New South Wales

Jun 8, 2011

Deaths in custody: sweeping changes, but coroners critical of inquiry

Serious questions about the integrity, accountability and independence of death in custody investigations are still being raised by NSW coroners, despite sweeping changes following a Royal Commission, writes Inga Ting.

Serious questions about the integrity, accountability and independence of death in custody investigations are still being raised by NSW coroners, despite the government’s claims to have made sweeping changes following the Royal Commission into Aboriginal Deaths in Custody. Coroners openly criticised either the standard of post-death investigations in 13 separate inquests in the past nine years, according to a Crikey analysis of NSW Coroner’s annual reports into deaths in custody. Police investigations were criticised in six separate inquests and the Corrective Services’ internal investigations unit in 10 inquests. Missing, damaged and altered evidence, insufficient allocation of resources, and failure to follow proper procedure were among the most common complaints. As recently as December last year, at the inquest into the death of Craig Behr, deputy state coroner Malcolm MacPherson criticised Corrective Services NSW for "the disappearance of certain segments" of key evidence produced under subpoena. He further added: "I strongly suspect that there has been an attempt made ... to sanitise/obliterate certain entries" made on documents submitted as evidence to the inquest. He made a formal recommendation directing Corrective Services to immediately release control of all relevant documentation to NSW Police upon a death in custody. Three months earlier, in September 2010, deputy state coroner Paul MacMahon found that NSW Police had not allocated sufficient resources to the investigation into the death of Long Bay prisoner Desmond Walmsley and critical evidence had been lost. Formal recommendations regarding the preservation of physical evidence were made to both the Commissioner for Corrective Services and the Commissioner of Police. These flare-ups between coroners and investigating agencies point to a deeper conflict of interest, says Charandev Singh, a human rights advocate and paralegal with nearly 20 years’ experience working on deaths in custody. "There is no form of independent investigation of deaths ... It’s still police investigating police or corrections investigating corrections or police investigating corrections ... and so the coroner, who is meant to be independent, relies on an investigation that has no independence at all or partial independence at best," he said. "It’s an intractable conflict of interest that’s been allowed to fester. It’s one of the reasons why deaths continue -- because it confers a level of impunity that perpetuates the conditions ... that give rise to deaths in custody." The Department of Corrective Services’ internal investigations unit, which investigates deaths in custody, is mainly comprised of ex-police and ex-correctional officers. The branch co-operates closely with the police assigned to investigate deaths in custody and makes recommendations aimed at helping the departments to avoid similar deaths in the future. However, former DCS investigator-turned-whistleblower William Beale says the department’s internal investigations "could have been done a lot better". "[The unit], unfortunately, didn’t make much of a contribution to the improvement of the department, in my view," he said. "There were instances myself and other investigators were told to take stuff out of reports ... [and] we were never told [whether or not officers were disciplined for breaches of procedure]. We’d do a brief, it went up and that was it. We had no feedback whatsoever, which I thought was a bit strange." Moreover, the unit’s recommendations were rarely implemented, he said: "A death in custody doesn’t happen in a vacuum. There are generally issues involved somewhere and, generally, the investigations would make a recommendation about improving systems ... [However] very few of those recommendations for change were ever reflected." Beale resigned from the Internal Investigations Branch in November 2007 after discovering that his report into the death of Aboriginal inmate Adam Shipley had been "buried" and replaced with a less critical one. Beale’s report, examined at the 2009 inquest into the death, pointed to a number of systemic failures on the part of Corrective Services. "It just lacked complete integrity ... [My] recommendations -- reasonable recommendations, I thought they were -- were canned in a cover up to protect the Department. There would have been no other reason," Beale said. "The whole issue was more important than the minister. It was more important than Corrective Services. It was more important than my boss and more important than my job. It was a matter of lives being at risk." Catriona McComish, a former senior assistant commissioner with Corrective Services NSW, says it is unsurprising that the department would change, bury or otherwise ignore the reports of its own investigators. "The internal investigations unit, like every other area of the department ... [is about] furthering the image of the department or protecting the department ... You only investigate if you know exactly what’s going to be written and what the outcome will be," she said. "There wouldn’t be feedback on their reports and recommendations wouldn’t be followed because they’re just there to protect an image and serve a purpose ... [O]pen and honest inquiry is not what’s wanted and certainly won’t be appreciated." McComish said the unit serves a political purpose that is at odds with what investigators such as Beale may believe is their job: "When something is going to a coroner’s inquest, there is a tremendous amount of work put in to second-guess what the coroner’s likely to say and to put things in place so that it isn’t a headline when the coroner’s inquiry comes out ... [It’s] about ensuring there’s no political damage and that the organisation can be seen to be responsive." The strategy works. Numerous written findings from the past nine years document coroners’ decisions not to make formal recommendations based on the strength of the internal investigation unit’s recommendations and the department’s assurances that faults have been, or are being, remedied. Breaches of Recommendation 165 of the Royal Commission on the removal of hanging points in jail cells are a common example. Between 2001 and 2009, NSW coroners investigated more than 40 hanging deaths in NSW jails yet the issue of hanging points was raised in the written findings of less than half the inquests and formal recommendations made in only seven cases. Commentators, lawyers and families say coroners are failing to deliver on the grave responsibilities set out in Royal Commission Recommendation 13, "that a coroner inquiring into a death in custody be required to make findings ... and to make such recommendations as are deemed appropriate with a view to preventing further custodial deaths". "There is no other organisation in Australian society that is responsible and has the powers to investigate an avoidable death ... to call people to account, to get witness statements, to get documents, to get reports, to get into the truth of the matter and ... [do] something to avoid death in the future," said Ray Watterson, a coronial law expert and adjunct professor at La Trobe University. "And yet [the coronial system] is ... incredibly under-appreciated and incredibly under-utilised." The Royal Commission was unequivocal about the vital importance -- as well as the appalling failures -- of post-death investigations. "In very few cases prior to the establishment of the commission was the investigation into death other than perfunctory and from a narrow focus and the coronial inquest mirrored the faults in the investigations,” commissioner Elliott Johnston wrote in the final report. “It must never again be the case that a death in custody, of Aboriginal or non-Aboriginal persons, will not lead to rigorous and accountable investigations and a comprehensive coronial inquiry." The commissioners made 34 recommendations calling for a major overhaul of the entire system for investigating deaths in custody. Several recommendations were concerned with ensuring the coroner had the power and authority to direct investigations rather than being reliant on the police or corrections. While this power has been legally recognised in a few states and territories, in other jurisdictions it is "a matter of custom and practice", says Singh. "Some coroners are more interventionist; some are not interventionist at all. In my experience there’s routinely very little direction of police in the course of their investigation," he said. "Effective direction of an investigation is being there on the ground every day ... Coroners haven’t fought for the infrastructure and resources required to undertake effective and independent investigation of deaths in custody." Similarly, recommendation 12 -- that coroners "be required by law to investigate not only the cause and circumstances of the death but also the quality of the care, treatment and supervision of the deceased prior to death" -- has been incorporated into the Coroners Act in only two jurisdictions: the ACT and, recently, Victoria. In jurisdictions where the responsibility of the coroner to look at underlying causes is not incorporated in law, it is up to individual coroners to decide how deeply to investigate. "The Victorian legislation [which came into force in November 2009] ... made it very clear that underlying causes and recommendations for prevention were of primary importance in the coronial process, along with finding the true cause of death. We don’t have in NSW or many other jurisdictions ... Cultural change is taking place in all the jurisdictions throughout Australia, including NSW, but it’s been ad hoc and piecemeal," Watterson said. Perhaps more alarming than the reluctance of the government and courts to enforce the coroner’s preventative role is what happens to coroners’ formal recommendations. "[N]obody knows what happens to them," Watterson said. Most simply disappear. Watterson and the NSW Aboriginal Legal Service published the first and only national study of the implementation of coroners’ recommendations in 2006. The study found that less than half of the 500 recommendations made by NSW coroners in 2004 had been implemented, placing NSW among the worst jurisdictions in the country. A disturbing number of coronial recommendations seem to have been lost in transition, Watterson said: “We made a number of enquiries to government agencies only to be told that they didn’t know what we were talking about -- that is, they didn’t know that there was a coronial recommendation.” In June 2009, the NSW government issued a premier’s directive requiring all government departments to respond to coronial recommendations within six months. They are under no obligation to respond to recommendations made before the directive came into force. "It’s a step in the right direction, but really just a first step," said Watterson. What is urgently needed is a national mandatory reporting scheme for all coronial recommendations -- precisely what the Royal Commission called for 20 years ago, he says. "As the Royal Commission showed, the question of deaths in custody is a national question. All avoidable deaths are a national question ... At the end of the day, it really comes down to how important governments think people’s lives are." Cover up? The 2009 inquest into the death of Aboriginal inmate Adam Shipley raised serious doubts about the integrity and accountability of Corrrective Services’ internal investigations branch. Former DCS investigator-turned-whistleblower William Beale resigned from the branch in November 2007 after discovering that his report into Shipley’s death was "buried" and replaced with a far less detailed and comprehensive report. NSW State Coroner Mary Jerram compared the Beale’s report and its replacement in her written findings: "Mr Beale’s report is detailed, relevant in the main, and compassionate ... In it, he is critical of the fact that there was no evidence of a co-ordinated, ongoing and proactive management of (Adam) as someone at risk. He makes a number of (apparently unwanted) suggestions and recommendations for an improved plan for such inmates." By contrast, Jerram describes the substitute report by Beale’s colleague, Investigator Paul Coyne, as “of narrow focus, and silent upon many relevant issues concerning the treatment and lack of care of Adam, as well as upon any systemic issues whatsoever". She added that Coyne "did not interview any personnel involved in the matter at all ... nor had he read the report of the 'Royal Commission Aboriginal Deaths in Custody'." But the problems displayed in Coyne’s report were not isolated to this instance, Jerram found. "The report format required by the Investigations Branch of the DCS is in my view inadequate in that it elicits very little information other than the utterly basic," the findings continue. "For [the director of the unit] to have preferred the cursory and repetitive report of Mr Coyne defies belief that there was any real desire on the part of the DCS to explore the circumstances of Adam’s death." Although she declined to make any finding as to Beale’s allegations of a cover-up, Jerram made strong recommendations that the department undertake a review of its internal investigations branch and the requirements of its investigators’ reports. "The question is raised ... of the usefulness of [the department’s] own Investigation Branch and its protocols. If investigatory reports are not to look at all aspects of a death and to make recommendations, for whose good are they? Of what use? How do they assist in the reduction in future deaths?" She noted that it would be "improper ... to make any finding relating to [the reports], and that the matter had been referred to the Independent Commission Against Corruption". ICAC has refused to confirm whether or not it is investigating, or even if it has received the matter at all. Neither Beale nor Shipley’s mother, Lynette, have heard from the commission. "In the light of Adam Shipley and those grave disclosures, you’d have to be very concerned ... [N]one of us know in the community know for how long and how deeply those practices have gone on. In how many other deaths ... have those practices shaped the kind of evidence that’s been provided to families and coroners and made their way into findings?" said Charandev Singh, a paralegal who has worked extensively on deaths in custody. "That’s the problem with corruption and maladministration -- you don’t know how deep it goes." This is the ninth in a series of case studies and investigative reports into prison deaths.

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