By Western Australia Corruption and Crime Commission

In the early hours of 12 October 2023, a 16-year-old First Nation's boy, Cleveland Keith Dodd - died in custody. He was found hanging from a damaged vent in the ceiling of his cell at Unit 18 in Casuarina Prison. Cleveland's death comes some 32 years after the conclusion of the Royal Commission into Aboriginal Deaths in Custody. The painful truth is that he is by no means the first Indigenous Australian to have died in custody in Western Australia since that time. The profound tragedy is that he is the first child. While the cause and manner of Cleveland's death have not yet been determined by the Coroner, the Commission is satisfied within its jurisdiction that Cleveland fixed a torn piece of t-shirt material to a damaged ceiling vent, the ligature point from which he was later found hanging. At 01:35 on 12 October 2023, Cleveland used his cell call to contact a Youth Custodial Officer to tell him of his intention to hang himself -shortly before doing so. Cleveland's final threat of self-harm was one of at least 17 threats of self-harm or self-harm attempts made by the young people detainees at Unit 18 in the 24 hours leading up to it. Why Cleveland was driven to self-harm is not an inquiry within the jurisdiction of the Commission. The question of how he was able to attempt to take his own life in a tightly controlled space - is. There are several bodies vested with statutory power to investigate the circumstances surrounding the death of a child in custody. That is for good reason. The death of a child in such circumstances deeply affects not only their family but the Western Australian community as a whole. Broader systemic and cultural issues within the Department of Justice (DOJ) may have contributed to this outcome. In his May 2023 Inspection of Banksia Hill Detention Centre and Unit 18, the Inspector of Custodial Services Mr Eamon Ryan found young people, staff, and a physical environment in acute crisis. In the almost 18 months leading up to his inspection, the rates of self-harm and attempted suicide among young people in custody were unprecedently high. Staffing was in terminal decline. These wider considerations may form part of the Coronial inquest into Cleveland's death or the inquiries of the other authorities. The Commission has a narrow but important jurisdiction. Until 2014 the Commission also had jurisdiction in respect of public officers who engage in conduct that constitutes or involves a breach of the trust placed in the public officer by reason of his or her office of employment as a public officer and could constitute a disciplinary offence providing reasonable grounds for termination of employment. In 2014 Parliament removed that jurisdiction from the Commission and vested it in the Public Sector Commission. Therefore, acts of neglect or misfeasance which do not disclose a possible offence of 2 or more years' imprisonment are outside the Commission's jurisdiction. The Commission is empowered to investigate serious misconduct. Serious misconduct is defined in the Corruption, Crime and Misconduct Act 2003 (CCM Act) s 4. To constitute serious misconduct under s 4(a) or (b), a public officer must have acted or failed to act corruptly. Corruption has been held to include conduct that involves moral impropriety in public administration, or some perversion of the proper performance of the duties of office.1 There was no evidence giving rise to a reasonable suspicion that any public officer had engaged in conduct of that kind. As a result, the Commission concentrated on investigating whether any public officer may have engaged in serious misconduct under s 4(c), by committing an offence punishable by 2 or more years' imprisonment while acting or purporting to act in his or her official capacity. The scope of the Commission's investigation was limited to forming opinions asto whether any public officer committed an offence punishable by 2 or more years' imprisonment. The purpose of the investigation was to determine whether any public officers engaged in conduct of that kind in the execution of their duties at Unit 18 at Casuarina Prison from 10 to 12 October 2023. On 12 October 2023, the DOJ notified the Commission of Cleveland's critical incident.2 After assessing the matter, on 20 October 2023 the Commission formed Operation Lowestoft to investigate. The same day, the Commission took the unusual step of making a public announcement in relation to the investigation, given the extensive reporting, public interest and the seriousness of the incident. On 2 November 2023, a member of Cleveland's family made a report directly to the Commission.3 The Commission's inquiry focused on the actions of the five DOJ Youth Custodial Officers (YCOs) and one nurse contracted to the DOJ who worked the night shift during which Cleveland self-harmed. A significant amount of CCTV footage and a large volume of records were obtained. Interviews with witnesses were conducted. The DOJ fully cooperated with the Commission's investigation. All five YCOs and the Nurse were examined under oath or affirmation between 29 January and 2 February 2023. Between 5 and 8 February 2023, the Unit Manager of the day shift at Unit 18 on 11 October 2023, the Superintendent of Unit 18, Mr Douglas Coyne, and the Deputy Commissioner for Women, Ms Christine Ginbey, who was at the time the Deputy Commissioner for Women and Young People, were examined under oath or affirmation. Having carefully weighed the benefits of public exposure and public awareness against the potential for prejudice or privacy infringements, the Commissioner did not determine that it was in the public interest to open those examinations to the public. Nonetheless, the Commission considered that there was a strong public interest in the Commission investigating the persons present at Unit 18 on 11 and 12 October 2023, and those who supervised them. Under their watch - a boy died. The Commission's mandate was to investigate and expose any possible serious misconduct by those who may have played a part in it. The criminal offences that the Commission's investigation centred around were those of the falsification of a record by a public officer contrary to the Criminal Code s 85, an act or omission causing bodily harm or danger under the Criminal Code s 304 (arising by way of a breach of the duty to provide the necessaries of life under the Criminal Code s 262) and failing to protect a child from harm pursuant to the Children and Community Services Act 2004 (CCS Act) s 101. The Commission analysed the information gathered by the investigation. The Commission assessed the evidence of all the witnesses who gave evidence. In the Commission's opinion each of the witnesses was genuinely affected by Cleveland's death. There were undoubtedly breaches of DOJ procedures and policies that occurred on the night of Cleveland's self-harm. There may have been conduct engaged in that constitutes misfeasance or misconduct of another kind described in the CCM Act s 4(d). That is a matter about which the Commission has no jurisdiction to form an opinion. While Cleveland's death is plainly a devastating outcome of the events that occurred between 10 and 12 October 2023, in the Commission's assessment, there is no evidence to suggest that the public officers involved committed an offence punishable by 2 or more years' imprisonment in the execution of their duties at Unit 18 during that time. Consequently, the Commission has formed no opinions of serious misconduct.   

Northbridge, WA: The Commission, 2024. 70p.