The New South Wales police watchdog has called for its powers to be expanded to include deaths in jails, with a senior commissioner telling an inquiry that there is a severe “lack of trust” in the way investigations are now handled.
On Monday Lea Drake, the commissioner for oversight at the Law Enforcement and Conduct Commission, told a parliamentary inquiry into the high levels of Aboriginal incarceration in NSW that delays in investigating deaths in custody had caused an “entrenched resentment and sorrow” among First Nations Australians.
“If the government decided it wanted us to perform that function it would have to amend the legislation to include that area [but] that is not a big deal for us,” she said.
“The difficulty here in this area is the entrenched resentment and sorrow that people feel because of the delay. If an investigation is conducted quickly, independently, and people can see the result and the attention, then they have more faith in the process.
“If you were to lose a child in these circumstances and the coronial inquest was years later you feel … bereft and suspicious and aggrieved and that sorrow can only be dealt with by independent and speedy resolution of the issue.”
The LECC is responsible for overseeing police investigations into critical incidents, where a death or serious injury occurs during the execution of police duties. But Drake told the inquiry that as far as she was aware NSW Corrective Services was “without that oversight”.
Instead, she said, family members of people who died in custody could “die of old age” while waiting for a deeply backed-up coroners court to hold an inquest.
“If you have a body like LECC watching, people behave better,” she said.
“Even if the issue is there’s no misconduct, that whatever happened is unfortunate to say the least but not criminal, not careless, or negligent but just something that happened, even if that is the answer and there’s no one to blame to find that out early is just.
“Truly, hand on heart, I don’t think anything will resolve this except prompt and independent review. Promptness is the key here. It’s just an endless grief to everybody.”
Drake, who revealed that the LECC will release its long-awaited final report into the use of strip-search practices by NSW police next week, said the agency had “a great deal of experience in dealing with problems that affect Aboriginal adults and youth”.
She pointed to the suspect target management plan, a secretive blacklist maintained by NSW police which a LECC investigation this year revealed was disproportionately made up of Indigenous children who were often targeted using “unreasonable, unjust and oppressive” tactics that in some cases are likely to be illegal.
Earlier the inquiry heard from NSW police assistant commissioner Anthony Crandell, who said a new STMP plan launched in November had seen a significant decrease in the number of Indigenous people subjected to it.
Drake said the LECC’s investigations into the STMP, strip-searches and consorting laws had all “confirmed what is generally anecdotally thought to be the case, Aboriginal young people and adults are disproportionately involved in police operations”.
“But we have been working with the police in this area ... to find a new way forward to get the police in cooperation with us to make new policies and make changes. They don’t go as far as some people want [and they are] not in every respect perfect but they’re a step forward,” she said.
The parliamentary inquiry into the high rate of Aboriginal incarceration began while the NSW coroner investigated two Aboriginal deaths in custody: the 36-year-old Anaiwan man Nathan Reynolds, who died of an untreated asthma attack in prison in 2018, and 43-year-old Dwayne Johnstone, who was shot while handcuffed on a Lismore street in 2019.
On Monday the inquiry also heard from Taleah and Makayla Reynolds, both sisters of Nathan Reynolds, whose inquest is due to finish on Friday.
Taleah Reynolds told the inquiry that despite being “lucky with the detective assigned to our case,” she believed deaths in custody investigations should be removed from the control of police. “I feel that it needs to be separate from all of the departments involved now,” she said.
A coronial inquest into Reynolds’ death is ongoing, but it has heard evidence that prison guards took about 10 minutes to respond to a call for help before his death.
A fellow inmate who attempted to help Reynolds told the inquest that a prison nurse had slapped and shaken the 36-year-old while he struggled to breathe, under the mistaken belief he was succumbing to a drug overdose.
In their evidence before the inquiry on Monday, both sisters were critical of the way their brother’s death was handled by the various government departments, saying the absence of a single point person or agency had exacerbated the situation. Taleah Reynolds said the complexity of navigating the system meant she had to “put my feelings aside”.
“I haven’t been able to grieve my brother,” she said.
“For a quick example it’s NSW police that notify the family of the death. Then the following day I constantly rang the jail, I just wanted to know where my brother was [but] my calls went unanswered all day. So then I had to deal with Corrective Services to pick up Nathan’s belongings. I had to go to the jail and pick them up myself.”
Both sisters were critical of the communication between police, Corrective Services, and Justice Health, saying Reynolds’ fellow inmates had been a better source of information after their brother’s death.
“That night my mum got a call from another inmate in custody telling my mum everything that did happen, so she got the most information again out of another inmate who did see what happened ... they’re the ones who informed our family of everything that did happen that day,” Makayla Reynolds told the inquiry.
She said it took another six to nine months to receive the same information from the brief of evidence into her brother’s death. The two sisters also addressed a Black Lives Matter rally held in Sydney’s Domain on Monday. The rally, which included a march to the nearby Parliament House, also called for an end to police investigations of deaths in custody.
“When police investigate police or prison officers this can lead to cover-ups, negligence and a lack of willingness to prosecute those responsible for deaths,” a statement released by the rally organisers read.
“There has never been a successful prosecution of any police or prison officer responsible for an Aboriginal death in custody.”