Bean bag gun death: police must hand documents over to watchdog

Krista Kach, 47, died following a 10-hour stand-off with officers in Stockton in September 2023 after a bean bag round fired by police punctured her body and impacted her heart.

The Law Enforcement Conduct Commission (LECC), which monitors all NSW Police investigations into so-called critical incidents, requested to view the force's manual which guides the use of "less lethal" measures.

The NSW Police Force on Wednesday was denied an application in the NSW Court of Appeal that would have stopped it being compelled to produce the document in its entirety.

Police argued the manual contained sensitive information not relevant to the watchdog's probe.

The "less lethal" manual addressed more than the use of the bean bag rounds and dealt with police tactics and methodologies more generally, including those used by law-enforcement agencies overseas, the NSW Supreme Court heard previously.

Police were also fighting an order to hand over logs documenting police actions in siege or hostage situations.

NSW Police counsel David Hume argued contained the names of operatives and could "lead to reprisals".

Mr Hume argued public interest immunity should apply to parts of documents for which there was an overriding reason against disclosure.

But a panel of three in the NSW Court of Appeal rejected the police argument, deeming the legislated requirement for independent oversight and real-time monitoring by the commission took precedence.

Justice Julie Ward said it would make "a nonsense" of the watchdog's role if it was not provided with all the relevant material.

"The requirement for 'real time' monitoring of a critical incident investigation and the need for LECC to provide advice as to whether there has been full and proper investigation in compliance with relevant policies and practices mean that LECC must ... have access to all relevant documents," she said.

"I would have hoped that by way of reasonable cooperation between the [NSW Police] and the LECC an accommodation could be reached as to how any such disclosure could be suitably anonymised or worded ... so as not to give rise to the [NSW Police's] legitimate concerns without precluding the LECC from performing its reporting functions."

Justice Ward noted the parties could have been expected to reach a solution between themselves before bringing the matter to court, such as agreeing that only sections of the material relevant to the investigation were produced.

Instead, she said both sides appeared to have adopted a "blanket position".

The NSW attorney-general was the "respondent" in the matter and his barrister, James Emmett SC, argued the commission should be able to see everything investigating police could view.

One of the concerns held by police was that the commission could pass on the information to state parliament, allowing the material to make its way into a parliamentary report or similar public disclosure.

Mr Hume previously told the court the commission had been asked not to disclose the information to parliament and that request had been refused.

A critical incident investigation was launched after Ms Kach died in Stockton during a police operation on September 14, and the LECC is monitoring that investigation.

The death of Ms Kach sent shockwaves through the tight-knit Stockton community, and raised questions about police tactics and responses to mental health incidents.

NSW Police announced the use of bean bag guns would be temporarily suspended after the fatality.

Ms Kach's children released a public statement last year which said their mother was unwell and the police response had been distressing and heartbreaking.

Police were first called to the Queen Street unit complex at about 12.30pm after reports a woman was armed with an axe and barricaded herself in a unit. Police gained entry to the property at about 9.45pm.

- Australian Associated Press