking o f P rison ers:

3.3.30 Standing Orders, although requiring checking o f prisoners, were not usually precise in their requirements, did not lay down what was involved in checking and certainly did not lay emphasis on the importance of checking. In most cases it was not required that prisoner checks be recorded. As a consequence, it was often evident that there was a considerable slackness in relation to checking. Many officers said quite

frankly that their checks on various occasions were nothing more than head counts. There were cases of checks being recorded on the hour whether performed on the hour or not (and sometimes, I suspect, whether performed or not). The entries themselves were standardized— not in

itself surprising but so much so that plainly these entries were not a very accurate account of reality.

3.3.31 In many cases the reports of Commissioners noted that

checking of prisoners was unsatisfactory and in quite a few cases directly in breach of orders. It is, in my opinion, important that orders should lay down the frequency of checking both in general and in special cases. They should also set out the standard of checking required. All checks

should be recorded in the occurrence book or other station journal.

3.3.32 A very special instance of inadequacy of checking is the case of the station that is not a 24-hour station and where no supervision at all is available during the night for, in some cases, up to 12 hours. This is

entirely unsatisfactory.

Checking on O bservation o f O rd ers a n d P rocedu res:

3.3.33 The general impression from the cases is that there was very little, if any, effort put into checking on the observance of Standing Orders which related to the care of prisoners as a matter of routine or otherwise. I mention this as a special point to draw attention to it. Good orders are

only a start. Knowledge of the orders by those to whom they apply, and a commitment to their being carried out, are essential. This requires effort at the operational level. Training and education at induction is the beginning. Training on the job is as essential for police officers as for all other people

who work. The role of experienced officers in charge of younger officers is very important in seeing that officers understand the duty of care, understand the orders, understand how to apply the orders in practical situations and the importance of doing so. The cases reveal that there was,

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in many or most instances, a lack of drive at this level.

A rchitectu ral D eficien cies:

3.3.34 These are, o f course, matters over which the operational officers have no control. There are certain deficiencies which are extremely serious. In larger stations there is a watch-house officer or officers on duty at all times. Checking is thereby facilitated. But in many

smaller stations this is not so, and, additionally, often the cells are quite separate from the office and other facilities. There are cases of cells at different levels. Even in the larger stations the arrangement is such that the cell officer cannot see from his desk into the vast majority of cells, and, in

some cases, not into any of them. Changes in cell design are necessary so as to bring the officers on duty in the cells as closely as possible in touch with the prisoners. I said earlier that there was a particular feature shown by the cases which requires greater emphasis than was given to it in the Interim Report of the Commission. That feature is the key importance of human contact and interaction between prisoners and officers— and of course, also amongst prisoners themselves. Such basic human contact may decrease the feeling of isolation, despair and hopelessness which appears to precipitate self-harming actions; and it may also encourage complaints and provide observation of symptoms of injury or ill health which call for medical attention. It is obvious that cell architecture can facilitate or otherwise this personal interplay. The other side of the picture is the important question of checking as has just been discussed— not merely the regularity and frequency of checking but the quality of checking. This, of course, involves the commitment to care and safety.

3.3.35 A particular point is the elimination, to the maximum extent possible, o f hanging points. This has had much attention. Another particular point is that it is essential that the prisoner has a means of communicating with those in charge if an emergency arises. In many cases this was not so, and this is particularly acute in smaller stations without 24-hour attendance and where, even during office hours, an officer is not stationed in the cell area.

Individual Failure to E xercise R easonable Care 3.3.36 I have written of the system deficiencies. O f course, the system can only be as good as those who operate it; but it is also worth noting that training is part of the system, and that the attitudes of those who operate the system are to a considerable extent the product of the

system itself. It is generally (and I believe truly) accepted that there is a strong police ‘culture’ which affects the attitudes of those in the service. O f course, this is not limited to police services, but appears to be strong in those services. That culture changes from time to time, but it seems obvious from the cases that commitment to prisoner care and safety was not a strong element in police culture in the 1980s, generally speaking, and that there was a strong tendency to protect fellow officers from any

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suggestion of breach of a proper standard of care. Such attitudes make for poor performance. The general failure of coroners to focus on custodial performance (as opposed to foul play) and the failure to issue forthright criticism where criticism was due contributed to a situation where, in this

aspect of their work, officers seemed almost immune to charges of neglect.

3.3.37 There were cases of real neglect, or failure to take due care, some of which could be excused in part on the basis of the prevailing standards and the system, but others not so.

3.3.38 There were attitudes disclosed which give cause for concern. There was resistance in the Northern Territory to the use of the Darwin Sobering-Up Shelter. The man who died at the Royal Darwin Hospital

was taken to the Berrimah cells in circumstances when it was plainly appropriate he should go to the shelter. The officers could advance no reason for not taking him to the shelter. Further, the word ‘aggro’ was placed against his entry in the protective custody register for no purpose

other than (falsely) to suggest a justification for his not being at the shelter. The use of the shelter by police at Alice Springs increased dramatically at the time of the first Commission hearing in that city.

3.3.39 Almost all officers in all jurisdictions had done basic first aid training; many referred to being taught that drunken people should not be placed on their backs lest they choke on their vomit— they must be put in the coma position on their side. Some officers said they had done the

course but did not remember this piece of training. But it is widely known. The evidence disclosed that time and again prisoners arrested for drunkeness or taken into protective custody were left flat on their backs.

3.3.40 In South Australia, a shift sergeant took breakfast to Stanley Gollan, a prisoner arrested on a minor charge whom he knew had acted strangely during the night and had been taken by police to a doctor. The doctor had prescribed Dilantin for his epileptic condition. The sergeant put

the breakfast tray with the man’s tablets in the cell, but did not speak to the prisoner and had no idea whether the man took the medication or not. Three officers agreed to suppress some information relevant to a death, although the agreement collapsed when the information came to light in

another way.

3.3.41 Another example of a cell check not being properly observed was found in the case of Joyce Egan. Joyce had consumed a harmful quantity of pills along with alcohol. The watch-house constable carried out a cursory check through the cell ‘peep hole’, and, although he

attempted to engage in conversation with her, he received no reply except an alleged movement of her head. The constable was unable to see Joyce’s face, although the relevant Police General Orders required that frequent visual checks be made. In my opinion there was insufficient

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basis for inferring that her condition was satisfactory.

3.3.42 In Q ueensland, Fay Y arrie was arrested for public

drunkenness. While she and some other intoxicated females were being processed at the watch-house they were placed in a cell which could be seen from the desk. One of the other drunken women was seen to act

aggressively to the others, including to Fay. Fay, another woman and the one who had acted aggressively were then placed in one cell which was furthermost from the charge desk and could not be seen from that area.

She was later found unconscious on the floor having been kicked and stomped on by the aggressive female. She was found 1 hour 20 minutes after last being observed. The Standing Orders required that the watch- house keeper ‘Inspect the cells and the prisoners housed therein each and every hour and record such inspection’. The watch-house keeper was not

aware of the order. A further rule about placing ‘each drunken prisoner in a separate cell’ (where possible) was not observed.

3.3.43 At the time in question, the police manual placed a very clearly expressed duty on officers in charge o f stations to ‘visit prisoners in cells frequently, at irregular intervals, by day and night, and in no case leave any prisoner without supervision for a longer interval than one hour’

(General Instruction 9.464(a)).

3.3.44 In the case o f John Pilot, the sergeant contended for a

construction o f this requirement which meant that a visit in each hourly block would suffice, that is, a visit at, say, 1.01 a.m. followed by a visit at 2.59 a.m. would comply. Commissioner Wyvill, in fact, found that visits were not conducted even in accordance with this bizarre interpretation.

3.3.45 In the case of Muriel Binks it was said by the sergeant that compliance with this order could be effected by the officer being in the watch-house office— that he could hear any noises (sufficiently loud to come over the watch-house intercom) without the necessity for an actual visit to the cell at all. It is difficult to characterize either of these suggested interpretations as representing other than a deliberate attempt to subvert the requirement.

3.3.46 In Western Australia, Hugh Wodulan was arrested for being drunk and placed in a single cell. He was not checked for three hours; he was found hanging. In the same State, Bernard McGrath, a young man of 20, was arrested for a minor breach of a probation order. He showed

signs of emotion and possibly distress when put in the cells at about midnight. No action was taken. Officers were advised at about 1.00 a.m. (by another prisoner) that he was dead, but they did not investigate until 5.25 a.m. when he was found hanged. The staffing o f the station was very inadequate.

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3.3.47 In the case of John Pat, I made serious findings against certain officers in respect of events at the police station after the fight outside the Victoria Hotel, Roebourne, in 1983.

3.3.48 In Victoria, Harrison Day was arrested at 11.30 a.m. for non payment of fines and placed in the local lockup in a cell on his own. Some officers knew him to be epileptic. He was found fitting at 5.15 p.m. not

having been checked in the meantime. He was taken to hospital where he died of an epileptic fit. With Arthur Moffat the checking was equally lax.

3.3.49 In New South Wales, Shane Atkinson, a young man, was arrested on the day of his death for breach of bail condition. He was very distressed in the police van, yelling, throwing himself against and kicking the sides of the van. He was conveyed to the Griffith station and locked in

a cell at 4.20 p.m. Both the arresting officer and another officer involved with taking Shane Atkinson to the station were aware that he had been arrested about a month before and that on that occasion he had mutilated his face following a threat to kill himself. He had also threatened to hang

himself in the cells. This had resulted in 20 minute checks being mounted on him. Despite their knowledge of these incidents, and despite the fact that they were present in the station when the deceased was showing stress in the cell, they did not inform the sergeant in charge o f any of these

events. There was no visit to the cell until 6.45 p.m., that is until 2 hours 25 minutes after Shane Atkinson had been placed in the cell. He was then found hanging. The failure to visit was in direct conflict with instructions, which required that the officer performing station duties should visit prisoners ‘in the cells hourly or if necessary m ore frequently’.

Commissioner Wootten found that the young man would probably not have died had the sergeant been warned, or had he made the visits referred to in the order which he was not too busy to perform.

3.3.50 In the case of Lloyd Boney, police left the station unattended for a period which they knew would be at least an hour, without checking the prisoner and not having checked him for a period of between 45 minutes and more than one hour before leaving. He was found hanging

by another officer who came to supply a meal.

3.3.51 M ore deaths occurred after arrest and lodgm ent at the

Kalgoorlie Police Station than at any other place. Collectively these deaths reflect adversely on police practices in relation to the arrest and custody of Aboriginal persons. The attitude of those responsible was marked by indifference, a particular feature being the failure to carry out regular cell

checks throughout the period of custody.

3.3.52 What makes the Kalgoorlie deaths especially disturbing is that following the death of Roy Walker in 1981, a station order was issued providing that persons placed in the lockup should be visited at least hourly and be awoken and spoken to after a reasonable time. The officer

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in charge was nominated as responsible for ensuring that this was done. In his findings in the Roy Walker inquest, the coroner noted with approval that the new procedures had been introduced in the Kalgoorlie Lockup following upon this death, and he observed that it would be prudent for the same procedure to be adopted at other stations.

3.3.53 If that procedure had been observed it should have resulted in the early detection of the serious condition of another Aboriginal person, Faith Barnes. She died in the following year, after being held in custody in the same lockup and in similar circumstances to Roy Walker. While unconscious as the result of a severe head injury, Faith Barnes was thought to be drunk. Moreover, there were three more deaths in the Kalgoorlie Lockup in which there was evidence before the Commission of inadequate cell checks; namely Kim Polak and Milton Wells in 1985 and Bernard McGrath in 1987.

The Q u een sla n d C om m unity Lockup Deaths:

3.3.54 The nine deaths that occurred in lockups in Queensland Aboriginal communities warrant special consideration because they reflect in an extreme form some of the weaknesses already identified. Indeed, there was a failure at the highest level to ensure that the Aboriginal police on those communities were adequately trained in the performance of their custodial duties. Earlier I made the point that the duty o f care owed to those in custody attaches primarily to the custodial authority. This duty of care extends not only to the provision of a reasonably safe custodial environment but also to the provision of a sufficient and competently trained staff who are issued with appropriate instructions to enable them to perform their duties.

3.3.55 In the Queensland Aboriginal communities, policing duties are shared by members of the Queensland Police Service and Aboriginal police employed by the community councils. No authority accepted the responsibility o f seeing to it that the Aboriginal police were properly trained. Where a member of the Queensland Police Service is on duty in a particular community, the Aboriginal police are bound to act under his or her direction. In many cases work experience led to some understanding o f police duties and how they should be performed. But there was no system of ensuring that the police gained an understanding of what they were required to do and why certain things should be done in certain ways. They were not issued with general instructions or standing orders. Since they were employed by councils but subject to direction by members of the Queensland Police Service, many felt uncertain as to who had ultimate authority over them. It was a demoralizing state of affairs which was reflected in the huge turnover of Aboriginal police in many communities. As a consequence the occasional lectures and training sessions that were given were of little or no value. In one community of some nine hundred people, one hundred individual persons had been engaged as Aboriginal police over the five years between 1983 and 1988,

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and some of these were engaged on more than one occasion.

3.3.56 In the communities where three of the deaths occurred the lockup was built to the standard design of the Queensland country watch- house. The condition of the lockups in which the remaining six deaths

occurred varied from highly unsatisfactory to, in the case of Wujal Wujal, appalling and dungeon-like. In no case was the lockup in sufficiently close proximity to the police station to allow for communication between prisoners and police on duty, and no means of communication was provided.

3.3.57 In the brief period between early December 1986 and mid- April 1987, six Aboriginal men hanged themselves in police cells in Aboriginal communities in North Queensland. Within three months an 18- year-old Aboriginal man hanged him self at Cherbourg, an Aboriginal community in south-east Queensland, where Gregory Dunrobin hanged

himself three years before.

3.3.58 When Dunrobin died, his sister’s expression of concern that he had been locked up and left unattended while he was depressed and her complaint that he had been badly neglected were drawn to the attention of

the acting police commissioner who in ter a lia directed that investigations be made ‘relating to the matter of the police properly attending to the prisoner confined in the watch-house’. Despite this show of concern at the highest level within the Queensland Police force, the investigating officers did not direct attention to the lack of screening procedures for the detection of prisoners at risk.

3.3.59 So it was with the investigations that followed the later deaths. Limited as they were to inquiries to determine whether or not death had occurred through criminal misconduct, they brought no light to bear on shortcomings within the system which, while grave in their potential for

serious consequences, would not ordinarily give rise to charges of criminal misconduct.

3.3.60 As each death occurred, the occasion arose for a review not only of the conduct of individual officers but also of the custodial system under which they functioned and according to which they were bound to take reasonable care for the life and safety of those who died. Despite the

spate of deaths there were no such reviews, and, by their own lack of scrutiny, the authorities blinded themselves to deficiencies in the screening and supervision of prisoners that a careful review should have revealed.

3.3.61 The provision of policing services to remote communities which had been a matter of serious concern for the Commissioner, will be the subject of further discussion in Chapter 13.

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R esuscitation:

3.3.62 This is a matter common to deaths in all forms of custody and I deal with this at the end of the chapter.

T h e F i n d i n g s o f t h e C o m m i s s i o n e r s a s t o t h e

C u s t o d i a l C a r e o f T h o s e w h o D i e d i n P r i s o n C u s t o d y

Introduction 3.3.63 There were thirty-three cases of deaths of prisoners in prison custody. In tw elve o f the cases Com m issioners found that the

circumstances were such that no criticism was to be made of the custodial personnel or system in respect of the actual custodial care. These cases are: Northern Territory— Jambajimba and Burralangi; South Australia— John Highfold, Malcolm Buzzacott; New South Wales— Peter Campbell; Queensland— the young man who died in Brisbane Prison; W estern Australia— Bobby Bates, Darryl Garlett, Donald Harris, Steven Michael, Ronald Ugle and Dixon Green. There were two cases, the shooting of prisoners attempting to escape (Ricci Vicenti and Daniel Lorraway) where

the officers firing the gun were not personally criticized, but very serious questions were raised as to the circumstances in which this action should be taken. As with police custody, there were questions of the extent to which resuscitation was performed, and, in some cases, the actions of officers and the attitudes following death were criticized.

Prison Medical Services 3.3.64 By far the predominant area of criticism was directed by Commissioners at the Prison Medical Services; in some cases at the actual performance of a particular service, in some cases at the system and in others lack o f it. There were at least twelve such cases: Northern Territory— the man who died in Darwin Prison; South Australia— Gordon Semmens; New South W ales— Peter Williams, Malcolm Smith, Tim Murray, Max Saunders; Queensland— W alter Barney, Daniel Lacey, Vincent Ryan; Western Australia— Paul Farmer, the Aboriginal man who died at Sir Charles Gairdner Hospital, and Nita Blanket!. In many of these cases the departure from due care was grave. There were three rather outstanding cases in New South Wales (Malcolm Smith, Tim Murray and Peter Williams). In some cases there was a lack of communication (and sometimes the lack of a system for communication between the medical service and the prison staff): Peter Williams, the young man who died in Darwin Prison, Gordon Semmens, Maxwell Saunders, and, to some extent, Nita Blanket!. An interesting example of the inadequate prison medical services is the Queensland case of Walter Barney. When he was received at Townsville Prison on 20 February 1981 Walter Barney was in a debilitated state as a result of harmful use of alcohol, chronic lung disease and chronic liver disease. He was shaking and may well have

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been suffering from delirium tremens. Certainly the medical orderly who examined him (a prisoner who had a first aid certificate) came to this conclusion. W alter Barney was not seen by any doctor, and it was not intended that he be seen by a doctor within the following four days when

the visiting medical officer was due to make a visit. In the meantime Walter Barney was placed in one o f four observation cells in A Wing, some distance from the orderly. A Wing was locked at most times and the key was held by the circle officer. There was no alarm available in the

cells to enable a call to be made by a prisoner in an emergency; no officer was on duty in the observation cells other than on day shift. Prisoners in the observation cells suffering DTs were checked only three times per day at mealtimes or on request. Such a situation is hard even to envisage.

Other Criticisms of Custodial Care 3.3.65 The other cases which called for criticism do not fall into any general category, but many of them were serious and deserve mention.

3.3.66 In one case (Patrick Booth) the confrontationist attitude of the chief prison officer was quite destructive to one young prisoner. Patrick, aged 17 years and obviously in distress, had privileges taken away from him. He was charged and for disciplinary reasons placed in his cell in

which he hanged himself shortly later.

3.3.67 In the case of Kingsley Dixon, officers were in breach of prison regulations in respect of a drug-affected prisoner and death might not have occurred if the regulations had been observed.

3.3.68 Robert W alker died of asphyxia by reason of pressure put upon him in a struggle with prison officers. The death was found to be attributable to poor training, lack of leadership and a misguided use of force. In this case the prisoner had demonstrated great distress in his cell

over a period of hours, including cutting his wrists. W hen he was being taken out of his cell he was further distressed by the sight of another prison officer who was facing him with a revolver in his hand from the opposite landing a few metres away.

3.3.69 In the case of Charles Michael, death by heart failure followed a struggle with officers. There was no criticism made of the individual officers but of the lack of training in restraint techniques and the provision of equipment. This was also a factor in the case of Robert Walker.

3.3.70 A gross error of judgem ent occurred in the case of Graham Walley. The prisoner was greatly upset. He barricaded him self in a section of the prison and in the presence of officers threatened to and took steps to hang himself. The superintendent was called and took

constructive and suitable steps to defuse the situation, and when Graham Walley appeared calmed he directed that he be put into his cell

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unsupervised. The prisoner hanged himself within thirty minutes.

3.3.71 The case of the man who died at Beatrice Hill Prison Farm illustrates a different problem altogether. The prisoner died from inhaling toxic BCF vapour from a fire extinguisher in a room to which prisoners were allowed access in a minimum security prison. The Department of Corrections knew of the danger of BCF and that prisoners at times tampered with the equipment. Steps ought to have been taken to withdraw the equipment.

R em an d P rison ers:

3.3.72 A m atter o f general importance was raised in the case of Donald Harris. This man was in prison on remand for breach of bond on a minor offence. As appear to be commonly the case with remand prisoners he was treated as maximum security. His death was due to acute pancreatitis and there was no criticism of his care in the prison. But his

security rating followed him to hospital and he was there placed under guard in leg irons. The Commissioner raised the question of whether this offended Standard Minimum Rules for the Treatment of Prisoners.

3.3.73 The question of the security rating of remand prisoners is no doubt a very difficult one. I think that it should be seriously reviewed. It is to be rem em bered that some of these prisoners are held for

comparatively minor offences and most of them on charge and not on conviction. I think there should be some flexibility. Certainly, rules about restraint applicable to maximum security prisoners should not be automatically applied to prisoners recognized as sick, or to those whose

security rating is routine and not considered.

T h e F i n d i n g s o f t h e C o m m i s s i o n e r s a s t o t h e

C u s t o d i a l C a r e o f T h o s e w h o D i e d i n J u v e n i l e

D e t e n t i o n C e n t r e s

3.3.74 There were three such deaths; in Adelaide, Rockhampton and Sydney. In the Adelaide case of Stanley Gollan, the young boy was put into his room following an incident in a soccer match in which he struck and kicked another inmate. He appeared to be calm when removed from the game. He was not checked for 23 to 27 minutes and was found hanging at the end of that period. The orders relating to the confining of inmates in their rooms were in total disarray; it was unclear as to what orders applied and what they provided. The care worker believed (as did others) that 15 minute checks were required; but there seemed to be no rule— and certainly no written rule— as to which worker did the checking. The death could probably have been avoided if a check had been conducted.

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3.3.75 The Rockhampton case is that which I have earlier referred to as the juvenile who started a fire in her detention room. She had been taken into custody because she was objecting to being returned to her foster placement and because she may have absconded. She was searched hastily in the car which conveyed her to the children’s home. It was an

unsatisfactory search because she was in the car, uncooperative and her clothing was very tight. However, a lighted cigarette was taken from her just before the search. W ithout further search she was placed in the security room. The home was considered a fire hazard in the light o f an

assessment which followed a fatal fire which occurred earlier at a juvenile training centre in South Australia. There was no observation window to the room and the bedding was not fire retardant.

3.3.76 These two cases well demonstrate some fundamental aspects of care applicable to juveniles and adults alike; the need for the careful assessment of risk (both these young people were under obvious stress);

the need for close and very frequent checking, especially when risk elements are present; the importance of human contact between custodians and those detained; and the importance of a safe physical environment.

3.3.77 In the third case of Thomas Carr, the young man died of a heart condition which was long standing but not known to custodians. He was to go to court later on the day of his death and his tendency to cardiac arrhythmia may have been increased by his pending appearance and the

fear that he might be sent to an adult gaol.

S o m e O t h e r O b s e r v a t i o n s C o n c e r n i n g t h e C u s t o d i a l

D e a t h s

3.3.78 I have dealt in an overview way with the findings of the

Commissioners as to the immediate circumstances of the deaths and of the custodial care afforded to those who died. In some cases the deaths were avoidable at the point in time at which the deceased were in custody. In other cases this was not so. In some cases absence of due care contributed

to the deaths; in some cases the absence of due care was either unrelated to the cause of death (such as the failure to put drunken people in the coma position) or occurred at a time when it was too late to avoid death. In most cases the neglect in care was related to a system defect. In others, whilst

there may have been system aspects of the neglect, substantially or wholly it was a consequence of the actions or inactions of individuals. In some cases there was not an absence of due care.

3.3.79 But it can be said that in a substantial number of cases there was an absence of due care attributable to system failure or a failure of individual custodial officers in circumstances where, if appropriate steps consistent with due care had been taken, the chances o f the deceased

having survived would have been very significantly increased. It is very

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difficult to categorize the hanging cases in this respect since death is so swift. But it is plain that those cases illustrate very generally a very poor standard of checking, and that a higher standard, combined with some

attempt at human interaction, might have persuaded the deceased away from such a desperate course or frustrated the attempt.

3.3.80 But there is one matter which recurs constantly through practically every case with heartbreaking regularity which has nothing to do with custodians or police as such and for which the whole society must bear the responsibility. Man after man, woman after woman o f these ninety-nine cases were being dealt with by the criminal justice system, being placed in custody, released, and returned in an unending rotation. As a community we seemed to be incapable of finding a solution to this roundabout. People are arrested or taken into protective custody for being drunk today, released tomorrow or next week with their alcohol problem exactly as it was when detained. In some cases this goes on for years. Many resources and lives are wasted. The sensitivities of those involved in the process are dulled by sheer repetition. O f course, such matters

affect the non-Aboriginal population as well as the Aboriginal populations, but the latter to a greater extent. It is not within my commission to consider these problems in the non-Aboriginal society nor within my expertise to suggest all the answers. But what these ninety-nine Aboriginal deaths proclaim loud and clear is that the first reason why this cruel and destructive problem has not been solved is that it has not been faced. We spend enormous amounts of money on courts, prisons, police, hospitals etc. and, by comparison, practically nothing in rehabilitation.

E m e r g e n c y R e s p o n s e T r a i n i n g , I n c l u d i n g

R e s u s c i t a t i o n

3.3.81 An important matter raised in the cases o f both prison and police deaths was the deficiencies in the training of police and corrections officers to respond in medical emergencies. In many cases, officers had no, or inadequate, skills in resuscitation techniques (both expired air and cardio pulmonary resuscitation) or had no access to, or training in the use of, resuscitation aids such as prophylactic masks or automatic resuscitation equipment. Thus, it was revealed that in only 16% o f cases in police custody was resuscitation actually attempted, whilst the figure for attempts in prison custody was 33%.4 Additionally, deficiencies were noted in emergency response procedures generally resulting in delays in the provision o f medical assistance once it was determined that such was

necessary.

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Th e F i n d i n g s o f t h e C o m m i s s i o n e r s a s t o M a t t e r s o f

Ho s p i t a l T r e a t m e n t

3.3.82 In some cases Commissioners made findings critical of the treatment given to some of those who died in hospital. Some of the cases I mention very briefly, but there are others which require more notice.

3.3.83 It is a m atter of concern that a considerable number of

problems were connected with the diagnosis of apparently drunken or alcohol withdrawing conditions. The circumstances are rather varied, but together they justify some careful scrutiny by health and hospital authorities.

3.3.84 The first group of cases is from South Australia. It is apparent that it is not uncommon for hospital emergency (outpatient) departments to summon police help if they have patients who are thought to be interfering with the work of the hospital unnecessarily. There were two such cases in

South Australia: Keith Karpany and Eddie Betts. In these cases the doctor was unable to make any, or any proper, examination of the patient because of the patient’s behaviour. In each case police were told in effect that there

was nothing wrong with the patient other than being drunk. There was a third case, similar except that in this case the police took the patient to the hospital because of strange behaviour, but with the same result. This was Stanley Gollan. The police acted on the advice of the doctors, and all three

were taken into custody. The first and third had sustained injuries causing subdural haematoma; the second was suffering alcohol withdrawal symptoms.

3.3.85 In each case the doctor had not made an examination, but this was not the fault of the doctor. In each case the doctor assumed, on inadequate grounds, that the person was drunk, and that information was conveyed to police officers who (properly) acted on it. In each case the

question was raised as to whether the doctor could have had the patient restrained to make an examination. It is apparent that the dangers of making an assumption about alcohol without excluding other conditions is dangerous, and to make a diagnosis without a proper examination is quite

inappropriate.

3.3.86 In the Queensland case of Charlie Kulla Kulla, the deceased was thought to be quite sick. He was taken to hospital, examined, diagnosed as drunk and arrested at the hospital. He was in fact suffering from lobar pneumonia and died barely a day later.

3.3.87 Also in Queensland, Monty Salt’s condition was presumed by both medical and lay people to be due to delirium tremens although he was in fact suffering pneumonia (he was actually on his way to hospital, not at hospital).

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3.3.88 In New South W ales, Mark Quayle was a case in which

relatives took the deceased to a remote community hospital because he was suffering serious withdrawal symptoms. There was only a nursing sister on duty and she asked police to place the deceased in the cells overnight, knowing that he would not be supervised. She contacted a doctor at

Broken Hill by telephone who concurred in the deceased being sent to the police station, without making any inquiry about his supervision.

3.3.89 Clearly, the medical management o f patients with alcohol- related problems is very difficult. When confronted with cases like those summarized above, particularly the ones involving self discharge, the frustration of health care workers is understandable. As I noted in the report o f Eddie Betts’ case, medical officers (and other health care

workers) should not let their frustration interfere with their professional judgment. Health care workers (and other professionals, including lawyers, delivering services to the public) have a clear responsibility to ensure that they provide their services in as professional a manner as

possible, at all times and to all patients.

3.3.90 The other matters which attracted some attention in the case reports related to the diagnosis of conditions which were unusual or their life-threatening potential was not so well realized at the time in question. In Western Australia, the potential of Nita Blankett’s condition of asthma was not recognized by the nurse responsible for her health care; the miliary pneumonia from which the man died at the Sir Charles Gairdner Hospital

was diagnosed after some delay; and in the case of Jimmy Njanji, the laryngeal oedema secondary to streptococcal scalp infection was not diagnosed.

3.3.91 Hypoglycaemia is another life-threatening condition, which did, in fact, claim the lives of two people whose cases were examined by the Commission. It is another condition which may be masked by co­ existent alcohol intoxication (or apparent intoxication). In view of the high prevalence of diabetes mellitus among Aboriginal people, hypoglycaemia justifies special mention. The submissions by the Central Australian

Aboriginal Congress and the Victorian Aboriginal Health Service highlight the need for health care workers to be aware of the risks of hypoglycaemia among Aboriginal people.5 If the ambulance officers who were asked to review the condition of Arthur Moffatt, who died at Warragul on 11 June

1987, had been aware of the risks, they may not have so readily accepted Arthur M offatt’s apparent intoxication as the cause for his state of impaired consciousness. A rthur’s life may well have been saved. Similarly, Barbara Y arrie’s death may have been prevented if her hypoglycaemic condition had been recognized.

3.3.92 Special mention needs to made of the problem many of the deceased experienced with epileptiform seizures. Six of the people whose

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cases were examined by the Commission experienced a seizure around the time of their death. In total, of the ninety-nine cases examined by the Commission, at least nineteen people had problems with seizures, not uncommonly associated with heavy alcohol use or withdrawal. The control of seizures is undoubtedly difficult, particularly where compliance

with prescribed medications is uncertain. One cannot help feeling, however, that there must be some way that the health care system can do better than it did in the management of the nineteen Aboriginal people who experienced seizures, particularly of the six people who died. In Section

23.5, in which I summarize the major health risks for Aboriginal people in custody, I return to this aspect and to a consideration o f other long­ standing health problems.

A C o n c l u s i o n F r o m t h e F i n d i n g s a s t o C u s t o d i a l

C a r e

3.3.93 It follows from what I have written about the findings in relation to individual deaths that the reports on those deaths disclosed that in a considerable number of cases system failures or failures of individuals caused or contributed to or may have contributed to the deaths. It may be

that families will wish to pursue claims in such cases (and indeed perhaps in others, but I speak of those cases I have mentioned). If any legal proceedings are issued by family members they will be governed by the laws of the States and Territories in which the claims are brought. I wish

to raise two matters for consideration by Governments in respect of any such claims as may be made.

3.3.94 The first is that very often because of inadequate post-death investigation the full facts were not known until after Commission hearings and reports, and these were usually spread out over the time span of the Commission. It is understandable that people would want to be

aware of the outcome of the Royal Commission inquiry before making claims. Accordingly, some contemplated claims may be out of time for reasons beyond the control of families.

3.3.95 The second is that for many families the Commission hearing was a stressful experience on top of the grieving associated with the death.

3.3.96 Although, of course, any Recommendation of mine could not deprive families of their right to make claims through the courts, nor the right of others to contest such claims if they see fit, it would be open to me to make a recommendation that governments grant compensation to

families in all or some cases. I must stress that the Commission did not receive a submission from anyone that such a recommendation be made, but I deal with the matter in case it be thought that I had overlooked this option.

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3.3.97 I do not intend to make such a recommendation to government for compensation to be paid. Attitudes among family members and between families may differ as to whether it is appropriate that steps be taken either through the courts or by direct request to governments to obtain compensation in respect o f the death o f a family member in custody. For me to make a blanket recommendation in this regard could cause additional stress to families. Moreover, I do not suggest that fault was found on the part of custodial personnel in all cases.

3.3.98 These are matters which, no doubt, Aboriginal families, their legal advisers and organizations would prefer to resolve themselves before deciding what approach, if any, should be made to governments or through the courts.

Recommendation 4:_________________________________

T h a t i f a n d w h e r e c la im s a r e m a d e in r e s p e c t o f the

d e a th s b a s e d o n th e f i n d i n g s o f C o m m is s io n e r s :

a . G o v e r n m e n t s s h o u l d n o t , in a l l th e

c ir c u m s ta n c e s , ta k e th e p o i n t th a t a c la im is ou t

o f tim e a s p r e s c r i b e d by th e r e le v a n t S t a tu te o f

L i m i ta t i o n s ; a n d

b . G o v e r n m e n t s s h o u l d , w h e n e v e r a p p r o p r i a t e ,

m a k e th e e f f o r t to s e ttle c la i m s b y n e g o tia tio n

s o a s to a v o i d f u r t h e r d i s t r e s s to f a m i l i e s by

l i t i g a t i o n .

Recommendation 5:_________________________________

T h a t g o v e r n m e n t s , r e c o g n iz i n g th e t r a u m a a n d p a i n

s u f f e r e d b y r e la t iv e s , k in a n d f r i e n d s o f t h o s e w h o

d i e d in c u s to d y , g iv e s y m p a th e tic s u p p o r t to r e q u e s ts

to p r o v i d e f u n d s o r s e r v ic e s to e n a b le c o u n s e ll i n g to

b e o f f e r e d to th e s e p e o p le .

3 .4 CREATING SUSPICIONS

3.4.1 I said at the very beginning of this chapter that in some cases actions taken immediately following the death were such as to increase rather than allay suspicions which Aboriginal families would almost instinctively have following a death in custody. I mention four examples

to illustrate the point.

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3.4.2 Notwithstanding the coroner’s finding that Robert Walker had probably died because his neck had been compressed at the time that a certain injection was administered by one of the officers, there was then no internal departmental inquiry as to who had compressed the neck and why.

There was, however, a staff bulletin issued in the name of the director of the department which applauded the officers involved.

3.4.3 In Queensland, Barbara Yarrie was taken from police custody to hospital quite unconscious without any details as to her name, next of kin etc. so that the hospital received an unknown person. It was some days before her identity was discovered and it was possible to advise her family. In this case, much fault lies with the ambulance service.

3.4.4 Bruce Leslie lived in Tam worth while most of his family lived in Sydney. Bruce was found by two guests outside a Tam worth hotel. It appears that he had fallen to the ground. The guests who found him called an ambulance. The ambulance officers, after a cursory examination,

decided he was intoxicated and called the police. He was taken to Tamworth Police Station as an intoxicated person. That happened at about midnight. On the next morning at 7.00 a.m. an am bulance was

summoned to the cell and Bruce was taken to the Tamworth Base Hospital. He was unconscious and an X-ray revealed a skull fracture. He was sent that afternoon to the Royal North Shore Hospital in Sydney. That was on 30 May 1985. The family was telephoned from Tamworth

and told that Bruce was in a coma at the Tamworth Hospital and was being flown to the Royal North Shore Hospital. The hospital could give little information about what had happened; Bruce’s sister rang the Tamworth Police Station and was told that two guests had found Bruce outside a

hotel and had called an ambulance.

3.4.5 On 4 June family members were told that Bruce was dying and that no further treatment would be given. On 6 June death was certified. An officer in Sydney, who had to prepare the notice o f death for the coroner and who had no previous knowledge of the matter, contacted Tamworth Police Station and then the family. It was from this officer that

the family learnt for the first time that Bruce had not been taken to the Tamworth Base Hospital from the hotel outside of which he was alleged to have fallen but that he had been taken to hospital from the Tamworth Police Cells where he had spent the previous seven hours. There are other

matters which contributed to the suspicions which the family felt.

3.4.6 Mark Revell died in the Grafton Police Cells. There was

considerable delay in advising his widow, who was in Melbourne, of the death. When she was so advised it was explained by the officer who did so that the delay was occasioned by her having been listed as a missing person, which was untrue as a fact and untrue to her knowledge. The

advising officer could give little information. Attempts to obtain further

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information were frustratingly ineffective. Commissioner Wootten has told the whole story in his report and I need not go into detail.

3.4.7 A feature which occurred in many cases and which can only cause concern and worry to families is that in many cases the inquiry into the death was conducted by local police officers, some o f whom had some association with the particular custodial incident and all of whom worked closely with the officers involved with the detention and officers who had brought the deceased to the station and were on duty in the station at the relevant time. Additionally, it will be seen from the next chapter that the

coronial inquiries in many cases were quite perfunctory. All these matters, and many others particular to individual cases, were calculated to inspire concern rather than allay suspicion in the minds of the families of those who died.

3 .5 ABORIGINAL EXPECTATIONS ABOUT THE ACTIONS WHICH THE COMMISSION MIGHT TAKE

3.5.1 This question presented a num ber of problem s for the

Commission. The function of a Royal Commisson is to inquire into a matter and report to government. This is, of course, quite clear but is not well understood by many people in the community. Many Aboriginal people considered that if Commissioners were to find dereliction of duty on the part of a custodian or custodians that the Commission would then take action against such person or persons, including the laying of charges. Many Aboriginal people spoke to officers of the Commission in terms that made it clearly apparent that they assumed that the Commission had power to take such action and that the Commission would take such action in any and every appropriate case. It became quite apparent that this was a widely held opinion and expectation amongst Aboriginal people.

3.5.2 This m atter was forcibly brought to the attention of

Commissioners by Aboriginal field staff in early 1989. In consequence, Commissioner Muirhead, who was then the National Commissioner, produced a document which set out to explain certain matters relating to Royal Commissions in general and to this particular Royal Commission. The document was intended to assist Aboriginal field staff in dealing with this matter and others. It was used throughout the country for this purpose by field staff and later by staff of Aboriginal Issues Units when appointed.

3.5.3 I reproduce below three sections of the document as indicating the way these matters were attempted to be explained to those who raised such questions:

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Why do we need a Royal Commission to make such inquiries?

Because only if there is a Royal Commission can all witnesses be subpoenaed and required to give evidence. One of the problems was that in some of the inquests following such deaths, witnesses including police and prison officers had refused to give evidence. In some cases no inquests were held. A Royal Commission can require a witness to give evidence, but should the witness be later prosecuted for an offence, his or her evidence before the Royal

Commission cannot (unless he or she agrees) be put before the Court. At least a Royal Commission can require all witnesses to give their accounts of the deaths or happenings that led to such deaths. It is more likely to find out the truth than a simple inquiry, such as a Coroner’s Inquiry or a Committee of Inquiry

or Police Inquiry set up by Governments.

What are the powers of the Royal Commission?

Sim ply to inquire into each death and then report to

Governments. In their reports the Commissioners will state (if they can) not only how people died, but why they died. This enables the Commission to examine what we call underlying causes. Why do Aboriginal people, who form about 1.5% of the

Australian population, have twenty times the risk of dying in police custody and ten times the risk of dying in prisons? Why are so many arrested and put in cells and prisons? Are they treated fairly by law? Why are so many Aboriginals unemployed,

poorly housed, poorly educated? Why is their health poor? Why is their life expectancy shorter than other Australians? These are what we call ‘underlying issues’. The Commissioners are empowered in reporting to Governments to consider ‘social, cultural and legal factors’ which contribute to the deaths.

Can the Royal Commission punish those they find responsible for deaths by criminal conduct or lack of care?

No. The Australian Courts alone can convict and punish wrongdoers. Commissioners have no power to punish anybody except those who disrupt proceedings, harass witnesses. Even in those cases its powers are limited and such matters would

generally be referred to State Governments for action.

3.5.4 However, there is no doubt that despite the explanation, many Aboriginal people and some non-Aboriginal people remain unclear about

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the functions of a Royal Commission.

3.5.5 Individual Commissioners were, by their Letters Patent, authorised to make recommendations in respect of a death into which they inquired. All Commissioners were of the view that it was inappropriate for any Commissioner to recommend that proceedings be instituted against persons in respect of whom adverse findings had been made by Commissioners in their reports of their inquiries into particular deaths.

3.5.6 There are good reasons for this decision and these were

outlined by Commissioner W ootten in his report on the death o f Paul Kearney:

It would not be right fo r this Commission to make a finding that any person was guilty o f a criminal or disciplinary offence. The law lays down certain procedures which m ust be fo llo w ed before such findings can be made, and establishes particular courts

or tribunals which have power to make such findings and im pose penalties in respect o f them. This

C om m ission’s function is to ascertain the fa c ts in relation to Aboriginal deaths in custody and report those fa cts to Government. It is fo r Government, or the appropriate agency o f Government, to take whatever

action is called fo r in the light o f those facts, whether the action be by way o f legislation, policy changes, funding o f services or institutions, recognition o f rights, or prosecution or disciplinary action. The Commission has no power to do any o f these things itself.

While the Commission may make recommendations, there are good reasons why it should be cautious about making recommendations fo r proceedings against named individuals, except in very clear and serious cases.

W hatever the C om m ission may recom m end, the prosecuting authorities or, in the case o f disciplinary proceedings, the Commissioner o f Police, will have to make up their own minds whether proceedings should

be taken. It does not fo llow that, because a Royal Commission has made a finding adverse to a particular person, a criminal or disciplinary charge will necessarily succeed or be warranted against that person. In the first place, because o f the quite different procedures, it may

not be possible to prove in a criminal prosecution matters about which findings may properly be made in a Royal Commission. A criminal prosecution is an adversarial proceeding in which the Crown carries the onus o f proving beyond reasonable doubt, in accordance

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The Findings of the Commision as to the Deaths

with strict and sometimes technical rules o f evidence, that the accused, who cannot be compelled to make a statement or give evidence, is guilty o f a crime as precisely defined by law. Not only is an accused person

not bound to give evidence when on trial, but evidence which he or she has given in the Royal Commission is in m ost cases not adm issible in the trial. While

disciplinary proceedings are not as constrained as criminal proceedings, they are very different to a Royal Commission.

In a Royal Commission, set up not to try people but to fin d out what happened in some area where information is otherwise lacking, there are no parties, no onus o f proof, no special rules o f evidence, and no requirement

o f p ro o f beyond reasonable doubt; persons whose conduct is in question can be required to give evidence; and the C om m ission m ay criticise or condem n

reprehensible conduct even i f it is not technically criminal. The limitations on a Royal Commission are, broadly speaking, only that the Commission should stay within its terms o f reference, base its findings on evidence o f some probative value, require a degree o f proof commensurate with the seriousness o f a finding,

act in good faith and not make findings in contravention o f the requirements o f natural justice.

Apart from possible difficulties o f pro o f , there may be discretionary reasons fo r prosecuting or disciplinary authorities not taking proceedings - fo r example that the offence was a minor one committed many years ago by a person o f subsequent good record, or was committed in

accordance with what was a general practice now realised to be wrong. I f proceedings recommended against an individual are not taken, or are not successful, the outcome will be confusing to the public. One the one hand the individual may be unfairly assumed to be a guilty person who ‘got o f f . On the other hand it may

erroneously be thought that the Commission’s findings are unjustified.

Some o f the Considerations I have mentioned are noted in Hallett Royal Commissions and Boards o f Inquiry pp 48, 328-331. Some are relied on by the High Court in support o f its construction o f the Independent

Commission Against Corruption Act 1988 in Balog v. Independent Commission Against Corruption (20 June 1990).

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(I mention that Commissioner Wootten reserved for further consideration, cases of deliberate or malicious harm if they should arise.)

3.5.7 In my opinion, the matters mentioned amount to compelling reasons why recommendations for the laying of charges should not be made. However, additionally, there are some other very good reasons particular to this Royal Commission why, in my opinion, it was particularly undesirable that recommendations should not be made for prosecution or other action against individuals:

• the deaths were inquired into by five different Commissioners and there exists the possibility that individual Commissioners might differ in their views as to the degree of seriousness of any particular breach that might be found; • the deaths were spread over almost a ten year period. There is no

doubt that, in some respects, views changed over the period as to what were considered to be appropriate standards of care: action taken in 1980 might well be regarded differently from exactly the same action taken in 1989; and • the deaths occurred in all parts of the country. Prison regulations

and Police standing orders are particular to States and Territories. An act which constituted a breach of standing orders, for example, in one place might not be a breach in another.

3.5.8 It was also open to Com m issioners to recom m end to

government that the report of any particular inquiry should be drawn to the attention of prosecuting authorities or to persons authorised to institute disciplinary proceedings. This has already been done in some cases.

3.5.9 The terms of my Letters Patent are such that I could at this

stage make recommendations as to the bringing of charges or the drawing of matters to the attention of prosecuting or other authorities. I do not do so for the reasons stated and also for the additional reason that it is inappropriate for me to do so in respect of inquiries conducted by other

Commissioners. It would be invidious to deal with those inquiries which I conducted on a different basis. I, therefore, make no such

recommendations.

3.5.10 However, I strongly suggest that the reports of all ninety-nine deaths should be carefully studied with a view to the appropriate authorities deciding whether any action should be taken against any person.

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1 The blood alcohol concentration (BAC) is the amount of alcohol present in a given volume of blood. It can be expressed in a number of different ways but perhaps the most commonly used measure is grams per cent (g%) as I have used in this chapter. This measure is often referred to as simply %. When a person blows into a breathalyzer

or is given a blood test and the BAC is determined to be, say 0.05 g%, this means that there are 0.05 grams of alcohol in every 100 millilitres (or 50 milligrams per 1 decilitre) of his or her blood. See J. Greeley and D. McDonald, A lcoh ol and Human B ehaviour, RCIADIC Criminology Research Unit Research Paper No. 14, 1990, p.l

2 E. Johnston, R eport o f the Inquiry into the D eath o f The M an W ho D ie d A t K atherine On 21 N ovem ber 1984, RCIADIC NT/5, AGPS, Canberra, 1991, pp. 56-9; L. F. Wyvill, R eport o f the Inquiry into the D eath o f John R aym ond P ilo t, RCIADIC QA, AGPS, Canberra, 1989, pp. 1-2

3 Police Federation of Australia and New Zealand, R ecom m endations fro m the P o lice F ederation o f A ustralia and N ew Z ealan d fo r C onsideration by the R oyal C om m ission, RCIADIC Submission, 1990, p. 4

4 D. Biles, D. McDonald and R. Draper, The R oyal C om m ission C ases: A S tatistical D e sc rip tio n , RCIADIC Criminology Research Unit Research Paper No. 21, 1990, p. 39

5 Central Australian Aboriginal Congress, Subm ission to R CIAD IC, RCIADIC Exhibit NT/2/G5, 1988; Victorian Aboriginal Health Service, V ictorian A borigin al H ealth S ervice P resen tation to the R oyal C om m ission into A b o rig in a l D ea th s in C ustody, 1989, RCIADIC Exhibit

G23

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Chapter 4 THE ADEQUACY OF PREVIOUS INVESTIGATIONS

The tragedy o f a death in custody is experienced most deeply by the fam ily of the deceased. It occurs out o f sight within a structure o f confinement under the control o f police or prison officers. Death occurs in

circumstances where the deceased is totally dependent on his or her custodians fo r proper care and adequate medical attention. The anguish and anger o f the relatives, their fea r and suspicion as to what may have happened inside a police or prison cell, demands an assurance that the

circumstances o f death will be thoroughly and fairly investigated.

This need fo r assurance is not limited to the fam ily o f the deceased. A death in custody is a public matter. Police and prison officers perform their services on behalf o f the community. They must be accountable fo r the proper performance o f their duties. Justice requires that both the

individual interests o f the deceased’s fam ily and general interest o f the community be served by the conduct o f thorough, competent and impartial investigations into all deaths in custody. Where such deaths involve a distinct group, such as Aboriginal people, who may be the target o f racial discrimination these requirements become imperative.

In this chapter, I examine various aspects o f the investigative process following a death in custody, including police investigations, post-mortem examinations and the form al coronial inquiry. I conclude that the police should retain the authority to investigate all deaths in custody, subject to

significant recommendations concerning the fram ew ork in which such investigations are conducted.

4.1 INTRODUCTION

4.1.1 I respectfully endorse without qualification the words of Commissioner Muirhead in the Interim Report of the Royal Commission issued in December 1988 regarding the investigation of a death in custody:

The situation demands the most thorough investigation o f facts and circumstances by skilled investigators who

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The Adequacy of Previous Investigations 4

hopefully may be regarded as impartial, autopsies performed by expert forensic pathologists follow ed by thorough coronial enquiries conducted by legally trained Coroners under modern legislation which enables such

Coroners to make remedial recommendations. In all o f these processes there m ust be sensitivity to the situation o f the families o f the deceased.

I f this degree o f thoroughness, the implementation o f such expertise, had been current in Australia over past years, it is arguable that the necessity fo r establishment o f this Royal Commission would not have arisen. It is fo r this reason, w hich appears to be w idely

misunderstood, that the Terms o f Reference require investigation into enquiries made subsequent to death}

4.1.2 These words were written when only a few deaths had been investigated. Now that all deaths have been investigated, I go further and say that not only are full police investigations and coronial inquiries essential for the reasons given but also for the prevention of further deaths

in custody. The cases investigated indicate that this very important and valuable role of coroners has not been fully appreciated and utilized. There were numerous instances in which deaths inquired into by a coroner highlighted deficiencies in (or the absence of) proper systems for the care of people detained in custody, yet such deficiencies were not made the

subject of comment by the coroner in his or her findings in relation to the death. As a consequence, these deficiencies remained. Had they been drawn to the attention of the relevant authorities and action taken to rectify them, the likelihood of similar deaths occurring in the future would have

been substantially reduced.

4.1.3 I use the example of the practice noted in many cases

investigated by the Commission of the detention of persons in an unconscious or semi-reusable condition. The dangers associated with the detention o f such persons and the need for the obtaining of immediate medical attention was highlighted in this Commission’s Interim Report. Since the release of the Interim Report, it has become regular practice in all States and the Territory for medical assistance to be sought for persons found to be in such a state. It is probable that many lives have been saved as a consequence. Yet the threat to life associated with unconsciousness was a matter which was highlighted during the course of many of the

coronial inquiries conducted and generally passed without comment. Indeed, the importance of obtaining medical assistance for unconscious persons was raised in 1980 by a doctor (then employed by an Aboriginal Medical Service) during a coronial inquest into the death of an Aboriginal

man in the Northern Territory. The doctor, in his evidence before the coroner, made the suggestion that, any person found in an unconscious state should be examined by a medical person. The coroner concluded that the implementation of such a practice would be impracticable and declined

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4 The A dequacy of Previous Investigations

to make a recommendation to that effect. In my report o f inquiry ir. relation to that death I stated that, while I could understand why the coroner did not adopt the recommendation (it was the opinion of only one doctor), I thought it unfortunate that he had rejected the doctor’s opinion

outright. I said:

[The coroner] could well have drawn attention to the question, and to its importance, stated [the doctor’s] opinion as fa r as the hearing was concerned and recommended that the Police Department investigate the

stark problem thrown up by the fa cts (that a man assessed by all to be drunk can be dying in the cell) and consult with hospitals and other Health Department authorities as to appropriate procedures.

In fact, the hierachy o f the Police Department follow ed this inquest carefully, but the failure o f [the coroner] to make any recommendations on this aspect led them to conclude ... that no action was required to be taken by

the Department. In fa c t ...i t was not until another death occurred in similar circumstances (in Tennant Creek in 1985) that the necessary change in Police General Orders was made, upon the recommendation o f the

Coroner in that case.2

4.1.4 Further deaths might have been avoided if the this matter had been given the same publicity as had been given to it following the release of the Interim Report in 1989. There were many other instances where the potential to alert custodial authorities to possible risks was not realized.

Matters such as inadequate surveillance practices of persons detained, substandard cell conditions and deficiencies in the training of custodians were often thrown up by a death but passed without coronial comment. (I might add that, very frequently it was difficult for coroners to make any

broad recommendations because they simply did not have sufficient information before them to enable such recommendations to be made.) I do not mean to imply, however, that such matters were never made the subject of comment by coroners. That is clearly not the case. In some

cases coroners did draw attention to these matters but this did not always result in the necessary changes taking place. The reasons for this were threefold. First, in a number of cases it was found that the coroner’s findings in relation to a death were not disseminated to the relevant

authorities: thus, findings or recommendations which might have alerted authorities to inadequate custodial practices or procedures did not become known, and no action was taken to remedy them. But, even when findings were dissem inated to the relevant bodies, there was no

mechanism in place for those findings to be reviewed and appropriate action taken where indicated— findings were often merely filed away without further action. In other cases, findings were simply ignored.

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4.1.5 There were five deaths in the Kalgoorlie lockup between 1981 to 1987. The coroner inquiring into the first of these deaths (Roy Walker) noted with approval a local station instruction which had been issued following the death requiring persons placed in the lockup to be visited at least hourly, and awoken and spoken to after a reasonable time. Roy died as a result of a subdural haematoma. He had been arrested for

drunkenness while in an unconscious state and placed in the lockup. He was checked on only one occasion during an 8-hour period. The Coroner added that it would be prudent for the same procedure to be adopted at other police stations. This recommendation was considered by the commissioner of police but its implementation found to be impracticable. The second death, that of Faith Barnes, occurred in the following year in

similar circumstances. Faith also died of a subdural haematoma. She was arrested in an unrousable state by police who thought her to be drunk and taken to the lockup. Her supervision during the ensuing six hour period was found to be inadequate. Commissioner O ’Dea found that at the time of this death, the instruction relating to surveillance which was issued following Roy W alker’s death was not being followed— if it had been, the death might have been avoided. The three deaths which followed Faith Barnes death were also found by Commissioner O ’Dea to be characterised by a failure to carry out proper and regular checks. The fact that coroner’s recommendations could be so easily disregarded is a matter of

serious concern.

4.1.6 This should be contrasted with those inquests during which were wide ranging and matters drawn to the attention of relevant authorities and acted upon. The cases of Craig Karpany and Lloyd Boney

are examples of this. In the Craig Karpany case, the police investigation and inquest into the death were both competently and thoroughly performed. The findings made by the Coroner were extensive and addressed not only the cause and circumstances of death but also the broader issues relevant to C raig’s arrest and detention. Criticisms of individual conduct and of certain procedural m atters were made. Following the inquest, a number of changes were effected (or were being considered) to those practices which were highlighted as deficient during the coronial inquest.

4.1.7 The inquest into the death of Lloyd Boney was equally wide ranging and resulted in extensive and valuable recommendations being made in relation to such matters as prisoner supervision, the need for a proper system of communication between prisoners and their custodians,

the suitability of police appointed to work in towns with a substantial Aboriginal population, and the responsibilities of police in relation to bail. As a consequence some changes have been implemented to custodial practices in furtherance of the coroner’s findings. These changes will go

some way to reducing the likelihood of deaths occurring in similar circumstances.

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4.1.8 It will be seen that the recommendations which I make in this area are extensive. I do for the purpose of strengthening the coronial process to ensure that its potential for reducing deaths in custody is fully realized and utilized in the future. The coronial system is already in

existence. It is important that it be utilized so that society can gain from its existence.

4.1.9 Before review ing the conduct and quality o f post-death

investigations as found by Commissioners, it may be useful to consider the general structure of such investigations in Australia.

4.1.10 The investigation of a death in custody falls, potentially, into two stages: the preliminary investigation of the circumstances of death and the formal investigation of the circumstances of death in a court hearing conducted by a coroner, known as a coronial inquest. The States and Territories each have a Coroner’s Act which governs the decision as to

whether an inquest will be held. Where the legislation does not require an inquest into all deaths which occur in custody, a decision whether to hold such a formal inquiry is made by a coroner on the basis of a report of the preliminary investigation. The results of the medical investigation of the cause of death, ascertained through an autopsy conducted on the body of the deceased, comprises a part of this preliminary report to the coroner. The Coroner’s Acts in the various jurisdictions are generally silent or

unclear as to whether the prelim inary investigation should be the responsibility of the coroner or the police. In all deaths in custody considered by this Commission the police conducted the preliminary investigations into the circumstances of death.

4.1.11 I turn now to consider the quality of these police investigations and the implications of the police conducting such inquiries.

4.2 POLICE INVESTIGATIONS

4.2.1 Kwementyaye Price died of a head injury in the police cells at Alice Springs in 1980. He had been taken into protective custody in a non-rousable state, apparently induced by intoxication. Police investigating the death attended promptly at the cells after being advised of

the discovery of his body. They interviewed all people who had been detained in the cell block. They later interviewed, separately, police officers who had been involved in the detention. The interviews were properly conducted and documented. The investigating police also took possession of all the relevant journals and records kept at the watch-house

and police station. The investigation was thorough, comprehensive and completely free of prejudgment or any suggestion of a cover up.

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4.2.2 While the quality of this investigation demonstrates the ability of police officers to achieve an appropriate standard of inquiry, it should be contrasted with another investigation also conducted in 1980 by the police at Alice Springs. Jambajimba was an Aboriginal man who died by

self-inflicted hanging at Alice Springs Gaol. The police officers who investigated the death proceeded with the investigations on the assumption that the death was self-inflicted, notwithstanding that the deceased was in custody in relation to an offence which, traditionally, was regarded as likely to make a prisoner subject to harassment by fellow prisoners or by prison officers. It was the first case ever recorded in the Northern Territory of an apparent Aboriginal suicide in custody. It was an investigation effectively completed within two-and-a-half hours of the discovery of the body and one remarkable for its incompetence:

• no item whatsoever was seized as an exhibit, not even the sheet which had been used to form the noose; • no journal or other prison record was seized or even inspected to gain information or test the evidence of prison officers; • the identity of other prisoners held in the same block as the

deceased was not ascertained (obviously no statements were taken); • no effort was made to discover from friends or family whether the deceased had a motive for suicide; • no measurements were taken or any diagram made of the

deceased’s cell;

• no fingerprint checks were made; • the clothing of the deceased was not seized or examined; • no attention was paid to the highly significant matter of whether cell checks (which were required to be made) actually took place;

a very brief statement was taken from the night duty officer who was required to perform the checks, but the other two officers on duty who could confirm or otherwise whether these checks were conducted were not even interviewed; • no photographs were taken at the post-mortem examination, there

is even doubt that any photographs were taken of the cell and of the deceased’s body; • no investigation was made as to the origin of a head injury

referred to in the autopsy report; • no test was conducted to ascertain that the deceased actually could suspend himself as found (I became satisfied by test that this

could be done);

• the officer charged with the im m ediate conduct o f the

investigation into the circumstances of death had conducted the investigation into the alleged offence leading to the deceased’s custody, and had accompanied the deceased back to Alice Springs after his extradition from Western Australia only a few days

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before his death; and • the report o f the coroner’s constable to the coroner which

confidently noted that there were ‘no suspicious circumstances’ was actually written the day before the autopsy report was received.

4.2.3 The case of Jambajimba offers a virtual catalogue of the

inadequacies and omissions which were encountered, to some degree, in the majority of police investigations considered by Commissioners. It is useful to identify those recurrent and salient issues which hold the greatest implications for the conduct of adequate investigations into deaths in custody. They fall broadly into two categories: the scope and the technique of investigation.

4.2.4 The superficiality of the police inquiry into the death of

Jambajimba stemmed from a presumption on the part of the investigating officer that the death was a suicide. The task, as the officer defined it for himself, was to ensure that there was no evidence o f foul play. This narrow concentration on the search for criminal misconduct was the primary focus of every police investigation. It defined the area of inquiry, and, once it had been established to the satisfaction o f the investigating officers that no foul play attended the death, their investigations were effectively terminated. As a fact, the investigation into that matter was totally inadequate.

4.2.5 In the Report o f the Inquiry into the Death o f Mark Wayne Revell, Commissioner Wootten described the police investigations as most perfunctory. Mark Revell died in 1982 at the Grafton Police Station as a result of hanging. Characteristically, the investigation into his death proceeded on the assumption that the death was a suicide. The

investigation did not critically examine police conduct and would not have discovered police misconduct or breaches of duty had they occurred. In his report Commission W ootten detailed the police investigation and observed:

[R Jegrettably the shortcom ings o f the p o lice

investigation have been repeated in the number o f other deaths in custody investigated by the Commission and seem to reflect the standard practice at the time.

4.2.6 In a later inquiry in New South Wales into the death of Paul Lawrence Kearney, which occurred in 1986, the police investigation was carried out by the sergeant who was actually in charge of the police station at the time of Paul Kearney’s death. Paul died in a cell at the Darlinghurst

police station as a result of sleep apnoea, contributed to by an excessive intake of alcohol and prescription drugs. The officer who carried out the investigation was the last person to see the deceased alive and was a close working associate of all the police officers on duty at the time of death.

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He did not interview those officers but allowed them to prepare their own statements. He did not consider the issue of whether custodial officers had failed in their duty to care for the deceased in a way appropriate to his condition.

4.2.7 Even in cases where investigative procedures were undertaken with diligence and professionalism, they were essentially confined to the same limited parameters of inquiry. In very few cases, particularly up to

late 1987, was there any direct consideration of the wider situation of the deceased prior to death.

4.2.8 An inquiry into the immediate cause o f death does not

constitute a thorough investigation of the circum stances of death. Investigations should extend beyond consideration of whether death occurred as a result of criminal behaviour. The general care, treatment and supervision of the deceased prior to death should be inquired into with particular attention to whether custodial officers observed all relevant departmental policies and instructions relating to the duty of care owed to the deceased while in custody. Any comprehensive investigation of the events leading to death should also consider the circumstances under which the deceased was taken into custody and the legality of his/her detention.

4.2.9 Foul play or the intentional causing of, or contributing to, a death in custody is the first matter which should be considered by investigators. However, there are lesser ways— which do not give rise to criminal responsibility— in which police or prison officers may be responsible for a death in custody. They may fail to take reasonable steps to prevent harm to a person in their care. If the harm, whether from self­ injury, injury inflicted by others, or illness, is reasonably foreseeable then custodial authorities and/or individual officers may be in breach of the duty of care owed to all persons in custody. Such a breach may provide grounds for civil action by the family of the deceased— it is not a matter for the criminal law but it is certainly a matter which should be investigated in any inquiry into the circumstances of death.

4.2.10 Police investigations which are confined to the search for criminal misconduct are, by their nature, inadequate to detect those factors which were frequently found to contribute to the deaths inquired into by Commissioners. As a matter of frequency, the deliberate infliction of

harm was a negligible factor when compared with the many cases in which a lack of care by custodians was found to have contributed to death. Chapter 3 reviews the Commissioners’ findings as to the deaths.

4.2.11 The broadening of the focus of investigations to encompass the care, treatment and supervision of the deceased not only increases the likelihood of accurately identifying the operative factors contributing to a death in custody, it also offers the further prospect of these factors being

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addressed and rectified. The lack o f adequate care for the deceased frequently reflected a failure in police or prison systems and procedures rather than personal failures by individual officers. Few o f the police investigations directly addressed these issues or pursued them in a manner

designed to present adequate material on which a coroner could make findings or recommendations to remedy such systemic failures. If the subsequent recommendations in this chapter which concern the powers of coroners to propose remedial action are to be effective, then police investigations must be broad enough to present the coroner with a proper evidentiary basis on which to make such findings and recommendations.

4.2.12 It cannot be argued that a lack of resources or manpower constrained the width of police investigations. In several cases the bare facts elicited in the course of inquiries made it evident that there had been a failure by custodians to attend adequately to their duties. In the case of the man who died at the Royal Darwin Hospital, for example, the course of events as known to the investigating officer and the failure by the officer in charge of the watch-house to provide adequate medical attention to the deceased were clearly apparent and constituted a clear breach of Police General Orders. The deceased died o f an intracranial haemorrhage and malignant hypertension. He was semiconscious and incapable of walking

when taken into police custody, where he remained for over thirteen hours in a deteriorating condition. It was evident that the investigator did not regard it as part of his brief to consider the adequacy of care given to the deceased. It is the practice of senior police officers to investigate the

activities of other police members when their standard of conduct and observance of Standing Orders and other instructions are in issue. Accordingly, it is not unreasonable to expect such matters to be examined in the course of any inquiry into a death in custody.

4.2.13 It may be suggested that an investigation sufficiently broad to examine general police or prison practices and procedures with a view to identifying systemic failures is beyond the capacity and proper function of

police officers who invariably investigate these matters in addition to their other work. They may be placed in a highly invidious situation if they are expected to draw conclusions as to the general liability of the police and correctional services in meeting their obligations to provide an appropriate

system and standard of care to people in custody. This suggestion is really beside the point. It is not for the investigating officer to draw such conclusions; that is a matter for the coroner.

4.2.14 However, it may be acknowledged that while police officers are trained criminal investigators, such officers may not be the most appropriate or qualified persons to determine the relevance of certain issues which ought properly to be the subject of inquiry. The direct

involvement of the coroner and a qualified legal practitioner would assist to set the parameters and to supervise, where necessary, the conduct of police investigations. This is a matter to which I will return when

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considering the powers and functions of the coroner in Section 4.5 of this chapter.

4.2.15 The expansion of the scope of police investigations must go hand in hand with an increased attention to the detail and the quality of investigative technique. There has, in fact, been a marked improvement in the standard o f more recent police inquiries. In order to rectify the desultory approach demonstrated in many earlier investigations, some defined procedures have been introduced. In particular, police services now approach investigations into deaths in custody on the basis that the death is a potential homicide. This reflects a recognition of certain general requirements: the approach o f investigators must not be shaped by a presumption of suicide, police officers assigned to such inquiries must be highly qualified and experienced investigators, they should apply a rigorous standard of investigative procedure throughout the conduct of their inquiries.

4.2.16 The inadequacies and omissions of police investigations have led to situations where the coroner has had insufficient evidence upon which to base sound conclusions. Investigations into all deaths in custody should be structured to provide a thorough evidentiary base for consideration by the coroner on inquest into the circumstances of death.

In particular it is necessary that:

• the scene of death should be subject to a thorough examination including the seizure of exhibits for forensic science examination and the recording o f the scene of death by means of high quality colour photography;

• all records, including medical records, relevant to the detention, care, treatment or supervision of the deceased should be obtained (or copied) by investigating officers; • all witnesses should be separately and formally interviewed. It is

desirable that interviews with custodians who were on duty during the time of last detention of the person who died should be tape recorded and that transcripts of all interviews be made; • relevant witnesses should be interviewed, not only in relation to

the immediate circumstances of death, but also in relation to the circumstances of detention and the general care, treatment and supervision of the deceased prior to death. Where suicide is a possible cause of death, the inquiry should be extended to the deceased’s family and other witnesses in an endeavour to ascertain suicidal tendencies, suggestions of suicide and/or motive for suicide; • where death occurs in a police cell, prison or juvenile institution,

statements should be taken as soon as possible from all prisoners or persons who were detained or located at or near the scene of death, and all records which might assist in determining the identification and location of prisoners and/or detainees held in

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the institution should be seized and/or copied; and ♦ running sheets and full records of police investigations should be made and retained.

4.2.17 The acknowledgement of the serious nature o f a death in custody and the recognition of the need to assign highly experienced officers to conduct such inquiries will, no doubt, result in an enhanced quality of police investigations. Nonetheless, it is appropriate that Police

Standing Orders or Instructions should give explicit directions for the conduct of all investigations into deaths in custody. Recommendations in relation to the appropriate structure and conduct of such investigations

appear at the end of this chapter.

4.2.18 In many respects the flaws in police investigations may be seen to reflect the problems inherent in police officers conducting investigations into the actions of other police officers. In at least one case considered by the Commission the investigating officer, in effect,

investigated his own actions. In the case of the man who died at Oodnadatta the investigation was conducted by the police officer who was closely involved in the events surrounding the death and was, in fact, the officer responsible for the prisoner. On a certain point there was a flat

contradiction between the officer’s evidence and the evidence of a civilian witness. In the particular circumstances of the case, the contradiction was in the officer’s favour. It may not have been so, in which case the officer may well have been accused of lying. It was aptly submitted by counsel for the Government of South Australia that the person placed at most risk by an investigation being carried out by the officer involved with the detention of the deceased was that officer himself. He should not have

been placed in charge of the investigation, not only as a matter of thoroughness and impartiality, but for his own protection.

4.2.19 As previously noted in relation to the death of Paul Kearney, the investigating officer was the supervising sergeant of the police station at the time of death and a colleague of all the officers involved with the

custody of the deceased. He permitted those officers to prepare their own statements and conducted no formal interviews. The same practice was followed in the investigation of the death of Stanley Gollan. In my report of the inquiry into that death I observed that:

All statements o f police witnesses were prepared by each officer himself. No police witness was independently interviewed. It is essential that police witnesses be independently interviewed in relation to any death in police custody. This is not ju st because the witness may

be influenced by self interest although that in itself is sufficient reason; but the witness m ay have no

knowledge o f issues which may be important to the whole picture and thereby honestly think that it is quite

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irrelevant to mention some matters which are within the witness’s knowledge.3

4.2.20 Even if appropriate investigative procedures are followed by police officers who are personally involved in the arrest, detention or custody of a person who subsequently dies in custody, the credibility and quality of such an investigation is substantially eroded by their intimate

involvement with the matters which are the subject of inquiry.

4.2.21 The mandatory appointment of police officers from an Internal Affairs Unit or from a police command area other than that in which the death occurred, would go some way to ensuring that investigating officers are as independent as possible. Further, selection of the officer in charge of the investigation should be made at the highest level. The practice in the Northern Territory is for either the commissioner of police or his deputy to personally determine the appointment of the senior officer in charge of an investigation into a death in custody. In my opinion, this critical decision

should not be made by an officer below the rank of Assistant

Commissioner.

4.2.22 Nonetheless, the broad decision still remains as to whether Police Services are, in fact, the most appropriate agencies to conduct investigations following a death in custody, particularly police custody. Given the deep distrust, grounded in history, which Aboriginal people feel towards the police (as discussed in Chapter 13) this question is particularly acute in the context o f Aboriginal deaths in custody. It is a question of establishing and maintaining a system which will evoke trust. It is not only a question of justice but of justice being seen to be done.

4.2.23 It has been strongly put to me that where there is a death in police custody it is inappropriate that investigations should be conducted by the police under any circumstances. However, there exist substantial practical difficulties in establishing a system of investigation which

discards entirely the resources of police services and the expertise and forensic capabilities of trained police officers.

4.2.24 In England in 1971, the Broderick Committee Report

recommended that police officers should no longer serve in the capacity of coroner’s officers but should be replaced by civilians. A later report in 1986 on Coroner’s Courts in England and Wales recommended that

coroner’s officers should form a national service independent of the police and all other services. Neither of these recommendations has been adopted in England; however, there is a trend towards police civilian staff rather than police officers being appointed. This strategy seems to

preserve the central role of the police service as the agent of investigation while, at the same time, it forsakes the expertise of operational police officers.

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4.2.25 A num ber of options have been proposed for my

consideration, they include:

• Maintaining the authority of police to investigate deaths in police custody providing that the independence o f the investigator is ensured. It is suggested that investigators be independent of the area where the death occurred and the officers concerned with the

custody of the deceased or the events relating to the circumstances of death.

• The use o f civilian investigators to conduct the w hole

investigation on behalf of the coroner who would be either permanently attached to the coroner’s office or brought in from some other agency as required. • Using police officers who are seconded to the coroner’s office

and who are under the direct supervision and instruction o f the coroner to conduct the full investigation. • Combining the expertise of police officers and the coroner’s officers (either civilian or seconded police officers) so that the

initial investigation is conducted by the police to determine (a) cause of death; and (b) whether the death occurred in circum stances of suspicion. This would be followed by a thorough investigation of the wider peripheral issues associated

with the death (system inadequacies, compliance with Standing Orders, etc.) by the coroner’s officers.

4.2.26 As I will make clear, I favour a structure which incorporates aspects of the first and third of these options: I propose that the police retain the authority to investigate all deaths in custody subject to significant recommendations concerning the framework in which investigations are

conducted.

4.2.27 In structuring an effective and demonstrably fair process of investigation into deaths in custody it is necessary to balance competing interests. A proper balance may be struck only by a consideration of the wider perspective in which the initial police investigation occurs. The

proposal that the police should retain their function in relation to preliminary investigations should be viewed in this wider perspective. The proposal presumes that clear powers to direct the police will be held by the coroner and that a formal, coronial inquest will be mandatory in the

case of every death in custody. This is not generally the case at present. These matters will be addressed in detail later in this chapter.

4.2.28 The essential problem of the expertise of specialist, operational police investigators being employed in post-death investigations derives from the possibility of bias. In blunt terms, they may wish to protect other police from blame. They may wish to protect them from exacting

scrutiny. More subtly, they may sympathetically project themselves into the position of the custodial officers and regard their explanations as

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having a credibility which they do not deserve.

4.2.29 These factors did operate in some of the police inquiries reviewed by this Commission, to produce inadequate or flawed inquiries. The rigorous examination of evidence advanced at the coronial inquest cannot subsequently rectify such inadequacies and flaws. In many respects the quality of coronial inquiries is shaped by the quality of the initial police investigation. Moreover, in some cases there was no

subsequent coronial inquest at all. The police investigation and autopsy were the only forms of inquiry.

4.2.30 If the expertise and resources available through the use of police investigators are to be utilized, then they must be harnessed to some external direction and supervision. In my opinion, immediately upon notification of a death in custody, a coroner should be appointed with overall responsibility for the conduct of all inquiries into the death. That coroner should have the power to direct police investigators and to define the scope of the investigation. To assist the coroner in this task, a solicitor or barrister should also be appointed as soon as practicable, and not later than forty-eight hours after receiving advice of the death. Immediate responsibility for ensuring that a full and adequate inquiry is conducted into the cause and circumstances of death should fall to that legal practitioner, subject to the direction of the coroner.

4.2.31 While police investigators may not immediately welcome such supervision, it is my opinion that, in time, its advantages will be appreciated. The removal of ultimate responsibility for the adequacy of investigations will also remove the prospect of allegations of bias. The broader scope of investigations designed to examine the duty of care owed by custodial authorities and to identify systemic failures are matters in which the advice of a legal practitioner will assist police and enhance the quality of their inquiries.

4.2.32 Coronial supervision with the assistance of a solicitor or barrister will ensure the conduct of a thorough and impartial investigation. However, a further structural safeguard is essential: the mandatory conduct of a public inquest in which the evidence concerning the circumstances of death may be presented and tested. It should be the

responsibility of the appointed legal practitioner, or counsel briefed by that practitioner, to act as the lawyer assisting the coroner upon inquest and to bring forward all relevant material. Provision to guarantee that the family of the deceased have been given every reasonable opportunity to be represented at the inquest should ensure that the product o f the

investigation, primarily carried out by police officers, consists of evidence able to withstand thorough examination in open court.

4.2.33 It is in this context of coronial supervision leading to a

mandatory inquest that, in my opinion, the services of police officers

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should be m aintained for the investigation of all cases of deaths in custody.

4.3 DEPARTMENTAL INVESTIGATIONS

4.3.1 An investigation undertaken by a custodial department or authority is not a formal part of the coronial inquiry but is, nonetheless, an opportunity which presents itself and which many departments adopt as part of their management routine. The purpose of such an investigation is

essentially private to the department involved. It is intended to determine whether all proper procedures have been carried out by departmental employees in accordance w ith relevant rules and regulations. Departmental investigations also have the important potential to examine

the adequacy of custodial systems and procedures and to produce recommendations with a view to preventing similar deaths in the future. This potential was seldom realized in the departmental investigations considered by Commissioners: their quality and usefulness varied

markedly.

4.3.2 As an example, I refer to the deaths which occurred in juvenile detention centres. There were three such deaths. Each death was the subject of at least some form of departmental report; in two cases it was preceded by an investigation.

4.3.3 In the case of Thomas Carr there was no formal investigation of the death conducted by the department responsible for the juvenile centre in which the death occurred. The attitude of the superintendent of the centre was that any investigation would be left to the police and the

coroner. He prepared a report in relation to the matter which he submitted to the department on the same day as the death. No attempt was made to examine the adequacy of the supervision of the deceased, the adequacy of the training of youth workers or the adequacy of procedures that operated

at the time.

4.3.4 There was a significant difference in the response of the

responsible departments in relation to the deaths of Karen O ’Rourke, who died in a fire in her cell, and Michael Gollan, who died by self-inflicted hanging. In relation to Karen O ’Rourke’s death, a principal child-care officer with the Department of C hildren’s Services carried out an

investigation and prepared a report into the death. Shortly after Michael Gollan’s death an investigation was carried out by two senior officers of the Department of Community Welfare. Both departmental reports were thorough and comprehensive.

4.3.5 The inquiry into Michael Gollan’s death was distinguished by its consideration of system ic problem s and proposals for their improvement. Although the findings in the report as to the circumstances

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of death were premature, the conclusions drawn enabled the investigating officers to make recommendations about the systems which may have contributed to the death and preventive measures to avoid similar deaths.

4.3.6 In thirty-three o f the adult deaths inquired into by

Commissioners, the deceased were in prison at the time of, or immediately prior to, death. In very few instances were thorough internal

investigations carried out by the relevant correctional authority. It is particularly disturbing that, w here reports w ere prepared and recommendations made, there was a lack o f effective implementation undertaken by correctional administrators.

4.3.7 Tim Murray died in 1983 as a result o f an excessive, self-

administered dose of anti-depressant drugs which he took while a prisoner at the Berrima Training Centre. The case raised issues concerning the treatm ent and m anagem ent of psychologically disturbed prisoners. Commissioner Wootten in his report of the inquiry into this death was critical of the departmental action taken following the death. No action in fact was taken until after the coronial inquest had concluded. The department’s limited response to issues raised by the circumstances of the death were described by Commissioner Wootten as ‘bandaid’ treatment. At the time of the Commission’s inquiry, some five years after the death, the modification of procedures which had originally been implemented were no longer being followed. Little appears to have been achieved by any departmental action following the death, and it would appear that major issues raised concerning treatment provided to psychologically disturbed prisoners were effectively ignored by the department.

4.3.8 In 1987, following the death of Kingsley Dixon, who was found hanged in his cell where he was confined as a disciplinary measure, the senior investigations officer of the South Australian Department of Correctional Services was instructed to investigate matters recorded by the

manager of the Adelaide Gaol. Those matters included allegations that the deceased had been harassed by prison officers in the circumstances of a strip-search shortly before his confinement and death. While there were found to be many deficiencies in the investigation, the investigating officer did recommend that two prison officers responsible for the strip-search be counselled by the manager of the Adelaide Gaol and that the manager inform staff at the gaol that the allegations of harassment or assault of the deceased were unsubstantiated. Only the second recommendation was put into effect.

4.3.9 In Queensland, following the deaths of Patrick Booth and a non-Aboriginal prisoner at Rockhampton Correctional Centre, a Board of Review was established by the Minister of Corrective and Administrative Services. The board found, amongst other things, that the attitudes and management practices of the centre contributed to the chain of events leading to the two deaths, and that the actions of a particular prison officer

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and his attitude to the Aboriginal inmate played a part in the death. The board stated that their findings needed to be brought to the attention of the particular officer and that the management of the institution needed to work closely with that officer to assist him to improve his capacity to handle

such issues. This, in fact, was not carried out. Commissioner Wyvill, in his R e p o rt o f th e In q u iry into th e D e a th o f P a tric k B o o th , noted that the general manager of the prison’s ‘disregard of the D irector-G eneral’s request that he caution [the prison officer] about his interaction with

Aboriginal prisoners completely undermined the work of the board in a very important respect’.4

4.3.10 Such failures to undertake prompt departmental investigations leading to a consideration o f systemic or underlying issues raised by a death in custody are cause for concern. Failures to effectively implement

remedial measures give rise to even more serious concern. Correctional authorities are extremely well placed to identify and remedy problems within the systems which they administer. Their reluctance and lack of initiative in this regard requires remedy.

4.3.11 A corrective may be found through an expansion and/or increased emphasis on the power o f the coroner to make findings and recommendations specifically addressed to rem edial and preventive measures. Such coronial findings and recom m endations should be

brought to the attention of appropriate authorities. Further, the coroner should also be expressly empowered to subsequently receive a report on the action taken to implement such recommendations. This is a matter to which I will return in Section 4.5 of this chapter where I consider the powers and functions of the coroner.

4.3.12 W hile thorough departm ental investigations are to be

encouraged, it is essential that when such investigations are conducted they should not interfere with the conduct of coronial investigations. Full access to all departmental files and instructions should be available to coronial investigators. As a matter of course, investigating police officers

and the coroner should be provided with copies of any report prepared as a result of a departmental investigation.

4.4 AUTOPSIES (POST-MORTEM EXAMINATIONS)

4.4.1 In all deaths inquired into by Commissioners an autopsy was conducted on the body of the deceased. Professor Stephen Cordner, Director of the Victorian Institute of Forensic Pathology, is an eminent practitioner in his field and one of the specialist forensic pathologists who

reviewed the findings of many of the post-mortem examinations for Commissioners. In his view, the fundamental purpose of an autopsy is to discover and describe all the pathological processes, including injuries,

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found on examination of the deceased. The object of the examination is to enable the pathologist to accurately determine the cause of death, the identification of pathology contributing to death, and to correlate these to > clinical observations made in life. An additional and significant purpose is to contribute to the reconstruction of the events leading to death consistent with findings made on autopsy.

4.4.2 A further major purpose of a forensic autopsy is to record the findings in such a way as to put another pathologist, at a later date, in the same position as the one who conducted the autopsy so that any dispute as to the cause of death may be properly determined. This entails a detailed description and retention of relevant organs and tissue, together with the taking of high quality colour photographs.

4.4.3 The findings on post-mortem examination and the conclusions ■ drawn from those findings are critically important in every death in custody. The examination of the deceased’s body by a pathologist provides important information as to the immediate cause of death. It may also yield some objective basis to test the evidence of witnesses concerning the broader circumstances leading to death.

t

4.4.4 Accordingly, it is essential that the pathologist who conducts the autopsy should pay particular attention to any signs consistent with foul play or ill treatment. It is desirable that there should be an extensive examination for the purposes of establishing whether the deceased has been bruised or man-handled. In cases of hanging, for example, such examinations may go a long way to eliminate any suggestion that the person was forcibly hanged or hanged after being killed in some other way . in order to conceal the original cause of death.

4.4.5 In approaching a post-mortem examination the pathologist should proceed in a completely independent way. To some degree information will be received from police or other sources as to the alleged

or suspected cause and circumstances of death. As a matter of common , sense such information, extraneous to the actual post-mortem examination itself, may assist and direct the pathologist’s attention to certain matters. However, it is most important that the examination is not limited or

confined to such information, from whatever source. It is highly desirable that, wherever it is at all feasible, the person who will conduct the autopsy should attend the scene of death prior to the removal of the body. A thorough forensic examination of the scene should be undertaken by investigating officers and the results promptly made available to the pathologist. The examination of the scene of death should include its depiction by means of high quality colour photographs.

4.4.6 O f the cases investigated by Commissioners, fifty-eight autopsies were carried out by forensic pathologists, seventeen by sessional pathologists and twenty-four by medical practitioners. Overall, the quality

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of the autopsies performed by forensic pathologists was of a high standard. Some criticism was levelled at autopsies performed by sessional pathologists and, in particular, by general medical practitioners. It has been strongly put to me— and I think it is highly desirable— that in the case

of a death in custody the autopsy should be perform ed by a suitably qualified pathologist. In my opinion, it is clearly preferable that all such autopsies be performed by specialist forensic pathologists.

4.4.7 O verall, it was found that in six cases the autopsy was

inadequately performed to the extent of interfering with the inquiry into the death. In Western Australia, all but one of the autopsies were carried out by forensic pathologists and were adequately performed. The exception was a case in which a local general practitioner, rather than one of the

forensic pathologists normally provided, was asked to perform the task. In New South W ales, six autopsies were conducted by general practitioners and in only one report did a Commissioner find the autopsy to be adequate; three others were described as either perfunctory or

inadequate. Those conducted by pathologists were regarded as thorough.

4.4.8 The critical value of a competently conducted autopsy in the context of a death in custody is beyond dispute. If the full value of such examinations is to be obtained, it is the experience of Commissioners that they must be performed by specialist forensic pathologists. W hile the

services of a non-specialist pathologist may yield adequate results, the expectation that a general practitioner is qualified to undertake such exacting work and provide satisfactory and reliable results is both unfair and unfounded.

4.4.9 The distinct value of an experienced pathologist with

specialized knowledge conducting all autopsies in cases of deaths in custody is illustrated in the R e p o rt o f the Inquiry into th e D e a th o f G o rd o n M ic h a e l S em m en s. The pathologist who conducted the initial autopsy found that death was due to a massive sub-arachnoid haemorrhage. He

thought that the bleeding could have been spontaneous without external trauma to the head. He did not find any bruising in the corresponding area of the scalp, and thereby discounted the possibility that death had followed upon traum a to the head. Subsequently, the brain and associated

membranes were sent to a very experienced pathologist who examined the material and decided to conduct a second autopsy. He came to the conclusion that the original findings had been made in error, that the cause of death was a subdural, not sub-arachnoid, haemorrhage. Bruising was

found on the right side of the back of the head which corresponded with, and was interpreted as being associated with, trauma resulting in the bleeding. These findings, based on the second autopsy, supported the view that the cause of death was a subdural haematoma induced by

trauma. This view was subsequently supported by the opinion of three independent specialist pathologists. This inevitably involved the conclusion that the cause of death, as ascribed by the pathologist who

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conducted the first autopsy, was in error.

4.4.10 All autopsies in the Northern Territory were performed satisfactorily. The majority of those were conducted by Dr Kevin Lee, an experienced forensic pathologist who has now left the Territory to work with the Victorian Institute of Forensic Pathology. The Northern Territory Government have submitted that their subsequent endeavours to attract a

suitably qualified, resident forensic pathologist have proved fruitless. The Northern Territory Government also expressed reservation about the cost of flying in a sessional specialist to perform autopsies as required.

4.4.11 I also observe that in Queensland, seventeen out of twenty- seven autopsies were conducted by general practitioners. Undoubtedly, the same geographical, cost and resource factors affect the endeavours of both governments to obtain the services of appropriate personnel. In this context it should be recalled that my recommendation regarding the need

for the services of specialist forensic pathologists is limited to the special circumstances of deaths in custody— which account for less than 1% of all reportable deaths. Aboriginal deaths in custody would comprise only a fraction of this percentage. It is ultimately a matter for State and Territory Governments, but, in my opinion, the special significance of deaths in custody warrant the services of specialist forensic pathologists in all cases.

4.4.12 Consideration has been given to recommending that a protocol regarding the conduct of autopsies in deaths in custody cases should be adopted. It is the opinion of the Royal College of Pathologists of Australasia and Professor Stephen Cordner that such a protocol would not

be practicable, nor would the adoption of the principles which are set out in a report (known as the Minnesota Protocol) referred to the Commission by the N ational Aboriginal and Island Legal Services Secretariat (NAILSS). It may be that a summary of the main features of the forensic pathology investigation would be useful to provide an assurance that at least some basic procedure has been followed and if not, why not. These features are listed in Professor Stephen Cordner’s paper ‘Forensic Pathology Aspects of the Royal Commission into Aboriginal Deaths in Custody’.

4.4.13 Particular considerations attend the conduct of post-mortem examinations on Aboriginal people. It was submitted to me by the Pitjanjatjara Council that some Aboriginal people object on cultural grounds to the conduct of an autopsy. It may be traditional practice that burial take place within a matter of hours of death and any delay may bring on a range of implications. Interference with the body may prevent full burial rites being performed and otherwise cause grief to relatives. Where death has arisen through a violent act and accordingly a criminal offence may have been committed, I am satisfied that Aboriginal people would generally accept that an inquest may be necessary, provided it is done with expedition and due sensitivity.

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4.4.14 It is highly desirable that, as far as possible, no obstacle be placed in the way of carrying out traditional rites and that relatives of a deceased Aboriginal person be spared further grief. However, there are important public policy questions— important both to Aboriginal people as

well as the broader community— which may compel an autopsy to be conducted in some cases, such as those of suspected foul play or cases where there may be concern about the possibility that death was caused by contagious disease.

4.4.15 I therefore recommend that the State Coroner or his deputy consult generally with organizations such as Aboriginal Legal Services and Aboriginal Health Services to develop a protocol for the resolution of questions involving the conduct of inquiries and autopsies, the removal of organs and the removal and return of the body of the deceased. I further recommend that the coroner conducting an inquiry into the death be guided

by the protocol and take account of the wishes of the family.

4.5 CORONIAL INQUIRIES

4.5.1 The term ‘coronial inquiry’ embraces the full range of

examinations undertaken to determine the circumstances and cause of a death in custody. It commences with the preliminary investigation into the death and proceeds through to the conduct of a coronial inquest. I have already considered the conduct of police investigations and referred to the

coroner’s supervisory role which I believe to be a necessary part of a system of coronial inquiry. These factors are necessary if a consistently high standard of investigation is to be achieved which is both thorough and objective and capable of commanding public confidence.

4.5.2 In this section I examine in detail the role of the coroner which is, naturally, central to the coordination of such a system. My primary focus will be on the conduct of coronial inquests; however, as will become apparent, the limitation of the function of the coroner in this role has

produced many of the inadequacies in those coronial inquiries reviewed by Commissioners.

4.5.3 If the full range of issues thrown up by the deaths of

Aboriginal people held in custody are to be met by the Australian system of coronial inquiry, then coroners must be accorded the status and powers to enable comprehensive and coordinated investigations to take place which lead to a mandatory public hearing, productive of findings and

recommendations which seek to prevent future deaths in sim ilar circumstances.

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Ad e q u a c y o f C o r o n ia l In q u e s t s R e v ie w e d by t h e C o m m i s s i o n !

4.5.4 While it is heartening to observe that the standard of coronial inquests into Aboriginal deaths in custody has improved over time, especially after the publication of the In terim R e p o rt, the general quality was immensely varied. Moreover, an examination of individual reports reveals that even in some of the most recent inquests, Commissioners have > found deficiencies which are not acceptable in view of current standards.

4.5.5 In many instances the inquest merely reflected the inadequacies of perfunctory police investigations and did little more than formalize the conclusions of police investigators. Reliance was placed on misleading or inaccurate evidence provided by the police without critical examination, relevant witnesses were not called or, if called, were not asked pertinent questions, the hearings of many inquests were delayed, and further delay attended the delivery of findings.

4.5.6 Commissioner Wyvill’s R e p o rt o f the In qu iry into the D ea th of M u r ie l G w e n d a C a th e r y n B in k s gives a graphic illustration o f the interrelationship between coronial inquests and police investigations. Further, it highlights the present general inability of coroners to control the quality of preliminary investigations which lay the foundation for the

subsequent coronial inquest. Mrs Binks was found drunk in a driveway no more than fifty metres from her residence. She was taken into police custody and charged with being drunk in public. This was the only occasion she was ever arrested for the offence of being drunk in a public place. She died several weeks later in the intensive care unit of the Townsville General Hospital from multiple organ failure as a result of

systemic sepsis, owing, in turn, to pneumonia: she was exhibiting symptoms of grave illness well before she was finally removed from the watch-house to a hospital. In considering the post-death investigations in this case Commissioner Wyvill stated that:

The p o lic e in v e stig a tio n s w h ich f o llo w e d M rs B in k s’ r e m o v a l to h o s p ita l a n d s u b s e q u e n t d e a th w e r e

u n c o o rd in a te d , ta rd y a n d c u rso ry . In th e m a in , th ey

in v o lv e d th e u n in q u isitiv e , m e c h a n ic a l g a th e rin g o f s ta te m e n ts b y a p o te n tia l w itn e ss fr o m th o se h avin g

c u s to d ia l r e s p o n s ib ilitie s to w a rd s M rs B in k s, a t the

d ire c tio n o f th o se h avin g lik e re sp o n sib ilitie s. F e llo w p r is o n e r s in a p o s itio n to g iv e e v id e n c e in re la tio n to

M rs B in k s ’ tim e in c u sto d y w e re n e v e r in te rv ie w e d .

The a sc e rta in in g o f w h e th e r o r n o t a b r e a c h o f the

c rim in a l la w w ith r e s p e c t to the r e s p o n s ib ilitie s o f

cu stodian s had been com m itted, w h eth er existin g w atch- h ouse in stru ction s h a d been a d h e re d to a n d w h eth er, in the lig h t o f ex p erien ce, p ro c e d u ra l reform w a s re q u ire d

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w e re n eith er p a r t o f a n y in v e stig a to r’s brief, n o r his ow n g o a l. F irst-h an d m ed ic a l ev id e n c e concern ing the origin o f M rs B in k s’ co n d itio n , its d u ra tio n a n d th e im p a c t

w h ich h er tim e in c u sto d y m a y h ave h ad on it w a s n ever o b ta in e d , even in the f a c e o f in fo rm a tio n in r e s p e c t o f

h e r c o n d itio n w h ile in c u s to d y w h ich s h o u ld h a ve

c o m p e lle d it.

O v e r 18 m on th s a fte r M rs B in k s ’ d ea th , th e c o ro n ia l

in qu iry into h er d ea th is in co m p lete. It is a p p a re n t fro m the lis t o f w itn e sse s w h o r e m a in e d to be h e a rd th at, a t

le a st a t the tim e o f w ritin g th is re p o rt, it is n o t p r o p o s e d th at the C o ro n e r h ear e v id e n c e fr o m p e rso n s o th e r than p o l ic e o ffic e r s w h o m a y b e a b le to g iv e f ir s t- h a n d

e v id e n c e o f M rs B in k s ’ tim e in c u s to d y . E v e n the

p r o p o s e d list o f p o lic e w itn e sse s ign ores on e o fficer able to g iv e v ita l eviden ce con cern in g her condition.

W hat is esp ecia lly tra g ic a b o u t M rs B inks’ death is th at it o c c u rre d a fter the d e liv e ry o f C o m m issio n er M u ir h e a d ’s In terim R e p o r t a n d a fte r n u m erou s p u b lic iz e d h earin gs o f th e C o m m issio n in th e S ta te a n d e ls e w h e r e in the

C o m m o n w e a lth w h ich h a d h ig h lig h te d d e fic ie n c ie s in e x istin g le g is la tio n a n d c u s to d ia l a n d in v e s tig a to r y

p ro c e d u re s.5

And further:

I t is an in d ictm en t o f o u r p r e s e n t c o ro n ia l sy ste m th a t

o v e r 18 m on th s a fte r M rs B in k s’ d ea th th e in q u iry into her d ea th is in com plete. I th o u g h t the fo llo w in g rem a rk m a d e b y [th e C o r o n e r ] in c o r re s p o n d e n c e w ith the

C om m ission iden tified a m a jo r reason f o r this:

M a g is tr a te s C o u rts c o v e r m an y f a c e ts o f the

la w [ a n d a M a g is tr a te ] is n o t a ffo r d e d th e

o p p o rtu n ity o f c o n c e n tra tin g on o n e s p e c ific area, in this case C o ron ial M atters.

A sid e f r o m o th e r c o ro n ia l fu n c tio n s M a g istra te s in this S tate a re a lso ex-officio M in in g W arden s a n d In d u stria l M a g is tr a te s . I t is n o t u n com m on in c o u n try a r e a s to

h o ld a p p o in tm e n ts su ch a s C h a irm a n o f th e L o c a l

H o sp ita l B oard.

M a g is tr a te s then h a v e m a n y c a lls on th e ir tim e a p a r t

fr o m c o ro n ia l fu n c tio n s. T h is, o f itself, m u st m a k e it

d iffic u lt f o r th em to s u p e r in te n d th e c o u r s e o f an

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in vestig a tio n . T h ere is a r e a l risk that, b e c a u se o f such c o n s tr a in ts, an in a d e q u a te p o lic e in v e s tig a tio n can

a ch ieve an au ra o f re sp e c ta b ility b eca u se it is nom in ally under coron ial su perin ten den ce,6

4.5.7 If coroners are to properly be held accountable for the standard of the inquests over which they preside, they must be in a position to ensure that the police investigations on which they are based are of a satisfactory quality and are promptly completed. In some instances, even

where there was some opportunity to have input into the police investigation, the coroner lacked the resources, legal power and status to do so effectively.

4.5.8 A major characteristic of the coronial inquests reviewed was their narrow focus. In this respect they, once again, reflected the approach of police investigators. A finding that there were no suspicious circumstances was usually taken to exhaust the purpose of the inquest. The examination of wider issues was rarely seen as relevant. The lack of inquiry into systems issues such as custodial practices and procedures, hospital and emergency procedures, resulted in a lack of findings or recommendations designed to rectify failures in these systems.

4.5.9 The nature of these inadequacies demonstrates the way in which various aspects of coronial inquiries are intimately related. The quality of inquests cannot be improved without establishing an integrated system with clear lines of responsibility flowing from the pivotal position of the coroner. The further inquiries undertaken by this Commission have only served to reinforce the view expressed in the Commission’s In terim R e p o rt:

T h e v a lu e o f th e C o r o n e r ’s r o le m u s t n o w b e

re c o g n ize d , the re sp o n sib ilitie s o f th a t o ffice re q u ire recogn ition o f the C o ro n e r’s true status, the p ro v isio n o f a d e q u a te a n d c o -o r d in a te d fa c ilitie s . In m y v ie w , the C o ro n e r sh o u ld b e th e p e r so n b a s ic a lly in c h a rg e o f

in vestig a tio n o f d ea th s w ith in his o r h er ju risd ic tio n an d th ose re sp o n sib ilitie s sh o u ld be reco g n ize d . T he term s a n d c o n d itio n s a tta c h in g to S e n io r C o r o n e r o r S ta te

C o ro n e r’s O ffice sh ou ld certain ly not b e less than th at o f a J u d g e o f a D is tr ic t o r C o u n ty C o u rt. T h e O ffice

r e p r e s e n ts th e o n ly trib u n a l w h ich ca n in v e s tig a te

c ircu m sta n ces f a ir ly a n d qu ickly, b efo re m em o rie s f a d e o r p e r h a p s b e fo re re co n stru c tio n ra th e r than m em o ry influence the m in ds o f w itn esses.

This passage directly raises the issue of the appropriate status and qualifications required of coroners.

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Status and Q u a l if i c a t io n s o f C o r o n e r s

4.5.10 The States of Victoria, New South Wales and South Australia go some way to recognizing the principle advanced by Commissioner Muirhead: the State and Deputy Coroner must be either a county court judge, a magistrate or barrister or solicitor. The remaining States and

Territories have no central position of State Coroner, although the establishment of such positions has been recommended in W estern Australia and Queensland.

4.5.11 The appointment of State and Deputy Coroners offers the greatest opportunity of developing a source of thorough expertise and competence in the conduct of coronial investigations. However, even in States where these offices exist there remain coroners who are not required to possess what must be considered as the bare minimum requirement of

legal qualification. It is only in Victoria and the Northern Territory that all coroners must hold this basic qualification. In New South W ales, Tasmania, South Australia and Queensland there remain provisions for the appointment of ‘fit and proper persons’, ‘fit persons’, ‘justices of the

peace and other persons’, persons the Governor ‘thinks fit’, clerks of court and ‘any person’ nominated by the Governor.

4.5.12 In W estern Australia, it appears that no appointment o f a person who the governor thinks fit has been made and all currently appointed stipendiary magistrates (who are also coroners) hold legal qualifications with at least five years of practice; there nevertheless remain

previously appointed stipendiary magistrates/coroners who hold no such qualification. In South Australia, legally unqualified coroners are prohibited from conducting inquests without express authority, their role being largely administrative— to complete documentation relating to death

and to determine whether an inquest should be held. O f its nature such a decision is of great importance, and in the case o f Malcolm Buzzacott, who died in Port Augusta Gaol in 1982, such a coroner (a justice of the peace) wrongly determined that an inquest should not be held. His

decision was subsequently overturned by the State Coroner. At the time, it was mandatory for an inquest into a death in a prison to be held.

4.5.13 This review of the various requirements for appointment as coroner reflects a great disparity between the various States and the Northern Territory. The status of the office is clearly in flux with a movement towards recognition of its significance, and the need for sound

legal training and experience to perform it. In my opinion, immediate action is required to ensure that the office of coroner should only be conferred on persons who are legally qualified stipendiary magistrates or more senior judicial officers. The necessity for this as a minimum

standard is revealed by the bare fact that certain inquests into Aboriginal deaths in custody reviewed by this Commission were actually performed

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by clerks of courts without any formal legal training. Even if such officers were competent to conduct adequate inquests, their very position may be seen to undermine public confidence, and particularly the confidence of the Aboriginal community, that a rigorous and impartial inquiry had been conducted.

4.5.14 In at least two of the deaths in Queensland the coroner who conducted at least part of the inquest, and handed down findings, was a clerk of courts.7 Commissioner Wyvill was particularly critical of the inadequacy of the coroner’s findings in relation to one of these deaths, that of Eddie W est who was found hanged by a pair of football socks in the C herbourg w atch-house in 1987. The clerk of courts who made the findings regarding the circumstances of death did not address serious allegations made against members of the Aboriginal police. His findings consisted of two sentences: despite public anxiety expressed in the media and elsewhere concerning the death, no reasons for the findings were given.

4.5.15 In at least four of the deaths in New South Wales the inquest was conducted by a coroner who was a clerk of courts.8 One such case was that o f Mark Revell. The coroner who conducted the inquest was a clerk of court o f many years standing, but with no training or

qualifications for the task. In his report of inquiry into M ark’s death, Commissioner Wootten discussed the problems associated with the clerk of courts conducting the coronial inquest. He commented on the coroner’s lack of status to deal with the police, his lack of qualifications and training and, in particular, his close relationship with the police. Commissioner Wootten commented:

[I] t is o b v io u s th a t [th e in v e stig a tin g o ffic e r ] sim p ly

ig n o red the coron er a n d c a rrie d ou t the ‘in vestig a tio n ’ in a d ila to r y m anner, a n d a llo w e d the m a tte r to co m e on w h en it s u ite d h im . T h e re is no q u e s tio n o f [th e

C o ro n e r’s ] in tegrity, it is sim p ly th at he la ck ed the statu s to d e a l w ith the p o lic e . The situ ation is the en d p r o d u c t o f a system w hich left c o ro n ia l m atters, in clu din g death s in c u sto d y , to b e d e a lt w ith b y the C le rk o f th e C ou rt,

w h o h ad no train in g a n d no stan ding. H e h a d to typ e up his o w n tr a n s c r ip t o f p r o c e e d in g s , a r o le lik e ly to

en h an ce n eith er his d ig n ity n ot his a b ility to p r o b e the e v id en ce in a c ritic a l w ay, b u t con sisten t w ith the rea lity o f th e situ a tio n — th e m a k in g o f a f o r m a l r e c o r d to

ru b ber-stam p the p o lic e in vestigation . M o re o v e r he w as a p e r s o n w h o o v e r m a n y y e a r s h a d h a d c lo se c o n ta ct

w ith th e G ra fto n p o lic e , w h o w e re in th e a d jo in in g

b u ild in g a n d h a d co n tin u o u s b u sin e ss in th e c o u rt o f

w h ich he w as clerk. H e h a d a ‘p r a c tic e o f g o in g to se e

the o ffic e r in ch a rg e o f a m a tte r ’ to d isc u ss d a te s. H e

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k n ew th e th ree c o n sta b le s d ir e c tly in v o lv e d in M a r k ’s c u sto d y—7 h a d f o r m e d th e o p in io n s th a t th e y w e re

p e r s o n s o f in te g rity . I h a d no d o u b ts in th a t r e g a r d ’.

Irre sp e c tiv e o f his h on esty, w h ich w a s n ot q u e stio n e d , a p e rso n w ith his q u alification s, stan din g a n d rela tio n sh ip w ith th e p o lic e w a s n o t in a p o s itio n to c o n d u c t an

in q u iry in to a d e a th in p o l ic e c u sto d y w h ic h w o u ld

c o m m a n d p u b lic c o n fid e n c e , a n d in p a r tic u la r th e

c o n f id e n c e o f th e r e l a t i v e s a n d th e A b o r ig in a l

co m m u n ity.9

Such a coroner is put in the untenable position o f being expected to conduct a thorough, competent and impartial inquiry for which he is ill equipped by virtue of his background and position. Commissioner Wootten noted that such officers should not exercise any judicial or quasi­ judicial coronial functions. I respectfully endorse that view.

Le g is l a t iv e and P r o c e d u r a l St r u c t u r e s

4.5.16 Each State and Territory operates under its own Coroner’s Act. There are considerable differences both in legislative provisions and procedural matters. These differences will be examined in more detail below but they relate to all aspects o f coronial inquiries, including the

structure and administration of the coronial system, the qualifications and status of coroners, the circumstances in which inquests are required, the relationship of coroners to police investigators and pathologists, the powers of the coroner in relation to coronial investigations, the resources

available to the coroner, the rights of the family of the deceased in relation to coronial inquiries and the requirements of the coroner to make findings and recommendations. While in several jurisdictions coroners retain the powers of coroners pursuant to the common law, the Coroner’s Act in

each jurisdiction effectively codifies the powers and functions of the position.

Structure and Administration of Coronial Systems

4.5.17 As is apparent from the preceding consideration of the status and qualifications required of coroners, there are basically two types of coronial systems in Australia. Victoria, New South W ales and South Australia have a centrally administered coronial service under the control

of a State Coroner. Western Australia, Tasmania, Queensland and the Northern Territory have decentralized systems. Although it is useful to distinguish generally between centralized and decentralized systems, there is, in fact, a great deal of variation in the manner in which each system

operates within the various jurisdictions.

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4.5.18 The Victorian coronial system is widely regarded as the most innovative and efficient within Australia. It was specifically recommended in the In terim R ep o rt, that it ‘be examined as providing a model which can be adapted where geographic considerations so require’.10

4.5.19 The Victorian system was established in 1985 pursuant to the C o r o n e r ’s A c t 1 9 8 5 . It was a radical departure from the previous fragmented system. The Act establishes a coordinated Coronial Service and an integrated Coronial Services Centre which houses the State Coroner’s office and the Victorian Institute of Forensic Pathology. There is a close relationship between the two bodies. The State Coroner is a member of the Council o f the Institute and has the power to direct its functions. I have been advised that the Coronial Service Centre is open and functions twenty-four hours every day and the coroner, coroner’s clerk, pathologists and support staff are always available. The State

Coroner and other coroners have jurisdiction to investigate reportable deaths and there is a statutory power in the State Coroner to give other coroners directions about the preliminary investigation into a death and the

manner of conducting it. The State Coroner holds no specific power to direct other coroners in respect of their conduct of inquests. The State Coroner is ultimately responsible for the investigation of all deaths in

Victoria.11

4.5.20 Since the commencement of this Commission the New South Wales C o r o n e r ’s A c t has been amended to create the offices of State Coroner and Deputy State Coroner. The State Coroner has the function of overseeing and coordinating the coronial system in New South Wales. That function includes ensuring that all deaths in which a coroner has jurisdiction to hold an inquiry are properly investigated, ensuring that an

inquiry and inquest are held whenever they are required to be held and issuing guidelines to coroners to assist them in the performance of their functions.

4.5.21 In New South Wales there is no coronial service as in Victoria. The responsibility for the various parts of the coronial system remain divided betw een the A ttorney-G eneral’s D epartm ent, the Health Department and the Police Department. The State Coroner does not control the management resources relating to the various aspects of an inquiry— such as police investigations, forensic science services and the

briefing of counsel to assist the coroner at an inquest.

4.5.22 In New South Wales all deaths must now be reported to the State Coroner. It is that officer who determines whether to assume jurisdiction having regard to the nature of the case, circumstances of death and whether or not an inquest is required to be held. Although the

establishment of a State Coroner overcomes some of the problems that existed under the previous decentralized system, clerk of courts still act as coroners and hold the power to carry out judicial functions in the conduct

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4 The A dequacy of Previous Investigations

of inquests. I have already observed the draw backs of such an

arrangement.

4.5.23 The New South W ales State Coroner has the power to give directions to a member of the police, who has informed the coroner of a death, concerning investigations regarding that death. A specific Coronial Investigation Unit comprised of police officers has been established, and

the State Coroner, Mr Kevin Waller, describes that unit’s role as receiving notification of a death, advising the State Coroner, travelling to the area of the death and overseeing police investigations. The level of involvement of the unit varies from a mere contact role if all is proceeding satisfactorily

to ‘playing a part’ if the investigation is not proceeding well.12 The power of the State Coroner to effectively direct police investigations through this unit would appear to be left in an ambiguous state.

4.5.24 Tasmania has a regional coronial service, but I am informed that the Tasmanian Government has determined to adopt the Victorian system as a model and a plan is currently being developed to implement a coordinated State system.

4.5.25 The South Australian legislation establishes a three-tiered system comprising of a State Coroner, Deputy State Coroner and other coroners, the majority of whom are justices of the peace. The State Coroner holds jurisdiction to enquire into all coronial matters arising

within South Australia. Reports o f all matters falling within that jurisdiction are received on a 24-hour basis. The State Coroner also holds power to review all coronial investigations and to determine the need for an inquest. Any decision by a local coroner that an inquest is unnecessary

is reviewed by the State Coroner. As a matter of practice, the majority of inquests are personally conducted by the State Coroner. The coroner’s squad, which consists of a group of nine police personnel, is permanently attached to the office of the State Coroner. They serve in an administrative

capacity with a minor investigatory role. These officers are responsible, in a formal sense, to the commissioner of police, however, they take their day-to-day instructions from the State Coroner. Once again, it may be observed that the ultimate power of the State Coroner to direct police regarding the conduct of investigations is not achieved through such an

arrangement.

4.5.26 The prevalence of unqualified justices of the peace acting as local or country coroners in South Australia is a similarly unsatisfactory arrangement. Apart from recommending whether or not an inquest should be held, their duties include the preparation of documents and liaison with

investigating police. I was informed during my inquiries in South Australia that it was not unusual for such local and country coroners to rely heavily upon the local police to provide instruction in relation to coronial matters. While the State Coroner reviews determinations by local

coroners regarding inquests, that review must necessarily be substantially

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The A dequacy of Previous Investigations 4

influenced by the detail and quality of the documentation provided in relation to each case. The lack of training, independence and power of such local coroners reduces in a most substantial way the potential of this office to control or contribute to the quality of coronial inquiries.

4.5.27 Although the South Australian State Coroner has a close working relationship with the forensic pathologists at the State Forensic Science Centre, he has no power of direction in relation to the centre or any control over its resources. The State Forensic Science Centre and the Forensic Science Advisory Committee have no statutory basis: the

suggestion that a relationship, similar to that between the State Coroner and the Victorian Institute o f Forensic Science, should be created by legislation is resisted by the State Forensic Science Centre.13

4.5.28 The Northern Territory has a decentralized coronial system. Coronial functions are perform ed by the chief m agistrate and all stipendiary magistrates who are coroners by virtue of their office as magistrates. Two police officers are designated coroner’s constables and are individually located in Darwin and A lice Springs to provide adm inistrative support in liaison between all coroner’s and police investigators. The coroner has no power to direct police regarding investigations: his/her suggestions are thoughtfully received. Forensic pathology services reside within the control of the Department o f Health

and Community Services.

4.5.29 In the hearing on coronial issues conducted before

Commissioner Wyvill, Counsel Assisting the Commission in the Northern Territoiy suggested that, because of the size of the Northern Territory and its relatively sm all population, a centralized system w ould be

impracticable. That position was supported by counsel for the Northern Territory G overnment. Subm issions received from the Katherine Regional Aboriginal Legal Aid Service (KRALAS) and their senior

solicitor advocated the creation of a centralized coronial system headed by a Chief Coroner who would have control over all investigations into deaths. Advice has been received that the Northern Territory Government propose to establish a permanent position of coroner and that stipendiary magistrates will serve in that position on annual rotation.

4.5.30 In Western Australia there is currently a regional coronial system in which a stipendiary magistrate, located in Perth, performs the duties of a coroner on a full-tim e basis. Each resident stipendiary magistrate in country areas is responsible for the investigation of reported deaths within his or her own districts. These country magistrates perform their coronial duties in addition to their normal work in the courts of petty sessions and local courts.

4.5.31 It is apparent that the current system in W estern Australia is disorganized, and the various stipendiary m agistrates have different

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4 The A dequacy of P revious Investigations

approaches to their coronial duties. Mr McCann, the coroner located in Perth who is exclusively occupied in the role o f coroner, drew the Commission’s attention to the difficulties which exist under the present administrative arrangement. In an inquest into the death of Michael Tan

(not a death investigated by this Commission), Mr McCann stated:

U n fo r tu n a te ly f o r th e c o r o n ia l s y s te m , w h ile th e

C o r o n e r ’s A c t is th e r e s p o n s ib ility o f a p a r tic u la r

M in ister a n d the a d m in istra tio n o f the C o ro n e r’s system is n o m in a lly u n d e r th e c h a r g e o f th e C r o w n L a w

D e p a rtm e n t, the re a lity o f the o p era tio n o f th a t system is th at it is beh olden to oth er G overn m en t D epartm en ts.

W hile the C o ro n er has the statu tory resp o n sib ility f o r the in v e s tig a tio n o f d e a th s a n d f ir e s w h ich a r e r e p o r te d

p u rsu a n t to the sta tu to ry o b lig a tio n , o r convention, to do so, the m ean s o f fu lfillin g th a t sta tu to ry r e sp o n sib ility is n o t in the han ds, o r u n d er th e co n tro l, o f th e C o ro n e r. T he C o ro n e r is d e p e n d e n t upon the H ea lth D e p a rtm e n t

to p r o v id e fo re n s ic p a th o lo g ists, tech n ician s, la b o ra to ry s ta f f a n d a M o rtu a ry , is d e p e n d e n t u p o n th e P o lic e

D e p a r tm e n t to p r o v id e in v e s tig a to r s o f th e f a c t s , is

d e p e n d e n t upon the M in es D e p a r tm e n t to p r o v id e the fa c ilitie s f o r toxicological analyses.

The C o ro n e r in P erth is d ep en d en t upon the C ro w n L a w D e p a rtm e n t to p r o v id e staff, o fficers a n d eq u ip m en t, to s u p p o r t th e d a y -to -d a y w o rk o f th e C o ro n e r. In the

cou n try, R e sid en t M a g istra te s a re c a lle d on to c a rry o u t th e d u tie s o f a p a r t-tim e C o ro n e r. T h e ir im m e d ia te

s u p p o r t s ta f f a r e th e M a g is tr a te s ’ C o u r t sta ff, w h o

a lrea d y have their ordin ary du ties to p e rfo rm ,14

Further:

It is difficu lt to im agin e h ow a sy ste m c o u ld b e re n d e re d m o re inefficient, even b y d e lib e ra te act, than the p r e se n t p o s itio n w h e re , in r e s p e c t o f th e P e rth C o ro n e r, the

C o u rt a n d C o u rt offices a re se p a ra te ly lo c a te d f r o m the fo r e n s ic p a th o lo g is t a n d the S ta te M o rtu a ry, w h o a re in tu rn s e p a r a te d f r o m th e p r in c ip a l p o l i c e o ffic e r s

re sp o n sib le f o r in vestigation s, w h o a re in turn s e p a ra te d f r o m th e ch em ists in v o lv e d in to x ic o lo g ic a l a n a ly se s. E ven the sh arin g o f c le rica l officers an d office m ach in es w o u ld p r o v id e so m e sa v in g s.15

4.5.32 An Ad Hoc Committee for the Review of the Coroner’s Act, established by the Western Australian Government, has recommended that

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The A dequacy of Previous Investigations 4

the present system be abandoned and that a central coronial system be established which would provide for the office o f a State Coroner who would bear the overall responsibility for the investigations o f deaths in the State. The Ad Hoc Committee regarded the current Victorian legislation as providing a suitable framework for changes in W estern Australia. It has

been suggested that new systems should also provide for a Deputy State Coroner and that, given the size and population distribution within W estern Australia, stipendiary magistrates should have the powers of coroners acting under the guidance of the State Coroner. Commissioner O ’Dea has indicated his support for the establishment o f such a coronial

system in Western Australia,16

4.5.33 In some respects the Queensland coronial system is similar to that in Western Australia. The C o ro n e r’s A c t in Queensland provides that resident magistrates should be ex-officio coroners and the coronial system has com e to rely on resident stipendiary magistrates organized on a regional basis. Throughout Queensland, stipendiary magistrates are

responsible for the investigation of deaths reported to them within their own districts. Such coronial functions are performed in addition to their normal duties in the M agistrate’s Court. In Brisbane, a stipendiary magistrate performs coronial duties on a full-time basis.

4.5.34 The Queensland coronial system also relies upon the use of clerks o f courts who are coroners by virtue o f their office. Such coroners exercise quasi-judicial or judicial powers in determining whether or not an inquest should be held and, if necessary, in conducting the inquest. As

has been observed above, in several deaths investigated by this Commission, the use o f clerks of courts as coroners was found to be an unsatisfactory arrangement.

4.5.35 Further, there is a practice which currently operates in

Queensland to adjourn inquests from place to place, with a different coroner presiding at each hearing. This practice was established to accommodate the witnesses who were located in different places, Eleven of the cases investigated by Commissioner Wyvill in Queensland involved more than one coroner presiding over the case.

4.5.36 A review o f Q ueensland’s coronial inquest system was conducted in 1990 by the Department o f Justice, It was recommended that a State C oroner's office should be established with the appointment of a State Coroner and Deputy State Coroner to supplement the regional system o f ex-officio coroners. It was also recommended that specific stipendiary

magistrates should be appointed as the coroner for specific regions determined by the State Coroner: such coroners would be required to carry out the directions o f the State Coroner and would be responsible and accountable for all coronial inquiries in their regions. It was further

suggested that the system of adjourning inquests from place to place be abandoned and that all witnesses should be required to attend at the place

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of inquest.

4.5.37 In nay view a central position of State Coroner is prerequisite to the development o f a coordinated and consistent approach to coronial investigations. It is appropriate that such an office should exist in all jurisdictions. It is clearly not necessary for a State Coroner to conduct all

investigations at inquests, but he/she should have a general responsibility for inquiries into all deaths in custody.

4.5.38 Such an officer is well placed to develop a protocol for the guidance of coroners directly in charge of inquiries. The development of a protocol exemplifies the value o f a central position which is able to accumulate information and distil the experience gained in individual

inquiries. At present many coronial investigations and inquests reflect the merely a d h o c and individual approach of coroners whose primary work and expertise lies elsewhere. Another function of a central coroner’s office headed by a State Coroner should be the establishm ent and

maintenance of a uniform data base relating to Aboriginal and non­ Aboriginal deaths in custody. I am conscious that in recommending the creation of the position o f State Coroner throughout Australia that in jurisdictions, such as the Northern Territory, the magistrate who occupies

this position may not do so on a full-time basis; nonetheless, a single judicial officer should be appointed to carry out this essential role.

C o r o n i a l j u r i s d i c t i o n a n d I n q u e s t s

4.5.39 In all States and the Northern Territory the Coroner’s Acts expressly confers jurisdiction in relation to deaths in custody. There is some variation in the definition of the custodial setting which is required to attract jurisdiction;

* death occurred or cause of death arose while person detained in custody pursuant to any Act or law (South Australia, section 12); * death of a person who immediately before death was a ‘person held in care’ (Victoria, sections 3,13);

* person died whilst inmate of admission centre or mental hospital, or in custody in a prison or lockup or died while in the custody of a member of the Police Force (New South Wales, section 13); * died in prison or while detained in any hospital for the insane

(Western Australia, section 6); * died in children’s home or child-care centre, prison or police prison, juvenile detention centre, custody of a member of the Police Force (Northern Territory, section 10); and

* person died w hile detained in prison or mental hospital

(Queensland, section 7; Tasmania, section 7).

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4.5.40 In considering the appropriate ambit o f the term ‘deaths in custody’ it is useful to examine the reasons why such a category of deaths warrants particular attention and should, accordingly, attract coronial jurisdiction.

4.5.41 The Victorian definition is distinguished by the fact that it does not, primarily, refer to the physical location of death. It employs a general concept that a coronial inquiry is required where the deceased was a ‘person held in care’. This criterion acknowledges the fact that a person

held in care by a State agency is owed a special obligation. A duty of care arises where public authority has been exercised to assume control over a person’s life. Not only are persons in custody deprived of their liberty, they are deprived o f the ability and resources to care for themselves. Where death ensues it is a matter of great public importance that the circumstances of death should be thoroughly reviewed to ensure this duty of care has been adequately discharged.

4.5.42 Moreover, this rationale is not ultimately dependent on the place where death occurs: nor is it limited to circumstances where a person is actually confined or held in custody. In the ultimate analysis the proper

performance of the duty of care turns on the exercise of powers held by custodial officers.

4.5.43 The essential quality which attracts the public interest in reviewing the circumstances of death is the exercise of powers conferred on officers entrusted with a public duty. Such powers may, or may not, be used to ensure that prompt medical attention is provided to a sick

prisoner. The exercise o f such powers may also manifest as the use of fatal force to effect an arrest. In both cases, it is imperative to review the use of powers conferred by the State to ensure that they have been exercised in a reasonable, justifiable way and have not been abused.

4.5.44 When considered in this perspective, coronial jurisdiction to inquire into the circumstances o f the death should not be confined to situations where the deceased has actually been taken into custody. The use of the powers, conferred on police and prison officers to take or hold a person in custody, may result in the death of that person outside of custody. The use of firearms in an attempt to prevent the escape of a prisoner may not actually prevent the prisoner’s escape from lawful custody, however, it may result in his/her subsequent death. The death may occur at some distant place.

4.5.45 Coronial jurisdiction relating to the category generally referred to as ‘deaths in custody’ should not depend on the accidental circumstance of where a person eventually dies. Jurisdictional arguments as to whether a person was in, out or in the process of being taken into custody are

sterile if they may serve to defeat the public interest in a thorough coronial inquiry. As a matter of elementary principle there is a need to review the

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4 The A dequacy of Previous Investigations

use of the exceptional powers conferred on police, prison officers and juvenile custodians for the purpose of performing their public duties. This principle should guide the definition of coronial jurisdiction. Accordingly,

it is recommended that the definition o f ‘deaths in custody’ should include at least the following categories:

• the death wherever occurring of a person who is in prison

custody or police custody or detention as a juvenile; • the death wherever occurring of a person whose death is caused or contributed to by traumatic injuries sustained or by lack of proper care whilst in custody; • the death wherever occurring of a person who dies or is fatally

injured in the process of police or prison officers attempting to detain that person; and • the death wherever occurring of a person who dies or is fatally injured in the process of that person escaping or attempting to

escape from prison custody or police custody or juvenile detention.

4.5.46 A review of the cases considered by Commissioners discloses that in twelve of the ninety-nine deaths no inquest was held. Ten of those deaths occurred within the period of 1980-85, which suggests that there is a growing appreciation of the need for an inquest into all deaths in

custody. Commissioners have generally not been critical of decisions by individual coroners not to hold an inquest, taking into account the practices that prevailed at the time, including the narrow focus of many coronial inquiries which concentrated on determining whether there were any

suspicious circumstances. However, a consideration of the reasons typically advanced for declining to hold a formal hearing will serve to demonstrate why inquests should be mandatory and why a thorough inquest should include consideration of the issue of the duty of care owed

by custodial authorities.

4.5.47 O f the twelve deaths in which no inquest was held, four

occurred in Western Australia, six in Queensland and one each in the Northern Territory and South Australia. In the first three jurisdictions a coronial inquest is not mandatory. In South Australia an inquest is generally required, but in the particular case of the death of Gordon

Semmens the coroner was precluded from holding an inquest through the operation of section 26 of the C o r o n e r ’s A ct. This section provides that a coroner shall not proceed with an inquest where a person has been charged with a criminal offence, unless directed to do so by the Attorney-General. In the circumstances of the death of Gordon Semmens, a person had been

charged with manslaughter. The Attorney-General gave no direction to the coroner.

4.5.48 The Queensland C o ro n e r’s A c t provides for the holding of an inquest where a death occurs in custody, unless the coroner is satisfied

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T he A dequacy o f Previous Investigations 4

that the death was owing to natural causes and did not occur in such circum stances to require the holding of an inquest, or that no good purpose would be served by holding an inquest. In five of the six cases in which no inquest was held death was by natural causes. Generally, the reasons offered for not holding an inquest were that the deceased died of

natural causes, there were no suspicious circumstances, the death did not occur in such a place or in such circumstances as to require the holding of an inquest, and there was no request by the family of the deceased to hold an inquest. In the five Western Australian and Northern Territory cases,

similar provisions applied and similar reasons were advanced. It is useful to examine the circumstances of death in a particular case where such reasons were relied on by the coroner.

4.5.49 In the case of the young man who died at Elliott on 21 March 1985, the coroner dispensed with an inquest pursuant to section 12 of the C o r o n e r ’s A c t (Northern Territory) on the basis that the post-mortem report found that death was owing to cardiomyopathy; there were no

suspicious circumstances and the death was owing to natural causes. The young man died following a fight with another Aboriginal man who was also detained in the Elliott Police Cells. The factual basis regarding the immediate cause of death, vital to the coroner’s decision, was probably proved correct. However, it was the subject of divergent medical opinion on inquiry by the Commission. The balance of expert medical opinion disclosed no clear causal connection between the fight and the death. The deceased had a history of chronic hypertension.

4.5.50 H ow ever, while no issue o f foul play in the sense o f

intentional homicide was in question, death did occur in a police cell in a violent context, and raised extremely important issues regarding the duty of care owed to prisoners and detainees by police custodial authorities. These underlying issues were not canvassed until the C om m ission’s inquiry five years after the death: they concerned matters such as the

appalling conditions of the old Elliott Police Cells, separation o f persons held in those cells, the inability o f those persons to summons help from custodians in the event of an emergency, the inadequacy of police first aid training, and, in particular, techniques of resuscitation. They were all issues with significant implications for the safety of the many Aboriginal people who were detained in these cells. The thorough, public exploration of the circumstances of death would certainly have been valuable.

4.5.51 In the report o f his inquiry into this case, Commissioner

O ’Dea stated that:

A su d d e n d e a th in p o lic e c e lls, fo llo w in g a fig h t, is an

e v e n t w h ic h d e m a n d s a p r o p e r l y c o n d u c te d p u b lic

in qu iry. A p a r t fr o m o th e r co n sid e ra tio n s, it a ffe c ts the p u b lic con fiden ce in the open a n d thorough exam in ation o f d e a th s w h ich o c c u r in c u s to d y , a n d , a s C o u n se l

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4 The A dequacy o f P revious Investigations

A ssistin g th e C o m m issio n p o in te d ou t, i t a m o u n ts to a m a tte r o f ju s tic e bein g seen to b e don e.

In this c a s e a s is te r o f th e d e c e a s e d la m en ted th a t n o-one h a d e v e r sp o k en to th e f a m ily a b o u t th e d e a th , a n d no-

o n e to ld th em h o w th e d e c e a s e d h a d d ie d . S e r g e a n t

F re w s a id th a t he w a s n o t a w a r e th a t a C o ro n ia l In qu iry h a d n o t b e e n c o n d u c te d u n til s h o r tly b e fo r e h e g a v e

e v id e n c e to th is C o m m issio n , H e to ld th e C o m m issio n th a t he h a d e x p e c te d th a t th ere w o u ld b e an in qu est. H e s a id th a t he w o u ld h a ve h a d an in te re st in th e outcom e.

D r L e e (th e f o r e n s ic p a t h o lo g is t w h o c o n d u c te d the

a u to p s y ) th o u g h t th a t n o rm a lly in a c a s e su c h a s th is

th ere w o u ld h ave b een a C o ro n ia l Inquiry. H e sa id :

T h e k n o w n a d v a n ta g e o f th e C o r o n ia l

In q u iry f r o m m y p o i n t o f v ie w is th a t it

o b v io u s ly w o u ld a llo w m e to b e p r e s e n te d

w ith a ll o f th e in fo rm a tio n th a t c o u ld b e p u t in f r o n t o f th e C o ro n e r. In o th e r w o rd s, a

c o m p le te in v estig a tio n , n o t lackin g in a n y o f th e d e ta ils w h ich I w o u ld th en b e a b le to

c o n s id e r a t le is u r e a n d c o m m e n t to th e

C o r o n e r a b o u t. S in c e in s o m a n y o f th e se

c a s e s th e re a r e p e o p le fr o m a n u m b e r o f

d iffe re n t s o u rc e s w h o h a ve an in te r e s t in th e c a s e th is w o u ld s e e m to b e a f a i r l y

stra ig h tfo rw a rd w a y o f g o in g a b o u t it.

D r L e e n o te d th a t th e re h a d b e e n o c c a sio n s in th e p a s t

w h en he h a d c h a n g e d h is o p in io n a t th e tim e o f th e

C o r o n ia l H ea rin g , o n th e b a sis o f in fo rm a tio n th a t w a s a v a ila b le th en , th a t h e h a d p r e v io u s ly k n o w n n oth in g a b o u t,11

4.5.52 The latter point raised by D r Lee is a highly significant matter. In many o f the W estern Australian and Queensland cases in which no inquest was held, the police investigations into the deaths were inadequate (either because they were lacking in objectivity or rigor or) and, therefore,

the inform ation on which the coroners exercised their discretion to dispense with an inquest was often inadequate.

4.5.53 Commissioner O ’Dea also noted in his R e g io n a l R e p o r t o f Inquiry in to In d ivid u a l D ea th s in C u sto d y in W estern A u stra lia that he was o f the view that in each o f the cases where an inquest was not held, one should have been held. He said:

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The A dequacy of Previous Investigations 4

T h a t th e a d d itio n a l in fo rm a tio n a n d issu e s th a t c o u ld h a v e b e e n p u r s u e d in th a t fo r u m w o u ld h a v e b e e n

re le v a n t to u n derstan din g the ca u ses a n d circu m sta n ces o f the death a n d p re ve n tio n o f such death s in the fu tu re.

4.5.54 Even if improvements to the investigative stage of coronial inquiries results in coroners being presented w ith apparently

comprehensive and conclusive evidence pertaining to the circumstances of death, including a consideration of custodial systems and procedures for the care of detainees, there exist sound reasons in principle for the holding of an inquest in every case.

4.5.55 As Commissioner Wootten has expressed it, an inquest must be held when a death in custody occurs ‘so there can be no opportunity for suspicion to arise about its circumstances. An investigation of a death in custody by police and other government officers does not preclude

suspicion’.18

4.5.56 Only a public inquiry in the form of an inquest can present the opportunity for the ventilation of all relevant facts, for any suspicions to be aired and for the evidence to be tested. It is of great importance that the family of the deceased should be confident that such an opportunity will always be available to allay any anxiety or fears which they may have concerning the circumstances of death. A mandatory coronial inquest into every death in custody should be an elementary guarantee offered by the

Australian legal system: justice must not only be done, it must be seen to be done.

4.5.57 In this context I should make it clear that in every case a full hearing, with the oral examination of all witnesses, may not be necessary. A hand-up ‘brief’ procedure (by which I mean the tendering of relevant documentary evidence, including witness statements) may be adequate— providing all parties have been presented with such a brief, have had sufficient time to consider all statements and have agreed that no purpose would be served by a full hearing. Such a hand-up procedure would

conserve valuable time and resources but should always take place in a public hearing. The essential matter is to guarantee the opportunity of a full hearing.

Coroner’s Investigative Powers 4.5.58 The Victorian C o r o n e r ’s A c t imposes on the State Coroner a statutory responsibility for the proper investigation of all reportable deaths and imposes on all coroners a specific duty to investigate reportable deaths. Recent amendments to the New South W ales C o r o n e r ’s A c t imposes on the State Coroner similar duties. The legislation in other

States and Territories do not impose on coroners any express obligation in relation to the investigation of deaths.

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4.5.59 Each Coroner’s Act, except for Western Australia, empowers a coroner or a person authorized by the coroner to exercise certain investigative powers. The specific pow ers conferred differ from jurisdiction to jurisdiction and could be described as ‘piecemeal’. They

generally appear without any express provision regarding the broad lines of responsibility in the conduct of post-death investigations.

4.5.60 Although the Coroner’s Acts in Victoria and New South Wales now provide a broader statutory power to direct coronial investigations, that power had not been exercised by the coroner in any of the cases investigated by the Commission in which death occurred subsequent to the

new or amended legislation. This illustrates that the extension of legislative powers does not automatically change established practices, procedures and attitudes.

4.5.61 It would appear that as a matter of practice most coroners, whether or not they have direct responsibility for the investigation of deaths, are often precluded from participation or having any effective involvement in the investigation owing to shortage o f time and lack of resources.

4.5.62 The structuring of an effective coronial system of inquiry into deaths in custody requires the imposition on coroners of an express legal responsibility for the satisfactory investigation of the circumstances of death, coupled with the provision of express legal powers of direction in

this regard. The coroner must be provided with assistance to ensure that, in fact, there is an adequate review of the progress of investigations.

4.5.63 As I have previously indicated, it is my opinion that the

appointment of a solicitor or barrister to assist the coroner is required. The establishment of clear lines of responsibility and authority, together with the provision of assistance to the coroner should considerably improve the quality of preliminary investigation. The parameters of inquiry should be

set by the coroner and the lawyer assisting the coroner should convey these to the police and monitor their implementation, while the actual investigative procedure will remain in the hands of the police. The ability of the coroner and the lawyer assisting the coroner to oversee police

investigations offers a safeguard that such investigations, even when they concern a death in police custody, will be carried out with appropriate thoroughness and vigour.

Coroner’s Powers on Inquest 4.5.64 The object of the Commission’s work has been to examine the adequacy of coronial inquiries into Aboriginal deaths in custody and, in the light of the Commission’s experience, make recommendations which

offer the prospect of any such future deaths being thoroughly and

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impartially investigated. Accordingly, it is my considered opinion that the procedural rules and powers of coroners on inquest are not a prime matter for examination. These powers exercised by coroners in the course of inquest are matters appropriately left to the discretion o f those judicial officers and the policies of State and Territory Governments regarding the

administration o f criminal justice.

4.5.65 1 do not propose to review the question of whether or not a coroner should hold the power to commit a person for trial on the basis of evidence which discloses a p r im a f a c i e case of the commission o f a criminal offence. Correspondingly, 1 will not express an opinion on the interrelated questions of the privilege against self-incrimination and the power of a coroner to compel a witness to answer questions. These latter

questions arose indirectly in the ease of the death of John Pat in Western Australia, and 1 refer to them in the report o f my inquiry into that death. I have consulted with other Commissioners and it is our view, as expressed above, that it raises fundamental questions relating: to the administration of criminal justice. Our Terms of Reference were limited to inquiring into Aboriginal deaths in custody. Deaths in custody, and even moreso, Aboriginal deaths in custody, comprise only a fraction o f coronial jurisdiction. It would be inappropriate for Commissioners to express a

view on a matter of such broad import,

4.5.66 On the subject o f coronial powers on inquest 1 will make only two observations. First, for the proper exercise o f such judicial powers as coroners hold by virtue of their office, it is fundamental that all coroners inquiring into a death in custody should be legally qualified stipendiary magistrates or more senior judicial officers. This elementary requirement is demanded by the powers they exercise and the significance o f their role. It is essential that the judicial functions vested in coroners be earned out by a person of independent status, with some degree of remoteness from custodial agenciesy who is capable of* commaridiu^ jpiit^lic cox ufidcticc* including the confidence of Aboriginal communities when investigating matters involving the death o f an Aboriginal person,

4.5.67 Second, for the same reason that ensuring public confidence in the scrupulous character o f all inquiries into deaths in custody is required, all inquests should be open to the public and no evidence should be suppressed without good cause. There are clearly circumstances which do give rise to good cause to suppress evidence and express legislative powers to do so are usually exercised on the basis that publication may be likely to prejudice the fair trial o f a person or it would be contrary to the public interest. It is not appropriate for me to make comment on the discretionary exercise of this general power by coronet's, however, one m atter does arise which specifically relates to Aboriginal deaths in custody.

4.5,68 In the course of the Com m isstoifs inquiries the name o f the

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deceased was frequently suppressed in deference to a widespread traditional practice amongst Aboriginal people of not speaking the name of a dead person. I note that in New South W ales, Queensland and the Northern Territory there is specific statutory provision for restraining the reporting o f proceedings into deaths which are self-inflicted. Such provisions may be seen to reflect a cultural sensitivity regarding the

naming o f a person who has died by their own hand and in deference to the feeling o f the deceased’s family.

4.5.69 I suggest that a similar respect for the traditional, cultural values of Aboriginal people should be shown regarding the publication of the name o f a deceased Aboriginal person, irrespective of the cause of death. Advice sought from the family o f the deceased or their legal representative should provide guidance for the exercise o f a coroner’s

discretion in considering this matter.

4.5.70 The general bases for a suppression order are recognized in, for example, the South Australian E v id e n c e A c t 1 9 2 9 . A coroner may suppress the publication o f evidence in order to prevent ‘prejudice to the proper administration o f justice’ or ‘undue hardship’ to victims of crime or

witnesses in civil or criminal proceedings.19

4.5.71 It is clearly arguable that such provisions do not confer power to suppress publication o f the name of a deceased Aboriginal person. In other jurisdictions the powers are somewhat broader. In my opinion the various powers to restrict or prohibit publication o f evidence should be

reviewed to ensure that, wherever appropriate, the publication of the name of a deceased Aboriginal person may be suppressed.

Lawyer to Assist a Coroner 4.5.72 It has been frequent practice throughout Australia for a police officer to assist the coroner at the inquest. In some cases investigated by the Commission, the police officer who was in charge of the prisoner at

the time o f death was not only the officer in charge o f the investigation into the circumstances o f death but also prepared the police brief for the coroner, and then assisted the coroner at the hearing.

4.5.73 By contrast, in other cases the police officer assisting the coroner had only the most cursory familiarity with the subject matter of the inquest. The expectation that any person in such a position is able to ‘assist’ in any meaningful way is an illusion. Peter Campbell was found

dead in his cell at Long Bay Gaol with his throat cut; he died by suicide. In the report o f his inquiry into the circumstances o f death Commissioner Wootten stated:

T he o ffic er a ssistin g th e C o r o n e r ... w a s a tra in e e p o lic e p r o s e c u to r u n d er th e in stru c tio n o f th e s e n io r s e rg e a n t

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The Adequacy of Previous Investigations 4

a ssistin g th e C o ro n e r, [ a n d ] h a d no k n o w le d g e o f the

m a tter p r io r to the m orn ing [ o f th e inquest]. H e said, that a t th e tim e he h a d lim ite d ex p erien ce w ith the C o ro n e r’s C o u rt. H is w o r k lo a d p e r d a y w a s b e tw e e n 3 to 8

in q u ests, d e p e n d in g on h o w m a n y m a tte rs w e re listed . H e r e g a r d e d his r o le a s b ein g sim p ly th a t o f p re se n tin g e v id e n c e to th e C o ro n e r. A t no s ta g e d id h e h a ve an y

com m unication w ith the C o ro n er ou tside the C ou rtroom .

[T h e o ffic e r] a g r e e d th a t a lth o u g h it w a s p a r t o f his

r e s p o n s ib ility to d e te rm in e w h ich w itn e ss e s w o u ld be ca lled , he c o u ld n o t e x e rc ise th a t re sp o n sib ility b e c a u se he h a d no k n o w le d g e o f th e c a se u n til th e m o rn in g it

b eg a n . A t th e s ta r t o f his e v id e n c e to the C o m m issio n ,

th e o f fic e r m a in ta in e d th a t th e in v e s tig a tio n w a s

a d e q u a te, b u t the n ex t d a y s a id th a t ‘h avin g c o n sid e re d the m a tte r o v e rn ig h t’ he a g r e e d th at th ere sh o u ld h a ve b e e n f u r th e r in v e s tig a tio n s , a n d in p a r ti c u l a r th a t

p r is o n e r s sh o u ld h a ve b een in te rv ie w e d a s to w h eth e r they h ad h ea rd anything du rin g the night.

T h is is y e t a n o th e r c a s e w h ere the ro le o f th e o ffic e r

a ssistin g the C o ro n e r h a s b een to d o nothing m o re than uncritically p re se n t to the C o ro n er the resu lt o f the p o lic e in vestig a tio n . H is f i r s t c o n ta c t w ith the in q u iry c a m e a t the v e r y la s t m in u te, a n d b y th e tim e th e m a tte r ca m e

b e fo re th e C o ro n e r, h e c o n s id e r e d th a t i t w a s f o r the

C o ro n e r to d ir e c t fu r th e r in q u iries i f sh e w a n te d them . U pon su ch a v ie w th e re w a s r e a lly n oth in g f o r him to

do. A s C o u n sel f o r the fa m ily p u t it, he w a s j u s t p a p e r

sh u fflin g .20

4.5.74 In W estern Australia the Ad Hoc Com m ittee made the

following remarks about the practice of police assisting the coroner:

The p r e se n c e o f th e p o lic e o ffic er a ssistin g th e C o ro n e r a llo w s the inference to a rise th at it is a p o lic e o fficer w h o is d ire c tin g th e c o u rse o f th e in qu est, w h ich is in im ic a l to th e in d e p e n d e n c e o f th e ju d ic ia r y a n d th e p r o p e r

adm in istration o f ju stic e.

It is th e v ie w o f th is C o m m itte e th a t this p r a c tic e sh o u ld cea se. A t in qu ests w h ere c o m p le x o r co n ten tio u s issu es a r e r a is e d , th e C o r o n e r s h o u ld b e a s s i s t e d b y

in d ep en d en t cou n sel. In o th e r c a se s th ere is no rea so n w h y th e C o r o n e r s h o u ld n o t c a ll a n d e x a m in e th e

w itn esses as is th e ca se in E n glan d.21

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4.5.75 In the In terim R e p o r t, it was recommended that the coroner should, if he or she so requests, be assisted by counsel.22 The further inquiries carried out by the Commission throughout Australia have supported the validity of this conclusion. As previously indicated, I am of the view that in all cases of deaths in custody, the State Coroner should appoint a barrister or solicitor to assist the coroner in charge of the inquiry. The initial responsibility of that lawyer should be to supervise the conduct of police investigations. Upon the hearing of the inquest the services of

that lawyer should be retained to assist the coroner to ensure that all relevant factors are brought to the attention of the coroner to enable the making of all findings and recommendations which are appropriate to be made. Recommendation 28 refers to this issue.

4.5.76 Victoria and Queensland are the only States in which the legislation refers to the appointment o f counsel assisting the coroner, although it is increasingly common in all jurisdictions today for independent counsel to be briefed in relation to deaths in custody.

C om m issioner W ootten, in a paper delivered at the Institute of

Criminology seminar on coronial inquiries in 1990, made the following observations:

T h ere is a very stron g c a se f o r the C o ro n er to be a ssiste d b y s o m e o n e w h o is q u ite in d e p e n d e n t o f th e P o lic e

F o rc e . O ften , th is is a m em b e r o f the p r iv a te b ar. T his

can b e v e ry su ccessfu l i f th e m e m b e r o f th e b a r ta k es an a c tiv e role in the p re p a ra tio n a n d con du ct o f the ca se an d s e e s h im se lf o r h e rse lf a s h avin g re sp o n sib ility to ensure th a t a ll f a c ts com e out. I h ave, h o w ever, se e n in q u iries

in w h ich a m em b e r o f th e p r iv a te b a r w a s b r ie fe d a n d

d id no m o re than a p o lic e p r o s e c u to r w o u ld h ave done, th a t is, sim p ly c a lle d th e w itn e sse s n o m in a te d b y the

p o lic e a n d run th rou gh th e ir sta te m e n ts. In th a t ca se,

n oth in g e x c e p t ex p e n se is a d d e d to the in q u iry. O n the o th e r h a n d , I h a v e s e e n c a s e s w h e r e th e C o u n se l

A ssistin g h a s b een a p e r s o n w ith p r io r e x p e rie n c e an d u n d ersta n d in g o f th e A b o rig in a l p o in t o f v ie w , a n d has so p r e p a r e d a n d co n d u c ted the inquiry a s to en su re that, so f a r a s p o ssib le , a ll aven u es o f con cern a re th orou gh ly

e x p lo re d a n d a ll evid en ce is thoroughly tested.

4.5.77 In South Australia the State Coroner expressed the view that he would be greatly assisted by a person with legal training on his staff who could not only assist at the hearing but also in the supervision of the investigation. The continuity provided by having the same legal practitioner, w hether barrister or solicitor, involved in both the

investigation and inquest into a death in custody should warrant the thoroughness of his/her preparation of the matter. In both the supervision of the police investigation and the preparation of material for presentation

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The A dequacy of Previous Investigations 4

at the inquest, counsel assisting the coroner should follow the protocol developed by the State Coroner for the guidance of coroners designated to conduct inquiries into deaths in custody,

4.5.78 Proposed legislation in W estern Australia provides for a coroner to be assisted by counsel or by such other persons as the coroner determines. The Ad Hoc Committee noted that the Victorian Act provides for the D irector o f Public Prosecutions (DPP) to appear to assist the coroner if the director so wishes. The committee intentionally avoided

including such a provision in the draft Western Australian legislation. The Ad Hoc Committee considered that it is inappropriate for the DPP to be involved because of that officer’s function in respect o f crim inal

prosecutions. The committee stated that the coronial system should be quite separate from the criminal justice system, and noted the possible danger of the office of the DPP using inquest proceedings for its own purposes.

4.5.79 W hile it is clear, in my opinion, that the DPP in certain

circumstances may be an interested party represented at an inquest, it is inappropriate that the DPP should assume the role o f counsel assisting the coroner. The legal officer involved in that position should have as his or her exclusive concern the presentation of material to enable the coroner to discharge his or her responsibilities on inquest and should not be diverted by any collateral matter. In my opinion, the lawyer assisting the coroner may be a salaried officer o f the Crown Law Department, or equivalent office, provided that the lawyer is not also engaged in the consideration or

preparation of any criminal proceedings which may arise from any inquest in which that legal officer has assisted. Where such a clear division of functions cannot be ensured, an independent lawyer should be instructed.

Inquest Findings and Recommendations 4.5.80 In all jurisdictions a coroner who has conducted an inquest is bound to make certain findings and to record or certify them in writing. It

would appear that in no jurisdiction, other than Victoria, is a coroner under any duty to make findings where an inquest is not held—-other than such findings as may be required by statute in order to dispense with the holding o f an inquest,

4.5.81 In Victoria the coroner has an express duty to make findings in relation to all reportable deaths irrespective of whether an inquest is held. Section 19 o f the C o ro n e r’s A c t requites the following findings to be made in every case:

» the identity o f the deceased;

* how the death occurred;

* the particulars needed to register the death under the Registration of the B irth s, D e a th s a n d M a rria g es A c t 1959\ and

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* the identity of any person who contributed to the cause of death.

4.5.82 W here an inquest is held, the C o ro n er’s Act in each

jurisdiction requires certain m atters to be determined wherever possible. The various legislative provisions provide as follows:

* the identity of the deceased (New South W ales, Tasmania, South Australia, Northern Territory, Western Australia, Queensland); * how, when and w here the deceased died (Tasm ania, South

Australia, Northern Territory, Western Australia, Queensland); * the m anner and cause o f death (New South W ales, South

Australia, Northern Territory); * particulars required to register the death (Tasmania, Northern Territory, Western Australia); and « the persons committed for trial,

4.5.83 The common requirements are narrow and concentrate on the immediate particulars and circum stances o f death. The consistent, thematic inadequacy o f coronial inquiries examined by the Commission

relate to this m atter o f narrow focus. If this tunnel vision, which effectively excludes consideration of wider issues implicated in Aboriginal deaths in custody, is to be expanded then the statutory criteria relating to inquest findings m ust also be expanded to explicitly require the

consideration of such issues, where relevant.

4.5.84 A coroner inquiring into deaths in custody should be required by law to investigate not only the immediate cause and circumstance of death, but also the quality o f the care, treatment and supervision o f the deceased prior to death. A coroner inquiring into a death in custody

should be required to make findings on those matters w h ic h are required to be investigated. The setting o f precise statutory criteria is a matter for the government in each jurisdiction. 1 draw attention to a ‘Preliminary Note to the Attorney-General of New South W ales: Review o f the Coronial

System in New South W ales’ prepared by the Public Interest Advocacy Centre. In that paper, it is suggested that coroners be obliged to report on the following matters:

* the cause or causes o f such death and any incident resulting in the death; * the reasonable precautions, if any, whereby the death and the

incident resulting in the death might have been avoided; * the defects, if any, in any system o f working which contributed to the death or to such incident; and * any other factors which are relevant to the circumstances of the

death.

4.5.85 Coronial findings, in themselves, may lead to the identification and rectification o f unsafe or inadequate custodial procedures and

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practices. However, the making of express recommendations on such issues holds a greater potential that the full value of a coronial inquest will be realized and that future deaths may be averted. In several recent

coronial inquiries into Aboriginal deaths in custody, the inquest has not only been wide ranging but has also resulted in some extensive recommendations. It is important that this trend towards the making of recom m endations be reinforced by the introduction o f statutory requirements to do so, where relevant.

4.5.86 In all jurisdictions except New South W ales and Tasmania, legislation provides the coroner w ith express pow er to make

recommendations or riders. While in New South Wales the C o ro n e r’s A c t is silent on the point, and the State Coroner in some inquiries into deaths in custody has demonstrated a reluctance to make recommendations, he has recently made recommendations relating to the state of highways in New South Wales which suggests a greater willingness to fulfil those coronial functions relating to the prevention of future deaths in similar circumstances.

4.5.87 In Queensland, section 43 (5) of the C o ro n e r’s A c t states that a coroner:

S h a ll n o t e x p re ss a n y o p in io n on a n y m a tte r o u tsid e the s c o p e o f th e in q u e st e x c e p t in a r id e r w h ich , in th e

o p in io n o f th e C o r o n e r , is d e s ig n e d to p r e v e n t th e

re cu rren ce o f sim ila r o c c u rre n c e s. A rid e r sh a ll n o t b e d e e m e d to b e p a r t o f th e C o r o n e r ’s fin d in g s b u t it m a y

be re c o rd e d i f the C o ro n e r thinks fit.

4.5.88 Such a statutory provision tends to marginalize what, in my opinion, should be a major consideration for all coroners on inquest. Far from requiring that recommendations be made, it tends to suggest that they will only be made in exceptional circumstances. The inhibition which

some coroners have shown in cases examined by the Commission is reinforced by the provision o f a pow er couched in such terms.

Commissioner O ’Dea observed that while in eight cases investigated in Western Australia there was a rider attached by the coroner to his findings, in many cases in which recommendations could well have been made the coroner omitted to do so.

4.5.89 In all jurisdictions where the coroner has the ability to make recommendations or riders, there is no requirement that he or she do so. It is a discretionary matter for the coroner. It is important that coroners should make such recommendations and that governments should give consideration to imposing a more positive duty on coroners in this respect.

4.5.90 The potential value of coronial recommendations is shown by one of the few cases where a coroner gave thought to correcting general

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custodial problems which had become apparent in the course of the inquest. Joyce Thelma Egan died at Mount Gambier in police custody as a result of a drug overdose. Within 50 minutes of being placed in a cell she was discovered deeply unconscious. An ambulance was called and she

was rushed to the M ount G am bier Hospital where all attem pts at resuscitation were unsuccessful and she was declared dead. At the conclusion o f his findings, the coroner made a num ber of important observations and recommendations relating to the surveillance of prisoners

held in police cells, including such matters as response to persons found to be unconscious, the recording of the condition of prisoners following cell checks and the establishment and maintenance of an ‘at risk prisoners’ register at local police stations. The coroner also commented on three matters relevant to the prescription and dispensing of dangerous drugs and

suggested that these matters receive consideration by the appropriate authorities. These were pertinent and appropriate comments and recommendations with a real potential to reduce future risks.

4.5.91 It is clear that the value o f the coroner’s pow er to make

recommendations lies in the implementation of those recommendations. It is essential that machinery exists to convey all coronial recommendations to the relevant authorities. In several cases investigated by the

Commission it was found that the recommendations had never come to the notice of the relevant authorities.

4.5.92 The only jurisdictions which make any provision for the communication of findings and recommendations to specified persons are the Northern Territory and Queensland. In the Northern Territory the coroner may advise a person, professional association, statutory authority,

instrumentality or agency o f the Commonwealth or Territory o f his findings and any recommendations he thinks fit. In Queensland a copy of the inquisition is to be forwarded by the coroner to the commissioner of police.23

4.5.93 An example of the value of addressing broader issues, and alerting the relevant authority, is provided by the case of the man who died at Katherine. The coroner did not draw attention to the general dangers associated with the condition of Alcohol W ithdrawal Syndrome in his findings in relation to this death. As a result, the Northern Territory Police

Service took no action in relation to the training and education of officers regarding this syndrome until the time of the Commission’s inquiry into the circumstances of death, some five years later. The Northern Territory

Police Service also established an adm inistrative system to m onitor coronial findings for matters relevant to custodial procedures and police practices generally. I note that at the time of the coronial inquest into this death, the Northern Territory C o r o n e r ’s A c t contained no provision

relating to a coroner having power to make recommendations and to forward these to the appropriate body.

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The A dequacy of P revious Investigations 4

4.5.94 In my opinion, copies of the findings and recommendations o f the coroner should be provided by the coroner’s office to all parties who appear at the inquest, to the Attorney-General or Minister for Justice of the State or Territory in which the inquest was conducted, to the Minister of the Crown with responsibility for the relevant custodial agency or department, and to such other persons as the coroner deems appropriate.

Consideration should be given to statutory provisions to this effect and the establishment of such administrative arrangements as are necessary.

4.5.95 In no jurisdiction does a coroner have the power to monitor the implementation of his or her recommendations. In his R e g io n a l R e p o r t o f In qu iry into In d ivid u a l D e a th s in W estern A u stra lia , Commissioner O ’Dea noted with great concern the fact that in many cases investigated by the

Commission in W estern Australia, recommendations made by coroners had been effectively ignored. This is a matter previously touched upon in Section 4.3 relating to departmental investigations.

4.5.96 Various submissions on this point have been received. These include: * where no satisfactory response has been received by the coroner within a prescribed period to refer the matter to the Attorney-

General and/or in the case o f government departments to the ombudsman; * on a regular basis the coroner should publicize his or her

recommendations and those where no appropriate consideration or response has been given to them; and * the coroner should have continued jurisdiction for a period after he o r she delivers his or her findings, during which period a

further hearing could be held to follow up issues which emerged on inquest.

4.5.97 The Commission has also received submissions that it would be inappropriate for a coroner to monitor the implementation o f his or her recommendations and that it is essential for the coroner's investigatory role to remain distinct from the decision-making role o f the government or public authorities. The latter point is clearly correct in so far as the ultim ate decisions on policy, procedures and practices o f custodial authorities must reside with the government, relevant ministers or senior administrators. However, just as the holding o f an inquest into a death in

custody and the making of recommendations to prevent similar deaths are matters o f public interest, equally it is in the public interest that some mechanism be established to ensure that the relevant authorities have received and considered those recommendations. It may well be, in some

situations, that there are substantial reasons for not adopting the coroner’s recommendations. It is not a question of compelling the government or public authorities to act on recommendations, but rather to ensure that they have received proper consideration.

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4.5.98 It is necessary to establish a formal means to ensure proper public accountability and to provide a system o f review which is able to draw from the general experience gained from all inquests held into deaths in custody. The system should require that those government departments

and agencies which have been provided with a copy o f the coroner’s findings report to their responsible M inister within a three-month period regarding its response to the recommendations, including whether any action has been taken or is proposed to be taken against any person.

Copies o f these reports should be provided to the coroner who conducted the inquest, to the State Coroner and to all persons who appeared or who were represented before the coroner at the inquest, A State Coroner should also be empowered to call for any further information he or she considers necessary, including a report on the action taken in relation to

any recommendation made. Such measures may help to identify general, persistent problems which may not be apparent from an examination of the circumstances o f an individual death.

4.5.99 As a further safeguard to ensure proper public accountability, the State Coroner should be required annually to report, in writing, to the Attorney-General or M inister for Justice (such report to be tabled in Parliament) as to deaths in custody generally within the jurisdiction and, in

particular, as to findings and recommendations made by coroners, and as to responses to such findings and recommendations made by the various agencies or departments. In reporting to the Attorney-General or Minister for Justice, the State Coroner should be empowered to make such general

recommendations as the State Coroner deems fit with respect to the prevention o f deaths in custody and, perhaps, identify general, persistent problems which may not be apparent from an exam ination o f the circumstances o f an individual death.

4 .6 T H E R IG H T S O F T H E D E C E A SE D ’S FA M ILY

In t r o d u c t i o n

4.6.1 Major problems observed in police investigations and inquests into deaths in custody concern the lack o f sensitivity with which relatives of the deceased and Aboriginal communities were treated. The historical background o f Aboriginal-police relations has resulted in custodial deaths

being regarded with a high degree o f suspicion by Aboriginal people, even in cases which are ultimately found to be straightforward deaths by natural causes. This is indicative o f the suspicion with which Aboriginal people often regard police and prison officers. It dem onstrates the need for

openness and frankness when dealing with the family of the deceased at all stages o f the coronial inquiry .

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4.6.2 The experience of the Commission has shown that the anguish of relatives and their fears and suspicions have not been appreciated by persons involved in post-death investigations, and the family of the deceased have often been dealt with in a way which heightens their worst

suspicions. It is natural for friends, relatives and community members to be apprehensive as to the circumstances of death when a person enters custody apparently alive and well and leaves dead. In many instances, custodial authorities have been secretive and defensive about a death in custody, rather than recognizing the fact that relatives and the public have a right to know what happened. The family of the deceased are often regarded as trouble makers who do not deserve to be dealt with frankly.

In many instances there has been little recognition that the family and the public have the right to expect a full, open and impartial inquiry with the greatest possible access to all relevant information.

4.6.3 Commissioner Wootten, in his paper delivered at the Institute of Criminology Seminar on Coronial Inquiries in 1990, noted that there has been a particularly undesirable practice of police and prison officers using the coroner and pending coronial inquiry as a shield behind which to hide. He stated that:

the b o d y can n ot b e seen b eca u se it is in the ch arge o f the C o ro n e r; th e s ite c a n n o t b e v is ite d b e c a u s e it is th e

su b je c t o f c o ro n ia l in vestig a tio n ; in form ation ca n n o t b e g iv e n o u t b e c a u s e th e m a tte r is in the h a n d s o f th e

C o r o n e r ; n o th in g ca n b e s a id u n til th e c o r o n ia l

in v estig a tio n is c o m p le te d a n d th e in q u est o v e r. M uch o f th is u se o f th e C o r o n e r ’s n am e h a s ta k en p l a c e

w ith o u t a n y re fe re n c e to th e C o ro n e r, w h o m a y w e ll

h a v e b e e n q u ite u n a w a re o f th e f r u s tr a tio n b e in g

su ffered b y rela tives a n d th eir represen tatives.

4.6.4 There is a need for openness, frankness and sensitivity to the feelings of the relatives and friends of the deceased from the point of notification of death throughout the various stages of investigation. It

should include the family of the deceased’s full involvement in the inquest, if this is what the family wishes.

No t i f i c a t i o n o f De a t h

4.6.5 The initial notification of a death to the family of the deceased requires skill and sensitivity. It is a crucial time for the relatives who will naturally feel shock and great anguish. They will also be intensely concerned to know the circumstances of death. All too often, the task of

notification o f death is carried out by police officers who have little knowledge about the circumstances o f death and, understandably, regard such notifications as one of their most unpleasant duties. The inability to

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com m unicate openly w ith the fam ily o f the deceased may be

misunderstood for an attempt to conceal the truth.

4.6.6 In performing the task of notifying the family of the deceased police officers, in the cases examined by Commissioners, ran the full gamut of possibilities. In the R e p o r t o f the In q u iry in to th e D e a th o f the Y oun g M a n w h o D ie d a t B e a tr ic e H ill P r iso n F a rm o n 21 S e p te m b e r

1988, Commissioner O ’Dea noted that:

T h e r e la tiv e s o f th e d e c e a s e d in Q u e e n s la n d w e r e

a d v is e d o f th e d e a th b y C o r o n e r ’s C o n sta b le , [n a m e

w ith d ra w n ], w h o n o tified th e n ex t o f kin w ith o u t d e la y a n d h a n d le d th e d iffic u lt ta s k w ith s e n s itiv ity a n d

e x p e d itio n . H e rig h tfu lly e a r n e d the c o m m e n d a tio n o f the C o ro n e r a n d o f th is C o m m issio n .24

4.6.7 In the R e p o r t o f th e In q u iry in to the D e a th o f M a rk A n th o n y

Q u ayle, Commissioner Wootten observed that, ‘It was a difficult situation requiring tact and sensitivity and some empathy with Aboriginals, qualities with which [the constable] was obviously not endowed’.25

4.6.8 Subsequent to notifying M ark’s mother o f her son’s death in a sensitive manner, the constable required M ark’s brothers to identify his body in the back of an ambulance parked in a street.

T h e b r o th e r s w e r e m o s t d i s t r e s s e d w h e n a s k e d to

id e n tify th e b o d y . G re g r e fu se d to d o so sa y in g , ‘N o,

J o h n n ie ’s th e e ld e st, h e ca n d o i t ’. Joh n h a d to c lim b

in to th e a m b u la n ce b e c a u s e th e h e a d w a s to w a r d s the fr o n t. H e w a s c ryin g . H e to ld th e C o m m issio n , “i t ’s

n o t a v e ry n ice p la c e to id en tify y o u r b r o th e r ’s b o d y ” .

H e w o u ld h a ve p r e f e r r e d th e m o rg u e, w h ic h w a s the

lo g ica l p la ce . G reg becam e u pset an d w en t a n d s a t a t the P o s t O ffice. H e, too, th o u g h t th a t id en tific a tio n sh o u ld h a ve b een a t the m o rg u e a n d th a t it w a s w ro n g to take

th e b o d y to the M ission .

A t th e h ea rin g b e fo re th e C o m m issio n [ th e c o n s ta b le ] co n tin u ed to m ain tain h is a c c o u n t o f th e m a tte r, a n d to d e fe n d his a c tio n in a sk in g M a rk ’s b ro th e rs to id en tify th e b o d y in th e a m b u la n c e in th e s tr e e t. B o th a t the

c o ro n ia l inquiry a n d b efo re the C om m ission , he re je c te d a s ‘to ta lly ridicu lou s’ the su ggestion th at iden tification in th e s e c ir c u m s ta n c e s r e f l e c t e d h is in h u m a n ity to

A b o r ig in a ls . I ca n o n ly s a y th a t in h is in a b ility to

p e r c e iv e even now , the p a in th a t he in flicte d on them , is fu rth e r evid en ce o f th at in h u m an ity,26

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4 .6 .9 In most jurisdictions there are no statutory provisions as to who bears responsibility for the notification o f death. In many

jurisdictions the Police General Orders or Instructions place the onus upon members of the police service. Given the degree of suspicion with which custodial authorities are regarded by many Aboriginal people, notification by police officers is inappropriate when the deceased has died in custody, particularly in police custody. Consideration should be given as to

whether the responsibility for notification of death would be better placed on the coroner or a person from his or her office with appropriate skills and training. In the case of Aboriginal deaths it is desirable that an

Aboriginal person should be involved who may have a better chance of being able to deal with the concerns and reactions o f die family.

4.6.10 It has been suggested that the person with responsibility for notifying the family o f death should be accompanied by an Aboriginal person who has some knowledge of the coronial system and who could not only advise o f the death, but also advise the family o f the procedures relating to such matters as the conduct of an autopsy and the holding of a coronial inquest. It has been submitted that a field officer from the Aboriginal Legal Service would be an appropriate person to perform this role. It has also been suggested that it might be appropriate to contact a person in the local Aboriginal community to discuss the most appropriate way in which to notify the relatives of the death. Great discretion and

considerations of privacy would be required were such a procedure to be followed,

4.6.11 I make the point that Aboriginal people appreciate and react to the efforts o f police officers to carry out this difficult task in a careful and sensitive way. In two cases in South Australia I was asked by counsel for the family to commend the work o f the police officers concerned in this respect (the woman who died at Ceduna and Eddie Betts).

4.6.12 A distinct problem which arose in Commission inquiries related to differences between Aboriginal and non-Aboriginal concepts of who properly constitutes the deceased’s ‘next of k in ’ or ‘family’. Non­ Aboriginal notions of next of kin and family provide little appreciation of

the complex framework and family obligations and responsibilities that exist in Aboriginal society. It is important that cultural differences should be respected in procedures relating to notification.

4.6.13 In many cases the identification of the deceased’s family may be relatively easy. However, some suggestions have been made which would increase the probability o f appropriate family members being

promptly notified o f the death. In the case o f the death o f an Aboriginal person, in addition to the family, the Aboriginal Legal Service should also be notified. In South Australia it has been the practice o f the State Coroner, over a period o f three to four years, to notify the Aboriginal Legal Rights Movement (ALRM) o f a death in custody in addition to the

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family. It has also been suggested that Aboriginal communities should be approached and consulted about who should be advised of deaths and the manner in which such advice is most appropriately conveyed. Care must be taken that Aboriginal families are not upset by news o f a death being

‘broadcast’ in a public forum prior to their own notification.

4.6.14 In consideration of the above, I recommend that immediate notification of a death of an Aboriginal person be given to the family of the deceased and, if others were nominated by the deceased as persons to be contacted in the event of an emergency, to such persons so nominated.

Notification should be the responsibility of the custodial institution in which the death occurred; notification, wherever possible, should be made in person, preferably by an Aboriginal person known to those being so notified. At all times notification should be given in a sensitive manner

respecting the culture and interests of the persons being notified and the entitlem ent o f such persons to full and frank reporting o f such

circumstances o f the death as are known. The appropriate Aboriginal Legal Service should also be notified immediately of any Aboriginal death in custody.

A c c e s s t o t h e B o d y o f t h e D e c e a s e d

4.6.15 Relatives of the deceased should be given the opportunity to see the body o f the deceased at a very early stage following the death. In a number o f cases investigated by the Com mission, the fact that the deceased’s body was removed from the place of death for an autopsy prior to the relatives being given an opportunity o f viewing it, resulted in concern and suspicions being aroused. In the New South W ales case involving the death of Lloyd Boney the deceased died in a police cell as a result o f hanging in Brewarrina in 1987. His body was taken out o f town

within an hour of being discovered and before any attempt was made to notify any relative. This caused the family a great deal of grief and concern.

4.6.16 Although viewing the body may be very distressing to the family, it should be their choice as to whether or not they wish to see it. Sometimes, family members wish to see the deceased and, in effect, say goodbye. Alternatively, the family may well nominate a representative to view the body on their behalf. In every case it is important that there

should be an opportunity to view the body and for the family or their nominated representative to satisfy themselves that there are no suspicious marks or indications of violence. Often, it is better if this occurs prior to autopsy as the conduct of an autopsy may have the effect of accentuating

any marks on the body and give rise to unfounded suspicions of foulplay.

4.6.17 The major objection to allowing relatives access to the body is, of course, the possible risk of interference and contamination of the body from a forensic science perspective. Some mortuaries have instituted

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procedures which allow for the viewing o f the deceased through a glass partition or with a police officer present. However, a physical barrier or the presence of a police officer at this time may cause the relatives additional pain. Although restrictions may need to be placed on the

manner in which the body of the deceased is made available to the view of the family, it is important that the fam ily’s right to view the body should be recognized. Blanket refusals of access are simply not justified.

A c c e s s t o t h e P l a c e w h e r e D e a t h O c c u r r e d

4.6.18 In many instances families o f the deceased and their legal representatives have been denied access to the place where death occurred, especially where the deceased died within a custodial setting. Although the coronial and police investigations need to take precedence to ensure

that the scene of death is properly examined, photographed and inspected following the death, refusal by custodial authorities to relatives’ requests to see the place where the deceased died generally increase the frustrations, anxieties and suspicions of the family. Relatives of the deceased should

be given access to the place of death, although access may have some restrictions placed upon it and may be undertaken in the company of custodial authorities. Once again, openness about such a matter assists in allaying unfounded fears concerning the manner in which the deceased died.

R i g h t t o R e q u e s t o r R e f u s e A u t o p s y

4.6.19 In no jurisdiction in A ustralia does the C oroner’s Act

expressly provide for the notification of the family of a deceased person or other interested persons that an autopsy is to be performed. In some cases before the Commission, the deceased’s family were not notified that an

autopsy was to be held: in other cases the police approached the matter with sensitivity, going to some lengths to explain to the family about the requirement for an autopsy.

4.6.20 U nder the Victorian C o r o n e r ’s A c t specific rights are

conferred on the next of kin and other persons in relation to the conduct of an autopsy. Pursuant to section 28 any person may ask the coroner to direct that an autopsy be performed; alternatively, under that section a senior next of kin may request a coroner not to direct the conduct of an autopsy. In both instances there is a right to review the coroner’s decision before the Supreme Court. A sim ilar provision is provided in draft legislation in Western Australia. In my opinion, consideration should be

given to the inclusion of similar provisions in the Coroner’s Act in all jurisdictions.

4.6.21 The right to request or refuse an autopsy may have particular significance for Aboriginal communities with strong traditional cultural practices. The conduct of an autopsy may interfere with traditional funeral rites. Consideration for Aboriginal cultural values must be balanced

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against the need for coronial investigations to be thorough and prompt. Integral to any right held by the family of the deceased in relation to the conduct of an autopsy is a right to be notified promptly of any intention to

perform or not to perform a post-mortem examination.

4.6.22 It has been suggested that no autopsy should be performed until the coroner has made every reasonable effort to contact the deceased’s family and other interested persons to give them an opportunity to make representations in relation to the conduct of an autopsy. The responsibility for the notification of relatives and other interested persons

should also be clearly stated. Consideration should also be given to allowing sufficient time for any arrangements to be made regarding the presence of an independent observer or medical practitioner to be present at the post-mortem examination.

4.6.23 In view of the above matters, the Commission notes that

whilst the conduct of a thorough autopsy is generally a prerequisite for an adequate coronial inquiry, some Aboriginal people object, on cultural grounds, to the conduct of an autopsy. The Commission recognizes that there are occasions when, as a matter of urgency and in the public interest,

the coroner may feel obligated to order that an autopsy be conducted, notwithstanding the fact that there may be objections to that course from members of the family or community of the deceased.

4.6.24 It is thus recommended that in order to minimize and to resolve difficulties in this area, the State Coroner or the representative of the State Coroner, should consult generally with Aboriginal Legal Services and Aboriginal Health Services to develop a protocol for the resolution of

questions involving the conduct of inquiries and autopsies, the removal and burial o f organs and the rem oval and return of the body of the deceased. It is highly desirable that as far as possible no obstacle be placed in the way of carrying out traditional rites and that relatives o f a

deceased A boriginal person be spared further grief. It is further recommended that the coroner conducting an inquiry into a death should be guided by this protocol and should make all reasonable efforts to obtain advice from the family and community of the deceased in consultation with

relevant Aboriginal organizations. In developing such a protocol with the Aboriginal Legal and Health Services, the State Coroner might consider whether it is appropriate to extend the terms of the protocol to deal with any and all cases of Aboriginal deaths notified to the coroner and not just

to those deaths which occurred in custody.

R i g h t t o a n I n d e p e n d e n t P a t h o l o g i s t

4.6.25 In some cases the family may wish to have a representative present at the autopsy. That representative may be a specialist forensic pathologist, a medical practitioner or a lay observer to view the state of the body and to see what is discovered on post-mortem examination.

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4.6.26 The right o f a third party (be it the family or some other

interested person) to have an observer present during the autopsy or to conduct a second autopsy, are issues which arose in approximately twenty of the deaths investigated by the Commission. In the majority a second autopsy was performed on behalf of the relatives by a forensic pathologist of their choosing. In some of these cases efforts had been made to arrange

for an observer pathologist to be present at the first autopsy without success,

4.6.27 It is preferable for any observer to be present at the first

autopsy because the conduct and value of a second autopsy is considerably com prom ised by the first examination. Further, the concerns and suspicions of the family may be allayed more swiftly if the person of their choice is present at the first examination.

4.6.28 C oroners and forensic pathologists consulted by the

Commission had no objection to the presence of an observer pathologist or other representative at the autopsy. However, most would not consider any substantial delay in conducting the autopsy in order to accommodate

the attendance o f such an observer. Questions o f delay and other circumstances which may affect the thorough pursuit o f post-mortem investigations are substantial considerations. The coroner should be

granted an express discretionary power in relation to these matters,

4.6.29 Accordingly, I am of the opinion that unless the State Coroner, or a coroner appointed to conduct the inquiry, directs otherwise, the family of the deceased or their representative should not only have a right to view the body and the death scene but also have an independent observer or

medical practitioner present at the post-mortem or have a further post­ mortem conducted. In addition, the family should have a right to receive a copy o f the post-m ortem report. If a coroner exercises his or her discretion, and directs otherwise, a copy of this direction should be sent to

the family and to the Aboriginal Legal Service.

R i g h t t o N o t i f i c a t i o n o f a n I n q u e s t

4.6.30 In several cases investigated by the Commission, the family of the deceased were not notified that an inquest into the death was to be held. The exercise o f the fam ily’s rights at the inquest are clearly contingent upon adequate notification of the time and place when such an inquest will be held.

4.6.31 While there are various administrative procedures followed in the various jurisdictions, only New South Wales and Queensland have some statutory provision in relation to the notification of interested parties. Neither specifically refers to an obligation to notify the family o f the deceased. The relevant provisions refer generally to persons having 6a

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sufficient interest’ in the inquest. Such general provisions should be retained and an express provision introduced in relation to the family of the deceased.

4.6.32 In my opinion, the deceased’s family or other nominated person and the Aboriginal Legal Service should be advised as soon as possible and, in any event, in adequate time, as to the date and time of the coronial inquest. In many cases, the family will require the advice of

personnel from the Aboriginal Legal Services and it is appropriate that notification also be made direct to those services.

R i g h t o f A p p e a r a n c e a t I n q u e s t

4.6.33 The C oroner’s Act in each jurisdiction gives a right of

appearance and/or representation to persons with a ‘sufficient interest’ in the circum stances o f death which is the subject o f inquest. In any particular case the determination of what persons fall within this criterion is a matter for the discretion of the coroner. It is a matter of general

practice throughout Australia that the family of the deceased are recognized to have such an interest. It is appropriate that such practice should be entrenched by the introduction of express legislation providing for the

right of the family o f the deceased to appear in person or by legal representation.

4.6.34 To be effective, the right of appearance at coronial inquests is dependent on the family receiving timely notification and appropriate steps being taken to arrange for legal advice and representation. In several cases questions arose as to whether notification had been sent by the coroner’s

office and received by the family. Similar questions arose in respect of Aboriginal Legal Services receiving notification and making the necessary arrangem ents on in structions from the fam ily. Problem s o f

communication can be acute, particularly in remote areas. Members of the deceased’s family may be unable to read or otherwise experience great difficulty in coping with the requirements of the legal system, especially in the context of a recent death in the family.

4.6.35 Accordingly, a procedure should be established to ensure that, so far as is reasonable, the family of the deceased have been acquainted with their rights and have had an opportunity to consider their position. Many inquests into Aboriginal deaths in custody have proceeded without the family being represented. Several proceeded in circumstances where it

was unclear that the family had received an effective opportunity to be represented.

4.6.36 It is my opinion, that no inquest should proceed in the absence of appearance for or on behalf of the family of the deceased unless the coroner is satisfied that the family has been notified of the hearing in good time and that the family does not wish to appear in person or by legal

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representation. In the event that no clear advice is available to the coroner as to the fam ily’s intention to be represented, no inquest should proceed unless the coroner is satisfied that all reasonable efforts have been made to obtain such advice from the family, the Aboriginal Legal Service and/or from lawyers representing the family.

A c c e s s t o D o c u m e n t s

4.6.37 In a number of cases investigated by the Commission, the issue of access to documents in the possession of the coroner was raised. For example, in the case of the death of Robert W alker, the coroner refused a request from the Director of the Prisons Department, counsel for

individual prison officers and counsel for the family to have access to statements and the opportunity of examining those statements held on the coroner’s file.

4.6.38 Section 45 of the Victorian C o ro n e r’s A c t gives persons with a sufficient interest a right to inspect statements which the coroner intends to consider, or any part of the coroner’s file, prior to the inquest. In Western Australia, draft legislation proposed by the Ad Hoc Committee adopts this

Victorian provision. In my opinion, such provision should be expressly introduced in all jurisdictions.

4.6.39 It is desirable that all documents, statements and other exhibits which are relevant to an inquiry should be made available to all persons appearing or represented at an inquest as early as possible. They should

definitely be available for inspection within a reasonable time prior to the conduct of the inquest. Where relevant witnesses are in custody, it is important that legal representatives of the family and other interested parties should have a reasonable opportunity to interview those witnesses as they would were they not in custody.

R i g h t t o C a l l E v i d e n c e a n d M a k e S u b m i s s i o n s

4.6.40 The fam ily should be involved as far as possible in the

preparation for the inquest. It is my view that those inquests which have been most successful were those in which there was consultation with the family undertaken by those assisting the coroner. This ensures that all the witnesses whom the family consider to be relevant are interviewed and, if necessary, called to give evidence.

4.6.41 In all jurisdictions, persons represented at an inquest have a statutory right to examine and cross-examine witnesses. However, it is only in Victoria that persons appearing are given the express right to call witnesses on their own initiative and make submissions. As a matter of practice, in South Australia and W estern Australia, parties have the opportunity of requesting that a witness be called, although they have no express statutory rights in this regard. In Queensland, a right to address

the coroner on points of law is provided.

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4.6.42 In W estern A ustralia, the Ad Hoc Com m ittee made the

following comments on this matter:

O n e o f th e f e w s tr e n g th s o f th e p r e s e n t s y s te m in

W estern A u stralia is th at it is the p ra c tic e f o r the C o ro n er to d e te r m in e w h o s h a ll b e c a lle d a s a w itn e s s . T his

f l o w s d i r e c tly f r o m th e in q u is ito r ia l n a tu r e o f th e

p ro c ee d in g s. S h ou ld in te re ste d p a r tie s be g ive n the rig h t to c a ll such w itn e sse s a s th ey ch ose, the w a y is o p e n f o r

in te re ste d p a r tie s to a d v a n c e th eir a d v e rsa ry o r p a rtisa n in terests.

4.6.43 It is my opinion that all parties to an inquest should be given an express statutory right to call witnesses subject to the final power of the coroner to rule that the evidence, proposed to be led from such a witness, is irrelevant to the proceedings. Such a provision would preserve the

ultimate judicial discretion of the coroner in relation to proceedings in his or her court but would, at the same time, recognize the p r im a fa c ie right of interested parties to call evidence on their own initiative. The family of the deceased may well have a ‘partisan’ view in relation to the circumstances

of death, and it is appropriate that these be explored on inquest in order to establish whether they have any valid foundation.

4.6.44 As noted above, the Victorian C o r o n e r ’s A c t is the only

legislation which specifically provides for persons appearing at an inquest to have a right to make general submissions for consideration by the coroner. The Western Australian Ad Hoc Committee also considered that such a right to make submissions represented ‘a further opportunity to

advance partisan interest’ and should not be recognized. In W estern Australia, it is the practice for coroners to exercise a discretion in this regard, although I note that the High Court has recently ruled that counsel appearing at an inquest do have a right of address in relation to issues in

respect of which findings adverse to their clients may possibly be made.27 In South Australia, it is an established practice to permit parties to make submissions. This practice has given rise to few, if any, problems. Com m issioner O ’D ea noted in his Regional R eport that there is

considerable benefit in written submissions and expressed support for parties being given rights in this regard. It is my view that parties represented at an inquest should have a right to make submissions, and the coroner should have the opportunity of requesting either written and/or

oral submissions.

A c c e s s t o L e g a l R e p r e s e n t a t i o n

4.6.45 In at least one case investigated by the Commission, counsel for the family presented submissions regarding the difficulties in obtaining legal aid for the inquest and the inadequacy of funding. Although in some

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recent inquests Aboriginal Legal Services have received additional funding from the former Department o f Aboriginal Affairs, it is clear that an increase in work relating to the representation o f fam ilies at coronial inquests will place additional burdens on the already strained resources of Aboriginal Legal Services. The recommendations of this Commission, if acted upon, may very well have that effect. The reasoning behind these recom m endations provides foundation for the provision o f sufficient

funding to enable them to be put into effect. It is a trite observation that the possession o f any legal right, such as the right to representation, is meaningless unless it can be exercised. It was recommended in the In terim R e p o rt that:

T he f a m ily o f th e d e c e a s e d sh o u ld b e e n title d to le g a l

rep resen ta tio n a t the in qu est a n d g o vern m en t sh o u ld p a y the re a so n a b le costs o f su ch represen tation through leg a l a id sch em es o r o th e rw ise.28

4.6.46 The further inquiries of the Commission support this general proposition: with respect I endorse it without qualification, I observe that, in the United Kingdom, the Broderick Committee, 1971 and the third report of the Home of Affairs Committee on Deaths in Custody, 1988, recommended that legal aid should be made available to enable interested parties to be represented at any inquest.

4.6.47 The level o f involvement o f Aboriginal Legal Services in coronial inquiries has been raised as an issue with this Commission. In some States the Aboriginal Legal Service is automatically advised of Aboriginal deaths in custody and of the fact that an inquest is to be held.

In other States there has been reluctance on the part of the police and coronial system to adopt such practices, Such reluctance is apparently based upon concerns regarding confidentiality and the overriding rights of the family of the deceased. In jurisdictions where the issue of notification of Aboriginal Legal Services has not been resolved, there is a need for consultation, at a local level, between the State C oroner’s office, Aboriginal com m unities and Aboriginal organizations to determine whether Aboriginal people in a particular area are in favour of their local Aboriginal Legal Service receiving independent notification of Aboriginal deaths in custody and matters relating to coronial inquiries.

C o u n s e l l i n g S e r v i c e s

4.6.48 There is a need for a service which provides information and counselling to meet the needs of the family of the deceased whose death is being investigated by the coroner. This is particularly necessary in needs of Aboriginal families.

4.6.49 It is considered that such a service could perform the following functions:

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♦ assist in notifying the family of the death; • provide information to relatives about the procedures in coronial inquiries; ♦ advise families of their rights in regard to such inquiries; and

• provide appropriate counselling services, referrals, education and general support.

4.6.50 In 1987, the New South Wales Task Force on Services to Victims of Crime reported on the counselling needs of the bereaved. It found that problems in the coronial system actually made matters worse for grieving families and friends. As a result the number of counsellors

attached to the coroner’s office was increased from one to three. The service which they can offer is still very limited, especially for country people. In all other jurisdictions the coroner’s office offers no counselling service whatsoever.

4.6.51 In Queensland, the Department of Justice Review of Coronial Inquest System, 1990, recommended that a full-time social worker be seconded to the Brisbane area on a twelve-month trial basis to provide death-counselling services. It was suggested that the social worker report directly to the State Coroner. In Western Australia, the Perth coroner has

sought an exceptionally modest sum of $1,000 to conduct an assessment of the counselling services required by his office, To-date, he has been unable to secure such funding.

4.6.52 I recommend that the lawyer appointed to assist the coroner be given the responsibility of ensuring, in liaison with the Aboriginal Legal Service, that arrangements are made for the family of the deceased to be offered counselling by an Aboriginal Health Service or other appropriate

body.

4,7 CONCLUSION

4,7.1 The expressed direction in the Letters Patent to inquire into ‘subsequent action taken in respect of each death in custody’ and the particular identification of ‘coronial police and other inquiries’ as a proper subject for investigation by the Commission draws attention to the extremely significant role of post-death investigations. It must be

acknowledged as a blunt reality that, despite all endeavours to lessen the risks, there will be future Aboriginal deaths in custody. The adequacy of coronial investigations is critical if the tragic aftermath of such deaths is not to perpetuate the feeling of anxiety and suspicion in the minds of the

deceased’s family and the Aboriginal community, which to a substantial degree gave rise to the need for this Commission’s work. The inadequacies of post-death investigations throughout Australia must be addressed as a matter of urgency.

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4.7.2 As I have observed, the very inclusion of this field of inquiry in the Commission’s Terms of Reference reflects an understanding of its importance. The principles which underly its importance are by no means novel. As Commissioner Wyvill noted in his report into the death of John Pilot, the justification for a thorough and impartial inquiry was stated, well

before the inception of this Commission, in a standard text book ‘Coronial Law and Practice in New South Wales

It is very desirable that no suspicion should arise in the public mind that deaths in Government Institutions such as gaols are made the subject merely o f investigations by Government Officers, and that therefore, when deaths

occur, it is not likely that everything which reflects on the management o f the institution will be allowed to come into the public view. The public should be

satisfied that the prisoner or confinee came to his death by the common course o f nature, and not by some unlawful violence or unreasonable hardship put on him by those under whose pow er he was while confined. There should not be given an opportunity fo r asserting that matters with regards to deaths in public institutions are ‘hushed up’ ?9

4.7.3 The principles advanced in support of recommendations made in this chapter are framed in terms of Australian conditions, but, in substance, accord with international standards for adequate investigations into suspicious deaths in detention as reviewed in the Com mission’s Discussion Paper No. 3 Aboriginal Deaths in Custody: International Law Issues.30

4.7.4 The principles which underpinned the need for immediate action to improve the quality of post-death investigations in Australia are well-known, and in effect, beyond dispute. Moreover, in human terms, thoroughly conducted coronial inquiries hold the potential to identify systemic failures in custodial practices and procedures which may, if acted on, prevent future deaths in similar circumstances. In the final analysis adequate post death investigations have the potential to save lives.

Recommendation 6:_______________________________

T h a t f o r t h e p u r p o s e o f a l l r e c o m m e n d a t i o n s r e l a t i n g

to p o s t - d e a t h i n v e s t i g a t i o n s t h e d e f i n i t i o n o f d e a t h s

s h o u l d i n c l u d e a t l e a s t t h e f o l l o w i n g c a t e g o r i e s :

a . T h e d e a t h w h e r e v e r o c c u r r i n g o f a p e r s o n w h o

i s in p r i s o n c u s t o d y o r p o l i c e c u s t o d y o r

d e t e n t i o n a s a j u v e n i l e ;

Page 170 Vol 1

4 The A dequacy of P revious Investigations

b . T h e d e a t h w h e r e v e r o c c u r r i n g o f a p e r s o n

w h o s e d e a t h i s c a u s e d o r c o n t r i b u t e d t o b y

t r a u m a t i c i n j u r i e s s u s t a i n e d o r b y l a c k o f p r o p e r

c a r e w h i l s t i n s u c h c u s t o d y o r d e t e n t i o n ;

c . T h e d e a t h w h e r e v e r o c c u r r i n g o f a p e r s o n w h o

d i e s o r is f a t a l l y i n j u r e d i n t h e p r o c e s s o f p o l i c e

o r p r i s o n o f f i c e r s a t t e m p t i n g t o d e t a i n t h a t

p e r s o n ; a n d

d . T h e d e a t h w h e r e v e r o c c u r r i n g o f a p e r s o n w h o

d i e s o r is f a t a l l y i n j u r e d in t h e p r o c e s s o f t h a t

p e r s o n e s c a p i n g o r a t t e m p t i n g t o e s c a p e f r o m

p r i s o n c u s t o d y o r p o l i c e c u s t o d y o r j u v e n i l e

d e t e n t i o n .

R e c o m m e n d a t i o n 7 : _____________________________________________

T h a t t h e S t a t e C o r o n e r o r , in a n y S t a t e o r T e r r i t o r y

w h e r e a s i m i l a r o f f i c e d o e s n o t e x i s t , a C o r o n e r

s p e c i a l l y d e s i g n a t e d f o r t h e p u r p o s e , b e g e n e r a l l y

r e s p o n s i b l e f o r i n q u i r y i n t o a l l d e a t h s in c u s t o d y . ( I n

a l l r e c o m m e n d a t i o n s i n t h i s r e p o r t t h e w o r d s ‘S t a t e

C o r o n e r ’ s h o u l d b e t a k e n to m e a n a n d i n c l u d e

C o r o n e r s o s p e c i a l l y d e s i g n a t e d . )

R e c o m m e n d a t i o n 8 :_____________________________________________

T h a t t h e S t a t e C o r o n e r b e r e s p o n s i b l e f o r t h e

d e v e l o p m e n t o f a p r o t o c o l f o r t h e c o n d u c t o f c o r o n i a l

i n q u i r i e s i n t o d e a t h s i n c u s t o d y a n d p r o v i d e s u c h

g u i d a n c e a s is a p p r o p r i a t e to C o r o n e r s a p p o i n t e d to

c o n d u c t i n q u i r i e s a n d i n q u e s t s .

R e c o m m e n d a t i o n 9 :________________________________________________

T h a t a C o r o n e r i n q u i r i n g i n t o a d e a t h in c u s t o d y b e a

S t i p e n d i a r y M a g i s t r a t e o r a m o r e s e n i o r j u d i c i a l

o f f i c e r .

R e c o m m e n d a t i o n 1 0 : ______________________________________________

T h a t c u s t o d i a l a u t h o r i t i e s b e r e q u i r e d b y l a w to

i m m e d i a t e l y n o t i f y t h e C o r o n e r s O f f i c e o f a l l d e a t h s

in c u s t o d y , in a d d i t i o n t o a n y o t h e r a p p r o p r i a t e

n o t i f i c a t i o n .

V oll Page 171

The A dequacy of Previous Investigations 4

R e c o m m e n d a t i o n 1 1 : ______________________________________________

T h a t a l l d e a t h s in c u s t o d y b e r e q u i r e d b y l a w to b e t h e

s u b j e c t o f a c o r o n i a l i n q u i r y w h i c h c u l m i n a t e s i n a

f o r m a l i n q u e s t c o n d u c t e d b y t h e C o r o n e r i n t o t h e

c i r c u m s t a n c e s o f t h e d e a t h . U n l e s s t h e r e a r e

c o m p e l l i n g r e a s o n s t o j u s t i f y a d i f f e r e n t a p p r o a c h t h e

i n q u e s t s h o u l d b e c o n d u c t e d i n p u b l i c h e a r i n g s . A

f u l l r e c o r d o f t h e e v i d e n c e s h o u l d b e t a k e n a t t h e

i n q u e s t a n d r e t a i n e d .

R e c o m m e n d a t i o n 1 2 : ______________________________________________

T h a t a C o r o n e r i n q u i r i n g i n t o a d e a t h i n c u s t o d y b e

r e q u i r e d b y l a w t o i n v e s t i g a t e n o t o n l y t h e c a u s e a n d

c i r c u m s t a n c e s o f t h e d e a t h b u t a l s o t h e q u a l i t y o f t h e

c a r e , t r e a t m e n t a n d s u p e r v i s i o n o f t h e d e c e a s e d p r i o r

to d e a t h .

R e c o m m e n d a t i o n 1 3 : _____________________________________________

T h a t a C o r o n e r i n q u i r i n g i n t o a d e a t h in c u s t o d y b e

r e q u i r e d t o m a k e f i n d i n g s a s to t h e m a t t e r s w h i c h t h e

C o r o n e r i s r e q u i r e d t o i n v e s t i g a t e a n d t o m a k e s u c h

r e c o m m e n d a t i o n s a s a r e d e e m e d a p p r o p r i a t e w i t h a

v i e w t o p r e v e n t i n g f u r t h e r c u s t o d i a l d e a t h s . T h e

C o r o n e r s h o u l d b e e m p o w e r e d , f u r t h e r , to m a k e s u c h

r e c o m m e n d a t i o n s o n o t h e r m a t t e r s a s h e o r s h e d e e m s

a p p r o p r i a t e .

R e c o m m e n d a t i o n 1 4 : ______________________________________________

T h a t c o p i e s o f t h e f i n d i n g s a n d r e c o m m e n d a t i o n s o f

t h e C o r o n e r b e p r o v i d e d b y t h e C o r o n e r s O f f i c e to a l l

p a r t i e s w h o a p p e a r e d a t t h e i n q u e s t , t o t h e A t t o r n e y -

G e n e r a l o r M i n i s t e r f o r J u s t i c e o f t h e S t a t e o r

T e r r i t o r y i n w h i c h t h e i n q u e s t w a s c o n d u c t e d , t o t h e

M i n i s t e r o f t h e C r o w n w i t h r e s p o n s i b i l i t y f o r t h e

r e l e v a n t c u s t o d i a l a g e n c y o r d e p a r t m e n t a n d t o s u c h

o t h e r p e r s o n s a s t h e C o r o n e r d e e m s a p p r o p r i a t e .

R e c o m m e n d a t i o n 1 5 : ______________________________________________

T h a t w i t h i n t h r e e c a l e n d a r m o n t h s o f p u b l i c a t i o n o f

t h e f i n d i n g s a n d r e c o m m e n d a t i o n s o f t h e C o r o n e r a s

Page 172 V oll

4 The A dequacy of P revious Investigations

to a n y d e a t h in c u s t o d y , a n y a g e n c y o r d e p a r t m e n t to

w h i c h a c o p y o f t h e f i n d i n g s a n d r e c o m m e n d a t i o n s

h a s b e e n d e l i v e r e d b y t h e C o r o n e r s h a l l p r o v i d e , in

w r i t i n g , t o t h e M i n i s t e r o f t h e C r o w n w i t h

r e s p o n s i b i l i t y f o r t h a t a g e n c y o r d e p a r t m e n t , i t s

r e s p o n s e t o t h e f i n d i n g s a n d r e c o m m e n d a t i o n s , w h i c h

s h o u l d i n c l u d e a r e p o r t a s to w h e t h e r a n y a c t i o n h a s

b e e n t a k e n o r i s p r o p o s e d to b e t a k e n w i t h r e s p e c t to

a n y p e r s o n .

R e c o m m e n d a t i o n 1 6 : ______________________________________________

T h a t t h e r e l e v a n t M i n i s t e r s o f t h e C r o w n to w h o m

r e s p o n s e s a r e d e l i v e r e d b y a g e n c i e s o r d e p a r t m e n t s ,

a s p r o v i d e d f o r i n R e c o m m e n d a t i o n 1 5 , p r o v i d e

c o p i e s o f e a c h s u c h r e s p o n s e t o a l l p a r t i e s w h o

a p p e a r e d b e f o r e t h e C o r o n e r a t t h e i n q u e s t , t o t h e

C o r o n e r w h o c o n d u c t e d t h e i n q u e s t a n d t o t h e S t a t e

C o r o n e r . T h a t t h e S t a t e C o r o n e r b e e m p o w e r e d to

c a l l f o r s u c h f u r t h e r e x p l a n a t i o n s o r i n f o r m a t i o n a s h e

o r s h e c o n s i d e r s n e c e s s a r y , i n c l u d i n g r e p o r t s a s t o

f u r t h e r a c t i o n t a k e n i n r e l a t i o n t o t h e

r e c o m m e n d a t i o n s .

R e c o m m e n d a t i o n 1 7 : ______________________________________________

T h a t t h e S t a t e C o r o n e r b e r e q u i r e d t o r e p o r t a n n u a l l y

i n w r i t i n g t o t h e A t t o r n e y - G e n e r a l o r M i n i s t e r f o r

J u s t i c e , ( s u c h r e p o r t t o b e t a b l e d in P a r l i a m e n t ) , a s to

d e a t h s i n c u s t o d y g e n e r a l l y w i t h i n t h e j u r i s d i c t i o n

a n d , i n p a r t i c u l a r , a s t o f i n d i n g s a n d

r e c o m m e n d a t i o n s m a d e b y C o r o n e r s p u r s u a n t t o t h e

t e r m s o f R e c o m m e n d a t i o n 1 3 a b o v e a n d a s t o t h e

r e s p o n s e s t o s u c h f i n d i n g s a n d r e c o m m e n d a t i o n s

p r o v i d e d p u r s u a n t t o t h e t e r m s o f R e c o m m e n d a t i o n 1 6

a b o v e .

R e c o m m e n d a t i o n 1 8 : ___________________________________________ __

T h a t t h e S t a t e C o r o n e r , in r e p o r t i n g t o t h e A t t o r n e y -

G e n e r a l o r M i n i s t e r f o r J u s t i c e , b e e m p o w e r e d t o

m a k e s u c h r e c o m m e n d a t i o n s a s t h e S t a t e C o r o n e r

d e e m s f i t w i t h r e s p e c t to t h e p r e v e n t i o n o f d e a t h s i n

c u s t o d y .

Vol 1 Page 173

The A dequacy of Previous Investigations 4

R e c o m m e n d a t i o n 1 9 : ______________________________________________

T h a t i m m e d i a t e n o t i f i c a t i o n o f d e a t h o f a n A b o r i g i n a l

p e r s o n b e g i v e n to t h e f a m i l y o f t h e d e c e a s e d a n d , i f

o t h e r s w e r e n o m i n a t e d b y t h e d e c e a s e d a s p e r s o n s to

b e c o n t a c t e d i n t h e e v e n t o f e m e r g e n c y , t o s u c h

p e r s o n s s o n o m i n a t e d . N o t i f i c a t i o n s h o u l d b e t h e

r e s p o n s i b i l i t y o f t h e c u s t o d i a l i n s t i t u t i o n i n w h i c h t h e

d e a t h o c c u r r e d ; n o t i f i c a t i o n , w h e r e v e r p o s s i b l e ,

s h o u l d b e m a d e i n p e r s o n , p r e f e r a b l y b y a n

A b o r i g i n a l p e r s o n k n o w n t o t h o s e b e i n g s o n o t i f i e d .

A t a l l t i m e s n o t i f i c a t i o n s h o u l d b e g i v e n i n a s e n s i t i v e

m a n n e r r e s p e c t i n g t h e c u l t u r e a n d i n t e r e s t s o f t h e

p e r s o n s b e i n g n o t i f i e d a n d t h e e n t i t l e m e n t o f s u c h

p e r s o n s t o f u l l a n d f r a n k r e p o r t i n g o f s u c h

c i r c u m s t a n c e s o f t h e d e a t h a s a r e k n o w n .

R e c o m m e n d a t i o n 2 0 : _____________________________________________

T h a t t h e a p p r o p r i a t e A b o r i g i n a l L e g a l S e r v i c e b e

n o t i f i e d i m m e d i a t e l y o f a n y A b o r i g i n a l d e a t h i n

c u s t o d y .

R e c o m m e n d a t i o n 2 1 : _____________________________________________

T h a t t h e d e c e a s e d ’s f a m i l y o r o t h e r n o m i n a t e d p e r s o n

a n d t h e A b o r i g i n a l L e g a l S e r v i c e b e a d v i s e d a s s o o n

a s p o s s i b l e a n d , i n a n y e v e n t , in a d e q u a t e t i m e , a s to

t h e d a t e a n d t i m e o f t h e c o r o n i a l i n q u e s t .

R e c o m m e n d a t i o n 2 2 : ______________________________________________

T h a t n o i n q u e s t s h o u l d p r o c e e d i n t h e a b s e n c e o f

a p p e a r a n c e f o r o r o n b e h a l f o f t h e f a m i l y o f t h e

d e c e a s e d u n l e s s t h e C o r o n e r i s s a t i s f i e d t h a t t h e

f a m i l y h a s b e e n n o t i f i e d o f t h e h e a r i n g in g o o d t i m e

a n d t h a t t h e f a m i l y d o e s n o t w i s h t o a p p e a r i n p e r s o n

o r b y a r e p r e s e n t a t i v e . I n t h e e v e n t t h a t n o c l e a r

a d v i c e i s a v a i l a b l e to t h e C o r o n e r a s to t h e f a m i l y ’s

i n t e n t i o n t o b e a p p e a r o r b e r e p r e s e n t e d n o i n q u e s t

s h o u l d p r o c e e d u n l e s s t h e C o r o n e r i s s a t i s f i e d t h a t a l l

r e a s o n a b l e e f f o r t s h a v e b e e n m a d e t o o b t a i n s u c h

a d v i c e f r o m t h e f a m i l y , t h e A b o r i g i n a l L e g a l S e r v i c e

a n d / o r f r o m l a w y e r s r e p r e s e n t i n g t h e f a m i l y .

Page 174 V oll

4 The A dequacy of P revious Investigations

R e c o m m e n d a t i o n 2 3 : ______________________________________________

T h a t t h e f a m i l y o f t h e d e c e a s e d b e e n t i t l e d to l e g a l

r e p r e s e n t a t i o n a t t h e i n q u e s t a n d t h a t g o v e r n m e n t p a y

t h e r e a s o n a b l e c o s t s o f s u c h r e p r e s e n t a t i o n t h r o u g h

l e g a l a i d s c h e m e s o r o t h e r w i s e .

R e c o m m e n d a t i o n 2 4 : ______________________________________________

T h a t u n l e s s t h e S t a t e C o r o n e r o r a C o r o n e r a p p o i n t e d

to c o n d u c t t h e i n q u i r y o t h e r w i s e d i r e c t s , i n v e s t i g a t o r s

c o n d u c t i n g i n q u i r i e s o n b e h a l f o f t h e C o r o n e r a n d t h e

s t a f f o f t h e C o r o n e r s O f f i c e s h o u l d a t a l l t i m e s

e n d e a v o u r to p r o v i d e s u c h i n f o r m a t i o n a s i s s o u g h t b y

t h e f a m i l y o f t h e d e c e a s e d , t h e A b o r i g i n a l L e g a l

S e r v i c e a n d / o r l a w y e r s r e p r e s e n t i n g t h e f a m i l y a s to

t h e p r o g r e s s o f t h e i r i n v e s t i g a t i o n a n d t h e p r e p a r a t i o n

o f t h e b r i e f f o r t h e i n q u e s t . A l l e f f o r t s s h o u l d b e

m a d e to p r o v i d e f r a n k a n d h e l p f u l a d v i c e a n d to d o s o

in a p o l i t e a n d c o n s i d e r a t e m a n n e r . I f r e q u e s t e d , a l l

e f f o r t s s h o u l d b e m a d e to a l l o w f a m i l y m e m b e r s o r

t h e i r r e p r e s e n t a t i v e s t h e o p p o r t u n i t y t o i n s p e c t t h e

s c e n e o f d e a t h .

R e c o m m e n d a t i o n 2 5 : ______________________________________________

T h a t u n l e s s t h e S t a t e C o r o n e r , o r a C o r o n e r a p p o i n t e d

t o c o n d u c t t h e i n q u i r y , d i r e c t s o t h e r w i s e , a n d i n

w r i t i n g , t h e f a m i l y o f t h e d e c e a s e d o r t h e i r

r e p r e s e n t a t i v e s h o u l d h a v e a r i g h t t o v i e w t h e b o d y ,

t o v i e w t h e s c e n e o f d e a t h , to h a v e a n i n d e p e n d e n t

o b s e r v e r a t a n y p o s t - m o r t e m t h a t i s a u t h o r i z e d t o b e

c o n d u c t e d b y t h e C o r o n e r , to e n g a g e a n i n d e p e n d e n t

m e d i c a l p r a c t i t i o n e r t o b e p r e s e n t a t t h e p o s t - m o r t e m

o r t o c o n d u c t a f u r t h e r p o s t - m o r t e m , a n d t o r e c e i v e a

c o p y o f t h e p o s t - m o r t e m r e p o r t . I f t h e C o r o n e r

d i r e c t s o t h e r w i s e , a c o p y o f t h e d i r e c t i o n s h o u l d b e

s e n t to t h e f a m i l y a n d to t h e A b o r i g i n a l L e g a l S e r v i c e .

Vol 1 Page 175

The A dequacy of Previous Investigations 4

R e c o m m e n d a t i o n 2 6 : ______________________________________________

T h a t a s s o o n a s p r a c t i c a b l e , a n d n o t l a t e r t h a n f o r t y -

e i g h t h o u r s a f t e r r e c e i v i n g a d v i c e o f a d e a t h i n

c u s t o d y t h e S t a t e C o r o n e r s h o u l d a p p o i n t a s o l i c i t o r

o r b a r r i s t e r to a s s i s t t h e C o r o n e r w h o w i l l c o n d u c t t h e

i n q u i r y i n t o t h e d e a t h .

R e c o m m e n d a t i o n 2 7 : ______________________________________________

T h a t t h e p e r s o n a p p o i n t e d t o a s s i s t t h e C o r o n e r in t h e

c o n d u c t o f t h e i n q u i r y m a y b e a s a l a r i e d o f f i c e r o f t h e

C r o w n L a w O f f i c e o r t h e e q u i v a l e n t o f f i c e i n e a c h

S t a t e a n d T e r r i t o r y , p r o v i d e d t h a t t h e o f f i c e r s o

a p p o i n t e d i s i n d e p e n d e n t o f r e l e v a n t c u s t o d i a l

a u t h o r i t i e s a n d o f f i c e r s . W h e r e , in t h e o p i n i o n o f t h e

S t a t e C o r o n e r , t h e c o m p l e x i t y o f t h e i n q u i r y o r o t h e r

f a c t o r s , n e c e s s i t a t e s t h e e n g a g i n g o f c o u n s e l t h e n t h e

r e s p o n s i b l e g o v e r n m e n t o f f i c e s h o u l d e n s u r e t h a t

c o u n s e l i s s o e n g a g e d .

R e c o m m e n d a t i o n 2 8 : ______________________________________________

T h a t t h e d u t i e s o f t h e l a w y e r a s s i s t i n g t h e C o r o n e r b e ,

s u b j e c t t o d i r e c t i o n o f t h e C o r o n e r , t o t a k e

r e s p o n s i b i l i t y , in t h e f i r s t i n s t a n c e , f o r e n s u r i n g t h a t

f u l l a n d a d e q u a t e i n q u i r y i s c o n d u c t e d i n t o t h e c a u s e

a n d c i r c u m s t a n c e s o f t h e d e a t h a n d i n t o s u c h o t h e r

m a t t e r s a s t h e C o r o n e r is b o u n d to i n v e s t i g a t e . U p o n

t h e h e a r i n g o f t h e i n q u e s t t h e d u t i e s o f t h e l a w y e r

a s s i s t i n g a t t h e i n q u e s t , w h e t h e r s o l i c i t o r o r b a r r i s t e r ,

s h o u l d b e t o e n s u r e t h a t a l l r e l e v a n t e v i d e n c e i s

b r o u g h t t o t h e a t t e n t i o n o f t h e C o r o n e r a n d

a p p r o p r i a t e l y t e s t e d , s o a s t o e n a b l e t h e C o r o n e r t o

m a k e s u c h f i n d i n g s a n d r e c o m m e n d a t i o n s a s a r e

a p p r o p r i a t e to b e m a d e .

R e c o m m e n d a t i o n 2 9 : ______________________________________________

T h a t a C o r o n e r in c h a r g e o f a c o r o n i a l i n q u i r y i n t o a

d e a t h in c u s t o d y h a v e l e g a l p o w e r t o r e q u i r e t h e

o f f i c e r i n c h a r g e o f t h e p o l i c e i n v e s t i g a t i o n t o r e p o r t

to t h e C o r o n e r . T h e C o r o n e r s h o u l d h a v e p o w e r to

g i v e d i r e c t i o n s a s t o a n y a d d i t i o n a l s t e p s h e o r s h e

d e s i r e s to b e t a k e n in t h e i n v e s t i g a t i o n .

Page 176 Vol 1

4 The A dequacy of P revious Investigations

R e c o m m e n d a t i o n 3 0 : ______________________________________________

T h a t s u b j e c t t o d i r e c t i o n , g e n e r a l l y o r s p e c i f i c a l l y

g i v e n , b y t h e C o r o n e r , t h e l a w y e r a s s i s t i n g t h e

C o r o n e r s h o u l d h a v e r e s p o n s i b i l i t y f o r r e v i e w i n g t h e

c o n d u c t o f t h e i n v e s t i g a t i o n a n d a d v i s i n g t h e C o r o n e r

a s to t h e p r o g r e s s o f t h e i n v e s t i g a t i o n .

R e c o m m e n d a t i o n 3 1 : ______________________________________________

T h a t in p e r f o r m i n g t h e d u t i e s a s l a w y e r a s s i s t i n g t h e

C o r o n e r i n t h e i n q u i r y i n t o a d e a t h t h e l a w y e r

a s s i s t i n g t h e C o r o n e r b e k e p t i n f o r m e d a t a l l t i m e s b y

t h e o f f i c e r i n c h a r g e o f t h e p o l i c e i n v e s t i g a t i o n i n t o

t h e d e a t h a s to t h e c o n d u c t o f t h e i n v e s t i g a t i o n a n d t h e

l a w y e r a s s i s t i n g t h e C o r o n e r s h o u l d b e e n t i t l e d t o

r e q u i r e t h e o f f i c e r i n c h a r g e o f t h e p o l i c e

i n v e s t i g a t i o n t o c o n d u c t s u c h f u r t h e r i n v e s t i g a t i o n a s

m a y b e d e e m e d a p p r o p r i a t e . W h e r e d i s p u t e a r i s e s

b e t w e e n t h e o f f i c e r i n c h a r g e o f t h e p o l i c e

i n v e s t i g a t i o n a n d t h e l a w y e r a s s i s t i n g t h e C o r o n e r a s

t o t h e a p p r o p r i a t e n e s s o f s u c h f u r t h e r i n v e s t i g a t i o n

t h e m a t t e r s h o u l d b e r e s o l v e d b y t h e C o r o n e r .

R e c o m m e n d a t i o n 3 2 : ______________________________________________

T h a t t h e s e l e c t i o n o f t h e o f f i c e r i n c h a r g e o f t h e p o l i c e

i n v e s t i g a t i o n i n t o a d e a t h i n c u s t o d y b e m a d e b y a n

o f f i c e r o f C h i e f C o m m i s s i o n e r , D e p u t y C o m m i s s i o n e r

o r A s s i s t a n t C o m m i s s i o n e r r a n k .

R e c o m m e n d a t i o n 3 3 : ______________________________________________

T h a t a l l o f f i c e r s i n v o l v e d in t h e i n v e s t i g a t i o n o f a

d e a t h i n p o l i c e c u s t o d y b e s e l e c t e d f r o m a n I n t e r n a l

A f f a i r s U n i t o r f r o m a p o l i c e c o m m a n d a r e a o t h e r t h a n

t h a t in w h i c h t h e d e a t h o c c u r r e d a n d i n e v e r y r e s p e c t

s h o u l d b e a s i n d e p e n d e n t a s p o s s i b l e f r o m p o l i c e

o f f i c e r s c o n c e r n e d w i t h m a t t e r s u n d e r i n v e s t i g a t i o n .

P o l i c e o f f i c e r s w h o w e r e o n d u t y d u r i n g t h e t i m e o f

l a s t d e t e n t i o n o f a p e r s o n w h o d i e d i n c u s t o d y s h o u l d

t a k e n o p a r t in t h e i n v e s t i g a t i o n i n t o t h a t d e a t h s a v e a s

w i t n e s s e s o r , w h e r e n e c e s s a r y , f o r t h e p u r p o s e o f

p r e s e r v i n g t h e s c e n e o f d e a t h .

Vol 1 Page 177

The A dequacy of Previous Investigations 4

Recommendation 34:________________________________

T h a t p o l i c e i n v e s t i g a t i o n s b e c o n d u c t e d b y o f f i c e r s

w h o a r e h i g h l y q u a l i f i e d a s i n v e s t i g a t o r s , f o r

i n s t a n c e , b y e x p e r i e n c e in t h e C r i m i n a l I n v e s t i g a t i o n

B r a n c h . S u c h o f f i c e r s s h o u l d b e r e s p o n s i b l e to o n e ,

i d e n t i f i e d , s e n i o r o f f i c e r . * a . b . c . d . e .

Recommendation 35:________________________________

T h a t p o l i c e s t a n d i n g o r d e r s o r i n s t r u c t i o n s p r o v i d e

s p e c i f i c d i r e c t i o n s a s to t h e c o n d u c t o f i n v e s t i g a t i o n s

i n t o t h e c i r c u m s t a n c e s o f a d e a t h in c u s t o d y . As a

m a t t e r o f g u i d a n c e a n d w i t h o u t l i m i t i n g t h e s c o p e o f

s u c h d i r e c t i o n s a s m a y b e d e t e r m i n e d , i t is t h e v i e w

o f t h e C o m m i s s i o n t h a t s u c h d i r e c t i o n s s h o u l d

r e q u i r e , inter alia, th a t:

a . I n v e s t i g a t i o n s s h o u l d b e a p p r o a c h e d o n t h e

b a s i s t h a t t h e d e a t h m a y b e a h o m i c i d e . S u i c i d e

s h o u l d n e v e r b e p r e s u m e d ;

b . A l l i n v e s t i g a t i o n s s h o u l d e x t e n d b e y o n d a n

i n q u i r y i n t o w h e t h e r d e a t h o c c u r r e d a s a r e s u l t

o f c r i m i n a l b e h a v i o u r a n d s h o u l d i n c l u d e

i n q u i r y i n t o t h e l a w f u l n e s s o f t h e c u s t o d y a n d

t h e g e n e r a l c a r e , t r e a t m e n t a n d s u p e r v i s i o n o f

t h e d e c e a s e d p r i o r to d e a t h ;

c . T h e i n v e s t i g a t i o n s i n t o d e a t h s in p o l i c e w a t c h -

h o u s e s s h o u l d i n c l u d e f u l l i n q u i r y i n t o t h e

c i r c u m s t a n c e s l e a d i n g t o i n c a r c e r a t i o n ,

i n c l u d i n g t h e c i r c u m s t a n c e s o f a r r e s t o r

a p p r e h e n s i o n a n d t h e d e c e a s e d ’s a c t i v i t i e s

b e f o r e h a n d ;

d . I n t h e c o u r s e o f i n q u i r y i n t o t h e g e n e r a l c a r e ,

t r e a t m e n t o r s u p e r v i s i o n o f t h e d e c e a s e d p r i o r to

d e a t h p a r t i c u l a r a t t e n t i o n s h o u l d b e g i v e n to

w h e t h e r c u s t o d i a l o f f i c e r s o b s e r v e d a l l r e l e v a n t

p o l i c i e s a n d i n s t r u c t i o n s r e l a t i n g to t h e c a r e ,

t r e a t m e n t a n d s u p e r v i s i o n o f t h e d e c e a s e d ; a n d

e . T h e s c e n e o f d e a t h s h o u l d b e s u b j e c t to a

t h o r o u g h e x a m i n a t i o n i n c l u d i n g t h e s e i z u r e o f

e x h i b i t s f o r f o r e n s i c s c i e n c e e x a m i n a t i o n a n d

t h e r e c o r d i n g o f t h e s c e n e o f d e a t h b y m e a n s o f

h i g h q u a l i t y c o l o u r p h o t o g r a p h y .

Page 178 V oll

4 The A dequacy of P revious Investigations

R e c o m m e n d a t i o n 3 6 : ______________________________________________

I n v e s t i g a t i o n s i n t o d e a t h s i n c u s t o d y s h o u l d b e

s t r u c t u r e d to p r o v i d e a t h o r o u g h e v i d e n t i a r y b a s e f o r

c o n s i d e r a t i o n b y t h e C o r o n e r o n i n q u e s t i n t o t h e c a u s e

a n d c i r c u m s t a n c e s o f t h e d e a t h a n d t h e q u a l i t y o f t h e

c a r e , t r e a t m e n t a n d s u p e r v i s i o n o f t h e d e c e a s e d p r i o r

to d e a t h .

R e c o m m e n d a t i o n 3 7 : ______________________________________________

T h a t a l l p o s t - m o r t e m e x a m i n a t i o n s o f t h e d e c e a s e d b e

c o n d u c t e d b y a s p e c i a l i s t f o r e n s i c p a t h o l o g i s t

w h e r e v e r p o s s i b l e o r , i f a s p e c i a l i s t f o r e n s i c

p a t h o l o g i s t i s n o t a v a i l a b l e , b y a s p e c i a l i s t p a t h o l o g i s t

q u a l i f i e d b y e x p e r i e n c e o r t r a i n i n g to c o n d u c t s u c h

p o s t - m o r t e m s .

R e c o m m e n d a t i o n 3 8 : ______________________________________________

T h e C o m m i s s i o n n o t e s t h a t w h i l s t t h e c o n d u c t o f a

t h o r o u g h a u t o p s y i s g e n e r a l l y a p r e r e q u i s i t e f o r a n

a d e q u a t e c o r o n i a l i n q u i r y s o m e A b o r i g i n a l p e o p l e

o b j e c t , o n c u l t u r a l g r o u n d s , t o t h e c o n d u c t o f a n

a u t o p s y . T h e C o m m i s s i o n r e c o g n i z e s t h a t t h e r e a r e

o c c a s i o n s w h e r e a s a m a t t e r o f u r g e n c y a n d i n t h e

p u b l i c i n t e r e s t t h e C o r o n e r m a y f e e l o b l i g a t e d to o r d e r

t h a t a n a u t o p s y b e c o n d u c t e d n o t w i t h s t a n d i n g t h e f a c t

t h a t t h e r e m a y b e o b j e c t i o n s t o t h a t c o u r s e f r o m

m e m b e r s o f t h e f a m i l y o r c o m m u n i t y o f t h e d e c e a s e d .

T h e C o m m i s s i o n r e c o m m e n d s t h a t i n o r d e r t o

m i n i m i z e a n d t o r e s o l v e d i f f i c u l t i e s in t h i s a r e a t h e

S t a t e C o r o n e r o r t h e r e p r e s e n t a t i v e o f t h e S t a t e

C o r o n e r s h o u l d c o n s u l t g e n e r a l l y w i t h A b o r i g i n a l

L e g a l S e r v i c e s a n d A b o r i g i n a l H e a l t h S e r v i c e s t o

d e v e l o p a p r o t o c o l f o r t h e r e s o l u t i o n o f q u e s t i o n s

i n v o l v i n g t h e c o n d u c t o f i n q u i r i e s a n d a u t o p s i e s , t h e

r e m o v a l a n d b u r i a l o f o r g a n s a n d t h e r e m o v a l a n d

r e t u r n o f t h e b o d y o f t h e d e c e a s e d . I t i s h i g h l y

d e s i r a b l e t h a t a s f a r a s p o s s i b l e n o o b s t a c l e b e p l a c e d

in t h e w a y o f c a r r y i n g o u t o f t r a d i t i o n a l r i t e s a n d t h a t

r e l a t i v e s o f a d e c e a s e d A b o r i g i n a l p e r s o n b e s p a r e d

f u r t h e r g r i e f . T h e C o m m i s s i o n f u r t h e r r e c o m m e n d s

t h a t t h e C o r o n e r c o n d u c t i n g a n i n q u i r y i n t o a d e a t h in

c u s t o d y s h o u l d b e g u i d e d b y s u c h p r o t o c o l a n d s h o u l d

m a k e a l l r e a s o n a b l e e f f o r t s t o o b t a i n a d v i c e f r o m t h e

f a m i l y a n d c o m m u n i t y o f t h e d e c e a s e d i n c o n s u l t a t i o n

w i t h r e l e v a n t A b o r i g i n a l o r g a n i z a t i o n s .

Voll Page 179

The Adequacy of Previous Investigations 4

R e c o m m e n d a t i o n 3 9 : ______________________________________________

T h a t i n d e v e l o p i n g a p r o t o c o l w i t h A b o r i g i n a l L e g a l

S e r v i c e s a n d A b o r i g i n a l H e a l t h S e r v i c e s a s p r o p o s e d

i n R e c o m m e n d a t i o n 3 8 , t h e S t a t e C o r o n e r m i g h t

c o n s i d e r w h e t h e r i t i s a p p r o p r i a t e t o e x t e n d t h e t e r m s

o f t h e p r o t o c o l to d e a l w i t h a n y a n d a l l c a s e s o f

A b o r i g i n a l d e a t h s n o t i f i e d to t h e C o r o n e r a n d n o t j u s t

to t h o s e d e a t h s w h i c h o c c u r r e d in c u s t o d y .

R e c o m m e n d a t i o n 4 0 : ______________________________________________

T h a t C o r o n e r s O f f i c e s i n a l l S t a t e s a n d T e r r i t o r i e s

e s t a b l i s h a n d m a i n t a i n a u n i f o r m d a t a b a s e to r e c o r d

d e t a i l s o f A b o r i g i n a l a n d n o n - A b o r i g i n a l d e a t h s in

c u s t o d y a n d l i a i s e w i t h t h e A u s t r a l i a n I n s t i t u t e o f

C r i m i n o l o g y a n d s u c h o t h e r b o d i e s a s m a y b e

a u t h o r i s e d t o c o m p i l e a n d m a i n t a i n r e c o r d s o f

A b o r i g i n a l d e a t h s i n c u s t o d y in A u s t r a l i a .

1 J. H. Muirhcad, Interim R eport, AGPS, Canberra, 1988, p. 58

2 E. Johnston, R eport o f the Inquiry into th e D eath o f K w em en tyaye P rice, RCIADIC, NT/3, AGPS, Canberra, 1990, pp. 84-5

3 E.. Johnston, R ep o rt o f the Inquiry into the D eath o f Stanley John G ollan , RCIADIC S/10, AGPS, Canberra, 1990, pp. 63-4

4 L. F. Wyvill, R eport o f the Inquiry into the D eath o f P a trick Booth, RCIADIC QV, AGPS, Canberra, 1990, p. 39

Page 180 Vol 1

4 The A dequacy of P revious Investigations

5 L. F. Wyvill, R ep o rt o f th e Inquiry into the D eath o f M u riel G w en da C atheryn Binks, RCIADIC QAA, AGPS, Canberra, 1991, pp. 1-2

6 Wyvill, M u riel B in ks, pp. 137-8

7 Eddie West and Gregory Dunrobin

8 Tim Murray, Bruce Leslie, Mark Revell and Clarrie Nean

9 J. H. Wootten, R ep o rt o f Inquiry into the D eath o f M a rk W ayn e R evell, RCIADIC N12, AGPS, Canberra, pp. 60-1

10 Muirhead, Interim R eport, p. 62, Recommendation 44

11 H. Hallenstein, Subm ission by S ta te C oron er, V ictoria to the R C IAD IC , RCIADIC Exhibit GE/21, 1988

12 K. Waller, NSW State Coroner, letter to Royal Commission in NSW, 21/8/90

13 S. Cordner, Victorian Institute of Forensic Pathology, S ta te F oren sic S cien ce C en tre S u bm ission to the R C IAD IC , RCIADIC Submission , 1990

14 McCann, F indings into the death o f M ich ael Tan, Western Australian Coroner’s Report, pp. 64-5

15 McCann, p. 67

16 D. J. O’Dea, R egion al R ep o rt o f Inquiry into Individual D ea th s in C u sto d y in W estern A u stra lia , AGPS, Canberra, 1991

17 D. J. O ’Dea, R eport o f the Inquiry into the D eath o f th e Young M an w ho D ie d at E llio tt on 21/3185, RCIADIC NT6, AGPS, Canberra, 1990, pp. 26-7

18 L. F. Wyvill, R eport o f the Inquiry into the D eath o f P a trin e M isi, RCIADIC QO, AGPS, Canberra, 1990, pp. 17-18

19 E viden ce A ct 1929, South Australia, section 69(a)

20 I. H. Wootten, R eport o f Inquiry into the D eath o f P e te r L eo n a rd C am pbell, RCIADIC N 7, AGPS, Canberra, 1990, pp. 98-9

21 Western Australian Ad Hoc Committee for Review of the C o ro n ers A c t 1920, [R e p o r t], 1990, p. 24

22 Muirhead, Interim R eport, Recommendation 46

23 C o ro n e r's A ct (NT), section 9A (2); C o ro n e r's Act (Qld), section 44

24 D. J. O’Dea, R eport o f the Inquiry into th e D eath o f The Young M an W ho D ied A t B eatrice H ill P rison Farm on 21 S eptem ber 1988, RCIADIC NT12, AGPS, Canberra, 1990, p. 23

25 I. H. Wootten, R eport o f the Inquiry into the D eath o f M ark A nthony Q uayle, RCIADIC N6, AGPS, Canberra, p. 69

26 Wootten, M ark A nthony Q u ayle, pp. 70-1

27 A n n etts v. M cC ann (1991) 65 ALIR 167

28 Muirhead, Interim R eport, Recommendation 48

29 K. M. Waller, C oron ial L aw and P ra c tic e in N ew South W ales, Second Edition, p. 24

30 J. Hookey, A borigin al D ea th s in C u stody: Jn tern ation al L a w Issu es, Research paper prepared for RCIADIC,1990, pp. 208-11

Vol 1 Page 181

PART B

THE DISPROPORTIONATE NUMBER OF ABORIGINAL PEOPLE IN CUSTODY

The Disproportionate Number of Aboriginal People in Custody

Part A, above, discussed the Aboriginal deaths in custody investigated by the Royal Commission, and evaluated the various post-death enquiries that had been carried out prior to the Royal Commissions own investigations. This Part o f the report, PartB, on the other hand, provides information on

the Aboriginal custody experience with the aim o f placing the detailed case material into a broader context. It is composed o f fiv e short chapters concerned with different aspects o f the disproportionate number o f Aboriginal people in custody. Its importance at this early stage o f the

report is the finding, outlined in Chapter 1, that it is the disproportionate number o f Aboriginal people in custody, compared with non-Aboriginal people, that provides the immediate explanation o f the high number o f Aboriginal deaths in custody compared with the number o f Aboriginal people in Australia. These five chapters present actual information derived from the Royal Com m ission’s Research Program. They are b rief

summaries only, as fu ll details may be found in the series o f research papers produced by the Royal Commission’s Criminology Research Unit.

Chapter 5 seeks to acquaint the reader with the information underlying the conclusion as to the importance o f the disproportionate rate o f Aboriginal people in custody as the immediate cause o f their high number o f deaths in those environments, drawing comparisons between the patterns o f death in

custody o f Aboriginal and non-Aboriginal prisoners.

Chapter 6 is descriptive, presenting factual information about the numbers and characteristics o f people in police and prison custody, separately. (Corresponding information on juveniles in custody may be fo u n d in Chapter 14.) Chapter 7 discusses what we have learned about the reasons fo r Aboriginal people and non-Aboriginal people being placed in police

and prison custody, in terms o f the offences involved, while the following chapter covers the duration o f custody. It is pointed out that Aboriginal people generally spend longer periods in police custody than do non­ Aboriginal people, and tend to receive prison sentences no longer than

those given to non-Aboriginal people. Finally, Chapter 9 seeks to quantify the extent o f disproportionate incarceration o f Aboriginal people, concluding that they are taken into police custody at a rate approximately twenty seven times that o f non-Aboriginal people, and that Aboriginal

adults are held in prison at a rate over fifteen times that o f non-Aboriginal adults.

Part C, which follow s these fiv e brief chapters, considers in depth the historical, social, cultural and legal fa cto rs which explain the disproportionate detention rates o f Aboriginal people set out in this Part.

Vol 1 Page 185

C hapter 5 THE DISPROPORTIONATE NUMBERS IN CUSTODY

This chapter summarizes the information derived fro m a number o f the Royal Commission research projects which have led to the conclusion that, although Aboriginal and non-Aboriginalpeople while in custody have similar death rates, the gross disproportionate numbers o f Aboriginal people in custody, compared with non-Aboriginal people, provides an

immediate explanation o f the disturbingly high number o f Aboriginal deaths in custody which led to the establishm ent o f the Royal

Commission. Comparisons are drawn between Aboriginal and non­ Aboriginal deaths in custody, as the patterns o f the two groups differ in a number o f important ways.

5.1.1 In addition to the vast array of inform ation that we have

gathered on the ninety-nine cases of Aboriginal deaths in custody that has been summarized in earlier chapters of this report, I have been assisted in gaining a broader perspective of the problem by the information supplied to the Criminology Research Unit (the ‘Research U nit’) of the Royal

Commission by all Australian police and prison authorities. This information has included the essential details of all non-Aboriginal deaths in custody that have occurred over the same period of time covered by my own enquiries into Aboriginal deaths. I have been advised that the

statistical information which has been collected on the non-Aboriginal deaths in custody may not be as reliable as the information on Aboriginal deaths, and it is possible that there may even be some cases that were not reported to the Research Unit. Nevertheless, this additional information

has enabled my fellow C om m issioners and m e to gain a w ider

understanding of the nature and extent of the phenomenon of deaths in custody in general. We have been informed, for example, that during the period 1 January 1980 to 31 May 1989, when there were thirty-three Aboriginal deaths in prisons and sixty-three Aboriginal deaths in police

custody, there were 254 non-Aboriginal deaths in prisons and 129 non­ Aboriginal deaths in police custody. Over this period there were also three Aboriginal deaths in juvenile detention facilities. The Research Unit has not been able to determine how many non-Aboriginal deaths occurred in juvenile detention centres over this period, but it would be surprising if

that number were not related to the actual number of persons held in that form of custody.

Vol 1 Page 187

The D isproportionate N um bers in Custody 5

5.1.2 In a number of places in this and other chapters of the report, I present calculations that rely on estimates of the Aboriginal and non­ Aboriginal populations derived from the 1986 Census of Population and Housing, conducted by the Australian Bureau of Statistics. The Research Unit has discussed the census in its 1989 Research Paper No. 4, T h e A b o r ig in a l a n d T o r r e s S tr a it I s la n d e r P o p u la tio n , by R. Smyth. It

concludes that most authorities accept that the 1986 census count of the Aboriginal and Islander population is the most accurate to date, but inevitably some degree of error would exist. Nevertheless, it is my view that the census data provide a close enough representation to reality for use in my report.

5.1.3 An examination of the statistics of Aboriginal and non­

Aboriginal deaths in police and prison custody has revealed a number of significant differences between the two groups. These matters have been fully outlined in the papers of the Research Unit Research Papers Nos. 7, 10 and 11, and also in one of the academic journals.1 It is not necessary, therefore, to reiterate the detailed findings in this report, but the major findings can be quickly summarized. • It was found that there was little difference between the age

distributions of the Aboriginal and non-Aboriginal people who died in either form of custody.

• There were proportionately more Aboriginal females than there were non-Aboriginal females in the groups of persons who died, and this, again, reflects the actual numbers of Aboriginal and non-Aboriginal females in custody. • Aboriginal people who died in custody were more likely to haw*

died in police custody rather than in prisons, but non-Aboriginu. people who died were more likely to have died in prisons. Approximately two-thirds of the Aboriginal deaths were in police custody while approximately two-thirds of the non-Aboriginal deaths were in prison custody. • For both forms of custody a higher proportion of the Aboriginal

deaths than non-Aboriginal deaths occurred in hospitals than in the actual custodial facilities. • Higher proportions of Aboriginal people than non-Aboriginal people died in custody from natural causes (most commonly heart

and respiratory tract diseases) in both police and prison custody, while higher proportions of non-Aboriginal people died from self-inflicted causes (most commonly hanging) in both forms of custody.

• For both Aboriginal and non-Aboriginal people in prisons the risk of death was higher during the remand period than when serving a prison sentence. • For Aboriginal persons who died in police custody the risk of

death was highest in the first two or three hours.

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5 The D isproportionate N um bers in Custody

• The number of Aboriginal deaths in custody that occurred in

1987, the year that the Royal Commission was established, was more than twice as high as the average number of the preceding seven years, and the level remained high, but not as high as in 1987, for each of the two following years. This pattern has been

found for both Aboriginal and non-Aboriginal deaths in custody. The number of Aboriginal deaths in custody in 1990, however, totalled only six, a number similar to the 1980-1986 average.

5.1.4 The general picture to emerge from these detailed studies is that, if one considers prison custody, the proportion of Aboriginal prisoners who died is almost identical to the proportion o f Aboriginal prisoners who were in custody. The situation is similar for police

custody. This general finding has provided further encouragement for all Commissioners to devote a considerable proportion of our time and energy endeavouring to determine w h y such unacceptably high numbers of Aboriginal people were in custody in the first place. We realize that the

underlying issues are extraordinarily complex and have their roots in the history of Aboriginal/non-Aboriginal relationships, but we have no doubt that if the number of Aboriginal people in custody can be reduced then so, too, will the numbers of deaths that will occur.

5.1.5 The ongoing public availability of accurate information about deaths in custody (including Aboriginal deaths in custody) is essential. Administrations which fail to record and disseminate such information lay themselves open to the suspicion (domestically and internationally) that

they have something to hide.

Recommendation 41:________________________________

T h a t s t a t i s t i c s a n d o t h e r i n f o r m a t i o n o n A b o r i g i n a l

a n d n o n - A b o r i g i n a l d e a t h s in p r i s o n , p o l i c e c u s t o d y

a n d j u v e n i l e d e t e n t i o n c e n t r e s , a n d r e l a t e d m a t t e r s , b e

m o n i t o r e d n a t i o n a l l y o n a n o n g o i n g b a s i s . I s u g g e s t

t h a t r e s p o n s i b i l i t y f o r t h i s b e e s t a b l i s h e d w i t h i n t h e

A u s t r a l i a n I n s t i t u t e o f C r i m i n o l o g y a n d t h a t a l l

c u s t o d i a l a g e n c i e s c o - o p e r a t e w i t h t h e I n s t i t u t e t o

e n a b l e i t to c a r r y o u t t h e r e s p o n s i b i l i t y . T h e

r e s p o n s i b i l i t y s h o u l d i n c l u d e a t l e a s t t h e f o l l o w i n g

f u n c t i o n s :

a . M a i n t a i n a s t a t i s t i c a l d a t a b a s e r e l a t i n g to d e a t h s

i n c u s t o d y o f A b o r i g i n a l a n d n o n - A b o r i g i n a l

p e r s o n s ( d i s t i n g u i s h i n g A b o r i g i n a l p e o p l e f r o m

T o r r e s S t r a i t I s l a n d e r s ) ;

b . R e p o r t a n n u a l l y t o t h e C o m m o n w e a l t h

P a r l i a m e n t ; a n d

c . N e g o t i a t e w i t h a l l c u s t o d i a l a g e n c i e s w i t h a

v i e w to f o r m u l a t i n g a n a t i o n a l l y a g r e e d s t a n d a r d

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The D isproportionate N um bers in Custody 5

f o r m o f s t a t i s t i c a l i n p u t a n d a s t a n d a r d

d e f i n i t i o n o f d e a t h s i n c u s t o d y . S u c h d e f i n i t i o n

s h o u l d i n c l u d e a t l e a s t t h e f o l l o w i n g c a t e g o r i e s :

i . t h e d e a t h w h e r e v e r o c c u r r i n g o f a p e r s o n

w h o is i n p r i s o n c u s t o d y o r p o l i c e c u s t o d y

o r d e t e n t i o n a s a j u v e n i l e ;

ii. t h e d e a t h w h e r e v e r o c c u r r i n g o f a p e r s o n

w h o s e d e a t h is c a u s e d o r c o n t r i b u t e d t o b y

t r a u m a t i c i n j u r i e s s u s t a i n e d o r b y l a c k o f

p r o p e r c a r e w h i l s t i n s u c h c u s t o d y o r

d e t e n t i o n ;

ill. t h e d e a t h w h e r e v e r o c c u r r i n g o f a p e r s o n

w h o d i e s o r is f a t a l l y i n j u r e d in t h e p r o c e s s

o f p o l i c e o r p r i s o n o f f i c e r s a t t e m p t i n g t o

d e t a i n t h a t p e r s o n ; a n d

iv . t h e d e a t h w h e r e v e r o c c u r r i n g o f a p e r s o n

w h o d i e s o r is f a t a l l y i n j u r e d in t h e p r o c e s s

o f t h a t p e r s o n e s c a p i n g o r a t t e m p t i n g to

e s c a p e f r o m p r i s o n c u s t o d y o r p o l i c e

c u s t o d y o r j u v e n i l e d e t e n t i o n .

The Commission has shown the importance of monitoring custodial care. I would hope negotiations might lead to the maintenance of statistics of cases of deaths following a custodial experience where that death is caused or contributed to by traumatic injury sustained or lack of proper care whilst in custody. Perhaps any such statistics would need to have regard to a

sensible time limit from the date of release from custody.

1 D. Biles, D. McDonald and J. Fleming, ‘Aboriginal and Non-Aboriginal Deaths in Custody’, A u stralian and N ew Z ealan d Jou rn al o f C rim in ology, 23, 1990, pp. 15-23

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C hapter 6 ABORIGINAL PEOPLE IN CUSTODY: SOME BASIC FACTS

The p u rp o se o f this ch apter is to a cq u a in t the re a d e r w ith b a sic inform ation on the A b o rig in a l p e o p le in cu sto d y, co m p a rin g them , w h ere a p p ro p ria te , w ith n o n -A borigin al p e o p le . The d em o g ra p h ic c h a ra cteristics, su ch as the a g e an d g e n d e r d istrib u tio n s o f the A b o rig in a l a n d n o n -A b o rig in a l p e o p le

in p o lic e a n d p r is o n cu stody, a re d e lin e a te d . The c h a p te r co n clu d es w ith recom m en dation s a im ed a t ensuring that high qu ality d a ta a re a va ila b le, in a tim ely m an n er on the cu stodial p o p u la tio n s, as having a va ila b le such d a ta is e sse n tia l i f the im p a c ts o f c h a n g es in p o lic ie s a n d p r o g r a m s a re to b e

evaluated.

6 .1 A B O R IG IN A L P E O P L E IN P O L IC E C U STO D Y

In t r o d u c t i o n

6.1.1 Although high quality data on the size and composition of Australia’s prison population has been available since 1982, until recently no corresponding information has been available about people in police custody. I consider this to be quite unsatisfactory. In public policy terms,

governments, police departments and members of the public need to have available and to use information on the size and composition of the police custody population if appropriate policies in this area are to be developed, implemented and monitored.

6.1.2 With a view to filling this gap in information, with the agreement and full co-operation of each of the Commissioners of Police, the Royal Commission’s Research Unit conducted a National Police Custody Survey during the month of August 1988. The survey obtained basic information on each occasion on which a person was taken into police custody during

August 1988 and was physically lodged in the police cells. It will be noted that the survey did not cover arrests as such but rather that sub-set of the arrested population (plus others) who were actually lodged in police cells during the month of the survey. The Royal Commission’s Research

Unit Research Paper No. 13, which summarizes the results of the survey, indicates that 28,566 occasions of custody occurred during the month,

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A boriginal People in C ustody: Some Basic Facts 6

equivalent to 342,792 in a year or more than 3.2 million occasions of custody in the period covered by my Letters Patent. Approximately 28.6% of the people placed in police cells throughout Australia during the survey period were Aboriginal people.1 Much of the information in the

balance of this section is derived from that survey.

AGE OF POLICE CUSTODY DETAINEES

6.1.3 Most of the detainees were young; some 78% of people held in custody during the survey period were aged between 15 and 34 years. The mean (average) age was 27.8 years and 90% of the cases were aged 43 years or less. The Aboriginal and non-Aboriginal groups had similar

age distributions: the mean age among Aboriginal people held in the cells was 1.4 years older than the mean of the non-Aboriginal people. Details are provided in Table 6.1 and Figure 6.1.

6.1.4 A point should be noted: the numbers are of incidents of custody (not persons involved). Some persons may have been detained and placed in a cell more than once in the month. Efforts were made to avoid artificial duplication of essentially one incident, e.g. if a person was arrested and placed in a cell, removed to court, returned at luncheon adjournment, returned to court then released or retained in police custody pursuant to sentence, that counted as one incident.

TABLE 6.1: PERSONS TAKEN INTO POLICE CUSTODY AUGUST 1988, BY AGE GROUP

A b o r i g i n a l N o n - A b o r i g i n a l T o t a l

A g e g r o u p N u m b e r P e r c e n t N u m b e r P e r c e n t N u m b e r P e r c e n t

0-14 103 1 199 1 302 1

15-19 1 487 19 3 805 19 5 292 19

20-24 1 840 23 5 701 29 7 541 27

25-29 1 427 18 3 902 20 5 329 19

30-34 974 12 2 289 12 3 263 12

35-39 714 9 1 415 7 2 129 8

40-44 483 6 920 5 1 403 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

Total 7 880 100 19 645 100 27 525 100

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6 A boriginal People in Custody: Some Basic Facts

FIGURE 6.1: PERSONS TAKEN INTO POLICE CUSTODY, AUGUST 1988, AND TOTAL AUSTRALIAN POPULATION, BY AGE GROUPS)

P 40 ..

25-34

Age Group (years) 35-44

E3 Aboriginal 1 1 Non-Aboriginal Π Australia

(a) The columns labelled ‘Aboriginal’ represent the percentages of the Aboriginal people held in custody in police cells in August 1988 who were in the age groups specified. Similarly, for the non-Aboriginal group, the columns so labelled represent the percentages of non-Aboriginal people held in custody in police cells in August 1988 who were in the age

group specified. The columns labelled ‘Australia’ are the percentages of the total Australian population in the respective age groups as enumerated in the 1986 census.

6.1.5 Disturbingly, a substantial number of young people, 2,360 under the age of 18 years, were placed in the police cells during the survey period. This represented 8.5% of the total. I discuss this juvenile group in Chapter 14 of the report.

G e n d e r

6.1.6 One of the disturbing findings of the National Police Custody Survey was the very high proportion of Aboriginal women placed in custody during the survey month. Overall, as shown in Table 6.2, 88% of the custodies were males: 79% of the Aboriginal people and 92% of the

non-Aboriginal people. Substantial State-by-State differences exist and are detailed in the table.

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A boriginal People in Custody: Some Basic Facts 6

TABLE 6.2: PERSONS TAKEN INTO POLICE CUSTODY AUGUST 1988, BY JURISDICTION

G e n d e r N S W V i c Q ld W A SA T a s N T A C T A u s t

ABORIGINAL

Males 701 166 1 303 2 181 595 41 1 379 17 6 383

Per cent 91 84 75 75 85 95 83 71 7 9

Females 73 32 437 739 102 2 280 7 1 672

Per cent 9 16 25 25 15 5 17 29 21

NON-ABORIGINAL

Males 4 300 4 238 3 982 2 179 2 278 497 482 421 18 377

Per cent 93 91 93 88 91 94 94 92 92

Females 343 439 312 285 214 33 32 38 1 696

Per cent 7 9 7 12 9 6 6 8 8

PERSONS

Males 5 147 4 452 5 378 4 384 2 897 554 1 873 445 25 130

Per cent 92 90 88 81 90 94 85 91 88

Females 430 481 764 1 031 318 36 317 45 3 422

Per cent 8 10 12 19 10 6 15 9 12

6.1.7 The dearth of information available about the thousands of people taken into police custody throughout Australia each month is highlighted by the fact that the information that I have provided in this section is virtually all that is available to describe, at the national level, the demographic characteristics o f this group of people at risk of death in custody. Not one of Australia’s eight police forces collects corresponding data, let alone publishes them. I consider that the Australian Police M inisters’ Council and each State and Territory Government should give priority to filling the deficiencies in information about the size and composition of the population in police custody. In this context, I quote the conclusion to the report on the National Police Custody Survey:

The u sefu ln ess [ o f th e A u g u st 1 9 8 8 N a tio n a l S u rv e y ] is lim ited, h o w ever, in th at it c o v e rs only one d isc r e te tim e p e r io d , n am ely, A u g u st 1 9 8 8 . T he re so u rc e s e x p e n d e d b y A u s t r a li a ’s p o l i c e f o r c e s on th e d e s ig n a n d

im p le m e n ta tio n o f th e s u r v e y , a n d b y th e R o y a l

C o m m issio n on its a n a ly sis arid re p o rtin g , w ill b e o f

m o st b e n e fit i f th is su rv e y a c ts a s b a se lin e d a ta f o r a

s e r ie s o f s u r v e y s o f p o l ic e c u s to d y in A u s tr a lia .

R e p e a te d a t re g u la r in te rv a ls of, sa y, tw o to f i v e y e a rs , th e s u r v e y w ill e n a b le p o litic ia n s , p la n n e r s a n d th e

p u b lic to m o n ito r ch an ges in the size a n d co m p o sitio n o f

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6 A boriginal People in C ustody: Some Basic Facts

the p o p u la tio n held in cu sto d y in A u stra lia ’s p o lic e cells. T h e d a ta f lo w in g f r o m su c h a su rv e y p r o g r a m w ill

e n a b le them to a ssess th e d e g re e to w h ich re co m m en d ed im p r o v e m e n ts in le g is la tio n , a ttitu d e s , p o l ic ie s a n d

p ro c e d u re s a re im plem en ted.2

6.1.8 Agreeing with this point of view, I recommend that the Australian Institute of Criminology is the appropriate body to co-ordinate and implement the recommended series of national surveys.

6.1.9 I consider it essential that all jurisdictions have available, on an ongoing basis, detailed information on the people being held in police cells. This information is not currently collected by police forces.

Recommendation 42;________________________________

T h a t g o v e r n m e n t s r e q u i r e t h e p r o v i s i o n o f a n d

p u b l i s h , o n a r e g u l a r a n d f r e q u e n t b a s i s , d e t a i l e d

i n f o r m a t i o n o n t h e n u m b e r s a n d d e t a i l s o f t h e p e o p l e

p a s s i n g t h r o u g h t h e i r p o l i c e c e ll s .

Recommendation 43:________________________________

T h a t a s u r v e y s u c h a s t h e 1 9 8 8 N a t i o n a l P o l i c e

C u s t o d y S u r v e y b e c o n d u c t e d a t r e g u l a r i n t e r v a l s o f ,

s a y , t w o to f i v e y e a r s , w i t h t h e a i m o f s y s t e m a t i c a l l y

m o n i t o r i n g a n d e v a l u a t i n g t h e d e g r e e t o w h i c h n e e d e d

i m p r o v e m e n t s i n l e g i s l a t i o n , a t t i t u d e s , p o l i c i e s a n d

p r o c e d u r e s t h a t a f f e c t p o l i c e c u s t o d y a r e i m p l e m e n t e d .

6.1.10 The Australian Police Ministers’ Council may wish to discuss the implementation of the previous recommendations.

Recommendation 44:________________________________

T h a t t h e A u s t r a l i a n I n s t i t u t e o f C r i m i n o l o g y c o ­

o r d i n a t e a n d i m p l e m e n t t h e r e c o m m e n d e d s e r i e s o f

n a t i o n a l s u r v e y s . T h e e x p e r i e n c e o f t h e f i r s t n a t i o n a l

s u r v e y p o i n t s to t h e f a c t t h a t c a r e f u l p l a n n i n g w i t h a l l

t h e r e l e v a n t a u t h o r i t i e s w i l l b e n e e d e d to e n s u r e t h a t

t h e m a x i m u m a m o u n t o f u s e f u l i n f o r m a t i o n i s d e r i v e d

f r o m t h e s u r v e y s .

6.1.11 It is im portant that inform ation on people in custody be

comparable across the States and Territories and be in a form that enables data to be aggregated to produce a national overview. The Australian Institute of Criminology has made successful efforts in the past, in this

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A boriginal People in C ustody: Some Basic Facts 6

regard, with reference to prison custody but not to police custody.

Recommendation 45:________________________________

T h a t t h e a p p r o p r i a t e M i n i s t e r i a l C o u n c i l s s t r i v e to

a c h i e v e a c o m m o n a l i t y o f a p p r o a c h i n d a t a c o l l e c t i o n s

c o n c e r n i n g b o t h p o l i c e a n d p r i s o n c u s t o d y .

6.1.12 A major problem in criminological research which is conducted across jurisdictions is the attaining of comparable data.

Recommendation 46:________________________________

T h a t t h e n a t i o n a l d e a t h s in c u s t o d y s u r v e y s w h i c h I

h a v e r e c o m m e n d e d b e u n d e r t a k e n b y t h e A u s t r a l i a n

I n s t i t u t e o f C r i m i n o l o g y i n c l u d e t h e e s t a b l i s h m e n t o f

u n i f o r m p r o c e d u r e s a n d m e t h o d o l o g i e s w h i c h w o u l d

n o t o n l y e n h a n c e t h e s t a t e o f k n o w l e d g e in t h i s a r e a

b u t a l s o f a c i l i t a t e t h e m a k i n g o f c o m p a r i s o n s b e t w e e n

A u s t r a l i a n a n d o t h e r j u r i s d i c t i o n s , a n d f a c i l i t a t e

c o m m u n i c a t i o n o f r e s e a r c h f i n d i n g s .

6 . 2 ABORIGINAL PEOPLE IN PRISON CUSTODY

6.2.1 As indicated above, my fellow Com m issioners and I had

available to us a wider range of information on the use of prisons throughout Australia than we have had on the use of police custody. This information is far from ideal, but we have been greatly assisted by the results of the annual census of persons held in gazetted prisons that has been conducted each year since 1982 by the Australian Institute of Criminology in co-operation with all State and Territory departments responsible for corrective services. This census has provided valuable information, especially when the results are analysed in terms of the differences between Aboriginal and non-Aboriginal prisoners, but the census has a num ber of shortcomings which reduces its value. A

significant deficiency has been the fact that for some jurisdictions there has been a relatively high number of cases for which the Aboriginality or non- A boriginality of the prisoners was not stated, and until 1987 the Queensland authorities would not release any information at all about this characteristic of prisoners in that State.

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6 A boriginal People in Custody: Some Basic Facts

Recommendation 47:________________________________

T h a t r e l e v a n t M i n i s t e r s r e p o r t a n n u a l l y to t h e i r S t a t e

a n d T e r r i t o r y P a r l i a m e n t s a s t o t h e n u m b e r s o f

p e r s o n s h e l d in p o l i c e , p r i s o n a n d j u v e n i l e c e n t r e

c u s t o d y w i t h s t a t i s t i c a l d e t a i l s a s t o t h e l e g a l s t a t u s o f

t h e p e r s o n s s o h e l d ( f o r e x a m p l e , o n a r r e s t ; o n

r e m a n d f o r t r i a l ; o n r e m a n d f o r s e n t e n c e ; s e n t e n c e d ;

f o r f i n e d e f a u l t o r o n o t h e r w a r r a n t ; f o r b r e a c h o f

n o n - c u s t o d i a l c o u r t o r d e r s ; p r o t e c t i v e c u s t o d y o r a s

t h e c a s e m a y b e ) , i n c l u d i n g w h e t h e r t h e p e r s o n s

d e t a i n e d w e r e o r w e r e n o t A b o r i g i n a l o r T o r r e s S t r a i t

I s l a n d e r p e o p l e .

6.2.2 The results of the censuses of prisoners have been available to us for the period 1982 to 1989, and the first observation to be made is that for every one of those years for each of the six States and the Northern

Territory there were many times more Aboriginal people in prison than would have been expected from their numbers in the community. (The actual extent of the disproportion or level of disproportionate numbers will be discussed in detail in Chapter 9.) It should also be observed that the

statistics derived from these censuses are regarded by experts in this field as reflecting a high level o f reliability. This is largely because it is recognized that prison authorities are generally conscientious in the recording of the numbers of persons in their custody. It may also be observed that the reliability of the census results is confirmed by the fact

that, even though each census represents the people in prison at a single point in time, the major features of prison populations change only slowly over lengthy periods of time. While recognizing that some errors must be

inevitable, I am prepared to accept these statistics as being sufficiently accurate to draw valid conclusions about Aboriginal people in Australian prisons.

TABLE 6.3: PRISONERS IN CUSTODY, BY JURISDICTION, 30 JUNE 1989

Jurisdiction Aboriginal Non­ Aboriginal Not stated Total Per cent

Aboriginal w

NSW W 415 4 861 1 5 283 7.9

Vic 86 2 156 14 2 256 3.8

Qld 412 1 855 122 2 386 18.2

WA 558 1 010 - 1 568 35.6

SA 102 761 8 871 11.8

Tas 9 215 21 245 4.0

NT 243 109 - 352 69.0

Aust 1 825 10 967 172 12 964 14.3

(a) Percentage of those prisoners for whom Aboriginality or non-Aboriginality was stated in the census. (b) Including ACT.

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A boriginal People in Custody: Some Basic Facts 6

6.2.3 The basic facts about the numbers of Aboriginal and non­ Aboriginal people in prison on 30 June 1989 are shown in Table 6.3. From this table it can be seen that on that date there were 1,825 Aboriginal people in prison, or 14.3% o f the total o f prisoners for whom

Aboriginality or non- Aboriginality was stated.

A g e G r o u p D i s t r i b u t i o n

TABLE 6.4: ABORIGINAL PRISONERS BY AGE GROUP AND JURISDICTION, 30 JUNE 1989(a)

A g e grou p N S W Vic Q ld WA 5A Tas N T Total

Under 20 years 67 11 69 103 9 - 42 301

20-24 years 148 31 120 165 39 2 76 581

25-29 years 86 20 89 113 24 3 53 388

30-34 years 61 7 50 59 19 1 18 215

35-39 years 34 7 41 43 4 2 4 135

40-44 years 14 7 21 21 3 - - 66

45-49 years 3 3 6 9 3 1 1 26

50 years & over 2 - 10 - 1 - 1 14

Unknown - - 6 55 - - 47 108

Total 415 86 412 568 102 9 242 1 834

(a) This table does not include Aboriginal juveniles in detention facilities other than gazetted prisons.

6.2.4 While it is recognized that prisoners in general tend to come from the young adult age range, this tendency seems to be even more marked for Aboriginal prisoners. The age group distribution of Aboriginal prisoners by jurisdiction as at 30 June 1989 is shown in Table 6.4, and

from this it can be seen that over half (of those for whom age was known) were under 25 years o f age. It can also be seen that there were very few Aboriginal prisoners aged 50 years or more, with fewer than 1% being in this category. It is also to be noted that there were fairly high numbers for whom age was not known, especially in W estern Australia and the Northern Territory.

6.2.5 The differences between the age distribution o f Aboriginal and non-Aboriginal prisoners is shown, for Australia as a whole as at 30 June 1989, in Figure 6.2.

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6 A boriginal People in C ustody: Some Basic Facts

FIGURE 6.2: AGE GROUP DISTRIBUTION OF ABORIGINAL AND NON-ABORIGINAL PRISONERS, AUSTRALIA, 30 JUNE 1990

e 25 -

Under 20 20-24 yrs yrs

50 yrs & over

Aboriginal EH Non Aboriginal

It is clear from the graph that there are proportionately more Aboriginal prisoners in the younger age groups and proportionately fewer in the age groups covering 30 years and over, but the general shape of the two distributions are remarkably similar. For both groups nearly half o f all

prisoners fall within the ten-year age group of 20 to 29 years, while the major differences are in the extremities. In fact the mean age for Aboriginal prisoners was 26.3 years and for non-Aboriginal prisoners it was 30.7 years. This is a statistically significant difference.

G e n d e r o f A b o r ig in a l P r i s o n e r s

6.2.6 Compared with the gender balance of A boriginal and non­ Aboriginal detainees in police custody, there is not the same disturbing picture in prisons. As shown in Table 6.5 women comprise 6% of the Aboriginal prisoners and 5% of the non-Aboriginal prisoners.

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A boriginal People in Custody: Some Basic Facts 6

TABLE 6.5: GENERAL OF ABORIGINAL AND NON-ABORIGINAL PRISONERS, BY JURISDICTION, 30 JUNE 1989

G e n d e r N S W V i c Q ld W A S A T a s N T A C T A u s t

ABORIGINAL

Males 382 75 392 519 97 9 240 0 1 714

Per cent 92 87 95 93 95 100 99 0 94

Females 33 11 20 39 5 0 3 0 111

Per cent 8 13 5 7 5 0 1 0 6

NON-ABORIGINAL

Males 4 583 2 039 1 759 958 728 207 108 21 10 403

Per cent 95 95 95 95 96 96 100 95 95

Females 256 117 97 52 33 8 0 1 564

Per cent 5 5 5 5 4 4 0 5 5

NOT STATED

Males 7 14 120 0 6 20 0 0 167

Per cent 100 100 98 0 75 95 0 0 97

Females 0 0 2 0 2 1 0 0 5

Per cent 0 0 2 0 25 5 0 0 3

PERSONS (TOTAL OF ABOVE)

Males 4 972 2 128 2 271 1 477 831 236 348 21 12 284

Per cent 95 94 95 94 95 96 99 95 95

Females 289 128 119 91 40 9 3 1 680

Per cent 5 6 5 6 5 4 1 5 5

1 D. McDonald, N atio n a l P o lic e C u stody Survey A ugust 1988: N a tio n a l R ep o rt, RCIADIC Criminology Research Unit Research Paper No. 13, Canberra, 1990

2 McDonald, p. 36

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C hapter 7 REASONS FOR CUSTODY

This chapter is titled ‘Reasons fo r Custody’ as it presents information on the direct or immediate reasons fo r people being apprehended and subsequently detained in police cells or in prison. In particular, it focuses on the offences involved and the legal status o f the detainees, drawing in

the main upon data derived from censuses o f the police and prison custody populations. It is important to note, however, that these reasons fo r detention are not the only factors, or even the most important factors, that lead to Aboriginal people being apprehended and placed in custody.

Throughout this report, but particularly in Part C, discussions are to be found concerning the historical, social, cultural and legal factors which underlie and help to explain the disproportionate detention rates o f Aboriginal people. The information in this chapter provides a background

to that later discussion.

7.1 POLICE CUSTODY

7.1.1 The August 1988 National Police Custody Survey, described above, provides the only source of national information regarding the reasons for people being detained in police custody in this country. In that survey, one of the data items sought on each incident of custody was the

reason for custody, namely, whether the person entered custody by means of arrest on warrant, arrest without warrant, was in protective custody owing to intoxication where public drunkenness had been decriminalized, or if the custody occurred for some other reason.

7.1.2 The difference between arrest on warrant and arrest without warrant perhaps needs clarification. As was pointed out in the Research Paper on the National Police Custody Survey, the general rule is that police officers may arrest, without warrant, people whom they suspect

have committed offences. However, an extraordinary range of legislative provisions exists between the various States and Territories regarding apprehension and detention on warrants. (Indeed, a weakness o f the national survey was that it did not provide much reliable information in

this area.) Nevertheless, most people who are arrested to be charged with an offence are arrested without warrant. People are arrested with warrants

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Reasons for Custody 7

in various circumstances occurring in connection with offences, often because of non-attendance in answer to a summons, or in terms of bail, non-payment of a fine, or non-compliance with an order, such as to be of

good behaviour.

7.1.3 Table 7.1 sets out the data available from the national survey on the reasons given for people being taken into custody and placed in police cells. Cases arrested without warrant made up a little more than half the total (55%); one-quarter (24%) were arrested with warrants, and an

additional 11% were placed in the cells in protective custody owing to intoxication in those jurisdictions where public drunkenness was not an offence.

T A B L E 7.1 : PERSONS TAKEN INTO POLICE CUSTODY AUGUST 1 9 8 8 , B Y REASON FOR CUSTODY AND JU R ISD IC T IO N

J u risd ictio n A rre st A rre st In to x ic a tio n O ther T o t a l

w ith o u t w ith (n o t an

warrant warrant offen ce)

N % N % N % N % Λ1 %

NSW 2 128 39 898 16 1 090 20 1 390 25 5 5 0 6 1 0 0

Vic 2 528 52 2 053 42 - - 327 7 4 9 0 8 1 0 1

Qld 4 943 82 826 14 - - 276 5 6 0 4 5 1 0 1

WA 3 897 72 1 262 23 - - 245 5 5 4 0 4 1 0 0

SA 1 168 37 1 085 34 459 14 465 15 3 177 1 0 0

Tas 283 49 259 45 - - 32 6 5 7 4 1 0 0

NT 301 14 319 15 1 521 70 39 2 2 180 1 0 1

ACT 224 46 70 14 175 36 15 3 4 8 4 9 9

Aust 15 472 55 6 112 24 3 245 11 2 789 10 28 2 78 1 0 0

7.1.4 Substantial differences exist between the various States and Territories regarding the proportions of custodies which took place on the basis of arrest without warrant, compared with arrests with warrant. This was discussed in some detail in the survey report.1 Referring only to custodies which occurred because o f arrest on warrant or arrest without

warrant, and excluding arrests for the offence of public drunkenness (to increase comparability between the jurisdictions in the light of the differing legal statuses of public drunkenness), it was found that the use of warrants appeared to be much higher in Victorian than in any other jurisdiction, being 50% of the cases for that State. W arrants were used least in Queensland, Western Australia and the Australian Capital Territory, where approximately 10% of the relevant cases were placed in cells following an arrest on warrant.

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7 R easons for Custody

7.1.5 The survey results indicated that a far higher proportion of the Aboriginal cases were placed in protective custody because of public intoxication where it is not an offence compared with non-Aboriginal cases (21% compared with 8%). This pattern applied both to males and females

but was particularly marked among females. Some 19% of the Aboriginal female custodies were for public intoxication where it was not an offence compared with only 6% of the non-Aboriginal female cases. Details are

provided in Table 7.2.

T A B L E 7 .2 : PERCENTAGE OF PERSONS TAKEN INTO PO LICE CUSTODY AUGUST 1 988, BY REASO N FOR C U S T O D Y , ABORIGINALITY OR N O N -ABORIGINALITY AND G END ER

A r r e s t w i t h o u t A r r e s t w i t h I n t o n a t i o n O th e r T o t a l

w a rra n t w a rra n t ( n o t a n o f f e n c e )

A BO R IG IN A L

Male 49 22 22 6 100

Female 61 18 19 2 100

Total 52 21 21 5 100

N O N -A B O R IG IN A L

Male 56 25 8 12 100

Female 59 25 6 10 100

Total 56 25 8 12 100

TOTAL

Male 54 24 11 10 100

Female 60 22 12 6 100

Total 55 24 11 10 100

O f f e n c e s I n v o l v e d

7.1.6 The National Police Custody Survey also sought information on the offences that led to people being held in the police cells during the survey period. Table 7.3 (overleaf) provides details on the most serious offence reported as being the reason for custody.

7.1.7 It will be noted that, for both Aboriginal and non-Aboriginal people, public drunkenness was reported to have been the most frequent offence, accounting for 29% of all the cases for which offence data were available. Public drunkenness was followed by ‘break and enter, fraud

and theft’ at 20%. These two main categories were followed, in frequency, by ‘other good order offences’ (that is, good order offences other than public drunkenness), drink driving, assault and drug offences.

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Reasons for Custody 7

T A B L E 7.3 : PERSONS TAKEN INTO POLICE CUSTODY AUGUST 1 9 8 8 , BY OFFENSES INVOLVED AND ABORIGINALITY OR NON-ABORIGINALITYW

O ffence A b o r ig in a l N on-A b o rig in a l T o ta l

N o . P er cent N o . P er cent N o . P er cent

Homicide 17 0.4 139 1.1 156 0.9

Assault 393 8.5 919 7.0 1 312 7.4

Sexual offences 38 0.8 201 1.5 239 1.3

Other against person 1 - 34 0.3 35 0.2

Robbery 18 0.4 201 1.5 219 1.2

Break and enter, fraud and theft 668 14.4 2 896 22.0 3 564 20.0

Property damage 91 2.0 296 2.2 387 2.2

Justice procedures 198 4.3 705 5.4 903 5.1

Drunkenness 2 153 46.4 3 081 23.4 5 234 29.4

Other good order offences 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

Other traffic offences 56 1.2 733 5.6 789 4.4

Other offences 7 0.1 84 0.6 91 0.5

Total 4 639 100 13 143 100 17 782 99

(a) People apprehended and placed in protective custody owing to intoxication, where it is not an offence, are not included in this analysis of offences.

7.1.8 It will also be noted that the pattern of offences varied with the Aboriginality or non-Aboriginality of the person placed in custody. Aboriginal people were over-represented, compared with non-Aboriginal

people in custody, only in the offences of assault, drunkenness and other good order offences.

7.1.9 It will also be observed from Table 7.3 that 46% of the

Aboriginal cases were in custody for public drunkenness. This category, along with ‘other good order’ offences, many of which would have been alcohol related, made up a total of 64% of all the Aboriginal offences. By comparison, some 23% of the non-Aboriginal cases were for drunkenness and this category, along with other good order offences, totalled 32% of all custodies, only half the Aboriginal proportion.

P u b l ic D r u n k e n n e s s

7.1.10 The report on the National Police Custody Survey provides further information about the heavy involvement of public drunkenness as a reason for police custody. (This subject is discussed more fully in

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7 R easons for Custody

Chapter 15.) The report provides a useful analysis by aggregating data concerning people placed in the cells owing to intoxication in jurisdictions where public drunkenness had been decriminalized and people placed in the cells ow ing to the offence of drunkenness in the rem aining

jurisdictions. At the time of the survey, August 1988, decriminalization had not occurred in Queensland, Victoria, Western Australia or Tasmania.

7.1.11 The report indicates that a total of 8,536 cases of public

drunkenness leading to custody occurred, making up, nationally, 35% of the cases for which the reason for custody is available. (This proportion varied between the jurisdictions, with the Northern Territory having the highest proportion: 70%.) Overall, some 46% of the public drunkenness

cases were Aboriginal people and more than three-quarters of the female drunkenness cases (78%) were Aboriginal. Drunkenness cases made up 57% of the Aboriginal custodies com pared with 27% of the non­ Aboriginal custodies. These data indicate that, throughout Australia, a

substantial proportion of the work of police officers involved in com m unity policing and lockup supervision was handling public dmnkenness cases. This applies in all jurisdictions regardless of the legal status of public intoxication.

7 .2 PRISON CUSTODY

7.2.1 The people who are detained at any time in prison in Australia fall into a number of broad categories, the most important of which are those who are under sentence and those who are unconvicted but remanded in custody awaiting trial. There are, however, a number of other categories including those awaiting the outcome of appeals (against conviction or

sentence or both), those who have been found unfit to plead (including those who have been found not guilty on the grounds of insanity but who have been ordered to be detained in a prison), those who have been convicted but remanded in custody for sentence, and those who are

awaiting deportation. The complexity of the reasons for detention in prison is shown in Table 7.4 for the numbers o f all prisoners in each jurisdiction as well as for the numbers of Aboriginal prisoners as at 30 June 1989.

7.2.2 The figures in the table above show that on that date there were some Aboriginal prisoners in at least one of the States or Territories for each of the categories described above except that of awaiting deportation. A matter of greater interest is whether the proportions of Aboriginal

prisoners who are remandees are greater or less than the proportions of other prisoners who are so classified. (For the purpose of this exercise, remandees are defined as prisoners who are unconvicted a n d those who are awaiting sentence.) Table 7.4 shows the proportions of Aboriginal,

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Reasons for Custody 7

o th er and total p riso n ers w h o w e r e r e m a n d e e s in e a c h ju r isd ic tio n o n the c e n s u s date. It m a y b e seen fro m th is ta b le that, fo r A u stra lia as a w h o le ,

p erh a p s co n trary to e x p e c ta tio n s , A b o r ig in a l p r iso n e r s are s lig h tly le s s lik e ly than oth ers to b e rem a n d ees, but the o p p o site is true fo r s o m e o f the in d iv id u a l S tates.

T A B L E 7.4: CUSTODIAL STATUS OF PRISONERS, BY JURISDICTION, 30 JUNE 1 9 8 9

C u sto d ia l sta tu s N S W V ic Q ld W A S A T a s N T A C T A u s t

TOTAL PRISONERS

Under sentence 4 157 1 935 2 040 1341 681 216 306 10 676

Awaiting appeal 350 3 143 48 3 - - - 547

Unfit to plead^) 17 18 - 7 - 3 1 - 46

Unconvicted 717 294 178 154 151 26 41 18 1 579

Awaiting sentence 20 6 17 6 36 - - 4 89

Awaiting deportation - - 3 1 - - 3 - 7

Unknown - - 9 11 - - - - 20

T o ta l 5 261 2 256 2 390 1 568 871 245 351 22 12 964

ABORIGINAL PRISONERS

Under sentence 332 71 372 492 83 8 215 1 573

Awaiting appeal 17 - 16 7 - - - 40

Unfit to pleadW - 2 - - - - - 2

Unconvicted 64 13 17 50 16 1 28 189

Awaiting sentence 2 - 6 2 3 - - 1 3

Unknown - - 1 7 - - - 8

T o ta l 415 86 412 558 102 9 243 1 825

(a) Including not guilty on the grounds of insanity

T A B L E 7.5: PER CENT REM ANDEES BY JU R ISD IC T IO N , 30 JUNE 1 9 8 9

Jurisdiction Aboriginal Other(a) Total

NSW 15.9 13.8 14.0

Vic 15.1 13.2 13.3

Qld 5.6 8.7 8.2

WA 9.3 10.7 10.2

SA 18.6 22.1 21.5

Tas 11.1 10.6 10.6

NT 11.5 12.0 11.7

Aust 11.1 13.2 12.9

(a) This category includes non-Aboriginal prisoners and those for whom Aboriginality or non-Aboriginality was not stated

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7 R easons for Custody

O f f e n c e s I n v o l v e d

7.2.3 Data on the offences involved will be presented in two parts: first, with regard to receptions of people into prison (flow data), and secondly, with regard to the number of people found in prison at the time of the censuses of the prison population. I deal here with the raw data relating to

the offences for which Aboriginal people, and others, are sentenced to or remanded in prison. Part D of this report discusses what I consider to be the underlying issues which help to explain the conclusions which the Commission has arrived at concerning the high level of over-representation

of Aboriginal people in custody.

TABLE 7.6: MOST SERIOUS OFFENCE OF SENTENCED PRISON RECEPTIONS, ABORIGINAL AND NON-ABORIGINAL, APRIL 1989

A b o r i g i n a l N o n - A b o r i g i n a l

O ffe n c e N u m b e r P e r c e n t N u m b e r P e r c e n t

Homicide 4 1.2 13 1.0

Assault 40 11.9 87 6.6

Sex Offences 11 3.3 42 3.2

Other Against Person 1 0.3 13 1.0

Robbery 1 0.3 28 2.1

Break and Enter 25 7.4 144 11.0

Fraud 2 0.6 71 5.4

Theft 28 8.3 212 16.2

Property Damage 14 4.2 19 1.4

Fine Default 133 39.5 258 19.7

Justice Procedures 18 5.3 110 8.4

Good Order Offences 11 3.3 39 3.0

Drug Offences 3 0.9 60 4.6

Traffic Offences 37 11.0 204 15.5

Other 9 2.7 12 0.9

Total 337 100.0 1 312 100.0

7.2.4 Table 7.6 shows the most serious offence of sentenced prison receptions, Aboriginal and non-Aboriginal, derived from a special data collection exercise undertaken at the request of the Commission’s Research Unit by all Australian correctional departments during the month of April

1989. It covers each person received into prison under sentence during the month and, in this data collection, a special category of ‘fine default’ was included in the list of offences.

7.2.5 Perhaps the most striking fact revealed by Table 7.6 is that 39.5% of the Aboriginal sentenced prison receptions were for fine default,

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Reasons for Custody 7

whereas only 19.7% o f the non-Aboriginal receptions were for fine default. This matter receives more attention in Chapter 23.5. The second point of interest is that Aboriginal people made up 20.4% of all sentenced prison receptions. This is to be compared with the percentages of Aboriginal people in prison, as revealed by the annual prison censuses, which over the past decade have ranged between 13% and 15%. It can be

seen therefore that the f l o w o f A boriginal people into prison is

considerably higher than the n u m ber a t any one tim e. This is explained, at least in part, by the higher proportion of Aboriginal people received on fine default or sentenced for offences which attract relatively low penalties. People imprisoned for fine default would normally stay in prison for short periods only, infrequently for periods of months.

7.2.6 The question of what offences lead to im prisonm ent for

Aboriginal and non-Aboriginal people has been reviewed in a number of the Research Papers produced by the Research U nit o f the Royal Commission. In Research Paper No. 6, for example, on the basis of an examination of the most serious offence leading to conviction or charge for those persons in prison on 30 June 1987, it was stated:

It is so m e tim e s a ssu m e d th at the m a jo rity o f A b o rig in a l p e r so n s w h o a re se n te n c e d to im p riso n m en t h a ve been c o n v ic te d o f r e la tiv e ly tr iv ia l o ffen ces su ch a s p u b lic

dru n ken n ess o r offen sive b eh a vio u r. T h ere is v e ry little evid en ce to su p p o rt this a ssu m p tio n .2

7.2.7 The pattern of offences leading to imprisonment in 1989 was very similar to the pattern found in 1987; little variation in these national aggregates occurs from year to year. Some variation could be expected, of course, if the data were broken down to the State and Territory level, owing to the much smaller numbers in any particular jurisdiction. In the interests of consistency the more recent set of data on this subject is

reproduced in Table 7.7.

7.2.8 From Table 7.7 it can be seen that, for both Aboriginal and non­ Aboriginal prisoners in 1989, their presence in prison can be primarily accounted for by reference to only seven offence categories: break and

enter, assault, sex offences, theft, homicide, robbery and drug offences. Nevertheless, there are some interesting differences between Aboriginal and non-Aboriginal prisoners in relation to the most serious offence leading to conviction or charge. The proportions of Aboriginal prisoners held for assault, sex offences and breaking and entering are much higher than the equivalent proportions of non-Aboriginal prisoners, but the opposite is the case for drug offences and robbery. It is also to be noted that at the less serious end of the scale, there are proportionately more Aboriginal than non-Aboriginal prisoners held for traffic, good order offences, property offences and for the group o f offences known as

‘justice procedures’, which includes breaches of orders and fine default.

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7 R easons for C ustody

Why this may be so will be considered in Chapter 23.

TABLE 7.7: MOST SERIOUS OFFENCE OF CONVICTION OR CHARGE, ABORIGINAL AND NON-ABORIGINAL PRISONERS, 30 JUNE 1989

A b o r i g i n a l N o n - A b o r i g i n a l

O ffe n c e N u m b e r % N u m b e r %

Homicide 161 8.8 1 167 10.6

Assault 322 17.6 760 6.9

Sex offences 256 14.0 1 046 9.5

Other against person 24 1.3 119 1.1

Robbery 117 6.4 1 397 12.7

Break and enter 352 19.3 1 620 14.8

Fraud 20 1.1 504 4.6

Theft 193 10.6 1 219 11.1

Property damage 49 2.7 177 1.6

Justice procedures 113 6.2 587 5.4

Drug offences 25 1.4 1 260 11.5

Good order offences 46 2.5 142 1.3

Traffic offences 102 5.6 449 4.1

Other 45 2.5 520 4.7

All offences 1 825 100.0 10 967 100.0

7.2.9 Even though Table 7.7 statistically shows Aboriginal prisoners with lower percentages than non-Aboriginal prisoners for some offence categories, such as robbery and drug offences, this does not indicate that Aboriginal people are less likely than non-Aboriginal people to be imprisoned for these offences. On the contrary, as W alker3 has clearly demonstrated, and as the data in Table 7.7 confirm, for every offence category Aboriginal people are over-represented in the prison statistics.

Aboriginal people comprise just under 1.1% of that part of the Australian population that is 17 years of age and above, and yet they comprise a much higher proportion of the persons imprisoned for each offence

category. This point is most readily demonstrated by rearranging the figures in Table 7.7 to show the percentages of prisoners in each offence category who are Aboriginal. This has been done in Table 7.8 Thus, for example, whereas 8.8% of the Aboriginal prisoners were shown in Table

7.7 to have homicide as their most serious offence of conviction or charge, Table 7.8 shows that of all the persons in prison for homicide, 12.1% were Aboriginal.

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TABLE 7.8: MOST SERIOUS OFFENCE OF CONVICTION OR CHARGE, ABORIGINAL AND NON-ABORIGINAL PRISONERS, AND PER CENT ABORIGINAL PRISONERS, 30 JUNE 1989

O ffe n c e A b o r i g i n a l N o n ­

A b o r i g i n a l

T o t a l P e r c e n t

A b o r i g i n a l

Homicide 161 1 167 1 328 12.1

Assault 322 760 1 082 29.8

Sex offences 256 1 046 1 302 19.7

Other against person 24 119 143 16.8

Robbery 117 1 397 1 514 7.7

Break & enter 352 1 620 1 972 17.8

Fraud 20 504 520 3.8

Theft 193 1 219 1 412 13.7

Property damage 49 177 226 27.7

Justice procedures 113 587 700 16.1

Drug offences 25 1 260 1 285 1.6

Good order offences 46 142 188 24.5

Traffic offences 102 449 551 18.5

Other 45 520 565 8.0

All offences 1 825 10 967 12 788 14.3

1 D. McDonald, N atio n a l P o lice C u stody Survey A ugust 1988: N a tio n a l R eport, RCIADIC Criminology Research Unit Research Paper No. 13, Canberra, 1990, pp. 16-17

2 D. Biles, A b o rig in a l Im prisonm ent: a S ta tistic a l A n alysis, RCIADIC Criminology Research Unit Research Paper No. 6, Canberra, 1989, p. 12

3 J. Walker, P riso n Sen ten ces in A u stralia, Australian Institute of Criminology, Canberra, Trends and Issues No. 20, 1989

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C hapter 8 DURATION OF CUSTODY

O b v io u sly , o n e o f th e f a c to r s w h ic h d e te rm in e s th e r a te s o f d e a th in

c u sto d y is th e len g th o f tim e p e o p le s p e n d in p o lic e , p r is o n o r o th e r

c u sto d ia l en viron m en ts. T h is c h a p te r a d d re sse s the issu e using a v a ila b le in form ation fr o m th e C o m m issio n s 1 9 8 8 N a tio n a l P o lic e C u sto d y S u rv e y a n d f r o m th e A n n u a l N a tio n a l P r is o n C e n su s. I t d e m o n str a te s th a t

d iffe re n tia ls e x is t in this a r e a b e tw e e n A b o r ig in a l a n d n o n -A b o rig in a l p e o p le . In p o lic e cu sto d y, th e f o r m e r g e n e r a lly s p e n d lo n g e r p e r io d s in cells than the la tter. A lth ou gh th e p o s itio n is m o re co m p lex w ith r e g a rd to p r is o n c u s to d y , th e a v a ila b le in fo rm a tio n s u g g e s t th a t, in g e n e r a l,

A b o rig in a l p e o p le d o n o t r e c e iv e lo n g e r se n te n c e s than n o n -A b o rig in a l p e o p le .

8 .1 P O L IC E CU STO D Y

T A B L E 8.1: MEAN LENGTH OF TIME IN CELLS, ABORIGINAL AND NON-ABORIGINAL PERSONS, AUGUST 1 9 8 8

L e n g th o f t i m e in c e l l s M e a n ti m e in c e l l s ( h o u r s )

A b o r i g i n a l N o n - A b o r i g i n a l T o t a l

All time periods 26.4 22.3 24.0

Under seven days 16.1 13.4 14.2

Under two days 9.7 7.6 8.2

Under one day 8.0 5.5 6.2

8.1.1 Having available high quality data on the duration o f custody is essential for the monitoring of policies and rograms aimed at minimizing exposure to risk o f deaths in custody. Once again, the August 1988 National Police Custody Survey is the only source of information on this

topic nationally. One of the findings of the national survey is the fact that, across Australia, Aboriginal people were being held in police custody for longer periods than non-Aboriginal people. The mean lengths of time that Aboriginal and non-Aboriginal people were held in the cells during the

month are set out in Table 8.1. (above). It shows the mean periods, in

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D uration of Custody 8

hours, for the cases held for less than one day, under two days, under one week, and for all cases (i.e. for all time periods).

8.1.2 From the Table 8.1 it will be noted that the average period of time in custody for all cases and all time periods was 24 hours, with Aboriginal people being in custody for 4.1 hours or 16% longer than non-Aboriginal people. The report on the survey indicates that half the cases were in custody for 5.9 hours or less: half of the Aboriginal custodies were in the cells for periods of 8.7 hours or less, whereas half of the non-Aboriginal custodies were for 5.0 hours or less.1

8.1.3 The author of the survey report pointed out that a small number of people who were held for very long periods distort these averages. To compensate for this the following data refer only to the cases held in the police cells for less than 48 hours— this comprised some 90% of all cases. Within this time period, as shown in Table 8.2 (below) Aboriginal people

were detained in the cells 28% longer than non-Aboriginal people: averages of 9.7 hours and 7.6 hours respectively. With regard to cases held for the offence o f public drunkenness, Aboriginal people’s average duration was almost twice that of non-Aboriginal people: means of 10.6 hours and 5.5 hours respectively. The survey report concluded, from these data, that ‘this implies that current policies to decriminalize public drunkenness and to provide alternatives to the police cells for people found intoxicated in public should, if implemented effectively, substantially reduce the exposure of Aboriginal people to the risk of deaths in police custody’.2 As I have indicated in Chapter 32, ‘implemented effectively’ includes the provision of, and use of, sobering-up facilities or other alternatives to the police cells.

TA B L E 8.2: MEAN LENGTH OF TIME IN CELLS, ABORIGINAL AND NON-ABORIGINAL, BY JURISDICTION^

H o u r s

N S W V ic Q ld W A S A T as N T A C T A u s t

Aboriginal 11.7 6.9 10.7 9.9 9.1 7.6 8.5 7.2 9 . 7

Non-Aboriginal 10.0 7.9 6.9 5.1 6.9 7.3 7.7 5.7 7 . 6

Total 10.2 7.9 8.0 7.5 7.3 7.4 8.3 5.8 8 . 2

(a) Cases held in cells for less than 48 hours

8.1.4 The numbers of cases involved where the duration of custody was less than two days are detailed in Table 8.3 (overleaf) showing Aboriginal and non-Aboriginal people separately. It will be noted that the cases are concentrated heavily in the first six hours.

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8 D uration of Custody

TABLE 8.3: NUMBER OF HOURS IN CELLS, ABORIGINAL AND NON-ABORIGINAL^)

T im e in c e l l s A b o r i g i n a l N o n - A b o r i g i n a l A l l c a s e s ^

Under 3 hours 1 060 5 163 6 296

3 and under 6 hours 1 316 4 221 5 635

6 and under 9 hours 1 165 2 063 3 259

9 and under 12 hours 989 733 1 737

12 and under 15 hours 607 531 1 148

15 and under 18 hours 345 514 865

18 and under 21 hours 174 372 559

21 and under 24 hours 115 310 432

24 and under 27 hours 93 290 386

27 and under 30 hours 42 154 202

30 and under 33 hours 26 132 161

33 and under 36 hours 38 82 122

36 and under 39 hours 50 96 146

39 and under 42 hours 42 123 167

42 and under 45 hours 49 83 133

45 and under 48 hours 62 124 188

(a) Cases held in cells for less than 48 hours (b) Including cases where the Aboriginality or non-Aboriginality was not stated

8.1.5 Since people placed in the cells for public drunkenness comprise such a high proportion of all cases, and Aboriginal people are especially over-represented in this category, I present in Table 8.4 (below) data on the average duration of police custody which excludes these cases. In

other words, the table covers all cases other than those where people were held in the cells for protective custody owing to public drunkenness or whose most serious offence was public drunkenness.

TABLE 8.4: MEAN TIME IN POLICE CUSTODY, AUGUST 1988 (FOR REASONS OTHER THAN PUBLIC DRUNKENNESS^)

L e n g t h o f t i m e in c e l l s M e a n tim e in c e l l s ( h o u r s )

A b o r i g i n a l N o n - A b o r i g i n a l T o t a l

All time periods 31.5 22.9 25.7

Under seven days 18.4 14.0 15.1

Under two days 10.4 7.7 8.4

Under one day 8.1 5.5 0.1

(a) Excludes cases placed in the cells for protective custody owing to public drunkenness, or whose most serious offence was drunkenness in jurisdictions which had not decriminalized the offence.

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D uration of Custody 8

8.1.6 Table 8.4 may be compared with Table 8.1 which presents corresponding data covering all reasons for custody. This comparison reveals that, in both cases, Aboriginal people were in the cells for periods

significantly longer than non-Aboriginal people. Secondly, among Aboriginal detainees, the lengths of time involved for the cases other than those in the cells for drunkenness, shown in Table 8.4, are longer than for the cases which include drunkenness. Among non-Aboriginal people, however, little difference exists. This information is relevant to the discussion, later in this report, where I explore the differences between

Aboriginal and non-Aboriginal people regarding their being released on bail by police officers and by the courts.

S t a t e -b y -S t a t e C o m p a r i s o n s

8.1.7 As with so many areas of policing, substantial differences exist between the eight main States and Territories of Australia with regard to the lengths of time that people spend in police cells. August 1988 details are provided at Table 8.2.

8.1.8 It will be noted from that table that, in every jurisdiction except Victoria, the average length of time that Aboriginal people spent in the cells was greater than that o f non-Aboriginal people. The discrepancy was most marked in Western Australia, where Aboriginal people were in the cells for periods nearly twice those of non-Aboriginal people. It is probable that part of the explanation for the discrepancy between the jurisdictions and between Aboriginal and non-Aboriginal people is the

relative frequency of public drunkenness apprehensions. As a general rule, intoxicated people (whether apprehended on a protective custody basis or for having committed the offence of public drunkenness) are held in the cells until they reach a reasonable level of apparent sobriety. In many cases this means an overnight stay in the cells— a length of time

substantially longer than that spent by most offenders who are being processed through the cells and then released on bail or transfer to another custodial facility. Yet again we observe the substantial involvement of the misuse of alcohol, and the community response to public drinking, as important sources of Aboriginal over-representation in custody.

8.1.9 The anomalous position in Victoria deserves some discussion. It will be recalled from Table 8.2 that the Aboriginal people’s mean period in the cells in that State was shorter than that of the non-Aboriginal people and was shorter than that of the Aboriginal people in the other States and Territories. While it is not possible to be definite about the causes of this

situation, it appears that the explanation may lie in an im proved relationship that exists in a number of centres of Aboriginal population in that State, between police and the Aboriginal community. Aboriginal Community Justice Panels have been established in a number of areas and these are discussed later in the report. One result of their operations,

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8 D uration of Custody

however, is to reduce the time spent in custody by making arrangements for bail. An additional factor is the close and positive relationships that generally exist in V ictoria between the police and the A boriginal communities. I understand that, in many centres in the State, there is a

police liaison officer who works with the local Aboriginal community. These officers are generally well sensitized to the cross-cultural issues involved in such a role and are able quickly to notify previously identified Aboriginal contact persons in the event that a member of their community

is detained. Further, the relatively small size (in geographical terms) of Victoria, and its relatively small Aboriginal population makes it more likely than in some other jurisdictions that the Aboriginal community would be aware of someone being detained and that the Aboriginal Legal Aid

Service would be notified.

8 .2 P R IS O N C U STO D Y

TABLE 8.5: AGGREGATE SENTENCES IMPOSED ON SENTENCED ABORIGINAL PRISONERS, 30 JUNE 1989

A g g r e g a t e s e n te n c e N S W V i c Q ld W A S A T a s N T A u s t

Under 1 month 2 - 1 8 - - 3 20

1 & under 3 months 2 3 29 34 1 2 71

3 & under 6 months 21 6 40 74 12 - 16 169

6 & under 12 months 66 13 56 93 11 4 31 274

1 & under 2 years 58 14 47 96 13 - 55 283

2 & under 5 years 76 15 82 76 15 2 58 324

5 & under 10 years 54 16 80 71 22 - 33 276

10 years and above 38 3 22 8 2 1 14 88

Life 6 3 25 39 7 1 3 84

Total 323 73 388 499 83 8 215 1 589

8.2.1 As with many other aspects of the use of im prisonm ent in

Australia, the most valuable source of reliable information is the annual census of prisoners conducted by the Australian Institute of Criminology. Table 8.5 has been constructed from the published results of the census of 30 June 1989. It shows the aggregate sentences im posed on all

Aboriginal prisoners under sentence in each jurisdiction on that date. Unsentenced or remand prisoners have been excluded from this table, as also have the small number serving periodic detention orders in New South Wales at that time. A person under a periodic detention order is

required to spend specified periods, such as weekends, in prison. From this table it can be seen that most Aboriginal prisoners had been sentenced to terms of well over one year but that the proportions of long and short­

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D uration of Custody 8

term prisoners were not identical in all jurisdictions. For example, there seem to be proportionately more short-term Aboriginal prisoners in Western Australia and Queensland than elsewhere.

8.2.2 The data showing the numbers of Aboriginal prisoners sentenced to detention periods for Australia as a whole have been compared with the equivalent data for non-Aboriginal prisoners as shown in the results of the

same census. This comparison is shown in Figure 8.1.

FIGURE 8.1: AGGREGATE SENTENCES IMPOSED ON ABORIGINAL AND OTHER PRISONERS AS AT 30 JUNE 1989

P e r

c e n t

30 t

Under 1 & 3 & 6 & 1 & 2 & 5 & 10 yrs Life &

1 mth under 3 under 6 under under 2 under 5 under & over GP mth mth 12 mth yrs yrs 10 yrs

IS! Aboriginal Hi Other

8.2.3 From this graph it can be seen that for all aggregate sentence categories up to and including ‘1 and under 2 years’ there were

proportionately more Aboriginal prisoners, but the opposite was the case for all longer sentence categories including Life and Governor’s Pleasure. These findings are consistent with those reported in Research Paper No. 6 o f the Com m ission’s Research Unit, which were based on 1987 data. This suggests the conclusion that Aboriginal prisoners are not given

heavier sentences than non-Aboriginal prisoners and may, in some cases, be given lighter sentences. Since that research was carried out, however, further research has uncovered additional facts. The Research U nit’s Research Paper No. 19 has shown that, for all Australian jurisdictions, the level of Aboriginal over-representation in non-custodial corrections (essentially probation, parole and com m unity service orders) is considerably lower than the level o f Aboriginal over-representation in

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8 D uration of C ustody

prisons. This may possibly be because of a belief held by judges, magistrates and parole authorities that Aboriginal offenders are either less able or less willing to comply with the requirements of non-custodial orders. It may also be relevant to note that non-custodial sentencing

options may not have been available in some rem ote areas. These considerations suggest that some courts may, at least in some cases, order for A boriginal defendants a short prison sentence where for non­ Aboriginal defendants the sentence would be non-custodial. Chapter 23.5

deals with this in more detail.

8.2.4 In the light of these considerations I conclude that, subject to the matter just mentioned and to one other exception, there is no evidence that Aboriginal people receive longer prison sentences than non-Aboriginal people for the same offences. The exception is in some remote areas, particularly where courts are conducted by justices of the peace, the

opposite may be the case.

1 D. McDonald, N ation al P o lic e C u stody S urvey A ugust 1988: N atio n a l R eport, RCLADIC Criminology Research Unit Research Paper No. 13, Canberra, 1990, pp. 31­ 4

2 McDonald, p. 33

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Chapter 9 THE EXTENT OF THE

DISPROPORTION

This is the f in a l c h a p ter o f P a r t B . I t d ra w s on th e in form ation p r e s e n te d in the p r e v io u s fo u r ch a p ters a n d on o th e r so u rc es, to p r e se n t con clu sion s on th e e x te n t o f th e d is p r o p o r tio n a te n u m b ers o f A b o r ig in a l p e o p le in

cu sto d y , c o m p a r e d w ith n o n -A b o rig in a l p e o p le . S u b sta n tia l d iffe re n c e s e x ist b e tw e e n the v a rio u s S ta te s a n d T e rrito rie s in b o th A b o rig in a l a n d to ta l c u sto d y ra te s, in b o th the p o lic e a n d p r is o n c u sto d y en viro n m en ts.

The d a ta cu rren tly a v a ila b le in d ica te th at A b o rig in a l p e o p le a re taken into p o lic e c u sto d y a n d h e ld in th e p o lic e c e lls a t a r a te so m e tw e n ty -se v e n

tim es th at o f n o n -A borigin al p e o p le . A sim ila r p o s itio n ex ists w ith r e g a rd to p riso n cu sto d y: p riso n c en su ses in d ic a te the ra te o f im p riso n m en t upon A b o rig in a l a d u lts is som e fifte e n tim es th at o f n o n -A b o rig in a l a d u lts. The c h a p te r c o n c lu d es b y su m m a rizin g th e m ain fin d in g s o f th e f iv e ch a p ters

o f P a r t B .

9.1 INTRODUCTION

9.1.1 A continuing theme throughout this report is the disproportionate number o f Aboriginal people being held in all forms of custody and in most locations throughout Australia. The extent of the disproportion is so great, some may argue, that I should not pay particular attention to its

actual extent. Certainly my aim in this report is not to highlight problems but rather to focus on solutions. Nevertheless, I consider it important that governments, police and prison adm inistrators and the public have available to them comprehensive and accurate information about the extent

of disproportionate numbers of Aboriginal people in custody, compared with non-Aboriginal people. The primary value of such data is their use in monitoring changes in this disproportionate level of incarceration. It is only through systematically measuring the disproportion over a time that

information will become available as to whether, and to what degree, policies and rograms aiming at reducing the levels of disproportion are being effective.

9.1.2 Bearing in mind the importance, then, of having high quality data available on the disproportionate incarceration of Aboriginal people, with my approval and that of my fellow C om m issioners, the Royal

Com m ission’s Criminology Research Unit undertook a study of the

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The Extent of the D isproportion 9

methodological issues in this area.1 I will not repeat in any detail the information set out in that paper but will present some of its conclusions.

9.1.3 The Research Unit concluded that problems with data availability and data quality limit one’s capacity to produce an accurate measure of disproportionate numbers in custody. They state that:

The d a ta u sed to c a lcu la te lev e ls o f o v e r-re p re se n ta tio n a re often in a d eq u a te. P ro b le m s w ith d e fin itio n s o f k ey c o n c e p ts, in clu d in g A b o r ig in a lity , c u sto d y a n d d e a th n e e d to b e re so lv e d . The q u a lity o f d a ta a v a ila b le on

th e se v a r ia b le s is in c o n siste n t a c r o s s A u s tr a lia a n d

th rou gh tim e. N e v e rth e le ss, the b a sic d a ta n e e d e d to

calculate over-representation are available.2

9.1.4 The disproportionate numbers o f Aboriginal people in custody compared with non-Aboriginal people in custody is best expressed by a comparison of their respective custody rates: for example, the number of Aboriginal people in a particular form of custody per 100,000 Aboriginal people in the population, compared with the number of non-Aboriginal people in that form o f custody per 100,000 o f the non-Aboriginal population. This approach makes an adjustment for the relative sizes of

the populations being compared. Furthermore, it is frequently necessary to make adjustments for the differing age structures of the populations being compared. However, as it turns out, the age distributions of Aboriginal people both in prison and in police custody are similar to the distributions of non-Aboriginal people in each form of custody, which reduces the necessity of making sophisticated age adjustments in the calculation of custody rates and related measures of disproportionate numbers.

9.1.5 In summary, then, adequate data are available on the general Australian population (from the Australian Bureau of Statistics’ five-yearly census), the annual National Prison Census conducted by the Australian Institute of Criminology, and from the August 1988 National Police Custody Survey, to provide an overview o f the extent o f the

disproportionate numbers of Aboriginal people, compared with non­ Aboriginal people, in custody in Australia. The ‘one-off’ nature of the National Police Custody Survey is a problem, however, one that I have already discussed. I have recommended elsewhere that the survey be

repeated at regular intervals so that up-to-date data are available for the monitoring of the size and nature of the population in police custody.

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9 The E xtent of the D isproportion

9.2 DISPROPORTIONATE NUMBERS IN POLICE CUSTODY

9.2.1 The extent of the disproportionate numbers of Aboriginal people in police custody is documented in the report on the National Police Custody Survey.3 That discussion concluded that ‘in August 1988 A b o rig in a l p e o p le w e re a p p re h e n d e d a n d p la c e d in p o lic e c e lls a t a ra te

o v e r tw e n ty tim es th a t o f n o n -A b o rig in a l p e o p le 'A This disproportion in incarceration levels is a national disgrace, one which shames Australia in the eyes of the international community.

9.2.2 The disproportionate numbers o f Aboriginal people in police custody is illustrated in the following pie charts.

FIG U R E 9.1: ABORIGINAL DISPROPORTIONATE NUMBERS IN POLICE CUSTODY

P ro p o rtio n o f A b o rig in a l P e o p le

In G en eral P opulation

1. 1%

© S t a t e -b y -S t a t e C o m p a r i s o n s

9.2.3 As with so many other indicators, substantial differences exist between the eight main States and Territories in rates of incarceration in the police cells. Once again drawing upon the results of the National Police Custody Survey, Figure 9.2 shows the number of people held in police

custody during August 1988, by State and Territory. One cannot assume, however, that these numbers are distributed evenly within the individual States and Territories. In fact, as I show in Chapter 21, marked regional

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The Extent of the D isproportion 9

differences exist in the numbers of custody incidents and the custody rates.

FIGURE 9.2: PERSONS TAKEN INTO CUSTODY AUGUST 1988, ABORIGINAL AND NON-ABORIGINAL, BY JURISDICTION

7000 τ

6000 ·â– 

5000 ■ ■

4000 ■ ■

3000 ■ ■

1000 ■■

NSW

Ξ Aboriginal H3 Non-Aboriginal

9.2.4 Table 9.1 translates these numbers of people taken into police custody into custody rates, i.e. the number of incidents of custody per 100.000 of the relevant population as counted at the 1986 national Census of Population and Housing. We find that the level of disproportionate

numbers of Aboriginal people, shown in the last column o f the table, varies from a low of five times that of non-Aboriginal people in Tasmania to a high of forty-three times in Western Australia.

9.2.5 A perusal of Table 9.1 reveals that the Northern Territory had by far the highest overall police custody rate (1,415 per 100,000 population) and that this parallels the Territory’s high level of imprisonment (285 per 100.000 as at 30 June 1989). The police custody rates were well above the national rate not only in the Northern Territory, but also in Western Australia, South Australia and Queensland.

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9 The E xtent of the D isproportion

TABLE 9.1: POLICE CUSTODY RATES, ABORIGINAL AND NON-ABORIGINAL, BY JURISDICTION, AUGUST 1988

S ta t e A b o r i g i n a l r a t e N o n ­

A b o r i g i n a l r a t e

T o ta l r a t e L e v e l o f

D i s p r o p o r t i o n M

NSW 1 312 87 103 15

Vic 1 570 117 123 13

Qld 2 840 170 237 17

WA 7 730 180 385 43

SA 4 877 187 239 26

Tas 640 123 135 5

NT 4 776 429 1 415 11

ACT 1 967 185 197 11

Aust 3 539 131 183 27

(a) Police custodies August 1988 per 100,000 population at the 1986 census. (b) Ratios of Aboriginal custody rates to non-Aboriginal rates.

9.2.6 The Aboriginal custody rates reflect this pattern. W estern Australia had by far the highest Aboriginal custody rate, at 7,730 per 100,000, with South Australia and the Northern Territory also having rates substantially above the national rate. It will be noted that the States

which have the highest Aboriginal populations, Queensland and New South W ales, had custody rates lower than those in a number of other jurisdictions.

9.2.7 O f particular importance to the Royal Commission, however, is the pattern of disproportionate numbers of Aboriginal people. This is set out in the fifth column of Table 9.1. The gross level of disproportion in Western Australia (Aboriginal people in police custody at a rate forty-three times that of non-Aboriginal people) has already been referred to. South

A ustralia also has a particularly high custody rate. The N orthern Territory, which has a very high proportion of Aboriginal people among its population, had a disproportionate level substantially lower than these two jurisdictions, as did Queensland and New South W ales, the two jurisdictions which contain, between them, some 53% of A ustralia’s

Aboriginal population.

9.2.8 I find it useful to repeat this analysis, excluding cases where people were placed in the police cells for protective custody owing to public drunkenness, or where their most serious offence was public drunkenness in the jurisdictions that had not decriminalized the offence at

the time of the National Police Custody Survey. This is because such a large proportion of the Aboriginal custody cases, compared with the non­ Aboriginal cases, were for drunkenness. It also provides an opportunity to assess the impact on custody rates and levels of disproportion that

would result if (a) public drunkenness were decrim inalized in all Australian jurisdictions and, (b) if all people found by the police to be

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The Extent of the D isproportion 9

intoxicated in public were taken to their homes or to appropriate facilities, rather than to the police cells. These data are set out in Table 9.2.

T A B L E 9.2: CUSTODY RATES FOR PERSONS TAKEN INTO POLICE CUSTODY FOR REASONS OTHER THAN PUBLIC DRUNKENNESS, AUGUST 1988(·)

S t a t e A b o r i g i n a l r a te N o n - A b o r i g i n a l

rale

T o ta l r a te L e v e l o f

d i s p r o p o r t i o n M

NSW 929 71 83 13

Vic 920 78 82 12

Qld 1221 120 149 10

WA 4909 169 298 29

SA 3464 168 204 21

Tas 551 100 110 6

NT 1128 221 431 5

ACT 738 119 124 6

Aust 1845 101 128 18

(a) Police custodies for the designated groups August 1988, per 100,000 population at the 1986 census. (b) Ratios of Aboriginal custody rates to non-Aboriginal rates.

9.2.9 A comparison of this table with Table 9.1, which covers all cases, reveals that, when the public drunkenness cases are excluded, the national level of disproportionate numbers of Aboriginal people in police custody, compared with non-Aboriginal people, falls from a factor o f 27 to one of 18: a reduction of one-third. With regard to the States with the highest levels of disproportion Western Australia’s level falls from 43 to 29 and South Australia’s from 26 to 21. From this further analysis, I conclude that the unacceptably high level of disproportionate numbers of Aboriginal people in police custody is not a function only or primarily of public drunkenness apprehensions, but covers a range of offences.

9.2.10 I indicated earlier in this chapter that the similarity between the age distributions of the Aboriginal and non-Aboriginal populations in the police cells means that full age adjustment is not really necessary to grasp the extent of disproportion. It is noted, however, that the custody rate for Aboriginal people, standardized to the total Australian population, is 3,726 per 100,000; the non-Aboriginal rate is 130 and the resulting level of disproportion is 28.7 times.5 This gross level of disproportion underlies the particular emphasis that this report places on police custody as the area of greatest concern to all Australians interested in minimizing the number of deaths of Aboriginal people in custody.

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9 The E xtent of the D isproportion

9.3 DISPROPORTION IN PRISON POPULATIONS

9.3.1 The extent of Aboriginal disproportionate numbers in Australia’s prisons has been mentioned earlier in this report. It is a subject which has been closely examined by the Research Unit of the Royal Commission. In particular, Research Paper No. 19 produced by that Unit, has drawn

together the available statistical material on Aboriginal and non-Aboriginal people in prisons over the period 1982 to 1989. These statistics show the trends over time, as well as the levels of Aboriginal disproportionate numbers for each State and the Northern Territory for the most recent

prison census for which data are available, that held on 30 June 1989. In that Research Paper, disproportion was calculated as the ratio of Aboriginal and non-Aboriginal imprisonment rates which were defined as the numbers of prisoners per 100,000 of the relevant group in the general community for each jurisdiction. This was further refined so that

im prisonment rates were calculated separately on the basis o f t o ta l populations and on the basis of a d u lt populations (i.e. persons 17 years and above). (The latter refinement is of greater relevance to prisons than it is to police custody as it is extremely rare for any person under 17 years of

age to be in a prison, but it is not so rare as far as police custody is

concerned. This refinement also reduces the influence of the different age distributions of Australia’s Aboriginal and non-Aboriginal populations.) In summary, the analysis of the 1989 data produced in Research Paper No. 19 show that for A ustralia as a whole the A boriginal adult

imprisonment rate at that time was 1,465 per 100,000 Aboriginal persons in the community aged 17 years and above, while the equivalent rate for non-Aboriginal adults was 97 per 100,000 persons. When these two rates are compared it can be shown that the level of disproportionate numbers

was 15.1. This means that there were 15 times as many Aboriginal people in prison than there were non-Aboriginal people in prison.

9.3.2 It was also shown in Research Paper No. 19 that there was

considerable variation between jurisdictions in the level of Aboriginal disproportion. The details are shown in Table 9.3.

9.3.3 It can be seen from this table that Western Australia had by far the highest level of Aboriginal disproportion in prisons while Tasmania had the lowest. (For the sake of completeness it should be noted that the rates and the ratios calculated on the basis of total populations produced figures

that were lower than those calculated on the basis of adult populations. The national figure for Aboriginal disproportion calculated on this basis was 11.0.)

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The E xtent of the D isproportion 9

TABLE 9.3: ABORIGINAL AND NON-ABORIGINAL ADULT») IMPRISONMENT RATES AND LEVELS OF DISPROPORTION, BY JURISDICTION, 30 JUNE 1989

J u r is d ic tio n A b o r i g i n a l N o n - A b o r i g i n a l L e v e l o f

d is p r o p o r t io n

NSW») 1 300.4 118.1 11.0

Vic 1 201.3 73.2 16.4

Qld 1 238.4 100.8 12.3

WA 2 665.6 101.5 26.3

SA 1 270.4 76.5 16.6

Tas 258.2 69.3 3.7

NT 1 271.5 124.5 10.2

Aust 1 464.9 97.2 15.1

(a) Prisoners per 100 000 of the relevant adult (17 years and above) population at the 1986 Census of Population and Housing (b) Including ACT

9.3.4 It is noted that, w hichever method is used to calculate

disproportion (with either to ta l or a d u lt populations) the level of Aboriginal disproportion derived from prison census data is lower than it is for receptions into police custody. It is noted, however, that a small study conducted in April 1989 (see Chapter 7, Table 7.6) indicated that the level

o f A boriginal disproportion in r e c e p t i o n s to prison (flow data) is substantially higher than the level calculated from the number of prisoners found at the prison census. (It is, in fact, nearly as high as the level of disproportion found in police custody flow data.) Although the April

1989 study covered only one month, with the result that the number of cases was relatively small, it is considered that the conclusion, summarized above and discussed in more detail in Research Paper No. 19, remains valid.

9 .4 SU M M A RY O F PA R T B

9.4.1 The five chapters of Part B which conclude with this chapter have surveyed a number of different aspects of the disproportionate number of Aboriginal people in custody. Chapter 5 introduced the topic; Chapter 6 presented some basic facts about Aboriginal people in custody; Chapter 7 reviewed the reasons why both Aboriginal and non-Aboriginal people are placed in custody; Chapter 8 discussed the duration of custody; and, finally, Chapter 9 has sought to quantify the extent of the disproportion of Aboriginal people, compared with non-Aboriginal people, in custody in Australia. The main elements of Part B may be summarized as follows:

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9 The E xtent of the D isproportion

W hile explanations for the number o f Aboriginal deaths in custody have to be found in many aspects of A ustralia’s contemporary and past society, the im m ed ia te explanation of the number of deaths in custody is the number of Aboriginal people

actually found in custody. Aboriginal people are in gross disproportionate numbers, compared with non-Aboriginal people, in both police and prison custody and it is this fact that provides

the im m ediate explanation for the disturbing num ber of Aboriginal deaths in custody, a number which was found so unacceptable to the Australian community during 1987 that the Royal Commission was established.

A detailed study of death rates indicates that Aboriginal people, once they are in custody, are no more likely to die than are non­ Aboriginal people in custody. In other words, the two groups have similar death rates in custody.

During the period 1 January 1980 to 31 May 1989, the period covered by my Terms of Reference, there were 33 Aboriginal deaths in prison custody and 63 Aboriginal deaths in police custody. During the same period 254 non-Aboriginal deaths in

prison custody and 129 non-Aboriginal deaths in police custody were reported to have occurred. During this period there were also three Aboriginal deaths in juvenile detention facilities but the Royal C om m ission’s Research U nit has not been able to determine how many non-Aboriginal deaths occurred in juvenile detention centres during this period.

A need exists for the ongoing monitoring of the number of Aboriginal and non-A boriginal people in police and prison custody and of the number and patterns o f deaths which occur in all forms of custody. I suggest that the Australian Institute of

Criminology can play an important role in such an ongoing monitoring function.

The August 1988 National Police Custody Survey, initiated by the Royal Commission, indicated that approximately 28.6% of the people placed in police cells throughout Australia during the month of the survey were Aboriginal people. The average ages of Aboriginal and non-Aboriginal people in police custody are

similar. Aboriginal women made up a far higher proportion of the Aboriginal people placed in Police custody than non­ Aboriginal women did of all non-Aboriginal people placed in Police custody.

A dearth of information exists concerning people in the custody of police. The conducting of a national survey of people in police custody, on a regular basis, will help fill this serious gap in knowledge.

High quality information on Aboriginal people in prison custody has been available for some years through the annual National Prison Census. As at 30 June 1989 there were 1,825 Aboriginal

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The Extent of the D isproportion 9

people in prison, com prising 14.3% o f the total number of prisoners for whom Aboriginality or non-A boriginality was stated. Aboriginal prisoners tend to be younger than non-Aboriginal prisoners. Similar proportions of Aboriginal prisoners are female

as are non-Aboriginal prisoners. Public drunkenness was reported to be the most frequent offence leading to both Aboriginal and non-Aboriginal people being placed in police custody during the August 1988 national survey period, accounting for 29% of all the cases for which offence data

were available. This category was followed by ‘break and enter, fraud and th e ft’ at 20% . A boriginal people w ere

disproportionately represented, compared with non-Aboriginal, only in the offences of assault, drunkenness and other good order offences. When we aggregate people placed in police custody because of drunkenness both where it was an offence and where it had been decriminalized, it was found in the national survey that 57% of the Aboriginal people placed in police custody were there owing to public drunkenness, compared with 27% of the non-Aboriginal people. This general pattern applied in all jurisdictions regardless of the legal status of public intoxication.

With regard to prisons, similar proportions of Aboriginal people (11.1%) and other people (13.2%) were held in prisons on 30 June 1989 on remand, rather than as sentenced prisoners.

Some 39.5% of Aboriginal people received into Australian prisons during the month of April 1989 were received with fine default as their most serious offence leading to imprisonment. This may be compared with non-Aboriginal prisoners, among

whom 19.7% were received having fine default as the most serious offence. Among Aboriginal people, this offence was followed by assault (11.9%) and traffic offences (11%) as the most serious offences leading to custody, whereas among the non-A boriginal people, fine default was followed by theft

(16.2%), traffic offences (15.5%) and break and enter (11%) as the most serious offence leading to custody. Overall, Aboriginal people in police custody tend to be held for significantly longer periods than are non-Aboriginal people. Indeed, with regard to people held for the offence of public drunkenness, Aboriginal people’s average duration in the police cells was almost twice that of non-Aboriginal people. This pattern applied in all jurisdictions except V ictoria where

Aboriginal people were, on average, in police custody for slightly shorter periods than were non-Aboriginal people. With regard to prison custody, there are generally proportionately more Aboriginal prisoners sentenced for periods of up to two years than are non-Aboriginal people, with the opposite being the

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9 The E xtent of the D isproportion

case for longer aggregate sentences. This suggests the

conclusion that A boriginal prisoners are not given heavier sentences than are non-Aboriginal prisoners and may, in some cases, be given lighter sentences. It is possible, however, that some courts may, at least in some cases, order for Aboriginal

defendants a short prison sentence where for non-Aboriginal defendants the sentence would be non-custodial.

9.4.2 This overview o f the disproportionate number of Aboriginal people in custody as the immediate, but not complete, explanation for the number of Aboriginal deaths in custody leads me to my discussion, which follows in Part D, on the range of underlying issues which explain, in a

fuller way than the bare figures presented above, the disproportionate detention rates of Aboriginal people which go a long way to explain, in turn, their disproportionate number of deaths.

1 D. McDonald and D. Biles, M eth odological Issues in the C alcu lation o f O v e r­ represen tation an d E xposure to R isk in C u sto d y, RCIADIC Criminology Research Unit Research Paper No. 17, Canberra, 1990

2 McDonald and Biles, M e th o d o lo g ica l Issu es, p. 39

3 D. McDonald, N ation al P o lic e C u stody S urvey A ugust 19 8 8 : N ation al R eport, RCIADIC Criminology Research Unit Research Paper No. 13, Canberra, 1990, pp. 4-8

4 McDonald, N atio n a l P o lic e C u stody Survey, p. 4, author’s emphasis

5 D. McDonald and D. Biles, A b o rig in es in P riso n s an d N o n -cu sto d ia l C orrection s, RCIADIC Criminology Research Unit Research Paper No. 19, Canberra, 1990, pp. 2 5 -6

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THE PARLIAMENT O F THE COM MONW EALTH O F AUSTRALIA

PARLIAMENTARY PAPER No, 126 of 1991 ORDERED TO BE PRINTED

ISSN 07274181

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