On the evening of 11 December 2008, fifteen year-old Tyler Cassidy was shot and killed by police during a confrontation at a skate park in the Melbourne suburb of Northcote. A coronial inquest into the incident is currently in progress. This follows an internal investigation by Victoria Police in which Assistant-Commissioner Stephen Fontana found the four officers involved had ‘acted within training’.
Large parts of the Fontana Review remain the subject of a suppression order, on the grounds that its release could jeopardise the public interest. State Coroner Judge Jennifer Coate found publication could compromise the ability of Victoria Police to conduct frank and honest internal reviews, as well as reveal details of police training, tactics, and resources.
Meanwhile, interest groups have criticised the way in which Victoria Police investigate deaths in which their own officers have been involved. A website has been set-up to follow developments in Tyler’s Case by concerned groups including the Darebin Community Legal Centre. As they assert: “If this had happened in Belfast, London or Toronto, an independent civilian body would have commenced investigation immediately. Trained civilian investigators would have attended the scene, separated and interviewed civilian and police witnesses and collected and preserved evidence. This evidence would then form part of coronial inquest proceedings, and if appropriate, prosecutions and misconduct proceedings against the police involved.”
If this had happened in Belfast, London or Toronto, an independent civilian body would have commenced investigation immediately.
At present, it is argued, that ‘there is no clear institutional or practical independence between the investigators and the police they are investigating’.
Oversight of police investigations is carried out by the Ethical Standards Department. However, in a recent issues paper the Office of Police Integrity pointed out the oversight officer usually reviews the file after the investigation has occurred, before the report is submitted to the coroner. This makes it difficult to ascertain whether all the right questions were posed to the right witnesses, and how evidence was handled. Victoria Police are in the process of establishing a set of Model Principles of Oversight which the OPI will review in its final report.
Section 9 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) states that, ‘every person has the right to life and has the right not to be arbitrarily deprived of life’. Where that right has been violated by the state, a recent Opinion of the European Commissioner for Human Rights has established five criteria for ensuring the subsequent investigation is effective: independence, adequacy, promptness, sufficient public scrutiny and next-of-kin involvement. Section 32(2) of the Charter states clearly that such international jurisprudence is able to be considered when interpreting a statutory provision.
In May 2009, the Federation of Community Legal Centres Victoria wrote a letter to the director of the Office of Police Integrity, Michael Strong, claiming that the OPI was ‘the only appropriately constituted body in Victoria, that in combination with the State Coroner’s public authority obligations, can fulfill the requirements of the Section 9 of the Charter and perform an independent investigation of Tyler’s death’.
The OPI did not take over the investigation though it continues to review the issue. In the recent Review of the investigation of deaths associated with police it revealed it is considering recommending that video-interviews of police officers involved in a death be made mandatory, as the best means of insuring transparency and accountability. At present homicide investigators video-tape interviews only with the agreement of the police witness. Where they do not consent, they are then offered either to be audio-taped or to write a written statement. This is a lesser standard than that required for admissions or confessions made to police in conventional cases, which must be audio or video recorded.
In Tyler’s case the inquest has heard that the police officers involved were not drug or alcohol tested until about eight hours after the fatal shooting due to confusion among Victoria Police and forensic investigators over whose duty it was to perform the test.
It would be unwise to pass judgment on Tyler’s case before the coroner delivers her final report. However, the inquest has already shone a light on problems with how investigations of deaths involving police are investigated.
the inquest has already shone a light on problems with how investigations of deaths involving police are investigated.
These procedures should be reformed to bring Victoria into line with international human rights standards.
Vince Chadwick is an Arts / Law student at Melbourne University and freelance writer. His work has appeared in over a dozen publications including The Philadelphia Inquirer, The Age, Crikey, and National Times. His fiction entry was highly commended in the ‘2010 John Marsden Prize for Young Australian Writers’.