The NSW coroner, police watchdog and lawyers have all criticised the ability of police to refuse to co-operate with investigations into their conduct, including one case when officers didn’t answer questions for 19 months about a man who died after being Tasered.
This legal right has come under increased scrutiny following the Tasering of 95-year-old grandmother Clare Nowland.
On Tuesday, NSW Police Minister Yasmin Catley broke her week-long silence on the incident, labelling it as “shocking”.
In 2021, NSW State Coroner Teresa O’Sullivan said she was concerned that a group of police officers present during the death of 30-year-old Jack Kokaua did not co-operate in an internal probe into the incident until 19 months later, saying “such a large gap” had affected the court’s findings.
“There is significant public interest in there being effective and prompt information taken from involved police officers, particularly in circumstances where a person has died as a result of a police operation,” she said at the time.
“It is concerning that it took 19 months for the involved police officers’ accounts … to be taken. Such a large gap has impacted on the memories of the involved police officers and, as a result, somewhat diminished the ability of this court to examine in depth the events that took place in the lead-up to Jack’s death.”
Those comments have taken on a new relevance as the NSW government faces growing pressure to address concerns about internal police investigations after Nowland was Tasered last week.
On Monday, the Law Enforcement Conduct Commission, which has been charged by Premier Chris Minns with overseeing the police investigation into the events leading up to Nowland being Tasered, said some of its powers were “illusory” because it had never been able to be present during an interview with an officer subject to an internal police probe.
That admission, made by the commission in an 80-page report reviewing five years of critical incident investigations in NSW, was accompanied by other concerns about poor mental health training for officers and lengthy delays in completing the internal probes.
Kokaua’s death was cited in the report.
“At inquest three of the officers provided evidence that they had received legal advice to not make any notes about the incident,” the LECC’s report stated.
The coroner’s criticisms of officers who were present at Kokaua’s death came after she found he died from a heart condition with multiple contributing factors, including the use of a Taser.
Kokaua, who had a lengthy history of mental health issues, had absconded from Royal Prince Alfred Hospital where he was an involuntary mental health patient in 2018. Three police officers who located him told the inquest he “launched” at them, before they used capsicum spray and Tasered him three times.
He lost consciousness shortly after and died.
During the inquest, counsel assisting the coroner, Kristina Stern, SC, recommended she consider “through legislative amendment if appropriate, to abrogating the right of involved officers from claiming the privilege against self-incrimination for the purposes of a critical incident or coronial investigation”.
The government has refused to commit to implementing the LECC’s seven recommendations. Catley said on Tuesday it was a “lengthy report that details five years of monitoring”.
“The government will carefully consider the recommendations before responding,” she said.
But the NSW Law Society urged the government to heed the LECC’s warnings, saying they would “improve community safety and could potentially save lives”.
“Improved and strengthened police training, more transparency and greater resourcing and involvement of mental health professionals in [NSW Police] interactions with affected individuals can only help resolve these incidents with reduced reliance on force or coercion,” president Cassandra Banks said.
On Tuesday, NSW Opposition Leader Mark Speakman called on the government to release body camera footage of Nowland’s Tasering and criticised Catley for being “missing in action so far as instilling public confidence in this process”.
“We know that there is an inquiry under way. But it’s important that there is transparency and accountability and confidence in the robustness of this process, and the timeliness of its outcome,” he said.
But Catley accused the opposition of politicising the event, saying the investigation had to run its course.
“Can I say that it was shocking, what we know to have happened? And I believe that it is the case that none of us in this place would want that to happen to anyone,” she said.
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