New action against deaths in custody
By Jennifer Thompson
A report on the inquest of the death of Eddie Murray and the subsequent Aboriginal Deaths in Custody Royal Commission investigation was published late last year by the Newcastle Legal Centre. The report argues that Murray's case should be reopened to resolve serious questions about his 1981 death in a northern NSW police cell, and the investigations that followed. The case of Murray and others, the failure of state and federal governments to implement the 339 recommendations of the 1988-91 royal commission, and more Aboriginal deaths in custody since then have thrown doubt on the worth and intention of the royal commission.
On June 12, 1981, Eddie Murray was detained by Wee Waa police for being drunk and placed in "preventative detention". Police said he was put in a cell soon after 2pm, and found dead, hanged, just after 3pm. The Coroner recorded an open verdict, finding that Murray died by hanging, but whether by his own hand or the hand of person or persons unknown could not be determined.
In January 1989, Aboriginal Deaths in Custody Royal Commissioner Justice James Muirhead submitted his report on Eddie Murray's death to the NSW governor. Among the 22 findings, Muirhead found that Murray had died by hanging, and it was "more probable than not that death resulted by Eddie's own actions". Muirhead reported that police fabricated and withheld evidence and that the autopsy was inadequate. Neither inquiry recommended further legal action or investigation into why the police had lied.
The Newcastle Legal Centre report, Too Much Wrong, reviewed in detail the evidence presented to the coronial inquest and the royal commission, obtained an additional evaluation of the conduct of the original autopsy, and considered the relevance of Independent Commission Against Corruption findings of corrupt conduct by one police officer, who also prepared the initial report to the coroner about Murray's death.
Michael Anderson, coordinator of the NSW Aboriginal Deaths in Custody Watch Committee, believes that the federal attorney general should appoint another inquiry into why the royal commission excluded or omitted evidence from its final reports, and why commissioners "shut down lines of questioning" by legal counsel that attempted to establish a prima facie case for criminal investigation.
"Aboriginal people cannot believe justice was served by the time and expense of the royal commission. We believe it was an exercise to cover up" Aboriginal deaths in custody, he said. The royal commission was announced in 1987 and began in 1988 to coincide with the bicentenary "celebrations".
Eddie Murray's father, Arthur, is blunt: "They did nothing. Of the 99 cases that were heard before the royal commission, a lot should still be investigated because no police and no prison officers have been charged with any offences."
In the first cases heard, says Murray, it was shown that police and prison officers had lied. "There should have been more investigations done. I believe, and my family believes, that they got no justice."
Anderson said that although the royal commission's terms of reference included investigations into "subsequent actions taken in respect to each of these deaths ... including the conduct of coronial, and police and other inquiries, and any other duties that were not done but ought to have been done", it did not recommend state attorneys general take action over inadequate inquiries.
In November 1996, there were large headlines when the Human Rights Commission's Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Dodson, released a report on indigenous deaths in custody between 1989 and 1996. The report, which used the findings of coronial inquests to audit the implementation of the royal commission's 339 recommendations, investigated the 96 deaths in custody between May 1989 and May 1996, including 22 in 1995.
There was an increase in annual deaths in custody after the royal commission, although less were in police custody and more in prisons. The average annual number of institutional deaths in custody (not including during police pursuit) during the period investigated by the royal commission was 10.4, while between 1989 and 1996, it was 11.4. Deaths from police pursuit, which were not investigated by the royal commission, increased for both Aboriginal and non-Aboriginal people.
Comparing the statistics for indigenous and non-indigenous people, the report found that indigenous people were 17.3 times more likely to be arrested and 14.7 times more likely to be imprisoned. The number of indigenous people incarcerated increased by 61%, compared to 38% for non-indigenous people.
An average of 8.5 recommendations were breached in each death, more in Queensland (13.6) and Western Australia (8.9). While a key recommendation was that custody be used as a last resort, indigenous people continued to be twice as likely to be arrested and three times more likely to be imprisoned where assault occasioning no harm was the most serious offence. This indicated, said the report, that "provocative policing is continuing through the use of the trifecta (offensive language, resisting arrest and assault occasioning no harm)".
The report emphasised the need for increased training to make police, prison officers and medical staff aware of their duty of care to detainees.
State and commonwealth legislation is still needed to implement some recommendations, Dodson reported, including the use of custody as a last resort, decriminalisation of public drunkenness, ending the sentencing powers of justices of the peace, increasing prisoners' rights and legally enforceable custodial health and safety rules.
In assessing the overall implementation of the royal commission recommendations, the Dodson report noted that the recommendations remained relevant. Implementation of the recommendations by departments was restricted to "reviewing current activities".
Another 1996 report — Keeping Aboriginal and Torres Strait Islander people out of custody: An evaluation of the implementation of the recommendations of the Royal Commission into Aboriginal Deaths in Custody — said governments' failure to implement the recommendations was a "massive lost opportunity to resolve critical issues which lead to the unnecessary incarceration of Aboriginal and Torres Strait Islander people".
It cited "a wider sociopolitical context" working against Aboriginal people receiving just treatment from the legal system. This included a more punitive approach to law and order, evident in tougher sentencing laws and reluctance to decriminalise public drunkenness.
Last May's Aboriginal deaths in custody summit, convened by federal minister for Aboriginal affairs John Herron, decided that Aboriginal justice advisory councils be established to advise governments. Anderson labels this a "multi-million dollar exercise to set up a new bureaucracy". These councils may discuss some of the problems of policing on the streets, he said, but because they are only advisory, "what governments do with it is anyone's guess".
A coronial inquest into the death of remand prisoner Rodney Hamilton in Bathurst Prison last July found that a false statement by a prison officer was included on the Notification to Coroner form. The Aboriginal Legal Service, representing the watch committee, has demanded the officer be charged.
The ALS is investigating why Hamilton was wrongly psychologically assessed by an untrained staff member upon entering the prison, why important information on his state of mind was not passed on by police, and why he was not allowed to go into a "two-out" or buddy cell arrangement with his brother, also in the prison.
"Corrective services is now on notice", said Anderson.