Independent inquiry the only way for police killing

As published in the Sydney Morning Herald As the State Coroner, Mary Jerram, begins her inquest into the death of the Brazilian student Roberto Curti, we need to ask ourselves if the investigation into his death was flawed from the outset.

Mr Curti died in March after he was chased by 11 police officers and tasered a number of times, after he allegedly stole two packets of biscuits from a convenience store.

The use of tasers by police will no doubt be scrutinised in the inquest. Mr Curti's death has rightly raised questions about the safety claimed to be inherent in the use of tasers, and highlighted the need for greater regulation and monitoring of their use.

However, there is broader question raised by his death that is unlikely to be considered by the coroner: the adequacy of NSW Police's investigation. Like all police-related deaths, Mr Curti's was investigated by fellow police officers, rather than an independent body.

In this case, the NSW Police's critical incident team conducted the primary investigation and prepared a brief of evidence for the coroner to consider in the inquest.

Imagine the outcry if employers investigated deaths in their workplace, or if a rugby club was left to investigate if its players should be suspended for on-field incidents?

The risk of collusion would be real, the investigations would lack transparency and legitimacy and there would be a decline in accountability. Yet this is the situation that prevails in relation to police-related deaths.

The conflict is clear. The investigators charged with responsibility for the investigation of a serious public matters are members of the same organisation under scrutiny, with the potential for bias in favour of their fellow officers. Oversight by the Ombudsman, or an audit of the investigation by the Police Integrity Commission or another body does not cure the lack of independence of this initial investigation.

The deficiencies in police investigations were starkly highlighted in the PIC's recent inquiry into the failed investigation into the death of Adam Salter, a mentally ill young man who was shot dead by police.

The inquiry, in which NSW Police members were accused of lying to protect their colleagues, was commissioned after a coroner found the police investigation was "deeply flawed". Key criticisms included the coaching of police suspects by police investigators and omissions of "basic tests" in the collection of forensic evidence.

The Salter inquest was not the first time a coroner has questioned the quality and independence of police investigations of police-related deaths, adding to the case for reform.

Not only would independent investigations be the common sense approach, human rights law and international best practice require that investigations at the hands of the state be conducted by a body that is fully independent of the police. This body must be "culturally", as well as formally, independent. It would not be genuinely independent if it employed a significant number of former police officers who still culturally identified as police, due to the risk that they would be sceptical of complainants and 'softer' on the officers under investigation.

Independent models operate successfully in Canada, New Zealand and Britain. Queensland's Crime and Misconduct Commission now has primary responsibility for investigating deaths in custody. An independent model not only satisfies the public interest by ensuring that justice is served; it also helps police members to be absolved, where appropriate, by a system that is regarded as fair and legitimate, not tarnished and tainted.

With seven deaths at the hands of police in Australia so far in 2012 and a police shooting in Redfern only weeks ago, it is imperative that action is taken to restore public confidence in police investigation processes.

Following Mr Curti's death, his uncle said: "I expect everybody who's going to deal with this incident with Roberto to demonstrate that they can be trusted, to demonstrate that they have integrity and to demonstrate that they are fair.''

Integrity and fairness are what we would all expect if we experienced the death of a loved one at the hands of police. However, while the investigation of these deaths remains in the hands of those responsible, our system will continue to fail this basic test, and fail the victims' families, too.

Anna Brown is the Director of Advocacy and Strategic Litigation with the Human Rights Law Centre, which was a party to the coronial inquest into the police shooting of Victorian teenager, Tyler Cassidy, in 2008.