New South Wales police are fighting a request to hand over key documents to the police watchdog over the death of Krista Kach, who was fatally wounded by police after she was shot with a bean bag round.
Kach, 47, died after a 10-hour standoff with police in Newcastle in September in which she was Tasered by police twice and went into cardiac arrest after a bean bag round punctured her body and impacted her heart. Police claimed Kach had earlier threatened officers with an axe.
The Law Enforcement Conduct Commission (Lecc), which is overseeing the police investigations into Kach’s death, had requested the force’s manual on the use of “less-lethal” measures and personnel logs which recorded actions of police during the incident.
NSW police launched an appeal in the supreme court to stop it being compelled to produce the document in its entirety, arguing it contained sensitive information that was not relevant to the watchdog’s monitoring.
In a hearing on Thursday between the NSW commissioner for police and the attorney general of NSW, the force’s lawyer, David Hume, argued it should be up to the courts as to whether the public interest of not disclosing the force’s records outweighed the public interest of it being disclosed to the watchdog.
Hume argued the manual guiding the deployment of less-lethal measures spans beyond the use of the bean bag rounds and deals with other police tactics, including methods used by law-enforcement agencies overseas.
In resisting the request to also hand over personnel logs, Hume argued it contained the names of officers which could disclose their identities and “lead to reprisals”. However he conceded the police may be willing to hand over a redacted version.
Shortly after Kach died, her family released a statement that said what happened to their mother was “a disturbing and heartbreaking response by the police to a vulnerable person who had been told that she would soon be homeless”.
Hume said the force respected the public interest need for transparency, however he said there are legitimate concerns about the information being disclosed beyond the commission.
This included the force’s concerns that information could appear in a parliamentary report if passed to the state parliament.
“We did invite Lecc to undertake not to on-disclose the information to parliament and that was refused,” he said.
James Emmett SC, the council for the attorney general, argued the police’s objections were not legitimate.
“The Lecc is a body set up to carry on a degree of oversight … It is clearly equipped by parliament to make that judgment,” he said.
“Disclosure to the parliament does not necessarily lead to its publication. Parliament has control of the document from there.”
One of the three judges overseeing the case questioned how Lecc could oversee an investigation without all the relevant material.
“If the surveillance logs are telling the story of what’s been happening during the particular incident, siege or the like, I am struggling with how one could have a proper monitoring of that incident response without access to something like that,” the NSW court of appeal president, Julie Kathryn Ward, said.
Hume said the issues at play extended beyond this case.
“We see genuine public interest concerns, where say, an informer has given the police information on the basis that that will stay within a very small group of people, and then they later find out well actually there was a whole statutory regime where Lecc was able to get that information and then it came before parliament,” he said.
The judges have reserved their decision.
