Rebecca Maher: Court finds police responsible for death but no charges laid

July 12, 2019
Rebecca's family speak out about her death in custody in Newcastle Civic Park. Photo: Jonathan Lockhart

The investigation into the death of 36-year-old Wiradjuri woman Rebecca Maher concluded on July 5 at the Newcastle Coroner’s Court.

Rebecca’s family and supporters, who together with the Indigenous Social Justice Association and Fighting In Resistance Equally had gathered that day at nearby Newcastle Civic Park, were left shaken by the fact that, despite what was revealed in court, no police officer has been found responsible.

Rebecca was found dead in a Maitland police cell, in NSW’s Hunter region, in the early hours of July 19, 2016, when police finally checked her cell. She had been stopped by police for reportedly wandering into oncoming traffic and was apprehended as an “intoxicated person”.

In previous hearings, police had described Rebecca as being unsteady on her feet and slurring her words.

Case events of the night reveal that, after she was apprehended, Rebecca had been racially abused by a Maitland police officer who described her movements as being “like a chimpanzee”. 

The court heard the officer on duty, a senior constable, was not aware that Rebecca was of Aboriginal descent and that he had made no attempt to find out. 

The night Rebecca died, she was told by one of the police officers to lie down and “sleep it off”. Hours later, she died from “mixed drug toxicity” and asphyxiation from vomiting. Rebecca had not been charged with any crime at the time of her death.

Post-mortem, a bottle of Alprazolam tablets, known by its brand name Xanax, as well as three tablets of Clonazepam, known as Klonopin, were found in the left leg of her clothing.

Acting NSW state coroner Teresa O’Sullivan confirmed that Rebecca’s possession of the tablets in custody was due to the police’s failure to search her. 

The inquest found that this was because police had incorrectly assumed from the dispatcher on duty that Rebecca was HIV positive and did not want to have bodily contact for fear of catching an infectious disease.

Due to the mixed substance intoxication, Rebecca should have been taken to a hospital immediately. Instead, her last hours were in pain. 

Debbie Small, Rebecca’s mother, was only informed of her daughter’s death six hours later, at 12.20pm the next day. 

O’Sullivan said she was “troubled” by the attitude of the police officers.

She found that a non-commissioned officer, in breach of the rules, notified Small of her daughter’s death.

The findings of the inquest proved that, beyond a shadow of a doubt, Rebecca’s life could have been saved if appropriate actions — such as a simple call to emergency services — had been taken.

Video: Angry reactions from Aboriginal community to Rebecca Maher inquest. Green Left.

While Rebecca was in custody, the police failed three main protocols. 

First, they failed to search her, which would have led to them locating the prescription drugs that contributed to her death.

Second, they failed to carry out a standard questionnaire, including identifying her Indigenous status, which would have led to a responsible next of kin being located and an ambulance being called.

Third, the police did not notify the Aboriginal Legal Service’s Custody Notification Service (CNS) — a 24-hour, seven day a week Aboriginal notification service staffed by lawyers that provides legal advice and welfare checks.

It is a legal requirement for police officers to call the CNS if an Aboriginal person is taken into custody.

Negligence towards due process and a lack of empathy and care fostered by institutionalised racism within the police force created the dehumanising circumstances that led to Rebecca’s death. 

O’Sullivan told the court: “I am concerned about the manner in which this was handled, which was in breach of NSW Police Force requirements and was disrespectful.”

She said the police failure to call an ambulance was in breach of policy and that she “would have survived” if they had fulfilled their duty of care.

The report into Rebecca’s death listed a set of recommendations to begin a reform and training program to enable access and engagement with the Aboriginal Legal Service and the CNS.

It also pointed out the relevant courses and the need to enforce the law set down by the Law Enforcement (Powers and Responsibilities) Amendment Act 2014 for those in custody under intoxication, not only when under arrest.

Similar cases show that police officers ignore evidence and compulsory protocols, adding to the pressure for independent inquiries into all Indigenous deaths in custody rather than continuing to have the police investigate themselves. 

While O’Sullivan pointed out that the police had breached protocols that resulted in Rebecca’s death, she did not blame any officer, declaring the death “accidental”.

Outside the court Awabakal elder Aunty Tracey Henshaw criticised the findings, saying police should not be exempt from being made accountable. “The recommendations were meaningless. Everybody that does a job has policies that they have to adhere to,” she told the ABC.

Rebecca’s family had hoped for a ruling that reflected justice. But there is yet to be an Indigenous death in custody that pursues a conviction and sentencing of the police who are deemed culpable as a result of the victim’s inquest.

Such outcomes demonstrate the harsh reality of a system that not only lacks justice, but functions without conscience for marginalised and First Nations peoples.

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