10.3 Coroners, and counsel assisting them, frequently omit to examine the circumstances of the arrests which lead to the incarceration of remand prisoners whose guilt has not yet been determined by a court.
10.4 Investigation by an independent body, the Queensland Criminal Justice Commission, has revealed significant shortcomings in police investigations of deaths in custody in that state. Amongst other problems, police officers have been able to frustrate investigations by invoking their privilege against self-incrimination. This problem extends to other jurisdictions.
10.5 Queensland has still not reformed its forty year old coronial legislation. Western Australia passed reforming legislation in 1996.
10.6 There are problems in the provision of information by police to the legal representatives of the families of persons who have died in police custody.
Introduction
The Royal Commission found that many coronial inquests 'merely reflected the inadequacies of perfunctory police investigations and did little more than formalise the conclusions of police investigators. 1
The Royal Commission emphasised that full and proper investigations by police and coroners are necessary both to alleviate public suspicion and serve the public interest with recommendations to prevent avoidable deaths. The Victorian Coroner's Act 1985 was considered a model for other jurisdictions, and this legislation is reflected in the Royal Commission's recommendations.
The coronial recommendations were supported by all governments. 2 Queensland, however, has not enacted legislation to reform its coronial system and implement the recommendations. South Australia, Northern Territory and Western Australia have only very recently passed reforming legislation.
The case profiles reveal inconsistent implementation of Royal Commission recommendations by governments in the various jurisdiction, coroners and custodial institutions. Some coroners have been admirably proactive. They have criticised non-implementation of Royal Commission recommendations, made detailed recommendations, displayed a high degree of sensitivity to Aboriginal families and culture and provided full reasons for their findings. Other coroners display little knowledge of Royal Commission recommendations, or for that matter their own empowering legislation. The problem is further compounded by inadequate resources in some jurisdictions to support coronial investigations. Five years after the Royal Commission it can still be concluded that the 'the valuable role of coroners has not been fully appreciated and utilized.' 3
The following chapter considers each recommendation in light of the case profiles and coronial legislation. A table of the frequency of breaches of coronial recommendations is also provided under Recommendation 13 as an indicator of implementation.
Table 10.1 Breaches of Recommendations: Post-Death Investigations
| Recommendation |
Authority
|
Period
|
State/Territory
|
Total |
| |
Cor
|
SJC
|
I
|
II
|
NSW
|
VIC
|
QLD |
WA
|
SA
|
TAS
|
NT
|
|
| 6c Definition |
-
|
2
|
-
|
2
|
1
|
-
|
-
|
-
|
-
|
1
|
-
|
2
|
| 7 State Coroner |
-
|
29
|
17
|
12
|
-
|
-
|
18
|
11
|
-
|
-
|
-
|
29
|
| 8 Protocol |
-
|
5
|
1
|
4
|
-
|
-
|
4
|
1
|
-
|
-
|
-
|
5
|
| 9 Coroner to be magis. |
-
|
3
|
3
|
-
|
-
|
-
|
2
|
1
|
-
|
-
|
-
|
3
|
| 11 Inquest for deaths |
-
|
5
|
4
|
1
|
1
|
-
|
1
|
2
|
-
|
-
|
1
|
5
|
| 12 Full inquiry |
-
|
29
|
13
|
16
|
10
|
-
|
11
|
4
|
2
|
1
|
1
|
29
|
| 13 Recommendations |
-
|
17
|
9
|
8
|
1
|
2
|
10
|
2
|
-
|
2
|
-
|
17
|
| 15 Govt response |
-
|
1
|
1
|
-
|
-
|
-
|
1
|
-
|
-
|
-
|
-
|
1
|
| 16 Coroner response |
-
|
1
|
1
|
-
|
-
|
-
|
1
|
-
|
-
|
-
|
-
|
1
|
| 19 Notification of death |
2
|
1
|
1
|
2
|
2
|
-
|
-
|
1
|
-
|
-
|
-
|
3
|
| 20 Notification of ALS |
-
|
2
|
-
|
2
|
-
|
-
|
-
|
2
|
-
|
-
|
-
|
2
|
| 24 Assistance to family |
-
|
3
|
-
|
3
|
-
|
-
|
1
|
2
|
-
|
-
|
-
|
3
|
| 25 Right to view body |
-
|
2
|
-
|
2
|
-
|
-
|
-
|
2
|
-
|
-
|
-
|
2
|
| 26 Assisting lawyer |
1
|
2
|
-
|
3
|
1
|
-
|
-
|
2
|
-
|
-
|
-
|
3
|
| 27 Independent lawyer |
-
|
1
|
-
|
1
|
-
|
-
|
1
|
-
|
-
|
-
|
-
|
1
|
| 28 Lawyer - full inquiry |
-
|
3
|
-
|
3
|
-
|
-
|
1
|
2
|
-
|
-
|
-
|
3
|
| 33 Independent police |
1
|
-
|
-
|
1
|
1
|
-
|
-
|
|
-
|
-
|
-
|
1
|
| 34 Experienced police |
|
1
|
-
|
1
|
-
|
-
|
-
|
1
|
-
|
-
|
-
|
1
|
| 35 Full investigation |
1
|
18
|
7
|
12
|
6
|
1
|
7
|
3
|
2
|
-
|
-
|
19
|
| 36 Structured investig. |
1
|
4
|
-
|
5
|
1
|
1
|
1
|
2
|
-
|
-
|
-
|
5
|
| 38 Autopsy protocols |
|
1
|
-
|
1
|
1
|
-
|
-
|
-
|
-
|
-
|
-
|
1
|
| Total |
6
|
130
|
57
|
79
|
25
|
4
|
59
|
38
|
4
|
4
|
2
|
|
| Grand Total |
136 |
136 |
136
|
136
|
Recommendation 6 - Definition of a Death in Custody
That for the purpose of all recommendations relating to post-death investigations the definition of deaths should include at least the following categories:
a. in prison or police custody or detention as a juvenile;
b. caused or contributed to by traumatic injuries sustained or by lack of proper care whilst in such custody;
c. occurring in the process of police or prison officers attempting to detain that person;
d. occurring in the process of escaping or attempting to escape from custody.
All jurisdictions claim that this recommendation has been implemented, except Western Australia who claim part implementation.
The profiles reveal departures from this recommendation. In the death in Moama, police were specifically searching for the deceased (see profile 76NSW). The sergeant saw the deceased on a bridge on his return to Moama. The deceased and the sergeant made eye contact and identified one another. The deceased knew the sergeant from previous dealings, and would have heard the police vehicle slow down and possibly turn. The sergeant then found the deceased beneath the bridge. The scenario falls within Recommendation 6c which states that deaths in custody include: '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.' Communication with the Coroner indicated that he and the State Coroner believed a case such as this did not warrant a full coronial inquest.
The case, however, does demonstrate the need for a full coronial inquest. Suspicions remain about the circumstances of the death. The incident occurred in a remote location, and police were the only witnesses. Police and the deceased's previous partner were the only witnesses at the hearing. Their evidence was not tested in cross-examination.
The resistance to classifying deaths from police pursuit in accordance with a Federal Court decision 4 can be seen in the Coroner's comments in the death at Launceston (49TAS). The Coroner commented that a police shooting of an Aboriginal person not under arrest was not really a death in custody (49TAS). However, it is these type of deaths that require full public investigation. The Tasmanian case transparently involved a death occurring in the process of attempting to detain a person. Indeed, it is deaths in such circumstances that have often provoked the greatest disquiet amongst Aboriginal communities since the Royal Commission.
Recommendation 6 has been given a restricted interpretation. The Recommendation states that deaths in custody 'should include at least' categories (a) to (d). The same rationales which justify full coronial inquiries in these circumstances also justify the investigation of deaths in other, related circumstances. A number of cases demonstrate features so akin to deaths in custody as to require detailed investigation as a matter of sound public policy:
- an unconscious person who died after being taken to a sobering-up shelter by police in the mistaken belief that the person was merely intoxicated (A1SA);
- a death which occurred after prison authorities had given the deceased a discharge in hospital shortly before his death (A2SA);
- two youths who died in a car chase after police ceased active pursuit (A4WA, A5WA);
- a death which occurred after contact with police and the court system (A6NSW); and
- a convicted person incarcerated in a mental institution and held under the Mental Health Act after his sentence expired (A7QLD).
These deaths require full post-death investigation. In the latter case the Inquiry recommended:
That Queensland Health examine the feasibility of the definition used by the Royal Commission of an Aboriginal death in custody be extended to cover deaths which occur while a patient is in custody in a Queensland Health facility. That is, within the definition in section 66 of the Mental Health Act 1974.
Similarly, the Townsville Community Legal Service has called for:
Post-death investigations and inquests into the deaths of people in all forms of institutional care to be legally required (emphasis added). 5
Whether such deaths should be classified as deaths in custody is a moot point. The Royal Commission stated that:
[T]he essential quality which attracts the public interest� is the exercise of power conferred on officers entrusted with a public duty � to ensure that they have been exercised in a reasonable justifiable way and have not been abused. When considered in this perspective, coronial jurisdiction to inquire into the circumstances should not be confined to situations where the deceased has actually been taken into custody. 6
Police contact can result in detention and certification under mental health legislation. This can occur in circumstances where a more appropriate response would be to seek other forms of medical assistance (eg 36VIC). It is in the public interest that such deaths be investigated.
|
SJC Recommendation
43. Post-death investigations and inquests be legally required for deaths of people in all forms of institutional care, such as mental institutions which cater for involuntary patients.
|
Recommendation 7 - State Coroner for Deaths in Custody
That the State Coroner or, in any State or Territory where a similar office does not exist, a Coroner specially designated for the purpose, be generally responsible for inquiry into all deaths in custody.
Only three jurisdictions claim implementation (New South Wales, Victoria and Tasmania). Three jurisdictions claim part implementation (Western Australia, South Australia and Northern Territory) while Queensland claims that implementation is imminent, five years after the Royal Commission delivered its final report.
This recommendation has not been implemented in practice in Queensland and Western Australia. The Coroner's Act 1996 (WA) will rectify the situation in Western Australia when it is proclaimed. Queensland continues in default. Tasmania claims that the recommendation has been implemented. However it does not have a State Coroner or Coroner specially designated for the purpose. As a result the expertise in the issues presented by custodial deaths is not allowed to develop. The frequent breaches of the requirement to examine the circumstances of arrest and treatment after arrest when a prisoner has been remanded in prison custody is one illustration of the consequences.
The establishment of a State Coroner's Office with adequate resources is essential to secure full and proper inquests. In Queensland, coroners are dependent on other agencies to carry out investigations and autopsies. The Coroner in a death at Townsville Prison (43QLD) was severely critical of the fact that a 'psychological autopsy' report was provided a year after it was requested from the Department of Health.
The quality of coronial investigations in those States which have failed to implement this recommendation is clearly below the standards of other States. Inquests were often delayed, fewer issues were investigated and recommendations were rarely made. A centralised system with experienced coroners would address these recurring problems, particularly in Queensland.
The deaths in Queensland are overwhelmingly related to people arrested for drunkenness and people who commit suicide in prison, cases in which there is considerable scope for valuable recommendations.
Many of the remaining recommendations cannot be properly implemented without a professional State Coroner. It is imperative that Queensland move immediately to introduce a reformed Coroners Act.
Obtaining transcripts, and even the brief findings of coronial inquests from Queensland and Western Australia, has proved a far more difficult process in the conduct of this survey than in States with a centralised system. This fact alone diminishes the primary benefit of an effective coronial system - public accountability.
|
SJC Recommendations
44. The Queensland Attorney General appoint a State Coroner or a Coroner responsible for deaths in custody.
45. Attorneys General provide appropriate funding for Coroner Offices to ensure the proper preparation of inquests and the thorough investigation of deaths, and ensure that transcripts are made available to interested bodies.
|
Recommendation 8 - Protocols for Deaths in Custody
That the State Coroner be responsible for the development of a protocol for the conduct of coronial inquiries into deaths in custody and provide such guidance as is appropriate to Coroners appointed to conduct inquiries and inquests.
New South Wales, Victoria and Tasmania claim to have implemented this recommendation. Queensland asserts that implementation is imminent. Western Australia, South Australia and the Northern Territory claim only partial implementation.
From the cases examined it appears that protocols have not been sufficiently developed in Queensland, Tasmania and Western Australia. While Tasmania claims to have fully implemented the recommendation, its protocol remains an unwritten one. 7
|
SJC Recommendation
46. All jurisdictions, but especially Queensland, Western Australia and Tasmania develop protocols for the conduct of coronial inquiries in cases of deaths in custody.
|
Recommendation 9 - Coroner to be at least a Magistrate
That a Coroner inquiring into a death in custody be a Stipendiary Magistrate or more senior judicial officer.
All States claimed to have fully implemented this recommendation except Queensland, which stated that implementation was imminent.
The need for implementation in Queensland is clearly apparent. In some of the Queensland cases the Coroner was a justice of the peace, with little expertise in the legal issues likely to arise and little appreciation of issues of police procedures or custodial health and safety requirements.
In some states there are indications that the Office of the State Coroner is being downgraded. In some states the Coroner has tenure for three years, while judges and magistrates have tenure until they reach the statutory retirement age. This fetters their independence in an unacceptable way. See comment and recommendations in 'The Existing and Potential Role of Coroners' in Chapter 12.
|
SJC Recommendation
47. In Queensland and other jurisdictions the Coroner inquiring into a death in custody must be a Stipendiary Magistrate or more senior judicial officer, appointed by the Attorney General.
|
Recommendation 10 - Notification of Death by Custodial Authorities
That custodial authorities be required by law to immediately notify the Coroner's Office of all deaths in custody in addition to any other appropriate information.
Queensland and Tasmania were the only States which acknowledged having only partially implemented this recommendation. Despite the claims of the other jurisdictions, the only evidence of timeliness in the notification of the Coroner was in New South Wales where witnesses statements indicate that Coroners were called immediately to the scene. The Coroner's Act 1996 (WA) 8 only requires notification 'as soon as possible,' which does not convey the urgency of having an independent expert immediately view the scene. The Royal Commission found that a requirement of immediate notification would have prevented significant delays which occurred under systems calling for notification as soon as possible. 9
|
SJC Recommendation
48. Jurisdictions which do not require immediate notification of death by custodial authorities to the Coroner amend their relevant legislation or protocols.
|
Recommendation 11 - All Deaths in Custody to have Inquest
That all deaths in custody be required by law to be the subject of a coronial inquiry which culminates in a formal inquest conducted by a Coroner into the circumstances of the death. Unless there are compelling reasons to justify a different approach the inquest should be conducted in public hearings. A full record of the evidence should be taken at the inquest and retained.
Tasmania and Queensland claimed only partial implementation of this recommendation, although Queensland maintained that implementation was imminent. The other States claimed full implementation. Despite these claims, the cases demonstrated ongoing inadequacies in the coronial inquiry process.
Four deaths in custody (11QLD, 24WA, 35WA and 92NSW) were not investigated because the coroner in each case found evidence which established a prima facie case against a person for an indictable offence which caused the death of the person. This is unfortunate. In the police car chase death at Batemans Bay (40NSW) Coroner Glass made a similar finding. However, he continued to examine the circumstance of the case and made appropriate recommendations. A court of law has a different role. It will not examine the procedures of the institution and make preventative recommendations.
Full records of evidence were not always taken or retained. In many Queensland information was extremely difficult to obtain. In a New South Wales case (19NSW) the summing-up and transcript were accidentally destroyed. In a South Australian case the deceased's prison records were accidentally destroyed before the inquest (9SA).
|
SJC Recommendations
49. In cases where there is evidence a person has committed an indictable offence Coroners should continue to examine the circumstances of the case and make appropriate recommendations addressing systemic problems.
50. All jurisdictions should require the making and retention of full public records of coronial inquests.
|
Recommendation 12 - Full and Proper Inquiry
That a Coroner inquiring into death in custody be required by law to investigate not only the cause and circumstances of death, but also the quality of care, treatment and supervision of the deceased prior to death.
New South Wales, Victoria and South Australia were the only States which claimed to have fully implemented this recommendation.
The need for further action on the recommendation is clear from the number of cases in which the recommendation was breached. It was most frequently breached in Queensland, where the deaths in custody raised particularly serious issues. For a clear illustration of the deficiencies of the system in Queensland, see the profile 38QLD. With a few exceptions, Queensland coronial investigations were the poorest.
Despite the South Australian Government's claim that it has implemented this recommendation, the State Coroner faces no legal requirement to examine the circumstances of care treatment and supervision prior to death, and indeed may do so only if the recurrence of an event similar to the event that was the subject of the inquest would be prevented by doing so. 10 The word 'may' in the provision gives a coroner a discretion which must be exercised judicially (on a proper evaluation of the evidence and for the purposes of the Coroners Act). If quality of supervision and treatment are not relevant to the cause and circumstances of death, the coroner has no jurisdiction to examine those subjects.
The quality of coronial investigations also varies greatly between coroners. Even in States with reformed legislation, such as Victoria and New South Wales, there are significant differences in the quality of investigation. Some coroners were extremely thorough and considered many issues and all submissions. Other coroners relied purely on the bare primary investigations made by police.
There were twenty cases in which the coroners appear to have failed to sufficiently investigate the issues raised on the face of their own short summaries. 11 Many of the Queensland cases dealt with seriously ill or injured people arrested for drunkenness, and the deaths revealed a standard of custodial care in both police watch-houses and prisons which was seriously below that required by the Royal Commission . In one New South Wales case (6NSW) and one Western Australian case (33WA) the summaries were given ex tempore to the court rather than prepared in advance, and were quite confusing.
In cases involving deaths in police custody coroners rarely investigated the circumstances of arrest. This contravenes Interim Report recommendation 55 and Royal Commission recommendation 35c that police investigating the death examine the 'circumstances of the arrest or apprehension and the deceased's activities beforehand.' In eight deaths in police custody coroners failed either to properly investigate or consider the circumstances of the arrest. 12
Coroners should also consider the circumstances of arrest in the case of persons who die in remand centres. These persons, like those who die in police watch-houses, have not had their arrest or charge considered by a court of law, and the presumption of innocence applies. Eight cases involving remand prisoners revealed no consideration by coroners of the circumstances of the arrest of the deceased. 13
Coroners should also consider whether imprisonment was appropriately imposed by judicial officers. Coroner Hiatt, in investigating the death of a woman at Macquarie Fields (39NSW), recommended that imprisonment should always be used as a last resort, and examined the procedures followed in the signing of a warrant by a District Court magistrate. He recognised that the decision to sentence a person to imprisonment has the potential to significantly affect their health and safety. Indeed, s19(2) of the Victorian Coroners Act explicitly states that a coroner may comment on a matter connected with administration of justice, and the new Western Australian Act contains a similar provision. A coroner would not be judicially reviewing the court's decision but would make appropriate recommendations to the Attorney General, who has responsibility shape the law to prevent people being wrongly or inappropriately imprisoned.
Like the South Australian legislation, the Queensland Coroners Act specifically prohibits the making of findings which have implications as to criminal or civil liability. 14 In the investigation into police involvement in the death of the woman who died in a police lockup in Brisbane in 1992 (see profile 38QLD), the Criminal Justice Commission investigator noted that section 24 of the Queensland Coroners Act only requires consideration of issues of criminal responsibility related to the death, not any other matter which may have contributed to it. The Queensland Act also fails to assign formal recognition to recommendations by coroners.
It is especially difficult to have faith in any finding by the coroner that no impropriety was involved in cases where the police officers in question have not been interviewed. 15 Likewise, a coroner cannot satisfy this recommendation if the police or prison officers involved invoke their privilege against self-incrimination and refuse to give evidence at the inquest.
Action in response to coronial recommendations remains purely discretionary and without any procedure of review as to action taken to comply with such recommendations.
|
SJC Recommendation
51. Coroners fully consider the circumstances of deaths in custody including the circumstances of arrest and imprisonment.
52. There be a restriction on the right of witnesses at Coronial investigations to claim privilege in respect of testimony which may incriminate or tend to incriminate the witness. Suitable restriction on the use to which such evidence can be put is necessary to maintain the substance of the protection against self-incrimination.
|
Recommendation 13 - Coronial Recommendations
That a Coroner inquiring into death in custody be required be required to make finding as to the matters which the Coroner is required to investigate and to make such recommendations as are deemed appropriate with a view to preventing further custodial deaths. The Coroner should be empowered, further, to make such recommendations on other matters as he or she deems appropriate.
New South Wales, Victoria, Western Australia and the Northern Territory claimed to have fully implemented this recommendation, while Queensland stated that implementation was imminent. South Australia and Tasmania said that action was ongoing.
The Coronial reports, particularly those from Queensland, demonstrated the need for immediate implementation of the recommendation. Investigations conducted by independent bodies such as the Queensland Criminal Justice Commission (see profile 38QLD) or conducted internally (see profiles 43QLD and A8QLD) provided much better remedial or preventative recommendations than did coronial investigations in that state.
In at least twelve cases there was sufficient evidence from which a coroner could have made preventative recommendations but failed to do so, either because of a lack of power to do so or by omission. 16 The recommendation is aimed at State Governments rather than coroners, and is concerned mainly with the terms of coronial legislation, but the issue of the extent to which coroners in other jurisdictions use their existing powers is also raised.
A rough method of determining compliance with recommendation 13 is to list the number of recommendations made by each coroner in each jurisdiction 17 (shown in Table 10.2 below). The number of formal recommendations is listed, together with the average of recommendations per case. The median is also shown to indicate the consistency of a coroner in making recommendations. The table includes informal recommendations made by coroners. The limitations on this analysis are manifest - the number of recommendations made is a poor proxy for whether coroners are empowered in the relevant way, and some cases may lend themselves to a large number of recommendations of relatively minor importance. We do not wish to imply that to be a 'good' coroner lots of recommendations are required in each case. It is also acknowledged that the samples are very small in respect of individual coroners, and no conclusions regarding individuals are intended to be drawn. However, the jurisdictional patterning (such as it is) provides some useful indicators.
Recommendations are made frequently by coroners in South Australia and Victoria. They are made by some Coroners in New South Wales and Queensland. Recommendations were rarely made in Western Australia and Tasmania. Two comments need to be made. First, the quality of the recommendations made by Victorian Coroners varied greatly. Second, the number in Queensland are misleading. As in South Australia, Coroners are restricted by a stipulation that they cannot: 'express any opinion on any matter outside the scope of the inquest except in the form of a rider designed to prevent similar circumstances.' 18
As a result, recommendations by Queensland coroners are often confined, and insufficient attention is given to the circumstances surrounding deaths, many of which seem to have been potentially avoidable.
The lack of jurisdiction of the coroner to make recommendations to remedy important problems makes little sense. The Victorian legislation demonstrates the deficiencies of the Queensland and South Australian legislation - it allows a coroner to comment on any matter connected with the death or the administration of justice. 19
Table 10.2 Coronial Recommendations
|
Coroners
|
Cases
|
Formal Recommendations
|
Informal Recommendations
|
|
Number
|
Average
|
Median
|
| NSW |
|
|
|
|
|
| Abernathy |
4
|
9
|
3
|
3
|
2
|
| Glass |
5
|
0
|
0
|
0
|
5
|
| Hand* |
5
|
3
|
0.6
|
0
|
2
|
| Hiatt |
7
|
21
|
3
|
3
|
1
|
| Smith |
1
|
0
|
0
|
0
|
0
|
| Waller |
1
|
U
|
U
|
U
|
U
U
|
| Victoria |
|
|
|
|
|
| Klestadt |
1
|
2
|
2
|
2
|
0
|
| West |
4
|
10
|
2.5
|
1
|
0
|
| Wilmouth |
1
|
4
|
4
|
4
|
1
|
| Queensland |
|
|
|
|
|
| Barrett |
1
|
1
|
1
|
1
|
0
|
| Evans |
1
|
5
|
5
|
5
|
0
|
| Lynn |
2
|
5
|
2.5
|
2.5
|
0
|
| Killeen |
1
|
4
|
4
|
4
|
0
|
| Smith |
1
|
6
|
6
|
6
|
0
|
| Fisher |
2
|
4
|
2
|
2
|
0
|
| Casey |
3
|
13
|
5
|
5
|
0
|
| Beck |
1
|
4
|
4
|
4
|
0
|
| Moreton |
1
|
0
|
0
|
0
|
0
|
| Bradley |
1
|
0
|
0
|
0
|
0
|
| Brennan |
1
|
0
|
0
|
0
|
0
|
| Bloxsom |
1
|
5
|
5
|
5
|
0
|
| WA |
|
|
|
|
|
| Black |
1
|
0
|
0
|
0
|
2
|
| McCann |
7
|
0
|
0
|
0
|
6
|
| Tarr |
1
|
0
|
0
|
0
|
0
|
| Wheeler |
1
|
U
|
U
|
U
|
0
|
| SA |
|
|
|
|
|
| Ahern |
3
|
5
|
2
|
1.6
|
1
|
| Gordon |
1
|
3
|
3
|
3
|
0
|
| Prescott |
1
|
3
|
3
|
3
|
1
|
| Chivell |
1
|
5
|
5
|
5
|
0
|
| Tasmania |
|
|
|
|
|
| I. Matherson |
1
|
0
|
0
|
0
|
1
|
| P. Wilson |
1
|
0
|
0
|
0
|
1
|
| NT |
|
|
|
|
|
| Barritt |
1
|
0
|
0
|
0
|
0
|
| a. McGregor |
1
|
0
|
0
|
0
|
8
|
U = Unknown
*Coroner Hand in one case accepted that significant changes had occurred at Mulawa Prison and declined to make recommendations.
The need for coroners to be empowered to make appropriate recommendations are echoed in Recommendation 18.
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SJC Recommendation
53. Jurisdictions which restrict coroners' powers to make findings and recommendations, by stipulating that recommendations must be only be made where they will prevent occurrences of a similar nature in the future, should expand the powers given to coroners in line with section 19(2) of the Coroners Act 1985 (Vic) and with Royal Commission Recommendations 13 and 18.
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Recommendation 14 - Copies of Findings and Recommendations
That copies of the findings and recommendations of the Coroner be provided by the Coroner's office to all parties who appeared 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.
All jurisdictions except Queensland claimed to have implemented this recommendation, and Queensland stated that implementation was imminent. The cases provided no information relevant to this recommendation.
Recommendation 15 - Government Response to Recommendations
That within three calender months of publication of the findings and recommendations of the Coroner as to any death in custody, any agency or department to which a copy of the findings and recommendations has been delivered by the Coroner shall provide, in writing to the Minister of the Crown with responsibility for that agency or department, its response to the findings and recommendations, which should include a report as to whether any action has been taken or is proposed to be taken with respect to any person.
All jurisdictions except Victoria claimed to have implemented this recommendation in full. There is limited information in the cases relevant to the implementation of this proposal.
In the death at Townsville Watch-house (3QLD) the Coroner criticised police for failing to implement earlier recommendations which may have prevented the death. In the death at Parklea Prison on 13 December 1994 (63NSW) the Minister responded to the recommendations of the Coroner.
Recommendation 16 - Coronial Response to Government Response
That the relevant ministers of the Crown to whom responses are delivered by agencies or departments as provided for in Recommendation 15, provide copies of each such response to all parties who appeared before the Coroner at the inquest, to the Coroner who conducted the inquest and to the State Coroner. That the State Coroner may call for such further explanations or information as he or she considers necessary, including reports as to further action taken in relation to the recommendations.
This recommendation has not been fully implemented in South Australia, Victoria or Tasmania. The South Australian Government has stated the rationale as 'The State Coroner should not assume a policing role.' 20 This entirely misses the point. It is not to substitute coronial direction for ministerial responsibility, but to ensure that problems are given active attention and that the value of coronial inquiries are not lost in the system as has so frequently happened in the past. And continues to happen. It is about transparency and public accountability.
Recommendation 17 - Annual Reports on Deaths in Custody by State Coroner
That the State Coroner be required to report annually in writing to the Attorney-General or Minister for Justice (such report to be tabled in Parliament), as to deaths in custody generally within the jurisdiction and in particular, as to finding and recommendations provided pursuant to the terms of Recommendation 16 above.
New South Wales is to be highly commended on its response to this recommendation. It has published annual reports for 1994 and 1995.
Disappointingly, no other State or Territory has implemented this recommendation. Without annual reports, systemic problems do not get properly ventilated.
This Report addresses systematic problems such as patterns of misdiagnosed heart problems in Aboriginal people, and an increasing trend towards Aboriginal deaths in remand centres since the Royal Commission. Without the collation of information on deaths such patterns can go unnoticed.
Recommendation 18 - Coronial Recommendations to Attorney-General
That the State Coroner in reporting to the Attorney-General or Minister for Justice, be empowered to make such recommendations as the State Coroner deems fit with respect to the prevention of deaths in custody.
New South Wales, Victoria and the Northern Territory were the only jurisdictions which claimed to have fully implemented this recommendation. Queensland stated that implementation was imminent. The South Australian Government has stated that it does not consider the implementation of this recommendation to be necessary. 21
Recommendation 19 - Notification of Family of Death in Custody
That immediate notification of 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 emergency to such persons, so nominated.
All jurisdictions except the Northern Territory and South Australia claimed to have implemented this recommendation in full.
In most cases records did not indicate whether the recommendation was implemented or not. In the death at Long Bay Prison on 25 July 1989 (4NSW) the family apparently first heard of the death through the media. Family were not notified within 24 hours in a recent Western Australian death. In the death at John Moroney Prison on 26 May 1993 (46NSW) the Coroner expressed concern at the delay in the attendance of family at the scene of death. Transcripts and witness statements in New South Wales indicate timely notification in most cases.
Recommendation 20 - Notification of Aboriginal Legal Service
That the appropriate Aboriginal Legal Service be notified immediately of any Aboriginal death in custody.
All jurisdictions claimed to have fully implemented this recommendation.
Although there was usually inadequate information available to enable any breaches to be detected, it is clear that immediate notification of two Western Australian deaths did not take place (65WA, 85WA). The Aboriginal Legal Service only received notice of the latter death when interviewing another prisoner about a separate matter. It reports that notification is often delayed. 22
Recommendation 21 - Notification of Date of Inquest
That the deceased's family or other nominated person and the Aboriginal Legal Service be advised as soon as possible and, in the any event, in adequate time, as to the date and time of the coronial inquest.
New South Wales, Western Australia, South Australia and Tasmania claimed to have fully implemented this recommendation, while Queensland stated that implementation was imminent.
No information was available on this issue.
Recommendation 22 - Inquest not to Proceed in Absence of Family
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 a representative.
New South Wales, Western Australia, South Australia and Tasmania claimed full implementation of this recommendation, while Queensland claimed that implementation was about to occur.
There were no instances of this recommendation being breached. In the death in the police van in Darwin (50NT) Coroner Lowndes has suspended the inquest until the family of the woman is located.
Recommendation 23 - Funded Representation for Family
That the family of the deceased be entitled to legal representation at the inquest and that government pay the reasonable cost of such representation through legal aid schemes or otherwise.
New South Wales, Victoria, Western Australia and South Australia maintained that this recommendation had been fully implemented.
No information was available regarding this issue.
Recommendation 24 - Information for Family and Representatives
That unless the State Coroner or the Coroner appointed to conduct the inquiry otherwise directs, investigators conducting inquiries on behalf of the Coroner and the staff of the Coroners Office should at all times endeavour to provide such information as is sought by the family of the deceased, the Aboriginal Legal Service and / or lawyers representing the family as to the progress of their investigation and the preparation of the brief for the inquest. All efforts should be made to provide frank and helpful advice and to do so in a polite and considerate manner. If requested, all efforts should be to allow family members or their representatives the opportunity to inspect the scene of death.
New South Wales was the only jurisdiction which did not claim to have implemented this recommendation in full. However, several cases throw doubt on the claims of Western Australia and Queensland.
The Western Australian ALS has reported that it has been difficult to obtain information on behalf of families. 23 In one recent case no information was made available until ten days before the inquest was due to begin (85WA). Access to documents was also difficult in the case of the man who died at the East Perth lockup in 1994 (65WA).
In Queensland an internal investigation into a death revealed a number of serious deficiencies in prison procedures. Counsel for the family learnt of the existence of a report by accident during an inquest (43QLD). The Corrective Services Commission unsuccessfully contested in the Supreme Court an order made by the Coroner that the report be published.
In case 55QLD the Tharpuntoo Legal Service wrote on behalf of the family to 'the head of Mareeba police district asking that Tharpuntoo be informed on the progress of the police investigation and brief.' The response from the Inspector of police advised that 'all matters raised in your correspondence will not doubt be addressed at the relevant inquest and therefore it would be improper to provide any particulars from this office prior to this date.' 24 This response reveals the inappropriateness of the claim by the Queensland government at the time that recommendation 24 had been implemented. 25 The Legal Service also wrote to the Coroner, who responded but answered few of the questions raised.
Recommendation 25 - Right of Family to View Body
That unless the State Coroner or the Coroner appointed to conduct the inquiry, directs otherwise, and in writing, the family of the deceased or their representative should have a right to view the body, to view the scene of death, to have an independent observer at any post-mortem that is authorised to be conducted by the Coroner, to engage an independent medical practitioner to be present at any post-mortem or to conduct a further post-mortem and to receive a copy of the post-mortem report. If the Coroner directs otherwise, a copy of the direction should be to the family and to the Aboriginal Legal Service.
All jurisdictions except Western Australia and the Northern Territory professed to have implemented this recommendation in full. However, the cases show that practical difficulties can impede effective compliance with the recommendation.
A post-mortem in a Western Australian case was unsatisfactory, as the contributing alcohol withdrawal was not addressed in the examination or report (65WA). The family lived a long way away and were not offered the chance to have an independent observer present at the post mortem. The need for a requirement that a representative of the family have an opportunity to be present at the post mortem is illustrated by the circumstances of another death, where an ambulance officer reported a puncture mark on the body of the deceased not noted by anybody else, including presumably the doctor conducting the post mortem (85WA).
The recommendation has been difficult to implement in the case of families who do not live near custodial institutions. In the case at Broken Hill (71NSW) the family saw the body only after the second autopsy had been performed. The Coroner commented on the need to get the body to Sydney so that specialist forensic pathologists could conduct post-mortem examinations.
Recommendation 26 - State Coroner to Appoint Lawyer
That as soon as practicable, and not later than forty eight hours after receiving advice of a death in custody the State Coroner should appoint a solicitor or barrister to assist the Coroner who will conduct the inquiry into the death.
Western Australia was the only State which claimed to have fully implemented this recommendation. However, the cases indicated that the recommendation has not been followed in Western Australia. In two Western Australian deaths counsel was appointed five months and six months later respectively (65WA and 85WA).
In NSW police prosecutors handle investigations of deaths in non-police custody, and the crown solicitor is only appointed if the coroner's request to the Attorney General is approved. 26 In Victoria the appointment of counsel assisting is not mandatory, and only occurs at the inquest stage. If there had been counsel assisting in profile 66VIC, it is possible that interviews with police officers following the shooting may have been properly recorded. Instead, the evidentiary basis for the Coroner's findings was not as satisfactory as it could have been.
Recommendation 27 - Independent Lawyer to Assist Coroner
That the person appointed to assist the Coroner in the conduct of the inquiry may be a salaried officer of the Crown Law Office or the equivalent office in each State and Territory, provided that the officer so appointed is independent of relevant custodial authorities and officers. Where, in the opinion of the Sate Coroner, the complexity of the inquiry or other factors necessitates the engaging of counsel then the responsible government office should ensure that counsel is so engaged.
All jurisdictions except Queensland and the Northern Territory claimed to have fully implemented this recommendation, with Queensland stating that action was imminent.
In a Western Australian case counsel for the police argued that the member of the Aboriginal Visitors Scheme (AVS) had not passed information on to an officer at the watch house (65WA). It was then suggested by the government that the same counsel be appointed for the AVS. The Aboriginal Legal Service pointed out that this would involve a conflict of interest and that counsel for the police might be influenced by knowledge of confidential information in the cross examination of AVS witnesses.
Recommendation 28 - Lawyer to Ensure Full and Proper Inquiry
That the duties of the lawyer assisting the Coroner be, subject to the direction of the Coroner, to take responsibility, in the first instance, for ensuring that full and adequate inquiry is conducted into the cause and circumstances of the death and into such other matters as the Coroner is bound to investigate. Upon the hearing of the inquest the counsel, whether solicitor or barrister, should be to ensure that all relevant evidence is brought to the attention of the Coroner and appropriately tested so as to enable the Coroner to make such findings and recommendations as are appropriate to be made.
Only New South Wales and Tasmania claimed to have fully implemented this recommendation. There is clearly a need for ongoing improvement in this area. The lawyer assisting the coroner, if a lawyer is appointed, is not appointed in time to have a role in ensuring a full and adequate inquiry takes place. See recommendation 26 and 27. It is also not possible for counsel assisting to test crucial evidence in many cases - police (eg 66VIC, 38QLD) and nurses (eg 68NSW) have frequently claimed privilege against self-incrimination.
Recommendation 29 - Coroner to have Power over Police Investigation
That the Coroner in charge of a coronial inquiry into a death in custody have legal power to require the officer in charge of the police investigation to report to the Coroner. The Coroner should have power to give directions as to any additional steps he or she desires to be taken in the investigation.
Only New South Wales and the Northern Territory claimed to have fully implemented this recommendation, while Queensland stated that action was imminent.
No information was available on this issue.
Recommendation 30 - Lawyer to Review Conduct of Police Investigation
That subject to direction, generally or specifically given, by the Coroner, the lawyer assisting the Coroner should have responsibility for reviewing the conduct of the investigation and advising the Coroner as to the progress of the investigation.
New South Wales, Western Australia, South Australia and Tasmania all claimed to have completed implementation of this recommendation, while Queensland said that implementation was imminent. No information was available on this issue, except that the lawyer assisting the coroner is generally appointed so late in the process that he or she could not possibly review the conduct of the investigation.
Recommendation 31 - Police Investigators to keep Lawyer Informed
That in performing the duties as lawyer assisting the Coroner in the inquiry into a death the lawyer assisting the Coroner be kept informed at all times by the officer in charge of the police investigation into the death as to the conduct of the investigation and the lawyer assisting the Coroner should be entitled to require the officer in charge of the police investigation to conduct such further investigation as may be deemed appropriate. Where dispute arises between the officer in charge of the police investigation and the lawyer assisting the Coroner as to the appropriateness of further investigation the matter should be resolved by the Coroner.
All States claimed full implementation of this recommendation except Victoria and Queensland, and Queensland stated that full implementation was about to occur. There was no direct information from the inquests on this recommendation. However, the poor police investigations evident in profiles such as 38QLD and 66VIC indicate that the power to direct police investigations has not developed or been utilised satisfactorily in cases which raise important issues concerning police behaviour.
Recommendation 32 - Selection of Officer in Charge of Police Investigation
That the selection of the officer in charge of the police investigation into a death in custody be made by an officer of Chief Commissioner, Deputy Commissioner or Assistant Commissioner.
Queensland, Western Australia and South Australia said that this recommendation had been implemented in part - the other jurisdictions claimed to have implemented it in full. No information about the matter was available.
Recommendation 33 - Selection of Officers for Investigation
That all the officers involved in the investigation of a death in police custody be selected from an Internal Affairs Unit or from a police command area other than that in which the death occurred and in every respect should be as independent as possible from police officers concerned with matters under investigation. Police officers who were on duty during the time of last detention of a person who died in custody should take no part in the investigation into that death save as witnesses, or where necessary, for the purpose of preserving the scene of death.
All jurisdictions except Queensland claimed to have completed implementation of this recommendation.
While the Victorian government claims implementation of this recommendation, 27 the lack of involvement of the Internal Investigation Unit in Victoria was criticised in the shooting of a psychiatrically disturbed woman in Victoria in 1994 (66VIC).
Recommendation 34 - Qualifications of Police Investigators
That police investigations be conducted by officers who are highly qualified as investigators, for instance, by experience in the Criminal Investigation Branch. Such officers should be responsible to one, identified, senior officer.
Only Queensland did not profess to have fully implemented this recommendation.
In a Queensland post-death investigation, the Aboriginal investigator was not experienced in prison issues or investigation (64QLD). She was not trained or properly briefed about her role or powers. She was not given access to witnesses or documents that she felt were important in the case, and apparently indicated that the prison authorities knew the prisoner was at risk of suicide.
The recommendation was breached in the investigation of a death in Broome, (85WA). The police report was prepared by a junior police officer.
Coroners should employ Aboriginal and Torres Strait Islander people to help them with investigations into deaths where cultural issues could have been contributing factors. The coroner could be greatly assisted in police- or prison-related coronial investigations which involve 'minority' cultures by employing people from the same cultural background.
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SJC Recommendation
54. Aboriginal investigative staff must be employed by coroners in each jurisdiction. Such staff should be responsible only to the state or territory coroner for the reporting of investigation outcomes.
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Recommendation 35 - Conduct of Police Investigation
That police standing orders or instructions provide specific directions as to the conduct of investigations into the circumstances of a death in custody. As a matter of guidance and without limiting the scope of such directions as may be determined, it is the view of the Commission that such directions should require, inter alia, that:
a. Investigations should be approached on the basis that the death may be a homicide. Suicide should never be presumed;
b. All investigations should extend beyond an inquiry into whether death occurred as a result of criminal behaviour and should include inquiry into the lawfulness of the custody and the general care, treatment and supervision of the decreased prior to death;
c. The investigations into deaths in police watch-houses should include full inquiry into the circumstances leading to incarceration, including the circumstances of arrest or apprehension and the deceased's activities beforehand;
d. In the course of inquiry into the general care, treatment or supervision of the deceased prior to death particular attention should be given to whether custodial officers observed all relevant policies and instructions relating to the care, treatment and supervision of the deceased; and
e. The scene of death should be subject to a thorough examination including the seizure of exhibits for forensic science examination and the recording of the scene of death by means of high quality colour photography.
Again, all jurisdictions except Queensland claimed to have fully implemented this recommendation. Queensland's failure to act on the recommendation is highlighted by the cases. Despite the claims, Recommendation 35c was frequently breached. Of the 14 cases investigated which involved unsentenced detainees who died in police watch houses or vans, seven contained almost no examination of the circumstances of the arrest or the activities of the deceased beforehand (3QLD, 5QLD, 25QLD, 32QLD, 38QLD, 41QLD, 2WA).
These cases reveal that Queensland in particular needs to address the problem of narrow investigations.
Investigations in New South Wales (42NSW), Victoria (8VIC, 31VIC, 38VIC) and (29SA) generally contained sufficient evidence of the circumstances of arrest. 28
Remand prisoners were even more unlikely than police detainees to receive thorough investigations into the circumstances of their arrest. There was often no examination of the lawfulness of the arrest at all (45QLD, 59QLD, 1NSW, 68NSW) although the coroner in one case made the comment that the deceased should not have been arrested at all (39NSW). In one South Australian case there was no examination of an assault police charge (1SA). The circumstances may have been a trivial or very serious, but the issue was not canvassed at the inquest. No records were kept of the decision to refuse bail in that case, further hindering the investigation.
In the cases involving pursuit, where no arrest had occurred, police pursuit procedures were only fully examined in the case of a death at Batemans Bay in New South Wales (40NSW). However, the Coroner criticised police for breaching recommendation 35e by failing to fingerprint the steering wheel, destroying clothing and disposing of the motor vehicle. See the discussion in recommendation 12.
An investigation of the death of a woman in police custody (38QLD) by the Queensland Criminal Justice Commission illustrates how poorly this recommendation is being implemented in Queensland.
A Commissioner's circular required that the scope of the investigation should reflect Royal Commission recommendations 12, 13, 18, 35 and 36. The investigation did not do so up to the time the investigation was taken over by the Criminal Justice Commission.
Police investigators appointed on the day of the death did not interview police involved, but merely requested that they make statements. In a preliminary report made the day after the death an investigator concluded that there was no police impropriety, that the death was unforeseeable and that procedures had been followed. Two days later, when the officer discovered that the autopsy revealed that the deceased had not been intoxicated, further statements were gathered. The investigator made the point that although the arresting officers maintained that they did not collaborate in preparing their statements, their accounts of their conversation with the deceased were identical.
One investigator merely recommended that assembly instructions should appear under the lid of the oxy viva equipment. The other investigator recognised more fundamental issues: that a prisoner who cannot be bailed and who cannot answer medical questions must be examined by a doctor; and that a further training program is immediately required to ensure that all Senior Sergeants or persons acting in those positions are trained in the efficient safe use of the oxy viva.
The investigator inferred that the investigating officer was worried because the post mortem report revealed deficiencies in his preliminary report, and amended it to include references to various indicia of drunkenness (the odour of alcohol and details of a conversation with the deceased which corroborated police evidence that the deceased had been conscious). The Criminal Justice Commission criticised the making of assumptions and the acceptance at face value, or with limited inquiry, of accounts of the circumstances of the death. The investigator stated that immediately after an incident the police investigators should require officers involved to independently make notes in official police notebooks, and that this should be followed by a tape recorded interview. The investigator noted that Chapter 11 of the new Police Custody Manual merely requires that investigating officers 'obtain statements from all witnesses' without specifying a procedure or standard of completeness.
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SJC Recommendations
55. The Queensland Police Service report on the measures adopted to implement the recommendations made by the Criminal Justice Commission investigator enquiring into the death of the woman at the Brisbane Watch house in 1992. All other jurisdictions report on their compliance with those recommendations in their forthcoming implementation reports.
56. Chapter 11 of the Queensland Custody Manual be amended to provide practical guidelines and instruction to appropriate members of the Queensland Police Service in the thorough and impartial investigation of deaths in custody.
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Recommendation 36 - Structure of Police Investigation
Investigations into deaths in custody should be structured to provide a thorough evidentiary base for consideration by the Coroner on inquest into the cause and circumstances of the death and the quality of the care, treatment and supervision of the deceased prior to death.
Queensland claimed that implementation of this recommendation was imminent, while the other jurisdictions claimed that full implementation had already occurred.
Investigations in jurisdictions with coronial legislation consistent with Royal Commission recommendations appear to have a well structured evidentiary base. However, it has been pointed out in addressing recommendation 12, which calls for investigation of care and treatment prior to death, that the radius of the investigations is often very narrow. In Queensland and Western Australia the ad hoc nature of police investigation does not conform with recommendation 36. Because of the preventative role involved, coronial investigations need to be very different from standard police investigations. Police unaccustomed to this role need assistance if they are to investigate properly, which is why recommendation 28 is so important.
Recommendation 37 - Post-Mortem Examinations
That all post-mortem examinations of the deceased be conducted by a specialist forensic pathologist wherever possible, or, if a specialist forensic pathologist is not available, by a specialist pathologist qualified by experience or training to conduct such post-mortems.
Again, Queensland claimed implementation of this proposal was imminent, while the other jurisdictions claimed that it had been fully implemented.
Post-mortem examinations that were available indicated that they were conducted by specialist pathologists. In New South Wales the Institute of Forensic Science has been situated next to the State Coroner's Office to provide expert assistance. A similar situation obtains in Victoria. This model should be adopted in other States.
A protocol allowing psychological profiling in Queensland was raised in an inquiry into a death in Townsville (43QLD). Counsel assisting the Coroner had the deceased examined under a protocol allowing a psychological evaluation of the behaviour or the deceased. It was found to be helpful in understanding the deceased's behaviour and in making recommendations for identifying at risk prisoners generally. The Coroner was highly critical of the fact that it took one year from time the request was made for a report to be completed. He found that the task was given a low priority in Queensland Health and that coroners would have to question whether it was worth holding up the inquest for a psychological autopsy report.
Recommendation 38 - Protocols for Autopsies
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 recognises that there are occasions where 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 the course from members of the family or community of the deceased.
The Commission recommends that in order to minimise and to resolve difficulties in this area the State Coroner or the Aboriginal Legal Services and Aboriginal Health Services develop a protocol for the resolution of questions involving the conduct of inquiries and autopsies, the removal and burial of organs and the removal 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 of traditional rites and that relatives of the Commission further recommends that the Coroner conducting an inquiry into a death in custody should be guided by such protocol and should make all reasonable efforts to obtain advice from the family and community of the deceased in consultation with relevant Aboriginal organisations.
Only Victoria claimed to have gone beyond partial implementation of this proposal.
The non-implementation of this recommendation was only apparent in one case (71NSW). In that case the body of the deceased was seen by the family only after the second autopsy which had significantly altered the appearance of the body. The family were therefore concerned as to the identity of the body which was buried under the name of the deceased. The Coroner in that case recommended the Department of Health or TAFE hold occasional seminars to educate relevant people about how to undertake the notification and assistance of the next of kin of Aboriginal prisoners who die in custody. However, if the protocol had been developed between the Coroner's Office, the Aboriginal Legal Services and Aboriginal Health Services to avoid confusion over autopsies and traditional rites then the situation may not have occurred.
There were also problems with the implementation of this recommendation in the Northern Territory. However, protocols negotiated with Aboriginal communities were drawn up in 1995. The Northern Territory Coroner is to be commended for doing so.
Protocols to implement this recommendation have not been drawn up in Western Australia, and there are reports that in several cases families have not been informed when body organs have been retained for further testing. 29 In the death of a man in Broome Regional Prison in Western Australia in July 1996 the body had been identified and removed to Perth so that a post mortem could be conducted before the family had an opportunity to identify the body. This interrupted traditional rites, and resulted in suspicion and distress. The family were convinced as a result that the deceased was murdered.
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SJC Recommendation
57. Western Australia and other jurisdictions which have not done so consult with appropriate Aboriginal organisations such as Aboriginal Legal Services and develop protocols which cover such matters as: the retention of bodies so that the family can sight the body where possible; the retention of organs; the retention of clothing worn by the deceased; the notification of the family; the appropriate explanation of the coronial process to family members; and referral of the family for counselling.
58. An independent forensic expert must be provided to assist the family, with the cost borne by the authority most closely connected with the circumstances of the death. Funeral costs should also be borne by the relevant authority.
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Recommendation 39 - Autopsy Protocols for Deaths Not Occurring in Custody
That in developing a protocol with Aboriginal Legal Services and Aboriginal Health Services as proposed in Recommendation 38, 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 occur in custody.
Again, only Victoria claimed full implementation of this proposal. No information on the issue was available. See recommendation 38.
Recommendation 40 - Uniform Coronial Database
That Coroners Offices in all States and Territories establish and maintain a uniform data base to record details of Aboriginal and non-Aboriginal deaths in custody and liaise with the Australian Institute of Criminology and such other bodies as may be authorised to compile and maintain records of Aboriginal deaths in custody in Australia.
All jurisdictions except Western Australia and South Australia claimed to have fully implemented this recommendation.
The recommendation is presently being implemented with the establishment of a national coronial database in Victoria.
ENDNOTES
1. National Report, Vol .1 p.109 Ch 4.
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2. Overview of the Response by Governments to the Royal Commission, AGPS, Canberra, 1992, at p.16.
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3. National Report, Vol.1 Ch.4, p.106.
-
4. See chapter 3.
-
5. See Richards, C., 'Deaths in institutions: Grave Concerns,' Alternative Law Journal, vol 19, No.2, April 1994.
-
6. National Report, Vol.1, p.142.
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7. Government of Tasmania, Aboriginal Deaths in Custody: Progress Report on Implementation, 1992 and 1993.
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8. s16(5).
-
9. See Aboriginal Legal Service of Western Australia, Striving for Justice Vol 3: Report on the Western Australian Government's Implementation of the Recommendations of the Royal Commission into Aboriginal Deaths in Custody, p.14 ('Striving for Justice').
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10. s25(2) Coroners Act 1975 (SA).
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11. See profiles 28NSW, 76NSW, 92NSW, 12NT, 3QLD, 5QLD, 13QLD, 14QLD, 25QLD, 32QLD, 38QLD, 41QLD, 43QLD, 45QLD, 55QLD, 64QLD, 9SA, 30TAS, 2WA and 33WA.
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12. See profiles 3QLD, 5QLD, 25QLD, 32QLD, 38QLD, 41QLD, 2WA and 33WA.
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13. See profiles 62NSW, 63NSW, 67NSW, 71NSW, 72NSW, 64QLD, 78SA and 33WA.
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14. Section 26 of the Coroner's Act 1975 (SA).
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15. See for example profiles 38QLD, 41QLD, 66VIC, 54SA and 118NT.
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16. See profiles 3QLD, 5QLD, 13QLD, 25QLD, 32QLD, 43QLD, 45QLD, 64QLD, 30TAS, 49TAS and 23WA.
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17. Boronia Halstead adopts a similar approach in Coroners Recommendations and the Prevention of Deaths in Custody: a Victorian Case Study, Australian Institute of Criminology, No.10, November 1995.
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18. s33(5) Coroner's Act (Qld) 1958. Indeed, the Coroner in the death at Townsville Watch-house on 5 August 1989 (5QLD) commented that it was: 'not [his] usual practice to record whatever rider or recommendations that [he] may make.'
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19. s19(2) Coroners Act 1985 (Vic).
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20. Department of State Aboriginal Affairs, Royal Commission into Aboriginal Deaths in Custody: 1993 Implementation Report-South Australian Government, p.74.
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21. Department of State Aboriginal Affairs, Royal Commission into Aboriginal Deaths in Custody: 1994/95 Implementation Report, July 1996, p45-46.
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22. Striving for Justice, op. cit., at p.18.
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23. Ibid.
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24. 'Recommendations 6 to 40', Aboriginal Law Bulletin, Vol.3 No.68, June 1994, at p.11.
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25. Queensland Government, Royal Commission into Aboriginal Deaths in Custody: Queensland Government Progress Report on Implementation, December 1994, p.242.
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26. Government of New South Wales, Implementation of Government Responses to the Recommendations of the Royal Commission into Aboriginal Deaths in Custody: New South Wales Government Report, Vol.1, 1993/94 p. 101; and Victorian Government, Royal Commission into Aboriginal Deaths in Custody: Victorian Government 1994 Implementation Report , p.61 ('Victorian Implementation Report 1994').
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27. Victorian Implementation Report 1994, ibid., at p63.
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28. The other case was the death in police van in Brisbane (53VIC) where the Criminal Justice Commission extensively examined the circumstances of death.
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29. Deaths in Custody Watch Committee WA, Correspondence with the Attorney General dated 10 June 1996.
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