Pre-inquest into Robert Malayta’s death hears of frantic final minutes

The dying words of a teen who perished in a river while fleeing police have been revealed as an inquest is set to examine the actions of officers involved in the pursuit.

The police search for Robert Malayta.

“Big bro, help” they were the last words expelled by a First Nations teenager before he perished in a treacherous river while fleeing from police after reluctantly going for a joy ride in a stolen car, a pre-inquest into his death has heard.

The body of Robert “Robbie” Malayta, 18, was discovered a day later on February 25, 2022, in the Ross River at the Riverway Precinct in Kirwan, Townsville.

He and his older brother, Shakur McLennan, had entered the heavily weeded river to flee from police, Brisbane Coroners Court heard on Tuesday.

Robert Malayta drowned in the Ross River while fleeing police.

He was just 18.

Just two weeks before his death Mr Malayta, who was a good swimmer according to family, had swum across the river with mates.

“I nearly died in the river, I was struggling … it was too hard,” he had told family.

The Coroners Court heard that in the early hours of February 24, 2022, police from Townsville’s Rapid Action Patrol saw two suspected stolen cars travelling at speed.

Counsel Assisting Carolyn McKeon said Mr McLennan, who was wanted on a warrant after his parole for wilful damage, four counts of stealing and three counts of unlawful use of a motor vehicle had been cancelled, was later seen driving one of those vehicles, a red Toyota.

Just after 2am he arrived at the home of Mr Malayta, who had been asleep but left with his older brother “after some convincing by Mr McLennan”.

The court heard that Mr McLennan, who later told police he was high on meth at the time, had stolen a packet of cigarettes and $100 from Mr Malayta’s mother Patricia McLennan while at the home.

Water police, police divers and SES crews searching the Ross River shortly after Robert Malayta vanished.

She later found a note written by Mr Malayta stating “Mum- gone with big bro to get your money back.”

The stolen red Toyota was spotted again by police on two occasions from 2.30am however the car was not intercepted or pursued, Ms McKeon said.

At 3.20am police were given approval to set up road spikes on Riverway Drive.

The Toyota drove over the spikes at 3.35am and three people were seen running from Riverway Drive onto Ross River Road.

Officers did not give chase and police tracking dogs were delayed due to an officer having covid.

The court heard the two men ran to a park that backed onto a river which they entered.

This was about three to four minutes after the stinging of their car, Ms McKeon said.

“It was all pretty quick, in the blink of an eye”,” Mr McLennan later told police, the court heard.

Aside from the delay with the Dog Squad, police efforts to locate the group were hampered by delays in obtaining council CCTV and the darkness, Ms McKeon said.

Robert Malayta, 18, drowned in the Ross River.

One officer told police on the other side of the river to shine torches into the water as he thought the men might try to swim across due to a police cordon that had been set up.

Mr McLennan, who was charged with unlawful use of a motor vehicle in relation to the allegedly stolen Toyota, told police he thought his little brother had just tried to follow him into the “creek”.

“I was like a good couple of metres ahead, he was singing out to me. I tried to get back to him. I couldn’t see him, y’know. And he was already under the water and took his last breath … he was singing out ‘big bro, I can’t breathe’,” Mr McLennan told police.

“I couldn’t see him. It was too dark and when I couldn’t hear him I was screaming out his name … I just thought he’d got out.

“As I was swimming too, I could see lots around my feet, I’m nearly drowning too. Like I was pretty hard to breathe and then I’m trying to swim back to him and I’m nearly going under. His last breath was like ‘Big bro, help’.”

Mr McLennan got out on the same side of the river.

At 4.26am a dog squad officer trying to track the men located clothing items floating on the river and radioed communications that they had possibly tried to swim across the river.

A torch was shone over the water by officers and nearby banks searched but the men were not sighted.

Ms McKeon said police swept other locations but did not get any tracks out of the water and the tracking dogs did not bark. Police conducted foot patrols of the cordoned area between 5.09am and 5.37am without sighting Mr McLennan or Mr Malayta. The incident was closed at 5.51am and police returned to their hub.

Robert Malayta vanished in the Ross River in February 2022.

The court heard that at 5.30am Mr McLennan called Ms McLennan to see if Mr Malayta was home.

“He said they spiked us. He said mum you’ve got to come down here, I don’t know where he is … we ran towards Riverway into the Ross River …. I don’t know if he’s okay,” she later told police.

The family was seen searching the river’s edge at around 7am. The family located money and cigarettes wrapped up in a bandana at the riverbank. Patricia later told police that at that point, she “knew he was gone”.

Ms McLennan called triple-0 at 5.46pm and attended Kirwan Station to report Mr Malayta missing.

Police commenced land searches of the park and river within hours of the report, Ms McKeon said.

A pair of slides were located where Mr Malayta was last seen.

At 9am the next day police divers entered the river and Mr Malayta’s body was eventually located floating up on the surface at 11.48am.

Ethical Standards Command was tasked to investigate police actions surrounding the incident and concluded that no misconduct or breach of discipline by police has been identified, Ms McKeon said.

Following an autopsy Mr Malayta’s cause of death was deemed to be drowning.

Ms McKeon proposed the inquest examine adequacy and appropriateness of the actions of police on February 24 and 25 and the investigation into the circumstances surrounding the death.

The one day inquest was set down for October in Townsville by State Coroner Terry Ryan.