Mother of four the first Aborigine to die in New South Wales custody in 16 years

Rebecca Maher

A 36-year-old Aboriginal mother of four has been found dead in an Australian police cell about five hours after police picked her up while she was walking home “drunk and disorderly” at night. Rebecca Maher’s family accuse police of failing to follow proper protocols. Ms Maher died in the Maitland police station at 6am on July 19, marking the first Aboriginal death in New South Wales police custody since 2000. Police picked her up at 12.45am that morning on the side of a road in the Hunter Valley town of Cessnock after witnesses reported her wandering there heavily intoxicated. The Wiradjuri woman was placed in a cell alone around 1am and checked on at 6am. No cause of death has yet been determined but newspapers say she had vomit around her mouth. 


The Aboriginal Legal Service NSW/ACT has accused police of failing to follow legal protocols that require them to notify the ALS as soon as an Indigenous person is taken into custody. The ALS was only notified of Ms Maher's death on August 12, 24 days later.


New South Wales has the only notification service in Australia making it mandatory for police to inform them if an Aboriginal person is detained. "We're very concerned there's been a procedural failure this time, and that we were not notified of Ms Maher's detainment," ALS chief executive Gary Oliver said.


If the police had used the system when they detained Ms Maher, she might not have died, Oliver said.


Family friend Kathy Malera-Bandjalan said Ms Maher's mother and siblings are devastated and demanding answers.


"How do you take someone into custody who's legally done nothing wrong, then detain them in a cell then they're dead in four hours?" she said. "She died in police custody, she was uncharged, she was put in a police cell, she was left to die, that is the reality of what we are facing here," she said.


"It's nothing that we're going to get over, it's nothing that her mother is ever going to be able to deal with in the short term, it's something that she's going to have to live with for the rest of her life and so are Rebecca's kids."


Ms Malera-Bandjalan read out a statement to a rally in Sydney earlier this month, questioning why Ms Maher was detained with no supervision.


"Without being charged with any crime, Rebecca was taken into police custody as she walked down a street," the statement said. "Police allege that she was intoxicated, but have given her family no other reason as to why Rebecca was detained.”


Ms Malera-Bandjalan said there were many questions for police to answer, including why they left it for six hours to tell Ms Maher's family about her death.


"I can tell you unequivocally that Rebecca's mother was not informed of Rebecca's passing in that police cell, she didn't even know that she was in that police cell, until the police came around at 12:30 the next day and informed her," she said.


Ms Malera-Bandjalan feared the police investigation would not be independent. "We don't want an investigation just by the police for the police, we want an investigation for Rebecca, for justice and independently," she said.


That fear was echoed by Greens MP David Shoebridge who said any investigation also needed to look at the issue more broadly.


"The Minister owes the people of NSW and particularly this woman's family an explanation of what went wrong so far as he can tell, and a very clear commitment that this will not happen again," he said.


Ms Malera-Bandjalan said she understood NSW Police Minister Troy Grant was limited in what he could say while an investigation was underway, but suggested he could do more.


"That does not stop a minister having a bit of compassion ... it's about how you treat other people and having compassion to actually pick up the phone at least to call Rebecca's mother," she said.


Mr Grant said Ms Maher's death was a terrible tragedy and he would do everything he could to ensure it was not repeated.


"We will find out ... through the inquest as to how and why this happened and to make sure that if there's any failings in notifications or processes those failings aren't repeated," he said.


The events leading up to Ms Maher's detention and the reasons for it under close scrutiny. Police said she was taken to the station because "police had concerns for her welfare".


Following a Royal Commission into Aboriginal Deaths in Custody in 1991, a recommendation was made to develop a protocol whereby an Aboriginal legal service is notified whenever an Aboriginal person is arrested or detained.


This requirement is law NSW. The ALS set up the Custody Notification Service, a 24/7 phone line, in 2000. Oliver said the CNS allows a lawyer to give the detainee legal advice and check they're OK. NSW Police have refused to confirm or deny whether anyone attempted to make contact with the CNS.


"Sometimes they're not OK, and the police and the lawyer organise for a health check, an ambulance, medication or whatever assistance is required to ensure the person in custody is safe.


"Even if a person is seen to be intoxicated, the police still ring us and let us know they've got a person in custody.


“It’s a good system with police and the ALS working together to make sure Aboriginal people in custody are provided with early legal advice, and are safe.


“We’re very concerned there’s been a procedural failure this time, and that we were not notified of Ms Maher’s detainment. We only received police confirmation of Ms Maher’s death in police cell custody on 12 August 2016.


“We will work closely with NSW police to ensure all checks and balances are occurring in every other police station across NSW and the Australian Capital Territory.”


It's not yet clear if police knew that Ms Maher was Indigenous but because she had previous criminal convictions she would have appeared in internal systems.


Initial media reports said there was no evidence of foul play or self-harm inside the cell. An autopsy would determine whether her intoxicated state contributed to her death, a local newspaper reported.


NSW Police and Minister for Police Troy Grant declined to comment, saying it is a matter for the Coroner.


"A critical incident investigation is underway with all information to be provided to the coroner. It would be inappropriate to comment further," a police spokesperson said in response to a media inquiry. Police launched a critical incident investigation immediately following Ms Maher’s death, which will also be examined by a coronial inquest, expected to start in Newcastle in October.


The custody notification service was one of the key recommendations of the 1991 Royal Commission into Aboriginal Deaths in Custody.


Costing just $500,000 per year, the service had previously been surviving off short grants from the Federal Attorney-General’s Department, and had at times raised its own funds.


The decision as to who should pick up the tab when that funding expired caused open bickering between state and federal Coalition members. It was eventually secured until mid-2019 when In December 2015 Indigenous affairs minister, Nigel Scullion, stepped in to provide federal funding for the CNS after the NSW state Liberal government refused to fund it. Scullion funded what he called a “critical service” that required ongoing support.


The CNS has been celebrated as a success by both sides of politics and is the only such service in Australia, a model lawyers and Indigenous campaigns in other states have sought to copy.


“In NSW we held our head with pride that we had a recommendation [from the royal commission] that meant so much and was enshrined in regulation,” Oliver said, adding that he was “shocked” the system had failed.


The royal commission into such deaths handed down its final report on 15 April 1991.


After finding 340 indigenous people had died in custody, the bulk of the royal commission’s 339 recommendations remain unimplemented or only partially implemented.


In some places laws have been introduced that directly contradict the recommendation that jail be the option of last resort for Indigenous people.


These include paperless arrest laws in the Northern Territory, which allow police to detain people for minor offences without charge and have been linked to at least one death in custody. In Western Australia laws imposing mandatory sentencing and jail for fine defaulters were strengthened by the current government, and Queensland explicitly removed the principle that detention should be the option of last resort for children.