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33
Selection of police officers for investigation of death in custody
That all officers involved in the investigation of a death in police custody be selected from an Internal Affairs Unit or from a police command area other than that in which the death occurred and in every respect should be as independent as possible from police officers concerned with matters under investigation. Police officers who were on duty during the time of last detention of a person who died in custody should take no part in the investigation into that death save as witnesses or, where necessary, for the purpose of preserving the scene of death.
Aboriginal Justice Caucus Assessment
The intent of Recommendation 33 was to increase the integrity of police investigations into deaths in custody by selecting officers from a separate command area and ensuring officers on duty when the death occurred are not involved.
We acknowledge the efforts to reflect the requirements of Recommendation 33 in the Victoria Police Manual but remain unconvinced that separating functions within Victoria Police could ever provide the degree of independence and impartiality needed by the Aboriginal Community to have confidence in investigations of Aboriginal deaths in custody.
Just because they change it on paper...or just because things are changed because of the obvious, doesn't mean it changed the operating processes.
Unless they are prepared to look at independent investigation, it will always be a low score. Because of past history there's no level of trust whatsoever. We could work with them until the cows come home, but that's still not going to change our communities’ concerns about police because they are always going to look after their own. (Marion Hansen, Chairperson, AJC)
Police investigating police simply doesn’t work for Aboriginal people. (Nerita Waight, CEO, VALS)
Recommendation 33 remains relevant until there is an independent body to investigate Aboriginal deaths in custody.
Priority for Further Work:
Low
Relevance and potential impact | |||||
|---|---|---|---|---|---|
Low (0-2) | Moderate (3-4) | High (5-6) | |||
Extent of action taken and evidence of outcomes | High (5-6) | ||||
Moderate (3-4) | |||||
Low (0-2) | |||||
Potential Actions for Further Work
Establish an independent coronial investigation unit
Establish an independent investigation unit, and until it is established, create a specialised investigation team within the Coroners Court.
Explore international models such as the Police Ombudsman for Northern Ireland to identify best practices for independent investigation units in custodial matters. Evaluate the feasibility of adapting similar models to the Victorian context to enhance investigative integrity and transparency.
Background
The Royal Commission on Aboriginal Deaths in Custody stressed the need for independent and unbiased investigations into deaths in custody, responding to concerns about the integrity of past inquiries. It found that in some cases, officers involved in the events leading to a death were also part of the investigation, raising serious concerns around conflicts of interest and bias. To address this, the Commission recommended that investigations be conducted by officers from police command areas separate from where the death occurred. This approach aimed to ensure objectivity, restore public trust, and enhance police accountability in cases involving Aboriginal deaths in custody.
Actions Taken Since Last Review
Coroners Court of Victoria
The Coroners Court does not employ its own investigators. In cases where a reportable or reviewable death requires a coronial brief, a coroner relies on the Chief Commissioner of Police to designate a member of the force to assist with the investigation. This individual, known as the Coroners Investigator, receives instructions directly from the coroner and executes the role under their guidance.
Victoria Police (2023)
Victoria Police assessed this recommendation as fully implemented in 2023, noting that all investigations into a death in custody are conducted by the Homicide Squad.
The Victoria Police Professional Standards Command (PSC) attend every death in police custody in an oversight role. The PSC is independent from the Regions and Commands in Victoria Police that are responsible for police custody. In addition, attending PSC officers are required to complete Conflict of Interest (COI) forms to identify any potential COI with officers being oversighted, thus further highlighting the importance of independence.
Impact
Outputs
The Victoria Police Manual outlines roles and responsibilities in relation to the investigation of deaths, serious injury or illness incidents involving police.
Outcomes
The Victoria Police Manual - Death or Serious Injury/Illness Incidents Involving Police was updated in 2021 to better reflect RCIADIC Recommendation 35 and provide specific directions into the conduct of investigations.
It defines the key roles of officers involved in the investigation of a death in custody, including the oversight and review of the investigation:
- Senior Investigating Officer is an officer of the rank of inspector or above from the unit responsible for the investigation.
- Senior Oversighting Officer is an officer of the rank of inspector or above from Professional Standards Command responsible for ensuring comprehensive, independent and unbiased critical oversight of the investigation.
- Review Officer is a superintendent responsible for identifying and recommending opportunities for improvement in police systems, process, practice, policy and training.
To ‘support the independence and transparency of the functions of investigation, oversight and review’, all staff directly involved in the investigation—such as investigators, forensic officers, oversight officers, and review officers—must check and declare whether they have any personal or professional connections to the police or other individuals involved in the incident. These staff members are required to complete a Conflict of Interest Disclosure form and submit it to the appropriate supervisor depending on their role. Supervisors then assess whether any conflict of interest exists and decide if it can be managed or if the person should be removed from the investigation, oversight, or review process.
Additionally, wherever possible (except in rare cases like in remote or rural areas), there must be a geographical separation between the individuals involved in the incident and those investigating or overseeing it. This means they should come from different Local Area Commands in line with the requirements of Recommendation 33.
Community Views
Victorian Aboriginal Legal Service
The Victorian Aboriginal Legal Service’ (VALS) policy briefing paper titled Reforming Police Oversight in Victoria emphasised the need for enhanced independence in overseeing internal investigations by the Professional Standards Command within Victoria Police. VALS find 'this lack of genuine independence is particularly troublesome in cases involving police contact deaths, where an unbiased investigation is imperative.' VALS stressed the importance of independent investigations, asserting that such a framework ensures accountability, aids in criminal prosecutions, supports coronial inquests and provides valuable input into police disciplinary processes and civil litigation.