Twenty years since the handing down of the Royal Commission into Aboriginal Deaths in Custody there is still no system for genuine independent investigation of prisoner fatalities.
Yet one central element of an effective investigation must be a genuine independence of the investigators from those whom they investigate.
It is anathema to the effective investigation (i.e. one that arrives at the truth of an event) that the investigators involved have any interest, beyond an objective professional one, in the outcome of that investigation.
Independence, in this context, means nothing less than genuine practical, political and organisational independence.
In particular:
• Investigators should be trained civilians and neither active duty, seconded, nor ex-police should have any role as investigators.
• Where investigators and police are investigating related events (for example a suspected crime and an allegation of police violence during the arrest for that suspected crime), the most severe allegation should take preference. And the evidence should be collected by the agency with responsibility for investigating that offence.
• Investigators should use their own medical and forensic experts.
• Investigators should not uncritically rely on police versions of the event.
• The investigatory body should have real powers to investigate, and adjudicate. Failures by police to co-operate with the body should be grounds for immediate dismissal.
The dangers inherent in police investigations which lack independence are illustrated in the case of Mulrunji Doomdagee.
Mulrunji was a 36 year-old Aboriginal man who was arrested essentially for being drunk in public and swearing. He was taken to the Palm Island police cell and shortly thereafter died as a result of massive internal injuries.
His liver had been pressed up against his spine so hard that it had been almost “cleaved in two”. His portal vein had ruptured and he had four fractured ribs. I’ve seen the tape of the last agonising minutes of his life and it’s harrowing.
At the time of his death Mulrunji was in the charge of Senior Sergeant Christopher Hurley. The investigation into Mulrunji’s death was conducted by a number of police officers, amongst them Detective Sergeant Darren Robinson.
Robinson was known to the Palm Island community to be a friend of Hurley and at least some of the community members would have been aware that Robinson had previously investigated a complaint brought against Hurley by another Palm Island resident, Barbara Pilot.
Ms Pilot had alleged six months prior to the death of Mulrunji that Hurley had run over her foot with his police car.
The investigation of that complaint was a matter commented upon by Deputy Magistrate Hines during the second inquest into Mulrunji’s death.
“(Hurley’s) first attempt was to attempt to persuade the treating doctor that the injury did not occur in the manner complained of. Concerned by the doctor’s unwillingness to agree with him, Hurley then set about ensuring that he and Constable Fuller were going to present a unified front. Fuller agreed that she had, in company with Hurley, discussed their version of events and agreed upon it… the proposition that this conversation was collusive in nature is supported by Hurley’s denial that it ever occurred. Hurley then misrepresented the position (regarding the doctor’s evidence) to his superior… The doctor’s testimony revealed that Hurley made an attempt to suborn him.”
With regard to Robinson’s role, Coroner Hines had this to say:
“His "investigation” into the Barbara Pilot incident was superficial, biased and misleading. His conclusion that the complaint was “fictitious"… was dishonest.”
Similar concerns were raised in relation to the investigation conducted into Mulrunji’s death.
The two Coroner’s reports and a review of the investigation by the Queensland Crime and Misconduct commission (a police oversight body) contain a litany of evidence illustrating flaws in the investigation in terms of transparency, independence and thoroughness. And the CMC called the investigation “seriously flawed, its integrity gravely compromised”.
But the fact remains that this kind of review cannot accord justice to the families of those who have died, not when the investigation is so compromised. All that is left then is a range of inferences as to the credit of witnesses and the circumstances surrounding the investigation.
As Deputy Magistrate Brian Hines noted: “However extensive and careful any process of review, there is no substitute for the immediate preservation of the crime scene, and the faithful recording of the initial and uncontaminated observations and recollections of the direct witnesses. These investigative opportunities were substantially lost or at least compromised in this case.”
One of the reasons that police investigating police is such a bad idea is that they are experts at the investigation and prosecution of crime, which makes them uniquely capable at scuttling such investigations.
They are well aware that subsequent review proceedings and potential prosecutions, whatever the rhetoric of disapproval may be, are still reliant on the evidence they collect. And they have the skills to manage the collection of such evidence extremely well. And once the evidence is gone, its effectively gone for good.
I should be clear. I am not suggesting that as a matter of course police investigators do scuttle investigations, I am merely pointing out that they would be more adept at it.
Even without the personal relationships evident in the Mulrunji and Barbara Pilot matters, there is an inherent pressure for police to prefer the interests of their colleagues over the public interest.
In research done by Tamar Hopkins of the Flemington and Kensington Legal Centre, Ms Hopkins quotes Monash University’s Associate Professor Colleen Lewis discussing the concept of loyalty within the police force: “The exceptionally strong unwritten code, that police must stick together at all times, encourages police to cover up the misconduct, even the criminal activities of other officers.”
Moreover, the threat to an effective investigation is most grave when both the suspect and investigator share both this cultural imperative of loyalty and an understanding of the compelling effect that the investigative process has on any subsequent proceedings to determine guilt.
Again, my purpose of this piece is not to vilify police officers who do incredibly challenging work in extremely difficult conditions. But why do we put them in these conflicting positions in the first place?
Whilst the above principles apply in relation to all persons who are killed or assaulted by police in custody, they have specific relevance for Indigenous people for two particular reasons.
Firstly, Indigenous Australians are grossly over-represented in custody. An Indigenous person is 14 times more likely to be placed in custody than a non-Indigenous person. So a system that fails to hold accountable those who do commit violence against people in custody effects a greater proportional denial of justice to the Indigenous community than the non-Indigenous community.
Secondly, the actions of police such as those discussed above validate an existing and historical perception held by many members of the Indigenous communities that I have worked with that Police operate with impunity when it comes to violence against Aboriginal people in police custody.
The complex historical relationship between Indigenous people and the police is one that comes into play anytime an Indigenous person dies, or is assaulted in police custody.
Independence is an essential ingredient to a thorough, impartial investigation. It’s time we concentrated on making it happen.