Investigation of police related deaths
This section sets out global best practice, human rights compliant standards for investigating deaths that involve police including police shootings and deaths in police custody.
It is our view that both the evidence of what works, coupled with Victoria’s human right’s obligations require a different model for how investigations of deaths which involve police, are carried out. Such a model must be practically and institutionally independent, effective and multi-disciplinary. It must also be timely and allow for sufficient and meaningful participation of victims/next of kin.
Right to Life obligations
In order to fulfil Victoria’s obligations to protect the right to life under the Victorian Charter of Human Rights and Responsibilities 2006 (Vic) and international law, the State must ensure that investigations into deaths implicating police are carried out and that these investigations at a minimum, must be :
1. Independent: Those carrying out the investigation must be independent from those implicated in the death; both institutionally and practically.
2. Effective: The investigation must be capable of leading to a determination of whether the action taken by State authorities was justified in the circumstances, to a determination of the culpability of those responsible for the death.
3. Prompt: The investigation must take place promptly and must proceed with reasonable expedition.
4. Transparent: The investigation must be open to public scrutiny to a degree sufficient to provide accountability in the circumstances of the case.
5. Inclusive of family/victim centred: The family of the deceased must be involved in the inquiry to the extent necessary to safeguard his or her legitimate interests.
We reiterate the importance of having these as central benchmarks in any new system adopted.
The current system: how police-contact deaths are currently investigated
The Victorian Coroner is currently required to investigate and hold an inquest into a limited range of ‘police contact deaths.’ Currently, this captures :
• the death of a person who immediately before death was a person placed in ‘custody or ‘care’ of: the Chief Commissioner of Police, the Secretary of the Department of Justice or a police or protective service officer;
• the death of a person under the control, care or custody of the Secretary to the Department of Justice or a police officer;
• the death of a person who a police officer or prison officer is attempting to take into custody or who is dying from injuries sustained when a police officer or prison officer attempted to take the person into custody (for example, a death during a police vehicle pursuit or resulting from the discharge of a police firearm);
• a person in Victoria who is dying from an injury incurred while in the custody of the State (including the State’s police);
• The death of person held in detention /who died whilst a person authorised to take /hold that person in custody under Victorian or Commonwealth law attempted to take them into custody.
• Circumstances where a member of the police force’s conduct immediately preceding a death requires further investigation by the coroner under the Act.
Deaths occasioned by the failure of police to discharge their duties where it is foreseeable that a failure of police to act could lead to a real and immediate risk of death caused by the actions of a third party, do not compel mandatory coronial investigation and inquest. This includes deaths of children and women who are killed by perpetrators of domestic violence by a third party whose previous criminal conduct and ongoing risk to the person killed was known to police in circumstances where police have failed to discharge their duty of care and act in accordance with their training and instructions (for example under the Victorian Police Code of Practice for the Investigation of Family Violence, which acknowledges that “police have a duty of care to protect vulnerable persons from ongoing abuse.” )
While there is some provision for coroners to investigate family violence deaths if the circumstances of the police force’s conduct immediately preceding that death are deemed to require further investigation (under the Coroner’s Court Practice Direction 4: Police Contact Deaths), we consider that deaths that substantively involve police in this context of serious dereliction of duty, leading to the death of a vulnerable person at risk of death by family violence, should be mandatorily investigated with inquest. The Coroners Act should be amended to reflect this.
In Victoria, the investigation of police contact deaths is in practice, typically carried out for the Coroner by a member of Victoria Police’s Homicide Squad (for police shootings) or a member of the Major Collision Investigations Unit (for police pursuits). Police contact deaths can, however, be carried out by any member of Victoria Police nominated by the Chief Commissioner. The Coroner can also nominate any person to assist them in their investigation. With oversight from Victoria Police’s Professional Standards Command (not IBAC), the investigating police officer prepares a brief of evidence for the Coroner and the matter proceeds to inquest. There is no requirement for the investigating police officer to be hierarchically separate from the officers who are witnesses to, and potentially, criminal suspects, in a police contact death. Nor is there a requirement that they be from a different police service area (see case study, below).
A first directions hearing is required to be held within 28 days of the police contact death being reported to the Coroner, unless otherwise ordered. In practice, however, first directions hearings are often delayed and may take up to two months to be held. Even where directions hearings are held within 28 days, this elapse of time can mean critical directions regarding the timely securing of evidence and time critical lines of investigation are given too late.
Although the investigator is required to take any instructions from the Coroner directly and carry out the investigation under their direction, the investigation is not independent or at arm’s length from police.
In a police contact death inquest, separate to the assistance provided by the police investigator in the investigation, the Coroner can be assisted by an independent lawyer from outside of the Police Coronial Support Unit (the PCSU). In practice, independent counsel instructed by the Court’s in house solicitors (or sometimes externally briefed commercial lawyers) are almost always engaged. The independence of this role was embedded due to the conflict of interest in having a member of the PCSU (ie, a police lawyer) assist the Coroner at Court, in circumstances where the police’s conduct associated with the death is likely to come under scrutiny (the PCSU is made up of police who are prosecutors or other experienced police advocates and who typically assist Coroners in other inquests).
This practice of ensuring that the counsel who assists the Coroner, inter alia, with ‘discovering, assembling, presenting and testing evidence at the inquest,’ including examining evidence and witnesses in order to ascertain the identity, cause and circumstances of the death, comes from outside the PSCU is in stark contrast and is at odds with, the practice of appointing a Victorian Police officer to carry out the investigation and prepare the brief of evidence, which fails to provide for any institutional independence. A real conflict of interest exists for investigating police officers, who stand between the competing pressures of avoiding scandal/poor press that impacts political and public trust in the police organisation they are employed sworn members of, versus uncovering and preventing misconduct that may have contributed to a civilian’s death. Community distrust in the investigation carried out by the Victorian police member assigned to investigate the death frequently arises, diminishing the credibility of the investigation in the eyes of the community. This also impacts police: where inquests find officers have used lethal force lawfully and exonerate officers, community concern about conflicts of interest can cast doubt over the credibility of coronial inquests and findings.
Following an inquest, the Coroner makes findings into the cause of death, and the circumstances in which the death occurred. As part of its preventative function, a Coroner may also elect to make comments on public health and safety and the administration of justice. They can also make non-binding recommendations. However, there is no power to compel the organisation at whom recommendations are directed at, to take action in relation to the recommendations and frequently families are not notified of the organisation’s response or action in relation to recommendations, unless they actively seek out the information.
For more detailed information see Section 5: Independent Investigations of Complaints against Police, Policy Briefing Paper, Flemington Kensington Community Legal Centre (2017)
Submissions re Police involved deaths
In 2010, the Flemington & Kensington Community Legal Centre on behalf of the families of Tyler Cassidy and Graeme Jensen made a submission to the Office of Police Integrity’s inquiry into the investigation of police involved deaths.FKCLC Submission on Investigations of Deaths Associated with Police Contact
In 2011, the Federation of CLCs, Darebin CLC, Flemington & Kensington CLC and the Human Rights Law Resource Centre made a submission to the Office of Police Integrity’s inquiry into the investigation of police involved deaths.Joint Submission on Investigation of Deaths in Custody
Case study: Inquest into the death of Michael Atakelt
Michael Atakelt was a young Ethiopian- Australian man whose body was found in the Maribyrnong River on 7 July 2011. Michael’s community had serious concerns about the investigation into Michael’s disappearance and death, including: the Footscray police’s response to Michael’s mother’s multiple attempts to lodge a missing person’s report to raise concerns about her son’s safety; the failure of police to notify Michael’s family that Michael had been in police custody days before his disappearance; and the dismissal of foul play as a potential cause of death (which the Coroner, ultimately determined could not be ruled out).
Despite these concerns about local police (further compounded by the community’s lived experience of discriminatory policing practices over many years in the Footscray/Maribyrnong area), the police officer initially assigned to investigate Michael’s death on behalf of the Coroner was from the Footscray police region.
Significant shortcomings in the initial investigation, ultimately recognised in the Coronial findings into Michael’s death, (including the failure to treat Michael’s death as ‘suspicious’ and decision to exclude key lines of inquiry); only compounded the community’s distrust of the investigation arising from the appointment of an investigator who was not institutionally independent from police.
In this instance, it was clear an independent investigator not associated with police was required. Instead, the investigation was carried by a police investigator from the very police region that Michael’s community thought had been implicated in his death and who had failed to adequately investigate his disappearance.
For more information, see Coronial Findings into Death of Michael Atakelt: A death we need to learn from
Case study: The Independent Police Conduct Authority of New Zealand
The Independent Police Conduct Authority of New Zealand (‘Authority) independently investigates all police contact deaths. While it is not statutorily required to, it does in practice. Deaths caused by police are assigned a ‘category 1’ status, along with complaints concerning serious bodily harm. Investigations into deaths caused by police are carried out by investigators from policing backgrounds from outside of New Zealand. Other investigators have training in other investigative backgrounds, such as child sexual abuse allegations in government departments. No one investigator is allowed to take responsibility for the investigation into a police contact death.
The Authority has “adopted a “team” approach and each of such events is addressed by an investigator, a legally trained report writer, sometimes an analyst or other expert and is overseen by a non police legally qualified Manager who in turn reports to the general manager (an ex Law Professor) with all public reports into police contact deaths signed off by a the Chair of the Authority, who is a judge.
The Authority also inspects and monitors the conditions of police detention and treatment of those in police custody to meet obligations under the Optional Protocol to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) (which Australia has indicated it will ratify in 2017; it is already signatory to the CAT). In this capacity, it can recommend measures be implemented to improve conditions of police detention and treatment of people in police custody, an important preventative function against torture, cruel and inhuman or degrading treatment.
Reports of police contact death investigations are published publicly, on the Authority’s website. Investigators are trained in –house and also attend police investigations training sessions.