Chapter 1 Methodology
1.1 This Report uses findings of coronial inquests as a means of auditing the implementation of the recommendations of the Royal Commission into Aboriginal Deaths in Custody.
1.2 The circumstances of actual deaths can provide a strong indicator of the extent of implementation by governments.
1.3 A death in custody includes a death occurring whilst a person is watched or guarded by police. In other words, if that person is not at liberty to come and go as he or she wishes.
1.4 Profiles of the 96 deaths from 31 May 1989 to 31 May 1996 are constructed from information obtained from coronial inquests.
1.5 The profiles record the circumstances of death, relevant issues, coronial recommendations and breaches of Royal Commission recommendations.
1.6 Further comment is provided in the profiles where information from coronial inquests is poor, incomplete or other information is available.
1.7 The profiles and other data is statistically presented in Part B. The characteristics of those Aboriginal and Torres Strait Islander people who died in custody are compared to those who died during the Royal Commission period and to non-Indigenous people who died in custody. Arrest and imprisonment rates and types of offences are also presented.
1.8 The profiles are then analysed under Royal Commission recommendations in Part C. Each chapter in Part C provides a schedule of recommendations breached and a discussion drawn from the profiles under each recommendation.
Chapter 2 Profile: Indigenous Deaths in Custody
2.1 There have been 96 Aboriginal deaths in custody in the seven years since the Royal Commission into Aboriginal Deaths in Custody completed its investigations.
2.2 In 1995 there were 22 Aboriginal deaths in custody, the highest number since the Royal Commission.
2.3 A change in the definition of a death in custody in 1989 means that only deaths in institutional settings, as opposed to police pursuit, can be examined when comparing the Royal Commission and post-Royal Commission periods
2.4 The average number of institutional deaths in the Royal Commission period was 10.4. In the post-Royal Commission period it was 11.4.
2.5 The proportion of deaths occurring in the various jurisdictions has changed significantly since the Royal Commission. The proportion of deaths occurring in New South Wales and Victoria increased while they have decreased in Western Australia.
2.6 There has been a significant decline in the proportion of deaths occurring in police custody and an increase in deaths occurring in prison.
2.7 In both periods the majority of deaths were the result of self-inflicted hanging and natural causes. The Report shows that deaths from these causes disclosed breaches of recommendations as serious as deaths resulting from more direct involvement by custodial officers (eg, gunshot).
Chapter 3 Comparison: Indigenous and Non-Indigenous Deaths
3.1 Indigenous people were 16.5 times more likely than non-indigenous people to die in custody between 1990 and 1995. This rate reflects the disproportionately high number of Aboriginal and Torres Strait Islander people in custody.
3.2 The disproportion in the rate of death was the highest in South Australia (31.7) followed by Victoria (18.8), New South Wales (17.0), Queensland (16.8), Northern Territory (7.7) and Tasmania (2.8).
3.3 Indigenous prisoners were 1.26 times more likely to die in prison than non-non-indigenous prisoners.
3.4 Indigenous people who died in custody are significantly younger than non-Indigenous people. The rate of death for Indigenous women in custody was higher than the corresponding rate for Indigenous men.
3.5 The proportion of deaths in police and prison custody was similar for Indigenous and non-Indigenous people. Approximately one-third of deaths occurred in police custody while two-thirds of deaths occurred in prison.
3.6 Deaths from police pursuit have increased for both groups while deaths in police institutional settings have declined.
3.7 Indigenous people were more likely to die from natural causes while non-indigenous people were more likely to die from gunshot and drug overdoses.
Chapter 4 Arrest, Imprisonment and Most Serious Offence
4.1 Indigenous people were 17.3 times more likely to be arrested than non-Indigenous people. The over-representation rate in Western Australia is four times the national average.
4.2 Incarceration of Indigenous people in Australia increased by 61 per cent between 1988 and 1995. Incarceration of non-Indigenous people has increased by 38 per cent.
4.3 Indigenous people in 1995 were 14.7 times more likely to be imprisoned than non-Indigenous people.
4.4 Indigenous people are more likely to be imprisoned for assault, break and enter, motor vehicle offences, property offences and justice procedures offences. They are also more likely to be arrested for good order offences.
4.5 Indigenous people are twice as likely as non-Indigenous people to be arrested in circumstances where assault occasioning no harm is the most serious offence. They are three times more likely to be imprisoned for such an offence. This indicates that provocative policing is continuing through the use of the trifecta (offensive language, resist arrest and assault occasioning no harm).
Chapter 5 Introduction to Analysis of Case Studies
5.1 An average of 8.5 recommendations were breached in each death. Recommendations were more frequently breached in deaths in Queensland (13.6) and Western Australia (8.9).
5.2 The deaths were arithmetically broken into two periods (31 May 1989 – 5 March 1992) and (25 March 1992 – 13 January 1996). The average number of recommendations breached per death did not decline in the second period.
Chapter 6 Policing Practices
6.1 Police custody deaths were lower between May 1989 and May 1996 than they were in the previous period, although the circumstances outlined in some of the profiles indicate that major problems still exist in policing and police custodial practices. There were allegations of rough treatment by police in a number of profiles, although these allegations were not accepted by the coroners. Three mentally ill Aboriginal people, none of whom had a firearm, were shot by police. Police car chases of young Aboriginal youths remain a problem, especially in Western Australia.
6.2 Little improvement has been made in police procedures for dealing with intoxicated persons. In Western Australia, while public drunkenness has been decriminalised, arrests are still frequently made for drinking in a public place.
6.3 The establishment of sobering-up shelters has been a positive development since the Royal Commission, and may have played some part in the reduction of police custody deaths overall since the Royal Commission.
6.4 Many Indigenous people are being placed in custody for trivial offences. Offensive language charges and the trifecta are two ways in which this happens. Police initiated interventions result in the laying of charges – typically using offensive language, resisting arrest and assaulting police ( or similar offences). The relatively high proportion of Indigenous prisoners incarcerated for assault occasioning no actual bodily harm is indicative of the trifecta phenomenon – 12 per cent against 4 per cent for the general prison population.
6.5 Indigenous people are still less likely to be granted bail than non-Aboriginal people.
6.6 There has been some patchy commitment to Aboriginal and Torres Strait Islander community involvement in setting policing methods, but recent indications are that the commitment must be reaffirmed.
Chapter 7 Courts and Imprisonment
7.1 In a number of cases there was sufficient information to raise doubts whether imprisonment was used as a last resort in accordance with recommendation 92.
7.2 A significant number of Indigenous people were imprisoned for the trifecta (offensive language/resist arrest/assault police officer).
7.3 Independent prosecution is needed in the cases in which police have an interest, particularly offences involving the trifecta and break and enter. The Director of Public Prosecutions in New South Wales is currently piloting a scheme which would eventually mean that they prosecuted in all NSW courts.
7.4 The commitment of state and territory governments to the principle of ‘imprisonment as a last resort’ seems dubious with ‘truth in sentencing’ and other related legislative policies appearing to predominate. Aboriginal and Torres Strait Islander offenders remain under-represented in their access to non-custodial options, where such options actually exist.
7.5 In 21 per cent of the cases the deceased had committed, or was alleged to have committed, motor vehicle offences. There was little evidence of programs to reduce the incidence of this offending in accordance with recommendation 95.
7.6 Western Australia and South Australia continue to use Justices of Peace for sentencing. This is a clear breach of recommendation 98. The case profiles also reveal that the use of Justices of Peace for other criminal law matters is problematic.
7..7 Aboriginal and Torres Strait Islander people are not being guaranteed fair trials due to the lack of funding and training leading to the availability of accredited interpreters.
Chapter 8 Custodial Conditions
8.1 The profiles indicate a growing awareness by custodial and medical staff of issues concerning the proper treatment of both indigenous and non-indigenous prisoners. However, implementation of the recommendations is uneven. Some recommendations have not been implemented in any jurisdiction.
8.2 In 9 of the 61 investigated cases concerning deaths in institutional settings there was evidence that police, prison officers and medical staff were unaware of their duty of care to detainees. There was also a noted absence of internal disciplinary proceedings to deal with breaches of instructions relating to the care of people in custody.
8.3 De-briefing procedures have not been properly utilised to prevent future deaths in the same circumstances. Avoidable deaths occurred in almost identical circumstances in a number of cases.
8. 4 Deaths of Indigenous people in police cells and vans have decreased since the Royal Commission. However, all of the sixteen investigated deaths in police custody revealed numerous breaches of Royal Commission recommendations.
8.5 The circumstances of deaths in police cells and vans indicated that:
a. There was a lack of proper assessment procedures and little involvement of medical personnel, including Aboriginal Health Services;
b. There was often no protocol for dealing with intoxicated people, particularly in Queensland and Victoria;
c. Police officers were insufficiently trained to distinguish intoxication from other injuries. Persons who needed urgent medical help were frequently detained;
d. The observation of detainees was often irregular and infrequent; and
e. The Aboriginal Visitor Scheme does not appear to fully implemented.
8.6 The increase in the number of deaths in prisons calls for increased scrutiny of the operation and funding of prisons, particularly in relation to health services and general prison conditions.
8.7 The circumstances of deaths in prisons indicated that:
a. Health services in some prisons were well below community standards;
b. The provision of psychiatric services is a continuing problem in all jurisdictions;
c. In one third of the cases ‘at risk’ information concerning the deceased was not passed between medical and prison staff, or from police to prisons. It is extremely important that this situation is urgently remedied;
d. The rate of suicide in Queensland prisons was twice the national average. In eight of the nine of the investigated deaths there was no protocol for those at risk of self-harm. In other States protocols for self-harm were sometimes unsatisfactory or were not followed by staff;
e. Medical staff and prison officers were often not aware of cross-cultural health issues, particularly heart disease, and performance on the recruitment of Aboriginal staff was poor;
f. Some jurisdictions have not fully implemented recommendation 156 through providing an assessment on the reception of prisoners by a medical practitioner. This was a contributing factor in a number of deaths; and
g. In many cases there was a lack of proper procedures for the exchange of medical information between external health services and prison staff.
8.8 Some delay or deficiency in attempting to resuscitate detainees was evident in 17 of the cases investigated by the coroners. Problems were caused by inappropriate security procedures which delayed access to prisoners locked in cells, inadequate training and faulty resuscitation equipment. Despite all states and territories claiming implementation of recommendation 161 the failure to seek medical attention when doubts arose as to the medical condition of prisoners was a serious problem in the deaths under investigation.
8.9 Of the four Aboriginal people shot by police between May 1989 and May 1996, three were mentally ill and the fourth was a highly intoxicated 16 year old. None had firearms. Police firearms training was criticised as focussing on the ‘criminal element’ only, instead of contemplating people with mental disabilities. Guidelines for the use of restraint equipment were also found not to comply with Royal Commission recommendations.
8.10 There are indications that prisoners are still being charged with criminal offences or breaches of prison regulations in relation to suicide attempts.
8.11 Some of the cases provided information on recommendations concerning general prison conditions. Few prisons have employed Aboriginal Welfare Officers and implemented a transitional period to assist remandees or freshly sentenced prisoners in adjusting to prison life. In some prisons shared cell accommodation was not available.
Chapter 9 Juveniles
9.1 There were fifteen juvenile deaths in custody between May 1989 and May 1996. As the indigenous juvenile population grows proportionately larger than the non-indigenous juvenile population, deaths of young indigenous people can only be expected to increase if significant measures are not taken. The cases of six other adult indigenous people who died in custody demonstrated very early and frequent contact with the criminal justice system.
9.2 The number of Indigenous kids who are brought before Children’s Courts (rather than dealt with in diversionary schemes) remains disproportionately high in comparison with non-Indigenous kids. The rate at which they then are imprisoned in comparison with non-Indigenous kids is even more pronounced.
9.3 Procedures for the transfer of juveniles to adult prisons need to be examined urgently.
9.4 Police car chase deaths are increasing overall, and in most jurisdictions police services need much more stringent policies setting out when pursuit is justifiable in the public interest.
9.5 Community policing principles need to be implemented to better deal with young Aboriginal people who use public areas and with Aboriginal juvenile delinquency generally.
9.6 Juvenile justice panels and family conferencing schemes with adequate cultural adaptation and Indigenous community involvement can be effective solutions to juvenile crime problems. Current schemes which increase alienation are not succeeding
9.7 Indigenous juveniles in many jurisdictions now face more impediments to the granting of bail than existed at the time the Royal Commission reported.
Chapter 10 Post-Death Investigations
10.1 There has been resistance by some coroners and police services to classifying deaths occurring during police pursuit as deaths in custody. There is a strong argument for coronial inquests into deaths occurring in all institutions, especially mental institutions.
10.2 The Coronial framework in several jurisdictions limits the usefulness of inquests. For example, in Queensland and South Australia coroners have very narrow statutory ‘terms of reference.’ As a result the coroners often cannot make findings about the quality of care and supervision of the deceased before his death. In contrast, the corresponding Victorian legislation gives the coroner adequate scope to examine the workings of the criminal justice and correctional systems.
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.
Chapter 11 Accountability for Implementation – The Current Process
11.1 The reporting process was flawed from the outset, and has not resulted in accurate evaluations of progress in implementing recommendations at either Commonwealth or State or Territory level. This is a fundamental question of public accountability.
11.2 The recommendations are still largely current, although there are gaps (for example, no reference to the ‘trifecta’ in the Royal Commission reports) and structural changes have occurred in custodial arrangements (for example, speedier transfer to remand centres, which may, in part, account for the proportional shift in the location of death from police to prison custody).
11.3 Monitoring is not useful unless there is a considered plan for the implementation of Royal Commission recommendations by Commonwealth or State and Territory governments. Responsible departments are encouraged to draw up plans in a six stage process – by:
1. reviewing current activities;
2. developing policies and programs;
3. setting goals or targets;
4. allocating responsibility for implementation;
5. ensuring adequate communication and training supports the plans; and
6. establishing evaluation mechanisms.
By comparison, the implementation of Royal Commission recommendations currently starts and stops at step 1.
Chapter 12 Alternative Mechanisms to Promote Implementation
12.1 Recommendations which require legislation, such as those on the principle of custody as a last resort, public drunkenness, the sentencing powers of justices of the peace, prisoners rights and legally enforceable custodial health and safety rules, have not been implemented. This indicates that a co-ordinated program is required, necessarily involving the Commonwealth and State Law Reform Commissions.
12.2 The recommendations are not mere suggestions. They can have precise legal implications under the common law relating to negligence, misfeasance in a public office and, potentially, other actions. If a custodial authority breaches recommendations, and that contributes to a death in custody, the custodial authority may be liable in damages.
12.3 The need for accountability in custodial and police settings is greater than ever. Deaths in custody have not decreased, despite the resources that went into the Royal Commission. The Wood Royal Commission in New South Wales has amply illustrated the need for police to be more accountable. Private prisons are being introduced, which must be made accountable for the treatment of prisoners in their charge. The role of the courts in improving accountability must be pressed.
12.4 The first successful negligence actions by family of persons who died in custody, taken against police and medical authorities, were concluded in 1995 and 1996. A third case has recently settled in favour of the plaintiff in relation to profile 39NSW.
12.5 The threat of liability in damages, including exemplary and aggravated damages, is a potentially powerful means of ensuring that prison and police officials have adequate regard for the recommendations of the Royal Commission into Aboriginal Deaths in Custody.
12.6 Various administrative remedies are available to prisoners who are treated in a manner inconsistent with the recommendations. Anti-Discrimination complaints are also possible.
12.7 The Ombudsman or equivalent must play a greater role in enforcing and monitoring implementation of Royal Commission recommendations in the Sates and Territories, as well as at Commonwealth level.
12.8 Threats to the funding for Aboriginal Legal Services could set back the process of implementation of Royal Commission recommendations significantly. The Legal Services are virtually the only group with the resources to afford to pursue the legal avenues outlined in this chapter.
12.9 The failure to implement certain recommendations could be taken into the international arena, particularly the Human Rights Committee.
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