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35
Police directions to conduct investigations into a death in custody
That police standing orders or instructions provide specific directions as to the conduct of investigations into the circumstances of a death in custody. As a matter of guidance and without limiting the scope of such directions as may be determined, it is the view of the Commission that such directions should require, inter alia, that:
a) Investigations should be approached on the basis that the death may be a homicide. Suicide should never be presumed;
b) All investigations should extend beyond an inquiry into whether death occurred as a result of criminal behaviour and should include inquiry into the lawfulness of the custody and the general care, treatment and supervision of the deceased prior to death;
c) The investigations into deaths in police watch-houses should include full inquiry into the circumstances leading to incarceration, including the circumstances of arrest or apprehension and the deceased's activities beforehand;
d) In the course of inquiry into the general care, treatment or supervision of the deceased prior to death particular attention should be given to whether custodial officers observed all relevant policies and instructions relating to the care, treatment and supervision of the deceased; and
e) The scene of death should be subject to a thorough examination including the seizure of exhibits for forensic science examination and the recording of the scene of death by means of high quality colour photography.
[H]is investigation was totally inadequate. He never followed up on glaring inconsistencies or apparently false statements made by police…He certainly didn’t approach his investigation “on the basis that the death may be a homicide”. In those circumstances, you should be slow to decide you do not believe that an offence “may have been committed”. Without a proper investigation, it remains a real possibility.
Aboriginal Justice Caucus Assessment
Recommendation 35 intended for police instructions to clearly outline directions for thoroughly investigating the circumstances of a death in custody, including treating each case as a potential homicide, examining the circumstances of arrest, scrutinising custodial care, and thoroughly documenting the scene.
Previous inquests into Aboriginal deaths in custody in Victoria, highlighted significant inadequacies in police investigations:
[H]is investigation was totally inadequate. He never followed up on glaring inconsistencies or apparently false statements made by police…He certainly didn’t approach his investigation “on the basis that the death may be a homicide”. In those circumstances, you should be slow to decide you do not believe that an offence “may have been committed”. Without a proper investigation, it remains a real possibility. (Day Family submission)
The Victoria Police Manual - Death or Serious Injury/Illness Incidents Involving Police was updated in 2021 to align with the five components of Recommendation 35. The wording in the Victoria Police Manual is identical to the wording in this recommendation.
However, we are concerned that these updates are guidelines rather than mandated policy rules and may not be followed in practice.
We need it to be thoroughly investigated and if it’s not complied with, they are not doing their job. (Merle Miller, Representative, Victorian Aboriginal Education Association Incorporated)
Recommendation 35 remains relevant until there is an independent body to investigate deaths in custody.
Priority for Further Work:
Moderate
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
Mandate Victoria Police Manual guidelines for conducting investigations
Upgrade the existing guidelines for conducting investigations into a death in custody to be a mandated policy in the Victoria Police Manual.
Background
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) highlighted the importance of clear police procedures when investigating deaths in custody. It stressed that all such deaths should be treated seriously, with investigations starting from the assumption that a crime may have occurred. This means looking closely not only at whether there was any criminal behaviour, but also at the conditions of custody and the care provided to the person who died. The Commission found that in many cases, poor investigation practices—like assuming a suicide too quickly, missing key steps, or failing to gather proper evidence—led to serious gaps in understanding what really happened.
Actions Taken Since Last Review
Victoria Police
In 2023, Victoria Police assessed Recommendation 35 fully implemented, noting that the Victoria Police Manual (VPM) ‘Death or serious injury/illness incidents involving police’ was updated in 2021 to acquit the five parts (a, b, c, d, e) of Recommendation 35.
Impact
Outputs
Updates made to the Victoria Police Manual in 2021.
Outcomes
The Victoria Police Manual - Death or serious injury/illness incidents involving police was updated in 2021 to acquit the five parts (a, b, c, d, e) of this recommendation. The wording in the VPM is identical to that in Recommendation 35.
Community Views
Tanya Day's Children
Submission to the Inquest into the Death of Tanya Day
In their submission to the Coroner, Tanya Day's children highlighted several significant deficiencies in the investigations into their mother's death. Concerns were raised about the scope and adequacy of the police investigation, as well as its independence. This included:Allegations of withholding crucial CCTV footage, overlooking critical inconsistencies in witness statements, neglecting to re-interview witnesses for clarification, and failing to inquire into the lawfulness of the deceased's treatment. Moreover, the failure to test blood found in the cell and to investigate the adequacy of paramedic treatment raised alarming concerns about the thoroughness and effectiveness of the inquiry, further amplifying concerns about police investigating police. Riley was supposed to be conducting an investigation to determine whether a criminal offence had been committed, at least until some unspecified time in early January 2018 when it became a coroner’s investigation. Yet…his investigation was totally inadequate. He never followed up on glaring inconsistencies or apparently false statements made by police. He never even tried to conduct a suspect record of interview with Wolters or Neale. He certainly didn’t approach his investigation “on the basis that the death may be a homicide”. In those circumstances, you should be slow to decide you do not believe that an offence “may have been committed”. Without a proper investigation, it remains a real possibility.