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Aboriginal and Torres Strait Islander viewers are advised that this website contains the names and images of people who have passed
6
Definition of ‘death in custody’
That for the purpose of all recommendations relating to post-death investigations the definition of deaths should include at least the following categories:
a. The death wherever occurring of a person who is in prison custody or police custody or detention as a juvenile;
b. The death wherever occurring of a person whose death is caused or contributed to by traumatic injuries sustained or by lack of proper care while in such custody or detention;
c. The death wherever occurring of a person who dies or is fatally injured in the process of police or prison officers attempting to detain that person; and
d. The death wherever occurring of a person who dies or is fatally injured in the process of that person escaping or attempting to escape from prison custody or police custody or juvenile detention.
Aboriginal Justice Caucus Assessment
The intent of Recommendation 6 was to establish a comprehensive definition of ‘death in custody’ to ensure deaths that occur in a wide range of circumstances across the criminal legal system are reported by police and correctional authorities and subject to thorough coronial investigations.
Actions taken align with the intent of this recommendation as the definition of a ‘death in custody’ under the Coroners Act 2008 (Vic) has changed over time and covers the minimum categories outlined in Recommendation 6. However, the 2005 Review revealed the circumstances of Aboriginal deaths that occurred during incarceration or whilst a person was involved with custodial authorities, that did not fit within this definition and weren’t investigated in the same way.
That definition is no longer fit for purpose given when the recommendations were made and how long they've been in place. It's time that definition was revisited with a notation from the Victorian perspective that we now see it implies the following situations and whatever else.
(Lawrence Moser, Chairperson, Eastern Metro Regional Aboriginal Justice Advisory Committee (RAJAC).
Deaths in custody, as defined according to this recommendation, are subject to investigation under the Coroners Act 2008, the Coroners Court Practice Direction 6, and Victoria Police and Corrections policies. Cases that fall outside of this definition do occur and may be investigated by the Justice Assurance and Review Office and/or a coroner but are not formally recognised as deaths in custody. This may limit identification of contributing factors and impede efforts to prevent similar incidents. Falling outside this definition of a ‘death in custody’ are deaths that occur shortly after release from prison, police custody or courts, while under community-based supervision or suicides where police were in attendance based on welfare concerns.
We remain concerned that the current definition is too narrow and limits investigations, oversight and the ability to identify systemic failings. To strengthen prevention and accountability, we advocate for a broader approach in Victoria that requires the investigation of cases outside the existing definition. This could include re-examining deaths of people involved with the justice system that were not previously classified as ‘in custody’ and ensuring they are subject to full coronial investigations.
There's a lot of grey areas in there that we've got no way to investigate. At least if it’s notated in some way that we see that the definition covers these areas, for us as a mob that might enable us to get some more leverage whether that be through the Attorney General or through Caucus and RAJAC meetings and whatever else.
(Lawrence Moser, Chairperson, Eastern Metro RAJAC).
Priority for Further Work:
High
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
Amend the Coroners Act 2008
Change the definition of a ‘death in custody’ and/or legislative provisions so that all deaths that occur where an individual has recently been or is currently involved with the criminal legal system, are thoroughly investigated. Ensure deaths that occur in such circumstances are subject to coronial inquests.
Re-examine past cases
Reassess past cases that were not recognised as Aboriginal deaths in custody to ensure they receive thorough scrutiny from a coroner.
Justice Assurance and Review Office to review deaths where Corrections Victoria were involved
Justice Assurance and Review Office to review and record deaths that occur when the deceased was under corrections supervision or soon after release from prison. JARO to update guidance for these reviews with Aboriginal input to ensure they align with community expectations.
Background
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) called for a broad and inclusive definition of what counts as a death in custody. It stressed that public interest should take priority over narrow legal arguments about whether someone was technically ‘in custody.’ The Commission recommended that all deaths connected to the actions of police or custodial authorities—whether during detention, while being arrested, due to injuries or neglect while in custody, or during escape attempts—should be thoroughly investigated.
Actions Taken Since Last Review
Coroners Court of Victoria
The State Coroner issued Practice Direction 6 of 2020 – Indigenous Deaths in Custody (Practice Direction 6) which acknowledged that, despite the RCIADIC recommendations being delivered over 30 years ago, there was still considerable work to be done to improve the investigation of Aboriginal deaths in custody.
The Coroners Court is committed to fully implementing the RCIADIC recommendations as they relate to coronial processes and recognises the importance of maintaining cultural appropriateness at every stage of the investigation into an Indigenous death in custody, particularly in ensuring that the impact of the work of the Coroners Court on Indigenous families does not perpetuate cycles of grief and loss.
Under the Coroners Act 2008 (Vic) a coroner must investigate any reportable death that occurred in Victoria, including the death of a person who immediately before death was a person placed in custody or care. Elements of the definition of a ‘person placed in custody’ that most closely align with those in Recommendation 6 include:
- a person in the legal custody of the Secretary to the Department of Justice or the Chief Commissioner of Police
- a person in the custody of a police officer or a protective services officer
- a person who a police officer or prison officer is attempting to take into custody or who is dying from injuries sustained when a police officer or prison officer attempted to take the person into custody
- a person in Victoria who is dying from an injury incurred while in the custody of the State.
Impact
Outputs
The categories outlined in Recommendation 6 are largely reflected in the Coroners Act 2008 (Vic) definition of a ‘person in custody or care.’ While the Act does not explicitly refer to deaths that occur ‘in the process of that person escaping or attempting to escape’ from custody, deaths in such circumstances would most likely be ‘reportable’ under the Act on the basis that they were ‘unexpected’, ‘resulted directly or indirectly from an accident or injury’ or involved the ‘ death of a person who immediately before death was a person placed in custody or care’.
Outcomes
Practice Direction 6 specifically addresses Aboriginal deaths in custody. It provides directions regarding cultural considerations and standards in the investigation of deaths of Aboriginal people in custody in Victoria based on the provisions in the Coroners Act 2008 (Vic).
The Coroners Court intend for Practice Direction 6 to be relevant to the coronial processes relating to all reportable deaths of Aboriginal people that fall under the Act which includes all of those outlined in Recommendation 6.
Community Views
Aboriginal Justice Caucus
Concerns persist that the circumstances of some deaths, including those that occur shortly after release, while people are on community-based orders, or suicides in the presence of police, are not considered to be ‘a death in custody’ so are not investigated as thoroughly as those that do meet the definition. This limits the information available to families about the circumstances that led to the passing of their loved one, and reduced opportunities to prevent future deaths in similar circumstances. The Aboriginal Justice Caucus (AJC) and Victorian Aboriginal Legal Service continue to advocate for legislative and procedural reforms to expand the definition and ensure that all relevant deaths are investigated thoroughly.
Aboriginal Justice Caucus
The AJC expressed concerns regarding the 2024 passing of an Aboriginal man on a corrections order. As he was in community rather than custody, his passing was not treated as a ‘death in custody’ and so a coronial inquest was not automatically required under the Coroners Act 2008 (Vic). The AJC were concerned that issues raised by his passing in relation to the adequacy of mental health assessments and support within the custodial and court systems, would not be properly investigated. The AJC continue to advocate for changes to the definition of a ‘death in custody’ and/or legislation so that all deaths that occur where an individual has recently been or is currently involved with the criminal legal system, are thoroughly investigated.