Aboriginal Law Bulletin
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Aboriginal Law Bulletin |
|
by Martin Flynn
The Northern Territory Legislative Assembly passed the Coroners Act 1993 ('the Act') in the May 1993 sittings of the parliament. When the Act was introduced to the parliament, the Attorney-General commented that one purpose of the Act was to implement various recommendations of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC).[1] This article will compare the provisions of the Act with the recommendations of the RCIADIC.
The Act incorporates a number of the recommendations of the RCIADIC. A formal inquest, conducted in public[2], must be held following a death in custody (Rec.11 of the RCIADIC)[3]. The coroner conducting the inquest into a death in custody must be a Magistrate (Rec.9)[4]. The coroner may give directions to police for the purpose of investigating a death in custody (Rec.29)[5]. The coroner investigating a death in custody must investigate and report on the care, supervision and treatment of the person while in custody (Rec.12) and may investigate and report on a matter connected with public health or safety or the administration of justice that is relevant to the death (Rec.13)[6]
The RCIADIC recommended that inquiries by way of public hearings be held whenever there was a death in custody and defined a 'death in custody' to include a death (1) wherever occurring where the death is caused by injuries sustained while in custody; (2) wherever occurring where a person dies in the process of police attempting to detain that person; (3) wherever occurring where a person dies or is fatally injured in the process of escaping from custody.[7]
It is not surprising that the RCIADIC recommended that the definition of 'death in custody' specifically includes situations where a person dies in the process of arrest or while escaping and where a person sustains an injury in custody that subsequently causes the death of a person. The rationale was described by the RCIADIC:
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 ... 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. When considered in this perspective, coronial jurisdiction to inquire into the circumstances of death should not be confined to situations where the deceased has actually been taken into custody.[8]
The recommendation of the RCIADIC must be read in light of the litigation surrounding the inquiry of the RCIADIC into the death in NSW of David Gundy: Eatts and Anor v Dawson and Others [1990] FCA 158; [1990] 93 ALR 497.
David Gundy was killed during a police raid on his home on 27 April 1989. A police officer bearing a shotgun kicked open the door of Gundy's bedroom and within seconds the shotgun discharged into Gundy.
The RCIADIC proposed to inquire into the death. The RCIADIC had jurisdiction to investigate the deaths of Aboriginal and Torres Strait Islanders 'whilst in police custody, in prison or in any other place of detention'.[9] Police officers involved in the raid applied to the Federal Court to stop the RCIADIC inquiry on the ground that Gundy's death did not occur while in police custody. The matter eventually came before the Full Federal Court[10]
The court found that the expression 'in police custody' in the letters patent would be satisfied if a person's movements were, by implication, restrained by police. The court rejected an argument that a person must be formally arrested in order to be 'in custody'. The court emphasised that the meaning given to the word 'custody' depended very much on its context in the relevant instrument. Two members of the court (Morling and Gummow JJ) found that the evidence relating to the surrounding of the house by police, the time and method of entry into the house and the bedroom justified the conclusion that Gundy was in police custody at the time of his death. The third member of the court (Beaumont J) found that at the stage the matter came before the court, crucial facts relevant to the issue of 'restraint' had not been resolved and accordingly the inquiry should not be stopped.
Two Northern Territory cases highlight the difficulties that might arise in determining whether a victim of a police shooting was 'in custody'. On 20 July 1980 an Anmatyyerre man, Jabanardi[11], was shot dead by a NT police officer. In the early evening, two police officers were on a road patrol near Ti Tree. An approaching car was pulled over and police proceeded to arrest two of the occupants. While arresting a third occupant, a fight ensued. Jabanardi had been in the car. He had not been arrested. During the fight a police officer fired three shots. One of the shots hit Jabanardi. He died instantly. A subsequent coronial inquest[12] resulted in the committal for trial of the police officer on a charge of murder. The police officer was acquitted.
On 28 April 1990 a Yolngu man was shot dead at Elcho Island by a member of the NT Police Task Force. The man had a history of mental illness. The police wanted to arrest the man in relation to two incidents involving violent attacks.
When the man was located in a remote area he approached police armed with a small knife. He was called upon to 'stop' and warning shots were fired. He did not stop. Police fired at the man. Shot-guns pellets pierced his skull and entered the brain. As a result the man died about one hour after being shot.
When first introduced to the parliament, the Coroner's Bill ('the Bill') provided for a public inquest whenever there was a death in custody. However, a 'death in custody' was limited to the situation where immediately before death a person was in the custody or control of the police or prison officer. This definition left open the possibility that a public inquiry was not mandatory in the circumstances described above and directly contravened the recommendations and reasoning of the RCIADIC.
Fortunately, the Attorney-General introduced amendments to the Bill which have the effect that 'custody' is defined to include the process of being taken into or escaping from custody (s12(1) of the Act).
Apart from a death in custody, the Act provides that the coroner must hold a public inquest where the coroner suspects unlawful killing.[13]
The coroner must investigate and may hold a public inquest in the case of any death that is unnatural, violent or resulted from an accident or injury.[14] The decision by a coroner not to conduct a public inquest where the jurisdiction exists is reviewable by the Supreme Court.[15]
A number of other recommendations of the RCIADIC that are properly the matters for coronial legislation have not been incorporated in the Act.
Recommendations 15-18 of the RCIADIC provide for a scheme of reporting of recommendations of the coroner following a death in custody and feedback to the coroner on progress of implementation of recommendations. Section 27 of the Act provides for reports of the coroner to be presented to the Legislative Assembly. However, the recommendations concerning the executive's progress on implementation and annual reports of the coroner are not incorporated in the Act.
The Attorney-General has said that the Government does not support this aspect of the RCIADIC recommendations.[16]
The Attorney-General has said that the following recommendations of the RCIADIC will be implemented by way of regulations under the Act:[17]
1. Recs.19 and 20 provide that immediate notification of a death in custody be made to the family of the deceased and the Aboriginal Legal Service. These recommendations are not incorporated in the Act. This is surprising in view of the incorporation into the Act (at s 12 (5) of recommendation 10 which deals with notification of the death to the coroner.
2. Rec.21 provides that notice of a coronial inquest into a death in custody be given to the deceased's family and the Aboriginal Legal Service. This recommendation is not incorporated in the Act.
3. Rec.22 provides that an inquest should not proceed in the absence of a representative of the family unless the coroner is satisfied that the family do not wish to appear. This recommendation is not incorporated in the Act.
4. Rec.23 provides that the family of the deceased should be entitled to legal representation paid for by the government. Section 40(3) of the Act provides that a person with 'sufficient interest' may be represented. Accordingly, the recommendation is only partly implemented.
5. Rec.25 confers the right on the family or representative of the deceased to view the body, view the scene of the death and attend the post-mortem. This recommendation is not incorporated in the Act.
6. Recs.26, 27, 28, 30, and 31 provide that the coroner should appoint a legal practitioner to act as counsel assisting in the case of an inquiry into a death in custody. The RCIADIC placed emphasis on the importance of someone with legal skill who is independent of police and custodial authorities assisting the coroner. Section 41(2)(b) of the Act provides that the coroner must appoint an assistant in the case of an inquiry into a death in custody. However this person may or may not be a legal practitioner.
7. Rec.37 provides that post-mortems be conducted by a specialist pathologist. Section 20 of the Act confers power on the coroner to direct a 'medical practitioner' - who would not necessarily be a specialist pathologist - to conduct an autopsy.
8. Recs.37 and 38 recommend the negotiation of a protocol between representatives of Aboriginal organisations and the coroner to deal with potential conflict between Aboriginal tradition and the tasks of the coroner in relation to 4reatment of the body. The Act makes provision for next of kin of a deceased Aboriginal 'to ask a coroner not to direct an autopsy' and for a right of appeal in relation to any subsequent decision to order an autopsy (ss22 and 23). There are two problems with s22 of the Ad. First, the next of kin must initiate a request not to perform an autopsy before the appeal mechanism is activated. However, there is no obligation on the coroner to inform the next of kin of an intention to perform an autopsy. The right of appeal is valueless unless the family is aware of the direction to have an autopsy. Regulations conferring an obligation on the coroner to inform the next of kin of the decision to hold an autopsy would overcome this difficulty.
However, it is difficult to think of a reason why the scheme concerning consent to an autopsy should be divided between legislation and regulations.
Secondly, the Act does not address at all the more general issues of potential significance in Aboriginal culture such as removal of organs and the control of the body. The RCIADIC recommendation of a negotiated protocol seems a sensible suggestion in light of the nature of the issues that require resolution.
The coronial inquiry offers an opportunity to learn lessons from past deaths. The Act goes some way to achieving this objective. The coronial inquest is also an important vehicle for allowing Aboriginal people to ask questions about the care of people who have died in custody:
[A]n investigation of a death in custody by police and other government officers does not preclude suspicion. 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 ventilation of all relevant facts and for evidence to be tested. 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.[18]
It is disturbing that the two year consultative process following the RCIADIC recommendations resulted in a Bill that did not contain the key recommendation of the RCIADIC concerning the definition of 'custody'. Fortunately the Bill was amended before becoming law. This experience illustrates the necessity for all those concerned to see the implementation of the recommendations of the RCIADIC to remain vigilant.
[1] Second Reading Speech of the Attorney-General, Hon. Shane Stone.
[2] Unless the coroner orders otherwise for the administration of justice or national security or personal security at the inquest: s42.
[7] Recommendation 6 of the RCIADIC
[8] Vol - 1, p.142, National Report, RCIADIC.
[9] Commonwealth letters patent dated 6 May 1900.
[10] On appeal from a decision of Burchett j who had found for the police officers.
[11]'Jabanardi' is a name nominated by the deceased family as an acceptable way to identify the deceased.
[12] The law required a coronial inquiry in the case of violent or unnatural death (Coroners Act 1974: s10) unless the coroner dispensed with the inquiry on the grounds the manner and cause of death were sufficiently disclosed (Coroners Act 1974: s12).
[13] Section 15.
[14] Sections 14 and 15.
[15] Section 16.
[16] Letter from the Attorney-General to the writer dated 13 April 1993.
[17] Letter from the Attorney-General to the writer dated 13 April 1993.
[18] Vol.1, p. 142, National Report, RCIADIC.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1993/33.html