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Behrendt, Jason; Cunneen, Chris --- "Report to the National Committee to Defend Black Rights: Aboriginal and Torres Strait Islander Custodial Deaths Between May 1989 and January 1994" [1994] AboriginalLawB 22; (1994) 3(68) Aboriginal Law Bulletin 4


Report to the National Committee to Defend Black Rights:

Aboriginal and Torres Strait Islander Custodial Deaths Between May 1989 and January 1994

by Jason Behrendt and Chris Cunneen

Introduction

This paper is a reduced version of a research report produced for the National Committee to Defend Black Rights (NCDBR). The purpose of the report was to overview Aboriginal custodial deaths since 31 May 1989, to indicate whether Royal Commission recommendations were beingg followed and to consider any changes in the incidence and causes of such deaths since the Commission's recommendations were released.

The Royal Commission Into Aboriginal Deaths In Custody (RCIADIC) closed its investigative doors on 31 May 1989. Between that time and early 1994, 55 Aboriginal people have died in custody. Governments and their departments had the benefit of an Interim Report at the time when investigations ceased, the purpose of which was to highlight areas requiring immediate action to limit the numbers of those dying in custody. Since early 1991 the Reports of Inquiry into 99 individual deaths, Regional Reports of Inquiry from each state, and a five volume National Report, all published by the RCAIDIC, have been available. All emphasised various aspects of criminal justice reform required to reduce the number of Aboriginal people dying in custody. Since 1992 we have had state and Federal responses to the Royal Commission, and now more recently state and Federal annual reports on implementation of recommendations.

It is apparent that the national rate of Aboriginal custodial deaths has not decreased. It is our view that many of those who have died have done so because key areas of reform highlighted by the RCIADIC have not taken place. Clearly, despite the fact that all governments have publicly supported the vast majority of the RCIADIC recommendations and with many governments claiming to have implemented recommendations, the question remains as to whether these recommendations have been implemented to any meaningful degree.

Before examining the nature of Aboriginal custodial deaths since the RCIADIC, there are a number of issues which need to be clarified. The issue of who was in 'custody' is problematic in a number.of cases.[1] We have adopted the broad definition suggested in the RCIADIC's National Report for the purposes of the NCDBR analysis. It should be noted that this definition is broader than that used by the RCIADIC itself during its investigations. Consequently, a number of deaths included in this Report may not have been investigated by the Commission had they occurred prior to 31 May 1989. Most notable of these are the deaths resulting from police car chases. This difference should be acknowledged when comparing custodial death statistics during the two periods.

We obtained information primarily through coronial reports and submissions from various Aboriginal Legal Services. Where neither was available, newspaper reports have been the only source of information. In some cases there was no readily available information. In other cases coronial reports were unavailable or coronial inquiries were pending at the time of writing. In many cases this was due to the recentness of the deaths. In other cases, such as with Marlene Tomachy where 2 years after her death a coronial inquiry is yet to be completed, the delay is questionable. Secondly, in a significant number of cases the Coronial Reports were completely inadequate to give any meaningful understanding of how deaths occurred. This was despite recommendations of the RCIADIC which required all deaths in custody to be the subject of a thorough Coronial Inquiry. In addition it was recommended that Coroners investigate the cause and circumstance of the death as well as "the quality of the care, treatment and supervision of the deceased prior to death". In many cases the Coronial Inquiries were inadequate with little or no investigation into underlying issues. In some cases the Inquiry resulted only in a report of the cause of death, described in a couple of words.

A significant number of the deaths discussed in the NCDBR Report occurred before the RCIADIC National Report was released in April 1991. In these cases the Interim Report recommendations that were breached are listed along with those in the National Report. This is because the entire purpose of the Interim Report was to make recommendations so that immediate action could be taken to prevent more custodial deaths. It is our view that evidence relating to deaths during this period would indicate that very little notice was taken of the Interim Report by various governments.

In the deaths which occurred prior to the release of the National Report, we have still considered whether those later recommendations would have been breached had they been formulated at the time. This is to illustrate the usefulness of the recommendations and to show their potential relevance in the prevention of those deaths.

Finally, our report for the NCDBR only provides a preliminary overview and is not meant to be comprehensive. It is intended to show the extent to which Aboriginal deaths in custody are still occurring and that at least some of those deaths could have been avoided had the Commission's recommendations been implemented. It is also intended to show that further deaths will be avoided if the Commission's recommendations are immediately and adequately acted upon.

Overview

Table 1 shows the number of Aboriginal deaths in custody in each State and Territory for the period since the 'cut-off date of the Royal Commission Into Aboriginal Deaths In Custody. It should be noted that the figures for 1989 represent a seven month period (June to December).

Included in Table 1 are 7 women. One of these deaths occurred in NSW, three in Qld, and one each in WA, Vic and NT. There were also 11 deaths of people aged 17 years or younger: two in each of NSW and Qld; five in WA; and one in each of NT and Tas. In summary, 13% of the deaths in custody were women, and 20% were young people.

Table 2 provides a summary of the information in relation to custody and jurisdiction for the period 1989-1993. The Table shows that the largest number of deaths has occurred in New South Wales. It also shows that nationally over 50% of the deaths occurred in prison.

There have been significant changes in the location of death, both in terms of jurisdiction and custodial authority, if one compares the Royal Commission period with the post Royal Commission period as shown in Table 3.

Table 3 shows that NSW accounted for 31% of the deaths in the post-Commission period compared to 15% in the period 1980-1989; Queensland continued to account for around a quarter of all deaths which was not dissimilar to the earlier period. The most dramatic decline has occurred in Western Australia.[2]

Table 4 shows that the proportion of deaths occurring in prison has increased in the period following the RCIADIC, while the proportion of deaths occurring in police custody has declined.

The increase in deaths in prison custody needs to be considered more fully in relation to changes in the level of Aboriginal and Torres Strait Islander imprisonment over recent years.

Breaches of Recommendations in post RCIADIC deaths

Table 5 provides a summary of information in relation to individual deaths which have occurred since 31 May 1989. It lists the recommendations which appear to have been breached in relation to the Interim Report (IR) and the National Report (NR).

The IR recommendations have been included in cases where the death occurred prior to the release of the NR of the RCIADIC.

Note the following in relation to Table 5:

(i) In cases where we have indicated that there is 'insufficient information in the coronial report', we have been of the view that on the basis of what has been presented by the coroner it is not possible to determine whether breaches of the RCIADIC recommendations occurred. In most cases it is indicative of a brief finding, no transcript and no recommendations.

(ii) In cases where we have indicated 'inquiry incomplete', either the coronial inquiry has not begun or has been part-heard.

(iii) In cases where we have indicated 'coronial report unavailable' we have been of the view that the coronial inquiry was completed but we have been unable to locate or obtain any documentary material.

(iv) In a number of cases we have indicated 'inquiry incomplete' or 'coronial report unavailable' and have also indicated breaches of RCIADIC recormnendations. In these cases we are of the view that there is enough evidence in the nature of the death, irrespective of what the coronial inquiry might reveal, to reach these conclusions. It may well be that in all cases, as further information becomes available, more breaches will become apparent.

(v) The recommendation numbers for both the IR and the NR refer to those recommendations which if implemented could have contributed to the prevention of the death. The primary aim was to see whether the deaths in question were preventable. Accordingly, the examination of the implementation of recommendations of both IR and NR of the RCIADIC is limited to the issues which specifically arose in the deaths or which were addressed in the respective coronial inquiries. Thus the broader recommendations of the RCIADIC which essentially address underlying issues were not considered in the context of these individual deaths.

(vi) The word 'Nil' appears in one case only. We have considered that it cannot be said that any recommendations were breached in light of the information available.

The Frequency of Breached Recommendations

(i) The Interim Report:

There were a total of 26 breaches of recommendations from the Interim Report. The most frequently breached of the interim recommendations was number 28 which states that police and prison officers involved in apprehension and/or detention of persons in custody should receive training to enable them to identify persons in distress or at risk of death through illness, injury or suicide.

(ii) The National Report

There were a total of 169 breaches of recommendations from the National Report. The most frequently breached was Recommendation 127, which requires that police services 'move immediately' to examine the delivery of medical services to persons in police custody. This recommendation has 6 sections and 9 subsections elaborating on how it should be implemented. Ironically all governments have supported this recommendation. Other frequently breached recommendations included 133,152 and 126. Recommendation 133 (supported by all governments) relates to police training in identifying distress and risk factors (see also interim Recommendation 28). Recommendation 152 relates to the need for Corrective Services to examine the provision of health services to Aboriginal people in custody. There are 6 sections and 9 subsections on how this recommendation should be implemented. All governments have supported this recommendation. Recommendation 126 (supported by all governments) states that in every case of a person being taken into custody, a screening form and a risk assessment should be completed.

Recommendations 150, 154 and 155, each of which were breached 6 times, all relate to various aspects of the provision of health services. Recommendation 87 (supported by all governments), also breached 6 times, refers to the use of arrest as a sanction of last resort, and the need to eliminate unnecessary police custodies. Recommendation 60, breached 6 times, refers to the need for police forces to eliminate violent or rough treatment and verbal abuse of Aboriginal people. This recommendation was also supported by all governments.

Tables

Table 1
Deaths in Custody Since 31 May 1989, Aboriginal and Torres Strait Islander Persons, Jurisdiction by Year
State
1989
1990
1991
1992
1993
Total
NSW
3
2
3
5
4
17
Vic
1
-
1
1
2
5
WA
1
3
3
1
-
8
SA
2
1
3
-
-
6
Qld
2
4
4
2
4
14
NT
-
2
-
-
1
3
Tas
-
-
1
-
1
2
Australia
9
12
15
9
10
55

Table 2
Deaths in Custody, Jurisdiction by Custody, 1989-1993
State
Prison
Police
Juvenile
Total
NSW
13
4
-
17
Qld
7
7
-
14
WA
2
6
-
8
NT
-
2
1
3
Tas
1
1
-
2
SA
3
3
-
6
Vic
2
3
-
5
Total
28
26

55

Table 3
RCIADC and Post RCIADC Deaths in Custody by Jurisdiction
State
RCIADC 1980-1989
Post-RCIADC 1989-1993

No
%
No
%
NSW
15
15
17
31
Qld
27
27
14
25
WA
32
32
8
15
NT
9
9
3
5
Tas
3
3
2
4
SA
12
12
6
11
Vic
1
1
5
9
Total
99
(100)
55
100

Table 4
RCIADC and Post RCIADC Deaths in Custody by Custodial Authority
Authority
RCIADC 1980-1989
Post-RCIADC 1989-1993

No
%
No
%
Police
63
63
26
47
Prison
33
33
28
51
Juvenile
3
3
1
2
Total
99
(100)
55
100

CR = Coronial Report

IR= Interim Report

NR = National Report

*Some dispute as to persons Aboriginality

Table 5
Deaths in Custody, Coronial Status and Breached Recommendations, 1989-1991
Age/Date of Death
Rec.s Breached
New South Wales

28/July 89
CR unavailable
17/Oct 89
IR - 28; NR - 150,151,152, 156,157,167
28/Oct 89
Insufficient info in CR
24/Jan 90
IR- 36; NR -152,157
19/ May 90
Insufficient info in CR
25/May 91
CR unavailable
47/Jun 91
NR-152,157
34/Jun 91
Insufficient info in CR
23/Mar 92
NR - 130,150,152,153,154, 155,157,247,251,252,263
38/Jul 92
NR - 92,126,127,133,137, 144, 148
*/Jul 92
CR unavailable
14/Jul 92
Inquiry incomplete
43/Nov 92
NR-133,160 Inquiry incomplete
64/Mar 93
Inquiry incomplete
20/May 93
Inquiry incomplete
33/Oct 93
Inquiry incomplete
46/Nov 93
Inquiry incomplete
Queensland

26/Jul 89
IR-15; NR - 126,127,137
21/Aug 89
IR - 3,4,5,6,8,9,12,13,14; NR - 79,80,81,84,87,126, 127,133,135,136,137,144
*30/Jan 90
CR unavailable
21 /Apr 90
IR - 28; NR 155, 152
24/Apr 90
IR - 28; NR 124, 152, 155
28/Oct 90
IR - 3,4,5,6,8,9,12,13,14,15, 28,40; NR - 79,80,81,87, 126,127,133,135,136,141, 159,160,162
17/Jan 91
IR - 1,28; NR - 92,94,126, 154,155,168,181,182
34/May 91
NR - 86,92,121,125,126, 127,133
44/Nov 91
NR - 60,79,80,81,87,126, 127,133 Inquiry incomplete
17/Dec 91
NR - 95,150,151,152,153, 155,156,164
60/May 92
NR - 79,80,81,87,126,127, 133, 135,136,138,159,160, 162 Inquiry incomplete
27/Dec 92
Inquiry incomplete
21/Apr93
NR - 25,35,60,127,130,145,146, 150,151,154,155,170 Inquiry incomplete
18/Nov 93
NR - 60,127,133,135,136, 161 - Inquiry incomplete
Western Australia

50/July 89
CR unavailable
16/Apr 90
Insufficient info in CR
14/Apr 90
Insufficient info in CR
15/Apr 90
Insufficient info in CR
35/Jan 91
IR - 28,32,36; NR - 150, 152,154
16/Feb 91
Insufficient info in CR
21/Dec 91
Insufficient info in CR
Jan 92
CR unavailable
South Australia

17/Jul 89
IR - 28; NR - 126,127,133, 137,144
30/Nov 89
nil
40/Jun 90
IR - 36; NR -152,157
43/Feb 91
IR - 12,13,14; NR - 127, 133,135,136
35/Mar 91
IR - 32; NR - 92,150,152, 154,168
39/Aug 91
NR - 60; OR unavailable
Victoria

25/Oct 89
IR - 3,4,5,6,8,9,15,28,42; NR - 79,80,81,84,87,126, 127,133,144,247,252,255, 257,263
39/Aug 91
NR 79,80,81,84,87,127, 133,158,159
28/Feb 92
NR -133; CR unavailable
24/Feb 93
Inquiry incomplete
33/Aug 93
Inquiry incomplete
Northern Territory

14/Mar 90
Insufficient info in CR
48/Apr 90
IR - 32; NR - 60,61
40/Aug 93
Inquiry incomplete
Tasmania

49/Aug 91
NR - 154,158
16/Aug 91
NR - 60; Inquiry incomplete


[1] . See Doreen Lofts & Anor v Terry John Darvson & Ors, G208 of 1990, 23 May 1990, per Morling, Beaumont, Gummow JJ at p23. See also Nettheim, G., Eatts v Dawson in AboriginalLB 44/17.

[2] Indeed this comparative decline would appear even greater if the 5 deaths in high speed car chases in Western Australia were removed from the post-Royal Commission figures.


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