Independence critical in death-in-custody investigations

Monday 12 August 2019

Revelations in Victoria’s Coroners Court today have highlighted systemic problems with police-contact death investigations in Victoria.

The Coronial Inquest into the death of Yorta Yorta woman Tanya Day has heard concerns regarding the independence of the police investigator assigned to investigate on behalf of the Coroner.

This highlights a systemic problem with police-contact death investigations in Victoria.

According to Anthony Kelly, Executive Officer of the Flemington Kensington Community Legal Centre, “The concerns raised by Tanya Day’s family today echo so many other bereaved families seeking the truth through the coronial process. If families lose trust in the police who are tasked by the Coroner to investigate other police, it undermines faith in the entire coronial inquest.”

“Police should not be investigating police – it’s as simple as that. If somebody tragically dies in police custody, as happened to Ms Day, it’s especially important that the investigation into what happened is independent of police.” said Mr Kelly.

The coronial system in Victoria plays an important role in the independent investigation of deaths for the purpose of finding their causes and how to prevent further deaths.

Unfortunately, when a coronial investigation implicates police, or examines the practices or policies of police, engaging a police officer to carry out the investigation on behalf of the Coroner undermines this key objective of the coronial system.

Community distrust in the investigation carried out by the Victorian police member assigned to investigate the death frequently arises, diminishing the credibility of the coronial process in the eyes of the community.

A conflict of interest exists for police officers investigating their colleagues or examining police procedures or systems. They must deal with the competing pressures of avoiding scandal/poor press or legal issues, versus uncovering the circumstances that may have contributed to a civilian’s death. Numerous Coroners around Australia and the Victorian Parliament’s Law Reform Committee have raised issues with police investigations in findings.

It is often not possible to cure deficiencies in an investigation once it has been carried out, including the loss of key evidence. Police, including homicide investigators, receive no additional or specialist training in deaths in custody investigations and often rely upon assumed knowledge and practices.

Even when inquests exonerate officers or police procedures, the perception of bias or conflicts of interest can cast doubt over the credibility of coronial findings.

International best practice and Victoria’s obligations under international human rights law, require that police contact deaths be independently investigated.

“Investigations must be practically and institutionally independent, effective and multi-disciplinary. They must also allow for the supported and meaningful participation of families,” said Mr Kelly.

Deaths associated with police contact could be investigated for the Coroner by specialist, multi-disciplinary teams employed by an independent body which meets the human rights benchmarks required under Victorian and International law – either by the Coroner’s Court or IBAC.

The provision of ‘oversight’, even by an independent body, does not meet this requirement.

“Victoria should seize the opportunity to learn from the models around the world that are working toward meeting human rights benchmarks in the investigation of police contact deaths.” Mr. Kelly said.

An independent multi-disciplinary team with relevant expertise including for example, critical incident mental health specialists, medical experts and scientists, embedded within the Coroner’s Court or within a new Police misconduct Division within IBAC would help cultivate practical independence in death investigations.

This Briefing Paper (PDF) by the centre’s Police Accountability Project sets out best practice standards for investigating deaths that involve police.

The Flemington Kensington Community Legal Centre has many years of experience working with families whose loved ones have been killed by police or during police contact.

“In our view, the public interest demands that both allegations of serious injury and death after contact with police, be independently investigated. We know that this is broadly supported by the Victorian community.” Mr. Kelly added.

A landmark Parliamentary Inquiry into Victoria’s police complaints system last year recommended that the Victorian Government establish a Police Corruption and Misconduct Division in IBAC to ensure that it can independently and effectively investigate complaints and disclosures about Victoria Police.

The concerns raised today provide yet another reason why the Victorian Government must commit to carrying out these recommendations.