Outside a St Vincent de Paul charity store in the southern NSW town of Cooma on Thursday, a television news reporter stops a middle-aged man and asks for his opinion on the death, the night before, of 95-year-old great-grandmother Clare Nowland after she was allegedly Tasered by a police officer.
“I think it’s important that someone other than the police conducts the investigation,” he says matter-of-factly as reporters shiver in the gathering afternoon chill.
“Police should not investigate themselves.”
Behind him, in the darkened window of the store where Nowland, a well-known and highly respected local once volunteered, a sign reads “closed in sympathy with the family of Clare Nowland on her passing”.
Across the road, reflected in the glass, is Cooma’s police station, where Senior Constable Kristian White, an officer with more than a decade of experience in the force, worked until last Wednesday, May 17.
Nowland’s death, a week after she was Tasered by White when he was called to the aged care home she lived at because she was holding a steak knife, has quickly become a grim flash point. The premier, Chris Minns, called it a “traumatic” moment. Police Commissioner Karen Webb, facing easily the most turbulent week of her tenure, has been forced to defend the decision to exclude mention of the Taser in a press release announcing the incident.
Nowland weighed 43 kilograms and suffered from dementia. She had approached White’s partner, sources say. A senior officer told reporters after the incident that she had been moving “slowly” and using a walking frame.
White was at home, in bed, when he was called back to work in the early hours of Wednesday morning for a job at the council-run aged care facility.
The NSW Ambulance had been called by staff to Yallambee Lodge where Nowland, a resident of five years whose dementia waxed and waned, had grabbed the knife.
Sources close to the investigation now say White was among those who confronted Nowland in a room and told her to stop, repeatedly, before the great-grandmother raised the knife and slowly moved toward White’s female partner.
White allegedly uttered “bugger it” as he deployed his Taser to stop Nowland advancing further. She fell and suffered serious head injuries.
Nowland’s case has shone a spotlight on a swath of policing issues, from the training of officers who deal with mental health issues, their presence in aged care homes and the use of Tasers by police.
But it has also returned focus on an issue that has long percolated among justice advocates and in the legal system: should police be investigating police, and who is in charge of overseeing them?
The critical incident investigation into Nowland’s death – the term used for when a person dies or is seriously injured during a police operation – is one of more than 90 on foot in NSW.
Another was declared on Thursday, when a man allegedly wielding multiple knives was shot and killed by police in Willoughby on Sydney’s north shore.
In NSW, the investigations are handled by police from outside the local area of the officers involved, a measure introduced to reduce conflicts of interest. But the investigations have long been criticised by those who do not trust a famously parochial organisation to investigate itself.
As the high-profile Sydney lawyer Peter O’Brien, who specialises in civil cases against the police, told the , it has been “historically, a pointless method of police investigation”.
“Since time immemorial it has been a thoroughly ineffective, unaccountable and unsound means of keeping the police accountable, for obvious reasons, and there are any number of examples to show that,” he said.
In 2017, a review of critical incident investigations found a “worryingly low rate of compliance” with rules governing those probes, including the officers involved being separated from one another less than half of the time as required.
Several coronial investigations have pointed to issues with police-led inquiries. Often officers refuse to cooperate at all because, unlike coronial inquiries, they cannot receive immunity from prosecution. This week a report from the police oversight body, the NSW Law Enforcement Conduct Commission, revealed cases where officers had refused to co-operate for between 19 and 24 months.
Nowland’s case has also raised serious questions about resourcing, both for the police and, in the wake of a royal commission, aged care homes. In 2019 Yallambee Lodge received a $4 million federal government grant to improve its dementia care. Its dementia facilities have yet to be completed. There are no flowers outside the low-slung brick building, no mark of what occurred inside a week ago.
As Webb herself said in an interview with the this week, responding to incidents involving dementia patients was not “a police officer’s core business, but we’ve been called there”.
“People with dementia do require particular care and attention and understanding,” she said.
Sources within NSW Police, some who know White, shared wide-ranging frustrations about the gaps police were expected to fill while battling their own staffing shortfalls.
“All too often police are used as a bandaid for a broken mental health system,” one officer said, speaking on the condition of anonymity.
“In bygone years a station constable who took that call would have told the nursing home staff to deal with that situation themselves.”
Another senior officer said high-ranking police, inspectors and above, provided a vital lifeline for officers facing complex or fraught situations, but were thin on the ground late at night.
They doubted White would have had many such senior voices to call on when he was summoned to Yallambee Lodge.
“Kristian White the individual may have tasered [Mrs Nowland], but the system allowed it to happen, or failed to stop it,” the police source said.
Nowland’s case has also reignited debate about the use of Tasers in NSW.
Introduced in 2002 as a measure to limit the use of deadly force, Australian Institute of Criminology data shows that, if anything, the number of deaths by shootings have gone up. There have also been several high-profile deaths following their use, most notably Brazilian national Roberto Curti, who died in 2012 after he was Tasered 14 times in what the coroner called “ungoverned, excessive police use of force”.
But anecdotally, civil courts regularly come across claims against police for alleged misuse of Tasers. In 2020, a man with a neurological spinal injury was rushing to catch a train at Blacktown, on his way to a medical appointment.
He was stopped by police checking Opal cards and, court documents obtained by the show, said to one of the officers: “No worries mate just walk with me.”
Details of the claim, later settled out of the court, state that after walking a short distance and trying to pull his wallet out of his pocket, one of the police involved grabbed him by the sleeve.
The man told an officer “not to touch him”, and dropped the wallet. Two police then grabbed him, used capsicum spray, and Tasered him. His Opal card was later found to have a balance of $34.73.
Despite a senior officer later logging an internal document that said the use of the Taser was not justified, the man was charged with resisting police and assaulting police, and failing to produce a ticket for inspection. The charges were later thrown out of court.
But more than anything, it is the oversight of the investigations which has come under the microscope this week.
Set up in 2017 to replace three bodies – the former Police Integrity Commission, the Inspector of the NSW Crime Commission and the policing division of the NSW Ombudsman – the LECC enjoys significant coercive powers and has held a series of public inquiries and reviews into police powers, including over the use of strip searches by officers.
It is examining whether officers used excessive force on a 14-year-old Aboriginal boy who was left with a head injury after an interaction with officers in regional NSW.
But it has also, from its outset, faced funding issues, and in 2019 revealed it only had the resources to investigate about 2 per cent of the complaints it received that year.
“We are, so to speak, drinking from a fire hose,” then chief commissioner Michael Adams QC wrote at the time.
Since then, the volume of complaints to the LECC has only risen. In its most recent annual report, it noted a 52 per cent increase of complaints from the year before, and a 100 per cent increase from three years earlier.
This week Minns cited the LECC’s presence as giving “a measure of confidence to the public” the police investigation into Nowland’s Tasering would be well-handled. But on the same day, the LECC released a report detailing its own experience handling five years worth of critical incident investigations.
It was not wholly complimentary. Some of its own powers, including the ability to sit in on the interviews with officers subject to investigation were “illusory”.
Almost half of the 157 critical incident investigations over the past five years involved people experiencing a mental health crisis. But the LECC said police training for such situations was “currently extremely limited”.
O’Brien believes that under the LECC “more often than not, the police are left to investigate themselves under their own purview”.
“In the space of five or six years [since the LECC was founded] working on cases against police my experience is that the LECC has reduced its scope and has increased the amount of cases being dealt with by police,” he said.
Lea Drake, a lawyer with decades of experience in criminal and industrial matters, joined the LECC in 2017 as one of its inaugural commissioners, leading a series of investigations for the agency. That five-year period lifted her opinion of the NSW police, not lowered it, despite dealing with “some very bad conduct”.
“I did a lot of defence work involving young people. I didn’t have a bad view of the police, but it was not always good. But the more work I did at LECC the better view I formed, which sounds a bit odd because I came across some very poor conduct,” she said.
“But the co-operation I saw from senior police and also young officers who reported poor conduct, it was indicative of a change from the bad old days.”
Drake by and large believes the LECC has done a good job, but, she said, there were issues. One, for example, was the serious delays to critical incident probes because they were paused when criminal or coronial investigations were launched. That includes Nowland’s, following the charges laid against White.
That means they can be time-consuming affairs. This week the revealed one investigation is still ongoing despite dating back to 2017. Several others from 2018 and 2019 are yet to be resolved. Webb said this week the delays were because cases were “currently either in the criminal courts or before the coroner”.
Drake said one solution was to give matters subject to a critical incident investigation priority in the coroner’s court, “particularly when it involves black deaths in custody”.
“Delays to those matters inhibit the concept of justice and frankness, and removing them also helps remove the suggestion of a cover-up,” she said.
Most crucially though, was her belief the LECC should be able to intervene in those critical incident investigations, as it can with other matters to do with police misconduct.
“The LECC cannot complete or in fact do an investigation until the police have finished theirs. We had to wait. I always thought that inhibits the process and slows things down,” she said. “I never understood it.”
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