Police Breach Legal Protocols in the Lead-up to Indigenous Death in Custody

NSW police detained Rebecca Maher early on the morning of July 19 this year on the side of Wollombi Road in Cessnock. Police say they were responding to reports from passing motorists about her highly intoxicated state.

At around 1am, the 36-year-old Wiradjuri woman was placed in a holding cell at Maitland police station. When officers returned to her cell at 6am, she was found dead. It is the first case of an Indigenous death in custody in NSW since 2000.

Indigenous Deaths in Custody

Sadly, of our First Nations peoples dying after being taken into custody is not uncommon. In 1991, the Royal Commission into Aboriginal Deaths in Custody was undertaken, but by 2013 a further 365 Indigenous people had died in incarceration.

There’s the case of Ms Dhu, who died after being taken into police custody at South Hedland Police Station in Western Australian in August 2014. The 22-year-old Yamatji woman was imprisoned for failing to pay fines totalling $3,622.

Ms Dhu was taken to hospital three times during her 48 hours of incarceration, dying on her final visit. Officers responded to her complaints of pain by accusing her of faking her injuries in the hope of getting out of her cell. But a post-mortem found the cause of death to be septicaemia and pneumonia resulting from an infection from a broken rib.

Custody Protocols

But what’s different about Ms Maher’s case is that in NSW and the ACT, there’s a legal protocol in place designed to prevent Aboriginal deaths in custody. It’s called the Custody Notification Service (CNS) and it was established in 2000, around the time deaths like these came to an end in NSW.

Under NSW law, police are required to contact the Aboriginal Legal Service (ALS) as soon as they have detained an Indigenous person. An ALS lawyer then speaks to the arrested person over the phone, advising them of their legal rights.

ALS lawyers are trained to respond to concerns regarding self-harm and suicide threats, to make sure there is appropriate access to medication and to ascertain whether there’s a need for a health professional to examine any injuries. They also contact the person’s family and an Aboriginal Field Officer. As the ALS website puts it, “the CNS is not just a phone line, it’s a lifeline.”

The CNS was one of the 339 recommendations made by the Royal Commission, most of which have not been implemented. The legal responsibility that police have to contact the CNS was established under the 2005 Law Enforcement (Powers and Responsibilities) Regulation.

There were concerns earlier this year that this vital service could be shut down, but in early July Australian indigenous affairs minister Nigel Scullion guaranteed its ongoing funding.

Police Fail to Comply with the Law

However, on the night of July 19, officers at Maitland police station failed their duty of care to Ms Maher. Gary Oliver, chief executive of ALS, has revealed in a press statement that police failed to contact the CNS 24/7 phone line on the night of Ms Maher’s arrest. In fact, NSW police didn’t bother to notify the ALS of her death until August 12, 24 days after the incident.

“There hasn’t been a death in police cell custody since 2000, when the CNS began,” Oliver wrote in his statement. “If the CNS had been used by police when they detained Ms Maher, there may have been a different outcome.” He added that there was no reason the community should “experience the extreme trauma of another Aboriginal death in custody.”

And there are many other questions surrounding the way NSW police handled the case. Police failed to contact Ms Maher’s mother until around 12.30 pm that day, some six hours after her tragic death.

Her family has also questioned why she was taken into custody without being charged. In a July 19 press release, NSW police claimed the reason for detaining her was they had “concerns for her welfare.”

Not only was there a failure to follow the protocol and contact the CNS, but in the two press releases issued by NSW on the day of her death and a week later, there was no mention of Ms Maher’s Aboriginal identity either.

There’s also the mystery about what actually caused Ms Maher’s death. Initial reports state there was no evidence of anything suspicious, ruling out injuries that suggest foul play or evidence of any self-harm. So an autopsy will need to determine the cause.

In response to questions about the failure to contact the CNS on the morning of Ms Maher’s death, a NSW police spokesperson told Sydney Criminal Lawyers®, “A critical incident investigation is underway with all information to be provided to the coroner. It would be inappropriate to comment further.”